The amended complaint seeks to foreclose a mortgage on and for possession of premises at 87 Union Avenue, Belford, New Jersey. The matter is before the court on cross-motions for summary judgment by the substituted plaintiff American Title Insurance Company (American) for foreclosure and possession, and by defendants Vito and Julia Capabianco (Capabianco), to dismiss the foreclosure action and to have their rights "as affect the subject premises" declared.
The mortgage in question was a purchase money mortgage dated June 14, 1961, in the amount of $10,600, from George W. Fink and Jeanette V. Fink, husband and wife, to J.I.
Kislak Mortgage Corporation (Kislak). That corporation assigned the mortgage to the First Federal Savings & Loan Association of Clearwater, Florida (First Federal) on July 24, 1961. On September 25, 1961 Vito Capabianco obtained a judgment against a George Fink for $1,100 and costs of $76.03 in the Superior Court of New Jersey, Law Division.
By deed dated July 23, 1963 George W. Fink and Jeanette V. Fink conveyed the premises to The Whale Agency, subject to the mortgage. A search made in connection with that conveyance revealed four federal liens against a George E. Fink, Church Street, Belford, New Jersey, and the judgment in the Superior Court of New Jersey in favor of Vito Capabian(c)o against a George Fink. In connection with the conveyance from the Finks to The Whale Agency, an affidavit was obtained from George W. Fink dated July 23, 1963, in which he stated his attention had been drawn to the federal liens and the Superior Court judgment and that "the aforesaid judgments are not against me but against others of similar name." The Whale Agency conveyed the premises to Vito Doria and Rose Doria, his wife, by deed dated August 13, 1963, subject to the mortgage.
John L. Bork and Josephine M. Bork entered into a contract to purchase the premises from the Dorias, which contract was dated November 18, 1965. The purchase price was $12,500.
The complaint in this action was filed January 14, 1966 by First Federal to foreclose its mortgage. It named as a defendant Vito Capabian, setting up in paragraph 11 his judgment against George Fink referred to above. A notice of lis pendens was filed January 21, 1966, which did not name all of the defendants but listed the defendants as "George W. Fink, et al." An answer was filed on February 4, 1966 by Vito Capabianco, admitting the allegations of the complaint and joining in the plaintiff's demand for judgment, asking that the amount due to him on his judgment be fixed in the foreclosure judgment and that he be paid with interest and costs.
By letter dated December 6, 1965 Kislak advised the closing attorney in the Bork transaction that an FHA mortgage loan of $12,500 had been approved to John Bork on the premises involved. Kislak requested American Title Insurance Company, Guaranteed Title Division, to make a full search of title to the premises. This search revealed, among other things, the Capabianco judgment and the notice of lis pendens. The title to the premises was closed March 2, 1966, the judgment in favor of Capabianco having been passed on the basis of the above affidavit of George W. Fink. Apparently no effort was made by anyone connected with the Bork transaction to determine who were the additional defendants in the foreclosure action that was revealed by the notice of lis pendens. At the closing on March 2, 1966 Kislak advanced $12,500, to be secured by a new mortgage which was to be a first lien on the premises. On March 7, 1966 Kislak received, as servicing agent for First Federal, $10,473.45 to pay off the mortgage sought to be foreclosed in this action. On March 9, 1966 Kislak's check in the amount of $10,031.07 was transmitted by it to First Federal in satisfaction of the mortgage. This check was deposited by First Federal and paid by the bank upon which it was drawn. First Federal then endorsed upon the original mortgage the following:
"THE WITHIN MORTGAGE HAVING BEEN FULLY PAID AND SATISFIED, THE MONMOUTH COUNTY CLERK IS HEREBY AUTHORIZED TO CANCEL SAME OF RECORD. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF CLEARWATER, FLORIDA
ATTEST: s/ Mary E. Plumb, ...