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In re 364 N.B.E. Corp.

United States Bankruptcy Court for the Eastern District of New York
2015 WL 9581323 (2015)


Facts

N.B.E. Corp. (debtor) borrowed about $1.45 million from Edge Capital and JA Funding (creditors) to develop a commercial condominium building secured by mortgages on the property. N.B.E. defaulted. The creditors twice renegotiated, then brought a foreclosure suit. N.B.E. stipulated that it owed a debt now totaling $1.8 million and escrowed a deed in lieu of foreclosure (DIL). The stipulation provided that the DIL would be held in escrow “as security” for paying the mortgage, released to the creditors if N.B.E. again defaulted, and recorded to complete the foreclosure. However, the stipulation also provided that N.B.E. would have a right to redeem the property. N.B.E. again defaulted, and the creditors recorded the DIL. When N.B.E. tried to pay the missed payments, the creditors returned them, explaining they had taken title to the property by recording the DIL. N.B.E. filed for bankruptcy and brought an adversary proceeding arguing the stipulation qualified as a mortgage requiring full foreclosure proceedings to foreclose.

Rule of Law

Issue

Holding and Reasoning (Lord, J.)

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