Opinion
34646/2008
09-08-2016
Deborah Jones and BRENDA CLARK-LEE, Plaintiffs, v. Elizabeth Evans a/k/a CALLIE CLARK EVANS, a/k/a CALLIE CLARK, PAULETTE D'ABREU, ANGELA CLARK-SMITH, HOUSING & URBAN DEVELOPMENT and WELLS FARGO BANK, N.A., Defendants.
Attorney for Plaintiff Felton & Associates 1371 Fulton Street Brooklyn, New York 11216 (718) 622-1100 Attorney for Defendant Sanders, Gutman & Brodie, P.C. 26 Court Street, Suite 409 Brooklyn, New York 11242 (718) 522-0666
Attorney for Plaintiff Felton & Associates 1371 Fulton Street Brooklyn, New York 11216 (718) 622-1100 Attorney for Defendant Sanders, Gutman & Brodie, P.C. 26 Court Street, Suite 409 Brooklyn, New York 11242 (718) 522-0666 Francois A. Rivera, J.
The following is the decision, order and judgment after a non-jury trial in the above captioned matter on the plaintiffs' claims against all of the defendants.
THE PARTIES
Plaintiffs, Deborah Jones (hereinafter Jones) and Brenda Clark-Lee (hereinafter Clark-Lee) and the defendants Angela Clark-Smith (hereinafter Clark-Smith) and Paulette D'Abreu (hereinafter D'Abreu) are the natural born daughters of the defendant Elizabeth Evans who is also known as Callie Clark (hereinafter Ms. Evans) and Paul V. Clark (hereinafter P. Clark). On October 14, 1945, Ms. Evan and P. Clark were married. The defendants Wells Fargo Bank, N.A. (hereinafter Wells Fargo) and Housing & Urban Development (hereinafter HUD) encumbered a property located at 69 MacDougal Street, Brooklyn, New York 11233 (hereinafter the subject property).
BACKGROUND
On December 30, 2008, Deborah Jones and Brenda Clark-Lee (hereinafter the plaintiffs) commenced the instant action by filing a summons, verified complaint and a notice of pendency with the Kings County Clerk's Office (KCCO).
On November 3, 2010, the plaintiffs served an amended verified complaint on all parties. The amended verified complaint contains thirty two allegations of fact in support of two causes of action. In the first cause of action, plaintiffs seek their unencumbered interest in the subject property. The Court deems the first cause of action to be an action to quiet title pursuant to Article 15 of the RPAP. The second cause of action seeks damages due to the defendants' negligent encumbering of the subject property by a reverse mortgage. Plaintiffs also seek rescission of the reverse mortgage, the imposition of a trust for the benefit of the plaintiffs for any sum derived from the reverse mortgage, and a correction of the deed.
RPAPL 1501(1) provides that any person who "claims an estate or interest in real property" may "maintain an action against any other person ... to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, ... the defendant might make" (Wellington v Financial Freedom Acquisition LLC ex rel. Structured Asset Securities Corp. Reverse Mortg. Loan Trust, 132 AD3d 506 [1st Dept 2015] citing ABN AMRO Mtge. Group, Inc. v Stephens, 91 AD3d 801 [2nd Dept 2012]).
By amended answer dated November 29, 2010, defendant Wells Fargo joined issue. Wells Fargo's answer asserts four affirmative defenses and one counterclaim. The first affirmative defense is that the amended verified complaint fails to state a cause of action as against Wells Fargo. The second affirmative defense is that Wells Fargo is a good faith encumbrancer for value, and that its interest is protected by Real Property Law § 266. The third affirmative defense is that the plaintiffs causes of action are barred by the doctrine of laches. The fourth affirmative defense alleges is that the plaintiffs causes of action are barred by the doctrine of estoppel. Wells Fargo's counterclaim is for a declaration judgment declaring that it hold a good, valid and subsisting mortgage on the subject premises free of any claims by the plaintiffs due to Ms. Evan's obtaining good title through a theory of adverse possession.
Defendants Ms. Evans, D'Abreu and Clark-Smith interposed a joint answer with counterclaims dated June 17, 2009. On January 18, 2012, plaintiffs motion to strike the answer of Ms. Evans, Paulette D Abreu and Angela Clark-Smith was granted.
By amended answer dated May 17, 2011, HUD interposed an answer to the summons and amended verified complaint. After the close of plaintiffs' case in chief, the Court granted HUD's motion to dismiss the amended verified complaint as asserted against it pursuant to CPLR 4401 by order dated July 20, 2015. THE TRIAL
A non-jury trial was conducted on July 16, 2015 and July 20, 2015. Plaintiff Jones and Clark-Lee both testified and admitted four documents into evidence. Wells Fargo called Robert Bateman (hereinafter Bateman) to testify and admitted eight documents into evidence. At the close of all evidence the Court directed the parties to submit requests for findings of fact in accordance with CPLR 4213. Both parties complied.
Jones testified to the following at trial. She has resided in the subject property since approximately 1997. Ms. Evans, her mother, has resided with her at the premises intermittently leading up to the trial and during the trial. Plaintiffs' undisputed documentary evidence establishes that on June19, 1974, Ms. Evans divorced her husband, Paul Clark. It also established that on December 2, 1995, Paul Clark died.
Jones was generally aware that since 1996, her mother had taken out mortgages on the subject property. However, she was unaware of the names of the mortgagees, and the date and the amounts of the mortgages.
Clark-Lee testified that at the time of Paul Clark's death there were three mortgages encumbering the subject property. In 1996, Ms. Evans moved to California.Sometime after 1996, Ms. Evans gave Clark-Lee a power of attorney with authority to deal with the subject property. Thereafter, Clark-Lee paid all upkeep and expenses related to the subject property. Sometime in 1998, Clark-Lee used her power of attorney to consolidated three mortgages on the subject property in an effort to make the payments more affordable. Thereafter in 2000, she utilized the power of attorney to obtain another mortgage for improvements to the subject property.
On the application for the 2000 mortgage, Clark-Lee signed on behalf of Ms. Evans and warranted that Ms. Evans was the title owner of the subject premises. In 2006, Clark-Lee learned that she had an interest in the subject property. Clark-Lee was later informed by an attorney that Ms. Evans had entered into a reverse mortgage encumbering the subject property on or after 2007.
Bateman testified on behalf of Wells Fargo that he had no personal knowledge as to the circumstances of the origination of the reverse mortgage loan. Wells Fargo called Bateman to testify as the custodian of certain records and for the purpose of admitting those records. Bateman was unaware of the steps Wells Fargo undertook, if any, to determine the title to the subject property during the processing of Ms. Evans reverse mortgage application. Bateman testified as to the first and second mortgage application filled out by Ms. Clark.
The reverse mortgage applications contain a line which inquires as to the marital status of the applicant. The line for marital status contains two boxes. The first box was to be checked off if the applicant was married. The second box was entitled "unmarried (include single, divorced, widowed)". Ms. Evans checked off the second box. Paul Clark's death certificate contains a box for his marital status containing four numbered boxes. The first box is entitled "Never Married." The second box is entitled "Widowed". The third box is entitled "Married or Separated". The fourth box is entitled "Divorced." The box marked "Married or Separated" and the box marked "Divorced" were both checked off.
FINDINGS OF FACT
On June 15, 1954, Ms. Evans and Paul V. Clark, her husband, (hereinafter P. Clark) purchased the subject property and held title to it as tenants-by the-entirety. In 1974, Ms. Evans commenced a divorce action against P. Clark. On June 11, 1974, the Kings County Clerk entered a judgment dissolving the marriage. Title to the subject property, was not awarded to Ms. Evans in the judgment of divorce.
On December 2, 1995, P. Clark died intestate. At the time of his death Clark was survived by his daughters Jones, Clark-Lee, Clark-Smith and D'Abreu. On October 21, 2008, Ms. Evans entered into a reverse mortgage with Wells Fargo under the name Callie Elizabeth Evans. On the same date, a deed was issued whereby title to the property was purportedly transferred from "Callie Clark, surviving spouse by the entirety of Paul Clark deceased on December 2, 1995 in the County of Kings" to Callie Clark n/k/a Callie Elizabeth Evans". The deed and reverse mortgage were recorded on November 7, 2008. Ms. Evans received a sum of Five Hundred Forty Seven Thousand Five Hundred dollars ($547,500.00) dollars as consideration in the reverse mortgage.
LAW AND APPLICATION
Action to Quiet Title Pursuant to Article 15 of the RPAPL. Plaintiffs' first cause of action seeks a judgment declaring that they inherited their father's share of the subject property unencumbered by the reverse mortgage that their mother obtained from Wells Fargo. Their rights to the subject property is best understood by first explaining the difference between holding a property by joint tenancy and by tenancy in common and by then applying the operative facts to the applicable law.
A joint tenancy is an estate held by two or more persons jointly who have equal rights to share in its enjoyment during their lives, and where each joint tenant has a right of survivorship (Trotta v Ollivier, 91 AD3d 8 [2nd Dept 2011] citing Goetz v Slobey, 76 AD3d 954, 956 [2nd Dept 2010]). The right of survivorship has been defined as a right of automatic inheritance where, upon the death of one joint tenant, the property does not pass through the rules of intestate succession, but is automatically inherited by the remaining tenant (Id. citing United States v Craft, 535 US 274). For one joint tenant to alienate his or her individual interest in the tenancy, the estate must first be severed or, in other words, converted into a tenancy in common with each tenant no longer possessing the entire estate, but instead, possessing an equal fractional share (Id.).
Where property is held in a tenancy by the entirety, in which a husband and wife own real property as if they were one person, and one spouse dies, the surviving spouse takes the entire estate, not because of any right of survivorship, but because that spouse remains seized of the whole (Lacroix v Limogene, 132 AD3d 817, 818 [2nd Dept 2015] (NY App. Div. 2015) citing Matter of Violi, 65 NY2d 392, 395 [1985]). A tenancy by the entirety may, while both spouses are alive, be converted into a tenancy in common by certain definitive acts: a conveyance of the property in which both spouses join; a judicial decree of separation, annulment or divorce; or execution of a written instrument that satisfies the requirements of section 3-309 of the General Obligations Law, which permits division or partition of real property held in a tenancy by the entirety if clearly expressed in such an instrument (Lacroix v Limogene, 132 AD3d 817, 818 [2nd Dept 2015] (NY App. Div. 2015).
A tenant in common has the right to take and occupy the whole of the premises and preserve them from waste or injury, so long as he or she does not interfere with the right of [the other tenant] to also occupy the premises (Klein v Dooley, 120 AD3d 1306, 1307 [2nd Dept 2014) citing Jemzura v Jemzura, 36 NY2d 496, 503 [1975]).
When a co-tenant who has a partial interest in real property executes a deed that purports to convey full title to the property, the deed is not entirely void; rather, the deed is effective, but only to the extent of conveying the grantor's interest in the property (see Lee v Wiegand, 28 AD2d 560, 561 [2nd Dept 1967]). Moreover, [a] mortgage given by one of several parties with an interest in the mortgaged property is not invalid; it gives the mortgagee security, but only up to the interest of the mortgagor (Bayview Loan Servicing, LLC v White, 134 AD3d 755, 756 [2nd Dept 2015]).
On June 11, 1974, when a judgment of divorce dissolving Ms. Evan's marriage to P. Clark was entered, Ms. Evans' ownership interest in the subject property converted from a tenancy-by-the-entirety to a tenancy-in- common with P. Clark. On December 2, 1995, when P. Clark died intestate his fifty percent (50 %) interest in the subject property passed in accordance with the laws of intestate succession. The controlling section is EPTL § 4-1.1 (a) (3) which provides that the property of a decedent not disposed of by will, who is survived by issue and no spouse, shall be distributed the whole to the issue by representation. Upon his death, P. Clark's interest in the subject property passed to Jones, Clark-Lee, Clark-Smith and D'Abreu his four children. Moreover, it is clear that Wells Fargo was only entitled to encumber that portion of the subject property that Ms. Evans owned, her fifty percent (50%) interest (Bayview Loan Servicing, LLC, 134 AD3d at 756).
The various remedies sought by the plaintiffs are primarily premised on the claim that they inherited P. Clark's interest in the subject property unencumbered by the mortgage executed by Ms. Evans. The Court agrees with their claim.
Rescission
The plaintiffs seek rescission of the reverse mortgage contract entered into between Ms. Evans and Wells Fargo. It is undisputed that the plaintiffs are not parties to the reverse mortgage. Rescission is an equitable remedy that a party to a contract may seek whereby a written instrument is disaffirmed and the party is returned to the status that existed before the transaction was executed. The effect of rescission is to declare a contract void from its inception and put or restore the contracting parties to the status quo. Indeed, equitable relief by way of rescission is so favorably regarded as a means to correct the effects of misrepresentation that if other elements essential to the action are present, rescission may be had for false representations even though they were innocently made (60A NY Jur. 2d Fraud and Deceit § 221). However, the equitable remedy of rescission is only to be invoked where the plaintiff has no adequate remedy at law and where the parties can be substantially restored to their status quo ante positions (see Habberstad Volkswagen, Inc. v. GC Volkswagen, Inc., 127 AD3d 1019, 1020 [2nd Dept 2015][internal citations omitted].
The plaintiffs were not parties to the contract. Accordingly, they are not entitled to the equitable relief of rescission.
Imposition of a Trust
The plaintiffs seek the Court to impose a constructive trust for the benefit of the plaintiffs for the sums derived from the reverse mortgage. A constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest (Sharp v Kosmalski, 40 NY2d 119, 121 [1976]). Generally, before granting the equitable remedy of a constructive trust, four elements must be established: (1) a confidential or fiduciary relationship, (2) a promise, express or implied, (3) a transfer in reliance thereon, and (4) unjust enrichment (Crown Realty Co. v Crown Heights Jewish Cmty. Council, 175 AD2d 151, 151, [2nd Dept 1991]). Notably, these elements are not rigid, but are flexible considerations for the court to apply in determining whether to impose a constructive trust (Id. citing Lester v Zimmer, 147 AD2d 340 [3rd Dept 1999]). A person may be deemed to be unjustly enriched if he or she has received a benefit, the retention of which would be unjust (Sharp, 40 NY2d 119).
In the instant action it is clear that the remedy of a constructive trust is inapplicable, as the elements are absent. A familial relationship may satisfy the element of a confidential or fiduciary relationship. Accordingly, the plaintiffs may have a fiduciary relationship with Ms. Evans as their mother. The Court need not find a fiduciary relationship because the remaining three elements are missing. The plaintiffs neither plead nor testified to a promise made by Ms. Evans, a transfer made in reliance thereon, nor Ms. Evans being unjustly enriched. Correction of the Deed
A court may reform a deed to reflect the true intention and agreement of the parties, provided that appropriate grounds for reformation exist, such as mutual mistake, mistake in reducing the instrument to writing, or the prevention of unjust enrichment (16 NY Jur. 2d Cancellation of Instruments § 78; citing Carla Realty Co. v County of Rockland, 222 AD2d 480 [2nd Dept 1995]; Shawangunk Conservancy Inc. v Fink, 261 AD2d 692 [3rd Dept 1999]; Mayer v Bishop, 158 AD2d 878 [3rd Dept 1990]; Polito v Polito, 121 AD2d 614 [2nd Dept 1986]).
Such reformation may involve inserting or deleting property descriptions so that the deed accurately reflects the property to be conveyed or specifying the interests being conveyed in an effort to accurately reflect the parties' intent or, in some instances, provide relief to a party (16 NY Jur. 2d Cancellation of Instruments § 78).
In the instant action the following is undisputed, when Ms. Evans and P. Clark divorced, title to the subject property was not awarded to Ms. Evans in the judgment of divorce. The judgment of divorce rendered Ms. Evans' ownership interest in the subject property from a tenancy-by-the-entirety to a tenancy-in-common with P. Clark, her ex-husband. On December 2, 1995, P. Clark died intestate. At the time of his death P. Clark was survived by his daughters Jones, Clark-Lee, Clark-Smith and D'Abreu. Ms. Evans created and recorded a deed which inaccurately reflected that she was the sole owner of the subject property.
As a matter of law, P. Clark's interest in the property passed to his daughters upon his death. Therefore, Ms. Evans was not the sole owner of the subject property. The deed that Ms. Evans created and recorded is inaccurate. The incorrect deed created by Ms. Evans would unjustly enrich her in reflecting that she owns the entire property. Accordingly, the deed must be corrected. Defendants' Negligent Encumbering of the Subject Premises
Generally, the elements of a negligence claim are the existence of a duty, a breach of that duty, and damages proximately caused by the breach of duty (see Lapides v State, 37 AD2d 755 [2nd Dept 2008]). The plaintiffs have not established the elements of a negligence claim. It may be arguable that Ms. Evans owed the plaintiffs a duty, however, the Court need not make that determination as there were no damages established. Ms. Evans was free to encumber her share of the subject property and the plaintiffs are entitled to their portion of the subject property unencumbered by the reverse mortgage. Wells Fargo's Four Affirmative Defenses
Wells Fargo asserts four affirmative defenses. The first affirmative defense alleges that the complaint fails to state a cause of action against Wells Fargo. The second affirmative defense claims that Wells Fargo is a good faith encumbrancer for value, and that its interest is protected by Real Property Law § 266. The third alleges that the plaintiffs are barred by the doctrine of laches. The fourth alleges that the plaintiffs are barred by the doctrine of estoppel. Failure to State a Cause of Action
The Court has already determined that the plaintiffs have properly plead and have a cause of action to quiet title in the subject property pursuant to Article 15 of the RPAPL. The causes of action seeking damages due to the defendants' negligent encumbering, rescission and the imposition of a trust have been dismissed. The first affirmative defense necessarily fails. Good Faith Encumbrancer for Value
Real Property Law § 266 provides that
This article does not in any manner affect or impair the title of a purchaser or incumbrancer for a valuable consideration, unless it appears that he had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor
The New York Recording Act (Real Property Law § 290 et seq.) protects a good faith purchaser for value from a prior unrecorded interest in real property provided, inter alia, that the subsequent purchaser's interest is the first to be duly recorded (Wachovia Bank, N.A. v Swenton, 133 AD3d 846, 847 [2nd Dept 2015] citing Transland Assets, Inc. v Davis, 29 AD3d 679, 679 [2nd Dept 2006]; see Sprint Equities [NY], Inc. v Sylvester, 71 AD3d 664, 665 [2nd Dept 2010]).
The rights of an encumbrancer for value are protected unless it appears that [the encumbrancer] had previous notice of the fraudulent intent of [its] immediate grantor, or of the fraud rendering void the title of such grantor (Real Property Law § 266; Miller-Francis v Smith-Jackson, 113 AD3d 28, 34 [1st Dept 2013] citing Fleming-Jackson v Fleming, 41 AD3d 175 [1st Dept 2007]). A mortgagee will be charged with constructive notice if it is aware of facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue (Miller-Francis v Smith-Jackson, 113 AD3d 28, 34 [1st Dept 2013] citing Mortgage Elec. Registration Sys., Inc. v Rambaran, 97 AD3d 802, 804 [2nd Dept 2012] [internal quotation marks omitted]; Anderson v Blood, 152 NY 285, 293 [1897]. If a reasonable inquiry would reveal some evidence of fraud, then failure to make some investigation will divest the mortgagee of bona fide encumbrancer status (see Anderson, 152 NY at 293; see also Rambaran, 97 AD3d at 804). A mortgagee may make a prima facie showing that it is a bona fide encumbrancer by presenting a title search showing a clear chain of title (Miller-Francis v Smith-Jackson, 113 AD3d 28, 34 [1st Dept 2013] citing Fleming, 41 AD3d at 176; see also Fan-Dorf Props., Inc. v Classic Brownstones Unlimited, LLC, 103 AD3d 589 [1st Dept 2013]; Commandment Keepers Ethiopian Hebrew Congregation of the Living God, Pillar & Ground of Truth, Inc. v 31 Mount Morris Park, LLC, 76 AD3d 465 [1st Dept 2010]). To raise an issue of fact in response, the opposing party must offer evidence to justify requiring the mortgagee to engage in an inquiry regarding title or fraud (see Id.).
In the instant action Wells Fargo asserts several reasons that it should be considered a good faith purchaser for value. Specifically, Wells Fargo asserts that at the time of Ms. Evans' application for the reverse mortgage it was in possession of the deed which reflected P. Clark as tenants-by-the-entirety and P. Clark's death certificate. Also, that the plaintiffs did not record anything that would put the world on notice of their interest.
In light of the documents that Wells Fargo submitted and the inherent discrepancies contained on the face of the application, the deed and the death certificate Wells Fargo cannot establish that it was a bona fide purchaser for value of the property. In fact, the discrepancies give rise to constructive notice of Wells Fargo that the title to the property may be at issue. Laches
Wells Fargo alleges in its answer that the plaintiffs should be estopped from asserting their claim to the property because Clark died in 1995 and the instant action was commenced in 2008 more than thirteen years later.
The doctrine of laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party (Skrodelis v Norbergs, 272 AD2d 316, 316 [2nd Dept 2000][internal citations omitted]. The mere lapse of time without a showing of prejudice will not sustain a defense of laches (Id.). In addition, there must be a change in circumstances making it inequitable to grant the relief sought (Id.). Prejudice may be established by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay (Id.).
As previously discussed, Wells Fargo's witness had no personal knowledge as to the application process of Ms. Evans. The application process of Wells Fargo itself raised questions as to Ms. Evans' ownership interest in the property. Furthermore, the plaintiffs commenced the instant action within a few months of learning that Ms. Evans had entered into the reverse mortgage. Whether the plaintiffs slept on their rights to the property prior to the reverse mortgage is not of consequence as that delay was not the cause of a "injury, change of position, loss of evidence, or some other disadvantage resulting from the delay." Accordingly, laches is inapplicable to the instant action. Estoppel
Wells Fargo asserts that because Clark-Lee signed prior mortgage documents to reflect that Ms. Evans was the owner of the subject property she should be estopped from claiming part ownership. Wells Fargo assents that those documents were relied upon as proof of the ownership of Ms. Evans to its determent.
Estoppel is more defined as a bar that precludes a person from questioning a certain fact or state of facts that he or she has by his or her conduct induced another person to believe and to act on to his or her prejudice, or which has been admitted or determined under circumstances of solemnity, such as, by a matter of record or by deed. An estoppel rests upon the word or deed of one party upon which another rightfully relies and so relying changes his position to his injury (57 NY Jur. 2d Estoppel, Etc. § 1).
Wells Fargo offered no testimony from anyone with personal knowledge to buttress this claim. In fact, Bateman testified to Wells Fargo being in possession of documents that contained sufficient discrepancies to put it on notice of a problem with Ms. Evan's ownership. Furthermore, Clark-Lee testified that at the time that she signed those documents she was unaware of her interest in the property. Accordingly, estoppel is not applicable in the instant matter. Wels Fargo's Counter Claim For a Declaratory Judgment
Wells Fargo seeks a declaration that it is the holder of a good valid and subsisting mortgage on the property free of any claims by the plaintiffs based on Ms. Evans obtaining full ownership through a theory of adverse possession. To acquire title to real property by adverse possession, common law requires the possessor to establish that the character of the possession is hostile and under a claim of right, actual, open and notorious, exclusive and continuous for the statutory period (Berry v Southard, 15 AD3d 516 [2nd Dept 2005]). Since the acquisition of title to land by adverse possession is not favored under the law (Gallea v Hess Realty Corp., 128 AD2d 274—275 [4th Dept 1997]), these elements must be proven by clear and convincing evidence (Gore v Cambareri, 303 AD2d 551—552 [2nd Dept 2003]).
The requirements of actual, exclusive, open and notorious possession for a continued period are the easiest requirements to meet because either the claimant lived or used the property for the statutory period or she did not (Brand v Prince, 35 NY2d 634 [1974]; see also Stroem v Plackis, 96 AD3d 1040 [2nd Dept 2012]). In other words, exclusive and continuous means possession of a type which would give the owner a cause of action in ejectment against the occupier (Brand, 35 NY2d 634).
The element of hostility is the most common element that defeats a claim for adverse possession. The element of hostility is an objective standard and leaves absolutely no room for equivocation. The initial entry on the property must be under a claim of absolute right without recognition or deference to the interest or rights of any other (MAG Assoc. Inc. v SDR Realty, Inc., 669 NYS2d 314, 316 [2nd Dept 1998]). An admission by the party in possession prior to the vesting of title that title belongs to another will destroy the element of hostile possession (MAG Assoc. Inc. v SDR Realty, Inc., 669 NYS2d 314, 316 [2nd Dept 1998]).
If the initial entry onto land is permissive than the possessor cannot claim hostility (Vitale ex rel. Callaghan v Witts, 93 AD3d 714 [2nd Dept 2012]). Furthermore, the permissive use will be presumed to continue until permission or authority has been repudiated and renounced and the claimant thereafter has assumed the attitude of hostility to any right in the real owner (Id.).
Again, Wells Fargo offered no testimony from anyone with personal knowledge to buttress this claim. In fact, the testimony of the plaintiffs was that they resided with their mother at the subject premises for the majority of the time and that Ms. Evans resided at the property with everyone's consent. As the claim is unsupported by any evidence it is denied. The Court need not and does not reach the issue of whether Wells Fargo may assert the claim of adverse possession on behalf of its co-defendant. CONCLUSION
It is hereby ordered adjudged and decreed that plaintiff Deborah Jones and Brenda Clark-Lee are each owners of a one eighth share of the subject property; and it is further
Ordered adjudged and decreed that Wells Fargo holds a valid reverse mortgage encumbering only as to Ms. Evans one half interest in the subject property; and it is further
Ordered that the deed reflecting Ms. Evans as the sole owner of the subject property is vacated and the parties are directed to settle an order on notice reflecting same.
The foregoing constitutes the decision, order and judgment of this Court. Enter: J.S.C.