Document Type

Article

Publication Date

4-24-1992

Abstract

Intervenor-appellant Nico Construction Company, Inc. appeals from an order entered on July 30, 1991, in the United States District Court for the Southern District of New York (Leval, J.) denying, inter alia, its motion to intervene in this foreclosure action to recover damages for work performed during the pendency of the foreclosure litigation. By the same order, the district court confirmed the Report of Sale of the Special Master in charge of the foreclosure sale. Nico made several previous attempts to intervene to assert its claim to payment for renovating the premises that were the subject of the foreclosure action. It appeals only the denial of its final motion to intervene, which came on the eve of the district court's confirmation of the sale. Nico sought intervenor status in order to press its claim to have an equitable lien or constructive trust imposed in its favor on the rents and profits collected during the pendency of the action. In the alternative, Nico claimed that its work constituted receivership expenses to be paid out of the collected rents and profits prior to other claims on the funds.

The district court rejected all of Nico's theories of recovery, finding no equitable lien, no basis for the imposition of a constructive trust, and no receivership from which Nico could recover for the work performed. Upon concluding that Nico had no possibility of recovery, the district court denied the motion to intervene as moot. Nico argues on appeal that the requisite 207*207 intent to create an equitable lien existed because of a promise by the property's owner after this action commenced that Nico would be paid from the rents and profits collected during pendency of the action. The argument is also made that equity requires that a constructive trust for Nico's benefit be imposed upon the rents and profits collected. Nico also contends that the system by which the district court administered the property during pendency of the foreclosure action constituted a receivership in all but name, entitling Nico to recover, as expenses of that receivership, the monies owed for its work. Thus, Nico argues, it established the requisite interest in the property underlying the lawsuit and was entitled to intervene as a matter of right. We hold that Nico failed to show a cognizable interest in this litigation on the grounds urged and affirm the decision of the district court.

Comments

962 F.2d 204 (1992)

SECURITY PACIFIC MORTGAGE AND REAL ESTATE SERVICES, INC., Plaintiff-Appellee,

v.

The REPUBLIC OF the PHILIPPINES, Defendant-Appellee, Canadian Land Company of America, N.V., also known as Canadian Land Company of America, Inc., NYL, Inc., formerly known as Greatneckers, Inc., doing business as The New York Land Company; NYL Properties, Inc.; the People of the State of New York; the City of New York; Irving Haase & Co., Inc.; Lombard Odier & Cie, Defendants, Nico Construction Company, Inc., Intervenor-Appellant.

No. 808, Docket 91-7849.

United States Court of Appeals, Second Circuit.

Argued February 12, 1992.

Decided April 24, 1992.

New York Law School location: File #1428, Box #129

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