Does a renewal judgment lien have retroactive effect?Thomas Tripodianos
August 27, 2009 — 1,451 views
Question. In 1991, plaintiff Judgment-Creditor obtained a default judgment against Judgment-Debtor for approximately $470,000 due on a note. On October 23, 1991, the judgment was docketed and acted as a lien on a Manhattan condominium owned by Judgment-Debtor. While a money judgment award is enforceable for 20 years, a real property lien resulting from the judgment is viable for just 10 years. But a renewal action may be brought between the same parties to the original action during the tenth year to extend the lien for an additional 10-year period.
Judgment-Creditor was unable to foreclose on the condominium and collect on the judgment and his other efforts to collect from Judgment-Debtor failed. So, on October 22, 2001-one day before the 10-year lien was to expire-Judgment-Creditor initiated the action to renew his lien. In February 2005, the Supreme Court granted Judgment-Creditor's motion for summary judgment, granting him a judgment lien nunc pro tunc [retroactive] to October 23, 2001, the day the original 10-year judgment lien had expired.
Does a renewal judgment lien secured for a second 10-year period take effect nunc pro tunc on the expiration date of the original lien, cutting off the property interests of intervening mortgagees?
A renewal judgment does not have retroactive effect to the original lien's expiration date. Nunc pro tunc treatment is inappropriate where, as here, additional lenders relying on the public record acquired rights in the property. The renewal lien becomes effective when granted by Supreme Court.
After Judgment-Creditor's original lien had expired but before Supreme Court granted the renewal judgment-during the "lien gap" period two mortgage companies loaned Judgment-Debtor money in return for secured mortgages on the Manhattan condominium.
The mortgagees had no knowledge of Judgment-Creditor's lien because a search of the public record revealed only the expired 10-year lien.
Because a lien on real property is only effective for 10 years and a money judgment is viable for 20 years the statute allows a judgment creditor to apply for a renewal of the judgment lien. To avoid expiration of the judgment lien at the end of 10 years real property lienholders may seek timely renewal of the judgment lien during the last year of the pendency of the original lien.
Those seeking to secure any interest in real property must be able to rely upon a public record to furnish full and complete information of any conveyances, liens or encumbrances affecting such property. They should not be penalized for failing to unearth an expired lien or not investigating the prospect that it might be subject to a pending renewal request. Nunc pro tunc treatment under these circumstances would be inimical to New York's record notice based upon the certainty of a docketing system that alerts potential purchasers and lienholders to encumbrances upon real property.
The statute affords a judgment creditor a full year to renew his or her lien without suffering a lien gap. Where a judgment creditor diligently files at the beginning of this period and alerts the court to the applicable time constraint, a lien renewal application should be resolvable before the original lien expires.
Thomas S. Tripodianos received a Bachelor of Arts degree from St. John's University with a major in Government and Politics and dual minors in Philosophy and Psychology. He went on to obtain a Juris Doctor from Hofstra University School of Law. He is admitted to practice law in the State of New York, as well as the U.S. District Court for the Northern, Southern and Eastern Districts with admission pending in the State of Pennsylvania, and the State of Massachusetts.