Upon the foregoing papers, plaintiff Samir Chopra (plaintiff) moves, pursuant to CPLR 3212, for summary judgment under his first cause of action seeking a judgment declaring null and void the FHA Mortgage dated April 3, 2009 between Irene Prusik, deceased since 2003, and HUD through the FHA program originated by Metrocities Mortgage LLC d/b/a Prospect Mortgage LLC and subsequently assigned to Financial Freedom Acquisition LLC (sued here as Financial Freedom Senior Funding Corporation) and thereafter to Mortgage Electronic Registration Systems, Inc. as nominee for Financial Freedom Acquisition LLC (collectively, FFA). Plaintiff further seeks to have the court order the Clerk of the Registrars Office to cancel, discharge and expunge the subject mortgage. Defendant Metrocities Mortgage LLC d/b/a Prospect Mortgage, LLC (Metrocities) cross-moves, pursuant to CPLR 3211 (a)(7), to dismiss plaintiff's complaint for failure to state a cause of action. FFA cross-moves to dismiss plaintiff's complaint pursuant to CPLR 3211 (a)(10) and 3212 for failure to join a personal representative for [*2]the estate of Irene Prusik as a necessary defendant. In the alternative, FFA cross-moves, pursuant to CPLR 3124, for an order compelling plaintiff to complete properly sworn answers to FFA's interrogatories and notice to produce, and to produce all documents requested therein.^[FN1]

By deed dated and recorded April 16, 1987, Irene Prusik took title to the property located at 492 6th Avenue in Brooklyn, New York (Block 1029, Lot 34) (the premises). By deed dated September 10, 1996 and recorded August 8, 1997, Irene Prusik conveyed the premises to Thomas Parkin.^[FN2] Thereafter, by instrument dated September 24, 1997 and recorded on December 2, 1997, Thomas Parkin executed a $212,500 mortgage in favor of one Sharon Laskin, among others. The mortgage was subsequently foreclosed upon and plaintiff took title to the premises by referee's deed dated July 31, 2003 and recorded September 20, 2003.

On August 18, 2003, Irene Prusik commenced an action against Thomas Parkin (Kings County index number 29950/03) alleging that her signature on the September 10, 1996 deed conveying the premises to Parkin was forged. Among other things, the complaint sought a judgment declaring the deed and mortgage void and unenforceable. On September 10, 2003, Irene Prusik died.^[FN3] Notwithstanding her death, the action continued to be litigated in Irene Prusik's name and no substitution of her personal representative was made as required under CPLR 1015 (a).

On November 30, 2003, Thomas Parkin ^[FN4] purportedly executed a "stipulation of settlement," which was so-ordered by Hon. Lewis E. Douglass in which Parkin "consent[ed] and agree[d] that the fraudulent deed dated September 10, 1996 and recorded in the Kings County Registrar's Office approximately one (1) year later, purporting to have granted [the Premises] to Thomas Parkin, be declared Null & Void, and that all other writings, conveyances, deeds, mortgages and leases derived from said fraudulent deed also be declared Null & Void, and further that A Correction Deed be [*3]executed and recorded forthwith." The stipulation contained the forged signature of the deceased plaintiff, Irene Prusik, as well as the signature of her attorney, John J. D'Emic. On July 26, 2004, Justice Douglass signed a judgment which ordered, adjudged and decreed that the September 16, 1996 deed to Thomas Parkin was null and void on account of fraud and that the $212,500 mortgage made by Thomas Parkin in 1997 was "void on account of fraud in the factum in that said defendant, Thomas Parkin, did not have legal capacity and power to alienate The Premises in that he held no right, title and interest to The Premises" and that "[t]he plaintiff, Irene Prusik, is and has been, at all time[s] since September 16, 1996, the true and rightful owner in fee simple of The Premises free and clear of any [and] all claims of the defendant Thomas Parkin or holders of the mortgage." The judgment was recorded with the Office of the City Register on March 24, 2008.

By deed dated January 3, 2008 and recorded February 27, 2008, Thomas Parkin, Jr., as "voluntary administrator" for the Estate of Thomas F. Parkin, Sr. "Late of Kings County who died intestate on the 28th day of March, 2006" conveyed title to the Premises back to Irene Prusik "as directed in [Justice Douglass' judgment]." On April 4, 2008, a power of attorney dated September 1, 2003 was recorded with the Office of the City Register whereby Irene Prusik appointed Mhilton Rimolo as her attorney-in-fact as to "any and all legal matters or real estate transactions pertaining to [the Premises]."^[FN5]

On November 21, 2008, plaintiff Chopra moved by order to show cause to intervene in the 2003 action and to vacate Justice Douglass' July 26, 2004 judgment as well as the January 3, 2008 deed. Plaintiff did not file a notice of pendency in conjunction with this motion. By order dated March 13, 2009, Hon. James G. Starkey granted plaintiff's motion on default to the extent of restoring the 2003 action to active status and directing plaintiff to settle an order on notice containing the relief sought in the order to show cause. On April 20, 2009, Justice Starkey signed the settled order vacating the July 26, 2004 Judgment. The order further directed the Clerk of the Registrar's Office to expunge the January 3, 2008 deed conveying the premises back to Irene Prusik. Justice Starkey's April 20, 2009 order was entered on April 29, 2009 and was recorded on May 26, 2009.

On April 3, 2009 (i.e., after Justice Starkey granted the motion to intervene but prior to his signing of the settled order), an individual purporting to be the deceased Irene Prusik took out a $938,250 reverse mortgage on the premises from Metrocities. The reverse mortgage was recorded on May 19, 2008. The mortgage and other loan documentation was signed by Mhilton Rimolo as attorney-in-fact for Irene Prusik. Included in this documentation was a "Reverse Mortgage Affidavit" dated April 3, 2009 containing the deceased Irene Prusik's forged signature. Further, an individual impersonating the deceased Ms. Prusik appeared at the closing of the mortgage [*4]agreement.^[FN6]

On April 9, 2009, Metrocities assigned the reverse mortgage to Financial Freedom Senior Funding Corporation (Financial Freedom SFC). However, that assignment was not recorded. By duplicate original assignment dated August 18, 2009 and recorded September 1, 2009, Metrocities again assigned the mortgage to Financial Freedom SFC. By assignment of mortgage effective May 1, 2009 and recorded January 22, 2010, Financial Freedom SFC assigned the mortgage to MERS as nominee for FFA.

On or about June 26, 2009, plaintiff commenced the instant action against Metrocities and the United States Department of Housing and Urban Development. By order to show cause dated June 26, 2009, plaintiff moved to set aside the reverse mortgage. In a decision and order dated October 5, 2009, Hon. Bruce M. Balter denied the motion, noting that issue had yet to be joined and that the necessary party Financial Freedom SFC was not named in the complaint. Accordingly, Justice Balter denied plaintiff's motion without prejudice to renew after issue was joined and further directed plaintiff to add Financial Freedom SFC as a party defendant. Thereafter, issue was joined and plaintiff amended the complaint to add Financial Freedom SFC as a party defendant. The instant motions are now before the court.

In support of his motion to cancel the Metrocities reverse mortgage, plaintiff notes that it is undisputed that Irene Prusik was deceased and did not own the premises at the time the mortgage agreement was executed in her name. Thus, plaintiff argues that fraud permeated the entire mortgage agreement, rendering the contract void and unenforceable. Further, plaintiff points out that the January 3, 2008 deed which purportedly reconveyed title to the premises to Irene Prusik was forged given the fact that she had died several years earlier. Thus, plaintiff maintains that the deed was void and Metrocities was not and could not be a bona fide purchaser/encumbrancer of the premises since nothing was ever conveyed to it. In this regard, plaintiff points to relevant case law which stands for the proposition that a purchaser/encumbrancer stands in the shoes of the vendor/mortgagor and can obtain no better title than the vendor. Further, plaintiff points out that Justice Starkey has already ruled that the mortgage must be cancelled. Finally, plaintiff notes that after plaintiff was issued a referees' deed in 2003, there was no transfer from him to anyone that would provide a reasonable person reason to believe that anyone other that plaintiff owned the property. According to plaintiff, Metrocities was negligent in issuing the reverse mortgage to the deceased Ms. Prusik without first investigating this break in title.

In opposition to plaintiff's motion, and in support of its own cross motion to [*5]dismiss plaintiff's complaint against it, Metrocities argues that, although plaintiff has not labeled it as such, the instant action has been brought to determine competing claims to a parcel of real property and is governed by the Real Property Actions and Proceedings Law. Metrocities further points to the fact that it assigned the subject reverse mortgage to Financial Freedom SFC on April 9, 2009. According to Metrocities, under RPAPL § 1515 (1), as well as relevant case law, a predecessor in interest such as itself, which makes no claim to the real property in question, is neither a necessary nor proper party to an action to quiet title. Alternatively, Metrocities argues that plaintiff's complaint must be dismissed inasmuch as it fails to describe with particularity the land at issue as required under RPAPL § 1515 (2). Finally, Metrocities maintains that plaintiff cannot obtain a final judgment in this action given his failure to file a notice of pendency.

In support of its cross motion to dismiss plaintiff's complaint, FFA maintains that plaintiff has failed to join a necessary party to this action, namely the estate of Irene Prusik. In this regard, FFA notes that given the fact that Ms. Prusik died in 2003, her claims to the subject premises have never been adjudicated by a court with jurisdiction. Specifically, FFA avers that Justice Douglass' July 26, 2004 judgment, as well as Justice Starkey's April 20, 2009 order vacating the judgment and directing the Clerk of the Registrar's Office to expunge the January 3, 2008 deed conveying the premises back to Irene Prusik are legal nullities under CLR 1015 since a personal representative had not been appointed and substituted to represent Irene Prusik in the 2003 action.

Alternatively, FFA argues that even if plaintiff's action is not dismissed, plaintiff's motion for summary judgment must be denied inasmuch as there are issues of fact as to whether or not plaintiff himself has title to the premises. Specifically, FFA maintains that there is evidence that the September 10, 1996 deed from Irene Prusik to Thomas Parkin was itself a forgery, as Irene Prusik originally asserted in the 2003 action. In support of this claim, FFA submits a copy of a May 4, 2003 report by handwriting examiner Donald Frangipani as well as a March 15, 2006 report by forensic document examiner John Paul Osborn, both of which conclude that is it is probable that Irene Prusik's signature on the 1996 deed was forged. In addition, FFA maintains that there is no record that "Arlene Jasinski," whose name appears as the notary on the deed, was in fact a notary. Further, Mr. Osborn's report concludes that Arlene Jasinski's signature was actually written by Thomas Parkin Sr. Thus, FFA concludes that, if the September 10, 1996 deed was forged, then the Laskin-Parkin mortgage is also void, as is plaintiff's own title since it is based on a referee's deed from the foreclosure of that mortgage. Under the circumstances, FFA maintains that plaintiff's motion must be denied and plaintiff should be directed to respond to FFA's discovery demands.

In further opposition to plaintiff's motion, FFA argues that plaintiff's failure to file a notice of pendency in November 2008, when he moved to intervene in the 2003 action, constitutes laches and bars recovery against FFA. In this regard, FFA notes that plaintiff made this motion some four months prior to the April 3, 2009 closing of the Metrocities [*6]mortgage, a closing that never would have taken place had plaintiff filed a notice of pendency.

Finally, FFA argues that it is protected as a bona fide purchaser pursuant to CPLR 5523. In this regard, FFA notes that Justice Starkey's March 2009 order in the 2003 action indicates that plaintiff moved to vacate the July 26, 2004 judgment pursuant to CPLR 5015 (a)(3), which permits a court to relieve a party from a judgment on the grounds of fraud, misrepresentation, or other misconduct of an adverse party. Thus, FFA argues that plaintiff's present motion seeking to declare void and expunge the Metrocities mortgage based upon the April 20, 2009 order must be deemed to have been brought pursuant to CPLR 5015 (d), which provides that "[w]here a judgment or order is set aside or vacated, the court may direct and enforce restitution in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal." According to FFA, this language in turn implicates CPLR 5523, which provides:

A court reversing or modifying a final judgment or order . . . may order restitution of property or rights lost by the judgment or order, except that where the title of a purchaser in good faith and for value would be affected, the court may order the value or the purchase price restored or deposited in court.

According to FFA, inasmuch as it was a purchaser in good faith, CPLR 5523 precludes the court from ordering restitution of the property rights lost by plaintiff as a result of the July 26, 2004 judgment which vested title in Irene Prusik.

Initially, it is undisputed that Metrocities has no claimed interest in the subject property, having conveyed whatever interest it once possessed to Financial Freedom FFC prior to the commencement of the instant action. It is well-settled that "[p]redecessors in title who claim no interest in the property are neither necessary nor proper parties to an action to quiet title" (McGahey v Topping, 255 AD2d 562, 563 [1998]; see also Berman v Golden, 131 AD2d 416, 418 [1987]; Brothers v Wall, 84 AD2d 923, 925 [1981]). Under the circumstances, there is no basis for plaintiff's claims against Metrocities and his complaint against this defendant must be dismissed.

Turning to plaintiff's claims against the current mortgage holder, it is clear that the property interest the reverse mortgage encumbers rests upon multiple layers of forgery and fraud. In particular, the 2003 action purportedly commenced by Ms. Prusik shortly before her death was a sham proceeding, designed to nullify the deed obtained by plaintiff in the foreclosure action.^[FN7] This is most clearly demonstrated by the November 30, 2003 so-ordered "stipulation of settlement," which contained the forged signature of Ms. Prusik, who died over two months before the stipulation of settlement was executed. The [*7]fraud was perpetuated when the stipulation of settlement was used to obtain the July 26, 2004 judgment, which declared the deceased Ms. Prusik to be "the true and rightful owner in fee simple of The Premises free and clear of any [and] all claims the defendant Thomas Parkin or holders of the mortgage." The judgment, in turn, was used by Thomas Parkin Jr./Thomas Prusik-Parkin to obtain the January 3, 2008 deed which reconveyed title to the premises to Irene Prusik. The deed also contained Ms. Prusik's forged signature. The fraud cumulated in the mortgage agreement whereby Thomas Parkin Jr., in collusion with Mhilton Rimolo, used the forged deed to fraudulently take out a $938,250 mortgage on the property on behalf of the deceased Ms. Prusik. In this regard, Mr. Rimolo executed mortgage and other loan documentation as the "attorney in fact" of the deceased Ms. Prusik and her signature was forged on the reverse mortgage affidavit. Finally, an individual impersonating Ms. Prusik actually appeared at the closing of the mortgage agreement.

It is well settled that "a deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid" (Cruz v Cruz, 37 AD3d 754 [2007]). Further, "[i]f documents purportedly conveying a property interest are void, they convey nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing" (First Nat. Bank of Nevada v Williams, 74 AD3d 740 [2010]). Indeed, "[o]ne cannot be a bona fide encumbrancer for value through a forged deed, as it is void and conveys no title" (LaSalle Bank Nat. Assoc. v Ally, 39 AD3d 597, 600 [2007]).

Applying the law to the instant facts, it is clear that the mortgage is based upon a forged deed that was in turn obtained through numerous fraudulent acts stemming back to the 2003 legal action in which Thomas Parkin and/or Thomas Prusik-Parkin, in effect, sued themselves in order to nullify the title obtained by plaintiff in the foreclosure action. Further, the mortgage agreement is itself riddled with forgeries and fraudulent acts including the use of an imposter to impersonate the deceased Ms. Prusik at the closing. Consequently, the mortgage is void and the mortgage holder is not a bona fide encumbrancer. In fact, the mortgagee holds nothing, as no title was conveyed by the fraudulent deed. Accordingly, plaintiff is entitled to a judgment declaring null and void the mortgage assigned to FFA.

In reaching this conclusion, the court finds the arguments raised by FFA in opposition to plaintiff's motion to be without merit. In particular, rather than attempt to defend the validity of its own mortgage/encumbrance, FFA attacks plaintiff's claim to title by rehashing the allegations raised in the 2003 proceeding regarding the transfer of title to Thomas Parkin prior to the foreclosure action. However, as noted above, the 2003 action was a sham proceeding in which Thomas Parkin and/or Thomas Parkin-Prusik forged a stipulation of settlement in order to obtain a fraudulent judgment voiding plaintiff's title to the premises. Under the circumstances, the estate of Irene Prusik is not a necessary party in this action. Nor may FFA seek to reopen this fraudulent proceeding or rely upon the [*8]allegations set forth in the action in the hope that it will somehow validate its nonexistent encumbrance.

Also without merit is FFA's claim that plaintiff's failure to file a notice of pendency when he moved to reopen the 2003 action precludes him from seeking to expunge the reverse mortgage under the doctrine of laches. In this regard, the purpose of a notice of pendency is to provide constructive notice from the time of filing so that subsequent purchasers or encumbrancers become bound by proceedings taken in the action (CPLR 6501; Mallick v Farfan, 66 AD3d 649 [2009]). However, it is well-settled that a notice of pendency "does not create rights that did not already exist" (2386 Creston Ave. Realty, LLC v M-P-M Management Corp., 58 AD3d 158, 161 [2008]). Here, as noted above, the mortgage is void and the mortgage holder has received nothing. Thus, plaintiff's failure to file a notice of pendency may not serve as a basis for conveying a non-existent property right upon the mortgagee. Further, the court finds no merit to FFA's argument that plaintiff's failure to file a notice of pendency constitutes laches, and thereby bars plaintiff from any recovery in this action. In this regard, FFA has failed to cite to any authority which stands for the proposition that the failure to file a notice of pendency constitutes laches.

Finally, there is no merit to FFA's argument that, inasmuch as it was a purchaser in good faith, CPLR 5523 precludes the court from ordering restitution of the property rights lost by plaintiff. CPLR 5523 only serves to protect good faith purchasers of real property whose property interest would be affected by the reversal of a judgment (George v Grand Bay Assoc. Enter. Inc., 45 AD3d 451, 452 [2007]). As noted previously, a party cannot be a bona fide purchaser or encumbrancer through a forged deed since the forger has no title to convey in the first instance (LaSalle Bank Nat. Assoc., 39 AD3d at 600; Wu v Wu, 288 AD2d 104, 105 [2001]).^[FN8]

In summary, Metrocities motion to dismiss the complaint against it is granted. Plaintiff's motion for a judgment declaring null and void the reverse mortgage assigned to FFA is granted and the Clerk of the Registrars Office is directed to cancel, discharge and expunge the subject mortgage. FFA's cross motion to dismiss the complaint, or alternatively, to compel discover is denied.

This constitutes the decision, order, and judgment of the court.

E N T E R,

____________________

Robert J. Miller

J. S. C.