Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

When Are Banks Liable for Injuries on A Foreclosed Property?

Author: Robert A. Marsico

Date: April 29, 2015

Key Contacts

Back

As New Jersey continues to address the glut of abandoned, a foreclosed property, liability issues are arising over who is responsible when injuries occur.

In a recent decision, the Appellate Division refused to impose liability on Bank of America, N.A. (BOA) for a slip-and-fall injury that occurred on an icy sidewalk abutting a foreclosed property. The decision in McRoy v. Eskander turned on whether the bank was considered a “mortgagee in possession.”

The Facts of the Case

The plaintiff, Matthew McRoy, injured his arm when he slipped and fell on snow and ice that had accumulated on a sidewalk abutting a four-unit apartment building owned by defendant Waheed Z. Eskander. Eskander and his wife executed a note and mortgage to BOA, using the building as collateral. After they defaulted, a final judgment of foreclosure was entered in favor of BOA for $583,362.14. When the plaintiff fell, the sheriff’s sale had not yet occurred, and the building was vacant.

The plaintiff began a personal injury suit against Eskander and BOA, alleging they were negligent in maintaining the premises, including the sidewalk. According to the court’s opinion. BOA did not maintain the premises or the sidewalk, with the exception of performing yard work on one occasion. BOA did inspect the foreclosed property periodically to ensure it was vacant and paid property taxes and a water bill.

The Court’s Decision

The appeals court affirmed the trial court’s order, which dismissed the case against BOA on summary judgment. The panel agreed that the mortgage lender was not liable for the plaintiff’s injuries.

The decision cited long-standing precedent in New Jersey that when the mortgagee takes the management and control of the property out of the hands of the mortgagor, the mortgagee becomes a mortgagee in possession. The Appellate Division further noted that the duty of a mortgagee in possession is that of a provident owner, which includes the management and preservation of the property. A mortgagee in possession is liable for injuries arising from its failure to perform legal duties imposed upon the owner of the property.

In this case, the appeals court concluded that there was no evidence that BOA exercised the requisite dominion and control over the premises to be deemed a mortgagee in possession. As further explained in the opinion:

“BOA never supplanted or supplemented Eskander’s control or management of the property, who chose to let the building be vacant and ignored his duties as a landowner by failing to remove snow and ice from the abutting sidewalk. But for one instance when BOA’s agent did some yard work, BOA never expended any effort to preserve or improve the premises, including the adjoining sidewalk, in any respect.”

The appeals court also found that paying the water bill and property taxes, as well as periodically verifying that the property was vacant, were undertaken to protect the lender’s collateral. Because these actions were not intended to exert any control over the management of the property, they did not convert BOA into a mortgagee in possession.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Can You Change an Irrevocable Trust in New Jersey? post image

Can You Change an Irrevocable Trust in New Jersey?

In New Jersey, an irrevocable trust can sometimes be modified even though its name suggests otherwise, and one of the primary tools for doing so is a process called decanting. Whether decanting is available depends on the specific terms of the trust and the discretion given to the trustee. Key takeaways: New Jersey has no […]

Author: Marc J. Comer

Link to post with title - "Can You Change an Irrevocable Trust in New Jersey?"
How Intellectual Property Valuation Will Impact Business Transactions post image

How Intellectual Property Valuation Will Impact Business Transactions

Intellectual property valuation determines the monetary value of a business’s IP assets, and it drives outcomes in licensing deals, joint ventures, mergers and acquisitions, financing, and ownership disputes. The most valuable assets of a business are often the things that cannot be seen or touched: a proprietary process, a copyrighted work, brand recognition, or the […]

Author: Jay McDaniel

Link to post with title - "How Intellectual Property Valuation Will Impact Business Transactions"
Data Center, Dark Fiber, and Lit Services Agreements in New Jersey: Key Terms and Legal Pitfalls post image

Data Center, Dark Fiber, and Lit Services Agreements in New Jersey: Key Terms and Legal Pitfalls

For New Jersey data center owners and operators, a service agreement may look routine when it is signed. The network is functioning, the vendor is meeting its installation schedule, and the parties have agreed on pricing and performance specifications. The provisions that seem most important at that stage are often the technical ones. That changes […]

Author: George McGowan

Link to post with title - "Data Center, Dark Fiber, and Lit Services Agreements in New Jersey: Key Terms and Legal Pitfalls"
Fort Monmouth Redevelopment and the Transformation of Monmouth County Real Estate post image

Fort Monmouth Redevelopment and the Transformation of Monmouth County Real Estate

The Fort Monmouth redevelopment has entered its execution phase, and it is repositioning the broader Monmouth County real estate market. When Netflix and the Fort Monmouth Economic Revitalization Authority closed on the 292-acre Mega Parcel in December 2025, the transaction did more than hand over a deed. It marked the moment Fort Monmouth stopped being […]

Author: Donald M. Pepe

Link to post with title - "Fort Monmouth Redevelopment and the Transformation of Monmouth County Real Estate"
Local Zoning and Land Use Rules Every New Jersey Rental Property Owner Should Understand post image

Local Zoning and Land Use Rules Every New Jersey Rental Property Owner Should Understand

Owning a residential rental property in New Jersey involves more than finding tenants and collecting rent. Property owners must comply with a combination of state laws, municipal ordinances, building and housing codes, and zoning and land use regulations. These requirements can affect everything from the number of dwelling units permitted at a property to whether […]

Author: Donald M. Pepe

Link to post with title - "Local Zoning and Land Use Rules Every New Jersey Rental Property Owner Should Understand"
Real Estate Litigation Explained: Top 5 Disputes and How to Avoid Them post image

Real Estate Litigation Explained: Top 5 Disputes and How to Avoid Them

The five most common real estate disputes are breach of contract claims, landlord-tenant conflicts, zoning and land use disagreements, construction claims, and boundary disputes. Understanding why each arises, and taking preventive steps early, can help property owners, tenants, developers, and investors avoid costly litigation. Key Takeaways: Real estate transactions are complex endeavors involving numerous parties […]

Author: Paul Grossman

Link to post with title - "Real Estate Litigation Explained: Top 5 Disputes and How to Avoid Them"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!