first mortgagee foreclosed when mortgage balance was $96,000; creditor bought property for $1,000; $95,000 deficiency judgment
How later courts described this case
- first mortgagee foreclosed when mortgage balance was $96,000; creditor bought property for $1,000; $95,000 deficiency judgment
Written by the judges who cited it.
The opinion
Young, J.
(dissenting). I dissent. Sections 1083-a and 1083-b of the Civil Practice Act provide, in effect, that no deficiency judgment shall be entered or an action for indebtedness secured by the mortgage maintained, except for an amount equal to the sum of all liens and incumbrances upon the property, with interest, costs, etc., after deducting the fair and reasonable market value as determined by the court, irrespective of any amount realized on the foreclosure sale. The language of section 1083-a of the Civil Practice Act does not refer to a sale under any particular mortgage. The judgment of foreclosure and sale in this action was entered February 6, 1934. The premises were sold under the judgment of foreclosure and sale of the first mortgage on February 16, 1934. At the time this action was commenced the indebtedness to the plaintiff was secured by. a mortgage on real property; it originated simultaneously with the mortgage and was secured solely by the mortgage. This mortgage, therefore, was exactly within the language of section 1083-b of the Civil Practice Act. In my judgment the mortgagor, under these circumstances, is entitled to the benefits prescribed by section 1083-b of the Civil Practice Act.
Order in so far as it denies plaintiff’s motion for a deficiency judgment against defendant The Hagdahl Realty Company, Inc., reversed on the law, with ten dollars costs and disbursements, and motion granted.