Kluge v. Fugazy, 145 AD 2d 537 - NY: Appellate Div., 2nd Dept. 1988

Categorized | STOP FORECLOSURE FRAUD

Kluge v. Fugazy, 145 AD 2d 537 – NY: Appellate Div., 2nd Dept. 1988

Kluge v. Fugazy, 145 AD 2d 537 – NY: Appellate Div., 2nd Dept. 1988

This is a case you may not recognize but NY is very lucky to have.

Thank you for paving the way.

.

145 A.D.2d 537 (1988)

John W. Kluge, Respondent,
v.
William D. Fugazy et al., Appellants, et al., Defendants

Appellate Division of the Supreme Court of the State of New York, Second Department.
December 19, 1988

Mangano, J. P., Thompson, Brown and Kunzeman, JJ., concur.

Ordered that the order is reversed, on the law, with costs, and the motion is granted.

As the result of a series of financial transactions, the 538*538 plaintiff received an assignment of a mortgage as collateral security for a promise of indemnification. The underlying note was not assigned and was expressly excluded from transfer.

The plaintiff’s first and second causes of action for foreclosure and a deficiency judgment, respectively, must fail since foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity (Merritt v Bartholick, 36 N.Y. 44, 45; Flyer v Sullivan, 284 App Div 697, 698; Beak v Walts, 266 App Div 900; Manne v Carlson, 49 App Div 276, 278). Moreover, we find that the written agreement and assignment between the parties were clear and unambiguous. They indicate that no delivery of the underlying obligation was intended, and they were entered into by sophisticated, counseled businessmen (see, Chimart Assocs. v Paul, 66 N.Y.2d 570, 573; Nau v Vulcan Rail & Constr. Co., 286 N.Y. 188, 198-199, rearg denied 287 N.Y. 630). As a result, the plaintiff’s third cause of action, for specific performance, must fail.

© 2010-14 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.






Comments

comments

Related posts:

  1. This case might have put MERS in the SPOT LIGHT: MATTER OF MERSCORP, INC. v. Romaine, 295 AD 2d 431 – NY: Supreme Court, Appellate Div., 2nd Dept. 2002 295 A.D.2d 431 (2002) 743 N.Y.S.2d 562 In the Matter...
  2. The Conclusion…If we could only turn back time: IN THE MATTER OF MERSCORP, INC. v. Romaine, 2005 NY Slip Op 9728 – NY: Supreme Court, Appellate Div., 2nd Dept. 2005 If we can only turn back time! 2005 NY Slip...
  3. NO MENTION OF DEBT OR NOTE ON ASSIGNMENT, DISMISSED WITH PREJUDICE: WACHOVIA v. VARGAS NYSC SUPREME COURT – STATE OF NEW YORK TRIAL TERM. PART...
  4. IN ‘DEED’ | ROBO-SIGNER JEFFREY STEPHAN & MERS HAVE “PATTERN OF CONDUCT” HISTORY TOGETHER SUPREME COURT – STATE OF NEW YORK I.A.S. PART XXXVI...
  5. MAJOR WIN FOR HOMEOWNERS IN NJ SUPREME COURT; SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2634-08T2 We hold that a series of standardized agreements to cure...

This post was written by:

- who has written 7078 posts on FORECLOSURE FRAUD | by DinSFLA.

CONTROL FRAUD | ‘If you don’t look; you don’t find, Wherever you look; you will find’ -William Black

Contact the author

3 Responses to “Kluge v. Fugazy, 145 AD 2d 537 – NY: Appellate Div., 2nd Dept. 1988”

  1. Fanfaron says:

    I’ve been reading the mortgage brouhaha for several months now. My question: Just whom can be trusted as a mortgage lender right now? I am in a quandary!

Trackbacks/Pingbacks

  1. [...] This post was mentioned on Twitter by kim thomas, DinSFLA. DinSFLA said: Kluge v. Fugazy, 145 AD 2d 537 – NY: Appellate Div., 2nd Dept. 1988 http://goo.gl/fb/k2hFJ [...]

  2. [...] is a nullity and any action for foreclosure based on the ownership of the mortgage alone must fail (Kluge v Fugazy, 145 AD2d 537, 538 [2d Dept 1988]). This result is mandated because the mortgage is “but an incident to the debt [...]


Leave a Reply

GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Chip Parker, www.jaxlawcenter.com
Damian Figueroa, South Florida Realtor, Real Estate Agent
Jamie Ranney, www.NantucketLaw.pro

Advertise with Us!

LATEST TOP FORECLOSURE FRAUD CASES OPINIONS
Advertise your business on StopForeclosureFraud.com

Archives