The opinion of the court was delivered by: Telesca, Chief Judge.
On July 5, 1984, Monroe financed the Catalanos' purchase of the
property in exchange for a $65,000 mortgage. In the summer of
1988, the United States seized the property and subsequently
brought an action in this Court to forfeit the property pursuant
to 21 U.S.C. § 881(a)(7). Upon being served with a summons
and complaint in the forfeiture action, Monroe filed a claim with
the United States based upon its mortgage lien against the
property. Thereafter, the United States and Monroe entered into
a written stipulation which provides in pertinent part:
2. United States of America recognizes [Monroe's
mortgage] lien against the subject premises as
superior to all and any claims of the United States
3. [Monroe] . . . elects to permit said forfeiture
action to proceed to judgment with the understanding
that should the United States of America prevail in
this forfeiture, the [Catalanos'] property is to be
disposed of by the United States Marshal's Service
. . . To the extent that said sale does not result in
a sum sufficient to pay any and all of . . .
[Monroe's mortgage] lien, the lien shall continue to
remain a first and superior lien in all respects to
the claims of the United States of America . . .
6. Upon full payment of said mortgage as provided in
paragraph 3 above, . . . [Monroe] acknowledges that
all their right, title and interest in . . . [the
Catalanos'] property is thereby extinguished . . . It
is further agreed that if an order of forfeiture is
granted in this action, it will expressly provide for
full payment of . . . [Monroe's mortgage] as set
Stipulation and Order of Nov. 4, 1988 (No. 89-203T).
Soon after the United States commenced this forfeiture
proceeding, the Catalanos defaulted on their mortgage. Since no
attempt was made to cure the default, and since the United States
had asserted a claim against the property, Monroe commenced this
foreclosure action pursuant to 28 U.S.C. § 2409a. Although
the defendants do not contest the validity of Monroe's mortgage,
they do dispute the bank's right to foreclose. The Government
additionally claims that this Court lacks jurisdiction to
entertain this motion with respect to the Government's interest.
Given its threshold nature, I will consider the Government's
jurisdictional objection first.
Sections 1346(f) and 2409a of Title 28 grant the district
courts original jurisdiction over civil actions to quiet title to
real property in which the United States claims an interest.
Taken together, these provisions "cast a wide jurisdictional
net" and extend to a "variety of suits besides the typical quiet
title action," United States v. Bedford Associates,
657 F.2d 1300, 1316 (2nd Cir. 1981), cert. denied,
456 U.S. 914, 102 S.Ct. 1767, 72 L.Ed.2d 173 (1982), including those
involving simultaneous forfeiture and foreclosure proceedings,
United States v. Real Property in Sevier Cty., Tenn.,
703 F. Supp. 1306 (E.D.Tenn. 1988); United States v. Real
Property Titled in the Name of Shashin, Ltd., 680 F. Supp. 332
(D.Haw. 1987) (hereinafter "Shashin"). Indeed, as
the Second Circuit held in Bedford Associates, §
2409a (and § 1346(f)) confer jurisdiction over property
interests asserted by the United States whenever, as is the case
here, that interest is "adverse" to that of the plaintiff. 657
F.2d at 1316. Accordingly, the Government's interest is properly
the subject of this court's jurisdiction.
Summary Judgment with Respect to the Catalanos
By its own terms, Monroe's mortgage provides that it may
foreclose on the property in the event of default. While the
Catalanos admit that they have failed to make any payments since
August 1988, they claim that they were relieved of their mortgage
obligation when the Government wrongfully seized the
property.*fn1 I find such a defense to be without merit.
It is well settled in New York that a mortgagee cannot be
denied relief provided for under a mortgage because of conditions
or circumstances not attributable to the mortgagee. "[A]
mortgagor is bound by the terms of his contract as made and
cannot be relieved from his default, if one exists, in the
absence of waiver by the mortgagee, or estoppel, or bad
faith, broad, oppressive or unconscionable conduct on the
latter's part." Nassau Trust Co. v. Montrose Concrete
Products Corp., 56 N.Y.2d 175, 183, 451 N.Y.S.2d 663,
436 N.E.2d 1265 (1982) (emphasis added) (quoting Ferlazzo v.
Riley, 278 N.Y. 289, 292, 16 N.E.2d 286 (1938)); see
also Gratton v. Dido Realty Co., Inc., 89 Misc.2d 401, 403,
391 N.Y.S.2d 954 (1977), aff'd, 63 A.D.2d 959, 405
N YS.2d 1001 (1978) (in the absence of an estoppel or oppressive
and unconscionable acts by plaintiff, the Court is duty bound to
enforce the mortgage as written by the parties). Although these
conditions will relieve the mortgagor from default, each requires
some provisional language in the mortgage ...