Refinancing first and second Mortgage together

In 2004, the accused resold their possessions to their subsidiary, but kept habitats. During 2005, the defendant and its subsidiary then took out a USD 260,000 mortgage with IndyMac Bank, F.S.B. ("IndyMac"). During 2007, the subsidiary funded the 2005 mortgage and implemented a $380,000 mortgage with IndyMac. Nevertheless, the respondents did not implement the 2007 mortgage.

Of the 2007 mortgage income, 45 settled the 2005 mortgage and another $57,305. 59 settled an unsecured 2006 mortgage. IndyMac brought an enforcement suit against the subsidiary in 2009. Later IndyMac denied the 2007 mortgage to the claimant and the claimant modified the claim to include the defendant. One of the plaintiff's attempts was to adequately transfer the defendant's interests in real property to the 2007 mortgage.

Judgement approved the plaintiff's petition for expedited relief and found that the defendant's residential properties were object and subordinated to $260,000 of the 2007 mortgage. Firstly, the CFI found that the substitution and amendment rules, which are'technically distinct' from a fair transfer, were applicable because the new mortgage was with the same creditor as the previous mortgage.

Accordingly, and in contrast to a fair transfer of a claim, "if a creditor holding a prior ranking mortgage substitutes it by a new mortgage by way of refinancing, this prior ranking mortgage shall be granted irrespective of the creditor's awareness of other charges. Here, the respondents had previously consented to charge the land with a $260,000 mortgage and determining the precedence of the 2007 mortgage up to that amount would not affect them.

Secondly, the court ruled that a lifetime asset should not be handled differently from a mortgage in terms of a just transfer or substitution and amendment. He reaffirmed that there is no "meaningful distinction" between different kinds of charges and that the existence or lack of substantive bias should also decide whether a mortgage should take precedence over residential property.

The ruling follows on from a recent tendency for court action to expand the doctrine of fair assignment and substitution and amendment to safeguard creditors who disburse previous credits and erroneously do not prioritise them.