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Real Property Law
Deference to Trial Court's Determination on Mortgage Priority
Miller v. Stilwell Road, Inc., NYLJ 4/6/22, p. 22, col. 4, AppDiv, Second Dept. (memorandum opinion)
In an action to foreclose a mortgage, junior lender appealed from Supreme Court's judgment of foreclosure and declaration, after a nonjury trial, that the junior lender was subordinate to the first mortgage. The Appellate Division affirmed, holding that Supreme Court's credibility determinations were entitled to deference.
SRI borrowed $300,000 from junior lender in July 2008. The loan agreement required SRI to acquire the subject premises, to build a residential home for sale on the premises, and to pay junior lender the loan principal plus 25% of the net profit of any sale. Sale of the premises required junior lender's consent, but the agreement permitted SRI to mortgage or otherwise encumber the property. On April 18, 2017, junior lender filed a UCC-1 financing statement.
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