| GMAC Mtge. Corp. v Chan |
| 2008 NY Slip Op 08705 [56 AD3d 521] |
| November 12, 2008 |
| Appellate Division, Second Department |
| GMAC Mortgage Corporation, Doing Business as DiTech.com,Appellant, v Robert Chan et al., Respondents, et al.,Defendants. |
—[*1] Soong & Liu, New York, N.Y. (Arthur J. Soong, Donald Eng, and Norman Lau Kee ofcounsel), for respondents Robert Chan, Roger Chan, and Elizabeth Chan.
In an action to foreclose a mortgage, the plaintiff appeals from so much of an order of theSupreme Court, Richmond County (Giacobbe, J.), dated September 25, 2007, as amendedSeptember 12, 2008, as denied its motion for summary judgment to foreclose on the interest heldby the estate of Raymond Chan in the subject property.
Ordered that the order, as amended, is affirmed insofar as appealed from, with costs.
The subject property was co-owned by three brothers. One of the brothers executed a deedconveying the premises to himself and one of the other brothers, obtained a loan from theplaintiff secured by a mortgage on the premises, subsequently filed for bankruptcy, and died. Therespondents, in defense of the foreclosure action brought by the plaintiff, alleged that theirsignatures on the underlying deed and mortgage were forged by their deceased brother and thatthe deed and mortgage are fraudulent and invalid.
A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgagebased on such a deed is likewise invalid (see Cruz v Cruz, 37 AD3d 754 [2007]; Crispino v GreenpointMtge. Corp., 304 AD2d 608 [2003]; Yin Wu v Wu, 288 AD2d 104 [2001];Rosen v Rosen, 243 AD2d 618 [1997]; Filowick v Long, 201 AD2d 893 [1994]).Thus, the Supreme Court correctly held that there are triable [*2]issues of fact as to the validity of both the deed and subjectmortgage and properly denied the plaintiff's motion for summary judgment. Spolzino, J.P., Ritter,Santucci and Carni, JJ., concur.