2009 Mbe Property -- Mortgages And Random

Front 1

Elements of a Mortgage

Back 1

1: a debt
2: a lien on debtor's land to secure the debt

Front 2

Define: Equitable Mortgage

Back 2

Instead of executing a lien, the mortgagor hand the mortgagee the deed itself.

Equitable between the two parties. But only damages if the mortgagee goes and sells the property to a bona fide purchaser.

Front 3

Rule: Transfer of Mortgages

Back 3

All parties may transfer. Mortgage follows a properly transferred note.

Can transfer by:
1: endorsement and delivery
2: separate document of assignment

Front 4

Rule: Holder in Due Course

Back 4

Takes the note free of any personal defenses that could have raised against the original creditor-motgagee.

Holder in due course may foreclose despite the presence of PERSONAL defenses, but not REAL defenses

Front 5

List: Real Defenses to a mortgage

Back 5

1: material alteration
2: duress
3: fraud
4: incapacity
5: illegality
6: infancy
7: insolvency

Front 6

Requirements: Holder in Due Course

Back 6

1: note must be NEGOTIABLE
2: ORIGINAL NOTE is endorsed, signed by original mortgagee and delivered.
3: take note in GOOD FAITH--no notice of illegality
4: Pay VALUE for the note.

Front 7

Rule: Liability and "assuming the mortgage"

Back 7

Both buyer and seller of the property are personally liable for the mortgage.

Front 8

Rule: Liability and taking "subject to the mortgage"

Back 8

Only the original mortgager is personally liable.

BUT, the mortgage remains on the land.

Front 9

Rule: Foreclosure and Necessary Parties

Back 9

If a necessary party (those with interests subordinate the foreclosing party) is NOT joined, his interest REMAINS on the land.

Front 10

Define: Subordination Agreements

Back 10

By private agreement, a senior creditor agrees to subordinate its priority to a junior creditor.

Front 11

Rule: Equitable Redemption

Back 11

At any time prior to foreclosure, debtor has the right to redeeom the land and free it from the mortgage. Must pay off missed payments, plus interest, plus costs.

Acceleration clause may require paying off the full balance of the mortgage to redeem

Front 12

Define: Statutory Redemption

Back 12

NOT IN NYS

statutory right to redeem after the foreclosure sale for a fixed period. Mortgagor retains possession during that period.

Front 13

NYS Distinction: Statutory Redemption

Back 13

Does Not Exist in NYS

Front 14

Rule: groundwater

Back 14

may make reasonable use of groundwater.

may NOT waste it.

Front 15

Rule: Riparian Doctrine

Back 15

Riparians share a right of reasonable use.

Natural uses prevail over artificial uses.

Front 16

Rule: Prior Appropriation Doctrine

Back 16

individual acquire water rights by actual use. Prior appropriation takes precedence.

Front 17

Rule: Surface Water Theories

Back 17

1: natural flow--can't interfere with natural drainage
2: common enemy--can do anything to get rid of surface water
3: reasonable use--balance utility and harm.

Front 18

Rule: Support of Land

Back 18

Strictly Liable if activities cause adjacent land to subside.

Strictly Liable for damage to adjacent buildings, unless the subsidence would not have occured with the land in its natural state--then negligence.

Front 19

Rule: Mining and Support

Back 19

And underground occupant must support the surface and buildings present at the date the underground estate was created.

Liable only for negligence for damage to later buildings.

Front 20

Rule: Zoning Variance

Back 20

Must Show
1: undue hardship
2: variance won't work a detriment to surrounding property values

Front 21

Rule: Nonconforming Use

Back 21

was once lawful.

Cannot be eliminated all at once, or compensation must be paid as a taking.

Front 22

Rule: Exactions and development permitting

Back 22

to be constitutional, exactions must be reasonably related in nature and scope to the impact of the proposed developments

Front 23

Rule: Mortgage Modification and Priority

Back 23

If the landowner enters into a modificatoin agreement witha senior mortgagee, raising it's interest rate or otherwise making the agreement more BURDENSOME, the JUNIOR mortgagee will be given PRIORITY OVER THE MODIFICATION.

Thus if the first mortgage debt is larger because of the modification, the second mortgage gains priority OVER THE INCREASE in the debt.