HEY, MY HOUSE WAS NOT FOR SALE!

Each year, millions of Americans are victims of identity theft. While the most common manifestation is credit card fraud, also ranking high are unauthorized use of wireless telephone, bank, and debit card accounts. And, just when we thought we had seen every possible configuration of the scheme, along came the Appellate Division's decision in the case of Burger v. Singh.
In the Fall of 1999, an imposter posing as Arlene Burger fraudulently sold Burger's home, right from under her nose, to an entity known as Marine Funding, Inc. Marine is reported to have financed the purchase by a mortgage loan secured from S&C Investors, LLC. After learning of the fraud, Burger commenced an lawsuit in the Kings County Supreme Court against Marine, its president, S&C, the notary pubic who acknowledged the fraudulent signature, and, the abstract company that performed the title search, seeking to have the mortgage vacated and the transaction rescinded. She also sought damages for "trespass, negligence, and negligent infliction of emotional distress."
After motion practice, the Kings County Supreme Court found in Burger's favor based upon "undisputed evidence that the deed conveying the property had been executed by an imposter." The Court also granted a cross-motion made by S&C to dismiss Burger's trespass, negligence and emotional distress claims premised upon the argument that S&C had no knowledge of the fraudulent scheme and that it had relied upon the title closer and the notary public to verify the "seller's" identity.
On appeal, the Appellate Division, Second Department, affirmed all but the dismissal of the trespass claim, finding that a "trespass"--the entry of another's land without the owner's permission, whether innocent or otherwise--minimally entitled Burger to an award of "nominal damages," even if she suffered no actual injury to her possessory interests. Due to S&C's admission that it had entered Burger's property to view the house before agreeing to make the loan, (an entry Burger reportedly did not authorize), a complete dismissal in S&C's favor could not be permitted.
Because S&C owed no cognizable "duty" to the homeowner, no negligence liability could attach. The Appellate Division disposed of Burger's tort claim as follows:

The gravamen of that cause of action is that S&C owed her a duty with respect to the conveyance of her property, and that it breached that duty by failing to realize that the person who appeared at the closing and presented a false driver's license bearing the plaintiff's name and address was actually an imposter. However, S&C, in its capacity as a lender and prospective mortgagee, did not owe the plaintiff a duty to exercise due care in verifying the identity of the person who appeared at the closing purporting to be the owner of the property...Indeed, in most instances, "[a]mple protection against imposters is afforded property owners by the refusal of the law to recognize conveyances made by imposters"...Thus, S&C's failure to realize that the person who appeared at the closing purporting to be the seller was actually an imposter does not give rise to a cause of action to recover damages for negligence....