Over 30 years ago. my sister purchased the home where I live in and had to get a $7,000 (2nd mortgage from the elderly owner) which was not suppose to have been recorded but somehow she suspects his attorney did and it is still in the public records. Its not a lien. It just shows $7,000. I discovered this as I was doing some research on the home. She has all the cancelled checks. According to my sister. After he passed away. His elderly wife came around to collect the monthly checks until it was paid off. Like she said. She was young and trusted this elderly couple. My question is: What can I do here in NYC (since my sister lives in Florida) to remove this from the city records . She has sent me all of the cancelled ($7,000 worth) check's. Thank you.
The easiest way to correct this is if the "elderly couple" who lent the $7,000 only recently died and at least one of their estates is still open. As mentioned, you could show the executor the payment checks and obtain a satisfaction that could be filed to remove/cancel the mortgage. You indicate that it is not a lien, but any filed mortgage papers operate by their very nature as a lien on the property and will need to be satisfied before the property can be sold, transferred or mortgaged again. Thus, I suggest you consult with an attorney to see your options and then attempt to resolve this issue sooner rather than later as the potential cost of a resolution will only increase with time.
If obtaining a satisfaction from the estate executor is not possible, then you will either need to bring a court action (as mentioned) or discuss the possibility of using title insurance along with an affidavit as to the alleged debt's age and no recent collection activity.
You should hire an attorney to bring an action under either section 1921 or 1501 of the RPAPL or such other statute as may be applicable. Unless your sister received a 'payoff statement' from the lender, I don't believe the expedite attorney affidavit provision pursuant to Section 1921(5) of RPAPL would be sufficient, but this would have to be researched further. Therefore depending on the attorney's hourly rate and the amount of time it may take to resolve the matter in Court, you may be facing approximately $3,000 to $5,000 in legal fees (this is an estimate only, under a best case scenario). If your sister does not take affirmative steps now to resolve the problem, then when it is time for her to sell or convey the property, the buyer's title company will likely demand that at least twice the mortgage amount be held in escrow (i.e. $14,000) so that your sister may resolve the problem after the closing. The fact that it is recorded on public record automatically creates a title encumbrance that will need to be cleared of record. My office is available if you would like to schedule a free consultation. The foregoing is for informational purposes only and no attorney client relationship shall be created until we enter into a written retainer agreement. Good luck.
If the couple had wills which were probated and you can track down the executor, you could show him the canceled checks and ask him or her to execute a satisfaction of the mortgage lien.
My answer to your question is for general purposes only and does not establish an attorney-client relationship,
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