| ABN AMRO Mtge. Group, Inc. v Stephens |
| 2012 NY Slip Op 00477 [91 AD3d 801] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| ABN AMRO Mortgage Group, Inc., Appellant, v KayannStephens et al., Respondents. |
—[*1] Miller, Rosado & Algios, LLP, Mineola, N.Y. (Neil A. Miller of counsel), forrespondents.
In an action pursuant to RPAPL article 15, inter alia, to determine claims to real property, theplaintiff appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated August11, 2010, which denied its motion for summary judgment on the complaint and dismissing thecounterclaims.
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion for summaryjudgment on the complaint and dismissing the counterclaims is granted, and the matter isremitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaringthat the power of attorney purportedly granted by Sally Mandeville to Bertram Brown is aforgery, that the defendants' interests in the subject property are null and void, and that theplaintiff's mortgage is valid.
On August 29, 2005, a power of attorney was recorded in the Office of the City Register ofthe City of New York, in and for the County of Kings (hereinafter the City Register), purportingto authorize Bertram Brown to sell a parcel of real property on behalf of "Sally Manderville"(hereinafter the Brown power of attorney). On the same day, a deed was recorded with the CityRegister purporting to transfer the interest of "Sally Manderville" in the subject property toWestport Marketing, Inc. (hereinafter Westport). Westport's purported interest was transferred toHometech Building Corp. (hereinafter Hometech) by a deed recorded on November 18, 2005,and Hometech transferred its purported interest to the defendant Kayann Stephens by a deedrecorded on July 24, 2006. Stephens purportedly mortgaged the subject property to the defendantMortgage Lender's Network, USA, Inc. (hereinafter Mortgage Lender's). The plaintiff, ABNAMRO Mortgage Group, Inc., took a mortgage on the subject properly from another purportedowner, Rachida Allam.
The plaintiff commenced this action on November 30, 2006, pursuant to RPAPL article 15.The plaintiff's first and second causes of action sought a judgment declaring that the Brownpower of attorney was a forgery, that the defendants' interests in the property were null and [*2]void, and that its mortgage was valid pursuant to an unrecordedchain of title. The third cause of action sought cancellation of the defendants' deed and mortgage.In their answer to the complaint, the defendants asserted counterclaims alleging that thedefendant Stephens was the lawful owner of the subject premises and that the defendantMortgage Electronic Registration Systems, Inc., as nominee for Mortgage Lender's, held twovalid mortgages on the subject property.
The plaintiff moved for summary judgment on the complaint and dismissing the defendants'counterclaims. In support of the motion, the plaintiff submitted evidence that Sally Mandevillemoved from Brooklyn to South Carolina in February 2002, when she was approximately 77 yearsold, and was in an assisted care facility in South Carolina in December 2004, when the personpurporting to be "Sally Manderville" signed the Brown power of attorney in Brooklyn. Theplaintiff also submitted the affidavit of the notary public who acknowledged the Brown power ofattorney stating that the "Sally Manderville" who came into his office with Brown was a womanin her forties.
Concerning its own interest in the subject property, the plaintiff submitted a power ofattorney dated September 12, 2003, and signed by Sally Mandeville, which authorized Patrick A.Hallums Mitchell to act in her place, among other things, in real estate transactions. The power ofattorney was acknowledged by a notary public. The plaintiff additionally submitted a deed,signed by Mitchell as Mandeville's attorney-in-fact, conveying Mandeville's interest in thesubject property to Jolton Sanchez; a deed conveying Sanchez's interest to Rachida Allam; and amortgage from Allam to the plaintiff. All three documents were dated November 19, 2003, andwere acknowledged by a notary public, although none was recorded with the City Register.
In opposition to the motion, the defendants did not defend the validity of the Brown power ofattorney, but merely asserted that the plaintiff failed to establish the validity of its own interest inthe property. The Supreme Court denied the plaintiff's motion. We reverse.
If a signature on a power of attorney is forged, any document executed by the purportedattorney-in-fact pursuant to the power of attorney is void (see First Natl. Bank of Nev. v Williams, 74 AD3d 740, 741 [2010];Hoffman v Kraus, 260 AD2d 435, 436 [1999]). If a document purportedly conveying aproperty interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fideencumbrancer for value receives nothing (see First Natl. Bank of Nev. v Williams, 74AD3d at 741; LaSalle Bank Natl. Assn.v Ally, 39 AD3d 597, 600 [2007]; Karan v Hoskins, 22 AD3d 638, 639 [2005]; Public Adm'r ofKings County v Samerson, 298 AD2d 512, 513 [2002]; Yin Wu v Wu, 288 AD2d104, 105 [2001]; Kraker v Roll, 100 AD2d 424, 430 [1984]). "A deed based on forgeryor obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewiseinvalid" (Cruz v Cruz, 37 AD3d754, 754 [2007]; see First Natl. Bank of Nev. v Williams, 74 AD3d at 741; GMAC Mtge. Corp. v Chan, 56 AD3d521, 522 [2008]; Rosen v Rosen, 243 AD2d 618, 619 [1997]).
Here, the plaintiff established, prima facie, that the Brown power of attorney was a forgeryand, therefore, that the defendants' interests in the subject property were invalid. The defendantsfailed to raise a triable issue of fact in opposition (see generally Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
Although the plaintiff in an action to determine title pursuant to RPAPL article 15 "has anaffirmative duty to show that title lies in it, which is not satisfied merely by pointing toweaknesses in defendants' title" (Town of N. Hempstead v Bonner, 77 AD2d 567, 568[1980]; see O'Brien v Town ofHuntington, 66 AD3d 160, 165 [2009]; LaSala v Terstiege, 276 AD2d 529, 530[2000]; Bridgehampton Natl. Bank v Schaffner, 247 AD2d 351, 352 [1998]), contrary tothe defendants' assertion, the plaintiff here made such a showing. A certificate ofacknowledgment attached to an instrument such as a deed or a mortgage raises the presumptionof due execution, "which presumption . . . can be rebutted only after being weighedagainst any evidence adduced to show that the subject instrument was not duly executed"(Son Fong Lum v Antonelli, 102 AD2d 258, 260, 261 [1984], affd 64 NY2d1158 [1985]; see Moffett v Gerardi,75 AD3d 496, 498 [2010]; JohnDeere Ins. Co. v GBE/Alasia Corp., 57 AD3d 620, 621 [2008]; Olympus Servicing, L.P. v Lee, 56AD3d 537 [2008]; 39 Coll. PointCorp. v Transpac Capital Corp., 22 AD3d 663 [2005]; [*3]Elder vElder, 2 AD3d 671, 672 [2003]). The defendants failed to present any evidence to rebutthe presumption of due execution and, thus, failed to raise a triable issue of fact as to the validityof the plaintiff's mortgage or the underlying deeds.
Accordingly, the Supreme Court should have granted the plaintiff's motion for summaryjudgment on the complaint and dismissing the counterclaims. Since the first and second causes ofaction are for a declaratory judgment, we must remit the matter to the Supreme Court, KingsCounty, for the entry of a judgment, inter alia, declaring that the power of attorney purportedlygranted by Sally Mandeville to Bertram Brown is a forgery, that the defendants' interests in thesubject property are null and void, and that the plaintiff's mortgage is valid (see Lanza vWagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], certdenied 371 US 901 [1962]). Skelos, J.P., Hall, Lott and Cohen, JJ., concur.