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Manzo v. Shawmut Bank

June 10, 1996

JOSEPH MANZO, PLAINTIFF-RESPONDENT,
v.
SHAWMUT BANK, N.A., AS SUCCESSOR TO BERKELEY FEDERAL SAVINGS AND LOAN ASSOCIATION, DEFENDANT-APPELLANT, AND ALLEN D. MARCUS AND ARLENE MARCUS, H/W, FIRST FIDELITY BANK, N.A., LASSER, HOCHMAN, MARCUS, GURYAN & KUSKIN, ESQS., AND STATE OF NEW JERSEY, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County.

Approved for Publication June 10, 1996.

Before Judges Dreier, Kestin and Cuff. The opinion of the court was delivered by Cuff, J.A.D.

The opinion of the court was delivered by: Cuff

The opinion of the court was delivered by

CUFF, J.A.D.

In this action to foreclose a second mortgage, the central issue is whether a mortgage recorded after the filing of a notice of lis pendens and during its effective term is entitled to priority over a mortgage granted in settlement of the underlying litigation. Judge Norris Harding held that the later mortgage granted in settlement of the litigation was entitled to priority. We affirm.

The matter was tried on the following stipulated facts:

Affiliated Building Corporation sold to Allen Marcus and Arlene Marcus a parcel of real estate containing a home designated as Lot 49, Block 738.14 on a map entitled "Map/Chateau Royale, Section Two". Closing of title and delivery of the deed took place on January 6, 1988, which deed was recorded January 14, 1988....

A first purchase money mortgage was made by Allen D. Marcus and Arlene Marcus to First Fidelity Bank in the amount of $200,000 dated January 6, 1988 and recorded January 14, 1988 in mortgage book 3586 page 502....

Litigation was commenced on behalf of Affiliated Building vs. Allen Marcus and Arlene Marcus ... on April 20, 1988 seeking rescission of the transfer of the deed which defendants answered on or about May 4, 1988. A Notice of Lis Pendens was filed on behalf of the Plaintiff, Affiliated Building Corp. on April 22, 1988 in recording book 22 page 605 in the Office of the Middlesex County Clerk....

A Mortgage was made by Allen D. Marcus and Arlene Marcus to Berkeley Federal Savings and Loan Association in the amount of $75,000 dated August 17, 1988 and recorded on September 2, 1988 in mortgage book 3706 page 334....

A mortgage was made by Allen D. Marcus and Arlene Marcus to First Fidelity Bank, N.A., New Jersey dated September 12, 1988 and recorded on September 27, 1988 in mortgage book 3717 page 919, securing an unspecified amount....

A Mortgage in the sum of $111,000 was made by Allen D. Marcus and Arlene Marcus to Affiliated Building Corp. dated January 15, 1992 and recorded January 27, 1993 in mortgage book 4381 page 168 in the offices of the Middlesex County Clerk in settlement of the litigation Affiliated Building Corp. v. Allen Marcus and Arlene Marcus....

The mortgage of Affiliated Building Corporation was assigned to Joseph Manzo, simultaneously recorded in book 558 page 731 in the office of the ...


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