Fremont Investment & Loan v. Kinlaw

Appellate Division of the Supreme Court of New York

Fremont Investment & Loan v. Kinlaw

15 A.D.3d 345, 790 N.Y.S.2d 156, 2005 N.Y. App. Div. LEXIS 1400

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 7, 2005

StatusPublished

Cited by4 cases

This text of 15 A.D.3d 345 (Fremont Investment & Loan v. Kinlaw) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fremont Investment & Loan v. Kinlaw, 15 A.D.3d 345, 790 N.Y.S.2d 156, 2005 N.Y. App. Div. LEXIS 1400 (N.Y. Ct. App. 2005).

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Opinion

In an action to foreclose a mortgage, Omni Ventures, Inc., as assignee of the purchase money second mortgage of the defendants Reginald Spinello and Edward J. Bogan, appeals from an order of the Supreme Court, Suffolk County (Mullen, J.), dated April 19, 2004, which, in effect, denied its motion, inter alia, to reject the Referee’s report dated March 5, 2004, recommending that the surplus money from the sale of the property be distributed to the defendant Earl Kinlaw and that the fees of Andrew W. Lawrence, the Referee, in the amount of $1,450 be approved, and confirmed the report.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the Referee’s report is rejected, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine the amount of surplus money due to Omni Ventures, Inc., and to direct the Suffolk County Treasurer to distribute the surplus money in accordance herewith.

“Surplus money . . . stands in the place of the land for all purposes of distribution among persons having vested interests or liens upon the land” (Shankman v Horoshko, 291 AD2d 441, 442 [2002], quoting Roosevelt Sav. Bank v Goldberg, 118 Misc 2d 220, 221 [1983]). Contrary to the Referee’s conclusion, Omni Ventures, Inc. (hereinafter Omni), as assignee of the purchase money second mortgage of the defendants Reginald Spinello and Edward J. Bogan, which was duly recorded, was entitled to have the surplus applied towards elimination of its subordinate lien upon a showing of the unpaid amount (see Real Property Actions and Proceedings Law § 1361; Shankman v Horoshko, [346]*346supra at 442; Citibank v Schroeder, 266 AD2d 332 [1999]; Federal Home Loan Mtge. Corp. v Grant, 224 AD2d 656 [1996]). Since Omni was the sole claimant, any remaining amount, less the administrative charges of the Suffolk County Treasurer and the approved fees of the Referee, reverts to the mortgagor, the defendant Earl Kinlaw. Florio, J.P., Adams, S. Miller and Goldstein, JJ., concur.

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In an action to foreclose a mortgage, Omni Ventures, Inc., as assignee of the purchase money second mortgage of the defendants Reginald Spinello and Edward J. Bogan, appeals from an order of the Supreme Court, Suffolk County (Mullen, J.), dated April 19, 2004, which, in effect, denied its motion, inter alia, to reject the Referee’s report dated March 5, 2004, recommending that the surplus money from the sale of the property be distributed to the defendant Earl Kinlaw and that the fees of Andrew W. Lawrence, the Referee, in the amount of $1,450 be approved, and confirmed the report.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the Referee’s report is rejected, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine the amount of surplus money due to Omni Ventures, Inc., and to direct the Suffolk County Treasurer to distribute the surplus money in accordance herewith.

“Surplus money . . . stands in the place of the land for all purposes of distribution among persons having vested interests or liens upon the land” (Shankman v Horoshko, 291 AD2d 441, 442 [2002], quoting Roosevelt Sav. Bank v Goldberg, 118 Misc 2d 220, 221 [1983]). Contrary to the Referee’s conclusion, Omni Ventures, Inc. (hereinafter Omni), as assignee of the purchase money second mortgage of the defendants Reginald Spinello and Edward J. Bogan, which was duly recorded, was entitled to have the surplus applied towards elimination of its subordinate lien upon a showing of the unpaid amount (see Real Property Actions and Proceedings Law § 1361; Shankman v Horoshko, [346]*346supra at 442; Citibank v Schroeder, 266 AD2d 332 [1999]; Federal Home Loan Mtge. Corp. v Grant, 224 AD2d 656 [1996]). Since Omni was the sole claimant, any remaining amount, less the administrative charges of the Suffolk County Treasurer and the approved fees of the Referee, reverts to the mortgagor, the defendant Earl Kinlaw. Florio, J.P., Adams, S. Miller and Goldstein, JJ., concur.

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Bluebook (online)

15 A.D.3d 345, 790 N.Y.S.2d 156, 2005 N.Y. App. Div. LEXIS 1400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fremont-investment-loan-v-kinlaw-nyappdiv-2005.

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