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Capital One, N.A. v. Karp

Supreme Court, Westchester County

June 22, 2017

Capital One, N.A., Plaintiff,
v.
Eileen Karp, Signature Bank, and "John Doe" and "Mary Doe", Defendants.

          For Capital One: McCarter & English Clement J. Farley, Esq. Eunjin Elissa Lee, Esq.

          For defendant Karp: Adam Seiden, Esq.

          Terry J. Ruderman, J.

         The following papers were considered in connection with the plaintiff's motion pursuant to CPLR 3212 and RPAPL 1321 for summary judgment, an order appointing a referee to compute, and other related relief:

         Papers Numbered

         Notice of Motion, Affirmation, Exhibits 1 - 15, Affidavit in Support, Exhibits A - J, and Affidavit in Support, Exhibits A - C, and Memorandum of Law in Support 1

         Affirmation in opposition, affidavit, memo of law 2

         Reply affirmation 3

         This foreclosure action requires this Court to consider the application of the venerable but rarely-used doctrine of equitable mortgages.

         Background

         Plaintiff seeks to foreclose on a consolidated mortgage encumbering the residential property located at 1411 Purchase Street in Purchase, New York. The mortgage secures indebtedness under three loans taken by defendant Eileen Karp in the total principal amount of $1, 500, 000.00. The first of those loans was made on December 16, 1991, when Karp executed a note and mortgage in favor of Apple Bank for Savings, in the principal loan amount of $500, 000, secured by the real property located at 1411 Purchase Street in Purchase, New York. Apple Bank then assigned the note and mortgage to Chemical Bank by assignment dated August 2, 1993, which in turn assigned the note and mortgage to GreenPoint Bank by assignment dated October 19, 1995.

         Karp then executed a second note and mortgage dated September 21, 1995 in connection with a loan by GreenPoint Bank in the principal amount of $500, 499.41, also secured by the 1411 Purchase Street property. The two mortgages were consolidated and modified so as to constitute a single lien in the amount of $1, 000, 000, by a consolidation, extension and modification agreement (CEMA), termed the first consolidated agreement, dated September 21, 1995.

         North Fork Bank, as successor by merger to GreenPoint Bank, assigned the consolidated note and mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Green Point Mortgage Funding, Inc., by assignment dated April 13, 2006.

         Also on April 13, 2006, Karp executed a new note, in favor of GreenPoint Mortgage Funding, Inc., by which she agreed to pay a new money loan in the original principal amount of $1, 069, 068.99, secured by a mortgage, collectively with the first and second mortgage, in favor of MERS as nominee for Green Point Mortgage Funding, encumbering 1411 Purchase Street. A second consolidation, extension and modification agreement, termed the second consolidated agreement, along with a new consolidated note and consolidated mortgage, were ...


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