AN UNINVITED PARTY
After Harry N. Gold died, his mortgage went unpaid and his lender filed a foreclosure proceeding against his estate.
When a court-appointed referee determined that $334,393.01 was due and payable, Gold’s son made a motion to dismiss the case claiming that the lender failed to name and join, as a "necessary party" to the suit, Lorraine Bowen (one of Gold’s daughters).
Since Gold’s widow, as the estate’s administrator, was named and joined as a party to the dispute, and was the only “necessary party” to the case, the Suffolk County Supreme Court denied the motion.
On appeal, the Appellate Division, Second Department, noted that, “Even if Lorraine Bowen were a necessary party, she was not an indispensable party whose absence mandates dismissal of the complaint. The absence of a necessary party in a mortgage foreclosure action simply leaves that party’s rights unaffected by the judgment of the foreclosure and sale.”
In other words, should she be so inclined, Bowen could seek to set aside the judgment and sale.
Was that extra step really necessary?
To download a copy of the Appellate Division’s decision, please use this link: Glass v. Estate of Henry N. Gold
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Comments
Seems like a cloud on title, which could further delay the sale.
If the sale proceeds, anyone purchasing this property, would be buying into a lawsuit.
Posted by: Martin | March 21, 2008 10:19 AM
I believe the son also lacked standing to allege his sister was a necessary party; she would have to make an appearance and raise the same argument. Rather than dismiss the case, most case law would permit her to appear and answer rather than dismiss the whole case.
Posted by: Gines Pasamonte | March 21, 2008 11:21 AM
I think this is another example of intellectual dishonesty. laziness or sloppiness by our judges.
Why not dispose of the issue on the merits? Why not allow the sister to be joined and then dispose of the case?
The whole thing is probably an exercise. Even with her added to the case, the outcome would likely remain unchanged. She too would have lost the case unless she "redeemed."
Now this whole thing can be tied up for a few more years, and who wins? The lawyers!
Judges want pay raises, but refuse to understand that stupid decisions reinforce they don't deserve another nickel.
Posted by: Thomas787 | March 21, 2008 11:54 AM
Thomas, you left out "stupidity."
Posted by: Sy Mann | March 21, 2008 1:29 PM
It's there. In the last paragraph.
Posted by: Thomas787 | March 21, 2008 3:25 PM