Brauner v. Lamper
Brauner v. Lamper
Opinion of the Court
At issue, in this mortgage foreclosure action, is whether a true purchase money mortgage, executed simultaneously with a warranty deed, but delayed of recording in the public records, takes precedence over other subsequently executed mortgages which are, however, recorded first. We reverse the summary judgment entered in favor of the seller/purchase money mortgagee.
The purchase and sale agreement for this improved real estate called for a $410,-000 purchase price, to be paid at closing with $100,000 in cash and $310,000 by way of two purchase money mortgages executed by the buyer in favor of the seller. At closing, the deed and the two purchase money mortgages (labeled respectively as “first” and “second” mortgages) were simultaneously executed, but, for undis
The deed from the seller and the two purchase money mortgages in her favor were likewise depicted as having been recorded by Sun Coast Title, but, in addition, indicated that they had been prepared by it “as a necessary incident of the fulfillment of conditions contained in a title insurance commitment.” The twenty-three investment mortgages were all prepared by one Terri D’Addario, who is otherwise unidentified in the record except that she also is listed at the same address as the buyer corporation and the title company.
The buyer corporation has since filed for bankruptcy in federal court. One of the disputes in that forum concerns the priority of these various mortgages and the bankruptcy court has left it to our state court system to determine whether the second purchase money mortgage, executed in favor of the seller, has priority over the twenty-three investment mortgages executed by the buyer in favor of the investors. It is the resolution of that task which we now address, but find cannot be resolved by way of summary judgment.
We begin by noting that of the two purchase money mortgages, there is no question but that the first for $100,000 is superior to the twenty-three investors’ mortgages because it was executed and recorded on a prior date. However, the second of these two purchase money mortgages,
The seller argues that the above statute is not dispositive when a true
The actual holding of Van Eepoel was that the purchase money mortgagee in that case had not acted with diligence and was responsible for avoidable and unreasonable delays in recording. As a consequence, the Van Eepoel court held the purchase money mortgagee was estopped to assert his priority. (The delay in recording in Van Ee-poel was an “avoidable” five months.) Although there was no unreasonable, avoidable delay in recording the second purchase money mortgage directly attributable to the individual seller/purchase money mortgagee in the case sub judice,
This [investor] did not personally investigate the status of title, but such investigation was made by the title insurance company acting as agent on behalf of its [investor].
The record establishes that the seller and the twenty-three investors were all individually innocent of any deliberate wrongdoing in this matter. Any vicarious culpability on the part of the seller because her agent failed timely to record the second
Though undisputed that the title company was the agent of both the purchase money mortgagee and the twenty-three investors, the investors aver that the title company acted as their agent in an entirely separate transaction and that they are not, therefore, charged with notice of the state of the title at the time the twenty-three mortgages were executed, nor of the existence of the second purchase money mortgage executed on the day of the sale even though their agent knew of both of these matters. However, the record reflects that what transpired was a far cry from two unrelated transactions; according to the record, what took place has the appearance of a calculated mortgage scam perpetrated on both the seller and the mortgage investors. The deed, one of the purchase money mortgages and all twenty-three investor mortgages were recorded, sequentially, on the same day, covering the same real estate and processed by the same agent. Likewise the deed, both purchase money mortgages and nine of the twenty-three investment mortgages were executed on the same day as the closing and delivered to the same agent.
Based on the foregoing, we hold that there remain multiple fact issues which preclude the entry of a summary judgment. However, by so holding, we do not negate the possibility that the purchase money mortgagee may eventually triumph. Among the fact issues to be resolved, we list by way of example, but not exclusively:
1. What part did Terri D’Addario play in this matter? Was she the employee or agent of the buyer corporation or of the title company? If not, who paid her to prepare the twenty-three mortgages? Whose agent was she?
2. Are the nine investors, whose mortgages were executed on the same day as the closing, in a superior position to those investors whose mortgages were executed on subsequent days by reason of the language in the second purchase money mortgage which reads:
Subject to certain second mortgage(s)
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3. Why did the title company fail to record, immediately, the second purchase money mortgage and to what extent was it the agent of the buyer corporation or the mortgage investors? The investors*939 claim that the title company’s only connection with them was the simple task of actual recording of their twenty-three mortgages, but the recording sequence (see footnote 1), suggests it may have had a much greater part to play.
4. How did the relationship between the buyer corporation and the twenty-three investors come about?
We find no merit to any other point on appeal.
REVERSED AND REMANDED.
. This opinion is written, hopefully, more for the benefit of the particular parties and the trial judge, rather than to enhance the body of the law. We also recognize that the answers to some of the posed questions may not be readily ascertainable. For example, the executive vice president of the buyer corporation is, according to the record, and perhaps conveniently, self-exiled to Africa.
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Note: The antiquity of the above-described dates, relative to this 1989 opinion, arises because of a stay in bankruptcy. Also, items 7, 8, and 9, only add to 21 because of two assignments.
. The second purchase money mortgage contained a provision that the mortgagee would, in the future, subordinate it to other financing. However, no subordination agreement was ever requested, never mind executed. Moreover, the conditions precedent governing any such subordination were never adhered to, so far as the record shows.
. That is, a mortgage given by the buyer in favor of the seller as part of the purchase price in lieu of cash.
. On the contrary, the seller/purchase money mortgagee used all due diligence and simultaneously with the closing delivered both purchase money mortgages to the Sun Coast Title Company, requested their immediate recording and further requested mortgage title insurance. The title company was therefore mandated to carry out her instructions and the seller’s closing statement prepared by Sun Coast showed a debit of $26.00 to cover the title company’s cost of recording the two purchase money mortgages and a $620 debit to cover the cost of the intangible tax which the title company would have to pay on those two mortgages at the recording window. In addition, the seller did not sit back and do nothing when the purchase money mortgage deeds were not returned to her from the courthouse after the ten day period the title company estimated it would take. When that time period elapsed, she began calling both the title company and the buyer to ascertain the reasons for the delay. Throughout the entire period between December 8, 1983, and January 25, 1984, she had no knowledge about any of the twenty-three intervening mortgages executed in favor of the investors and recorded on December 21, 1983. Of course the twenty-three investors, likewise, had no knowledge of the seller’s second purchase money mortgage.
. The obviously culpable buyer, the equally culpable title company, and Terri D’Addario are not parties to this suit which is merely an action to foreclose a mortgage.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.