Fleischmanns Board appeals theater foreclosure ruling

By Jay Braman Jr.
The Fleischmanns Village Board has filed an appeal of last month’s court ruling which said that the owner of the Main Street Fleischmanns Theater building, or the bank that holds the mortgage on the building, has a right to pay past due village taxes and maintain ownership of the property.
At a village board meeting Monday evening, Fleischmanns Mayor Dave Morell said, “We have filed an appeal.”
But before he responded to further questioning, Morell asked the village’s attorney, who was present in the audience at the Skene Memorial Library, how he should proceed. The attorney told the first-term mayor not to say anything because the matter is in litigation.
The village made an attempt to foreclose on the theater last year but was blocked by Delaware County Judge Carl Becker who determined that the owner of the property has a right to pay the back taxes.
According to court papers, ownership of the theater building has been in question for much of 2009. Fleischmanns officials claimed they had the right to foreclose, but the building’s mortgage holder claimed otherwise.
The Delaware National Bank of Delhi (DNB), which holds a mortgage on the property, told the court that it would have paid the back village taxes on the property, but was told by the Fleischmanns Village Clerk’s office that the payment had already been made, thus making any action on the bank’s part unnecessary.
The village began foreclosure proceedings due to an outstanding debt of $18,864 for taxes between 1999 and 2007.
The theater’s co-owner, Brian Dowd, and DNB went to court, asking that the village’s foreclosure proceedings be stopped.
On December 14 Delaware County Judge Carl F. Becker agreed with the bank’s attorneys, who said they had a right to pay the taxes and keep the property in the name of the owners, Richard and Brian Dowd of Onteora Associates.
“The court finds…that it would work an undue hardship on the bank and derivatively on its customer to permit foreclosure under these circumstances,” Becker wrote in his decision. “Therefore, the judgment of foreclosure is vacated and the Village of Fleischmanns is ordered to accept payment of past due village taxes in the amount of $19,250.82 by either the Bank or the property owners. Payment shall be made within five days of the entry of this order.”
Attorneys for DNB argued that just prior to the May 5, 2009 deadline to pay the back taxes a DNB employee called the Village’s Enforcing Officer, Lorraine DeMarfio, asking if the delinquent taxes had been paid and was told they had been.
According to court documents, DeMarfio denies receiving the call.
In other news, the village board will meet tonight, January 13 at 5 p.m. with the village’s Business Advisory Group to discuss problems with sewer bills.
According to representatives from Delaware Engineering, which operates the village’s sewer system installed two years ago, several property owners are asking for variances to avoid either hooking up to it or paying for it.
One account, the Northland Motel on Main Street, sent a letter to Delaware saying that they fill their swimming pool with village water, but that the sewer rate is based on the water meter. Their position is that since the swimming pool water does not enter the sewer system they should not have to pay for those gallons.
Another property owner, Kim O’Brian, was present Monday to complain that a property she acquired recently suddenly received an $800 bill for past sewer services, even though there was no evidence of such a bill existing at the time of the closing on the property.
These circumstances, as well as others prompted Morrell and the board to agree that payment responsibilities must be made clear. He also noted that the village is working to support new business, and mentioned that the board would discuss the possibility of granting some relief to O’Brian, who also owns the Tinder Box, a relatively new venture on Main Street.
Morrell back peddled on the issue though after audience members balked at the idea.
“Of course we need to find out what kind of precedent we would be setting,” he said.