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Naming an Entity Other than the Lender as Mortgagee Did Not Render the Mortgage Null and Void

The Second Department rejected plaintiff’s argument that the naming of an entity other than the lender as the mortgagee rendered the mortgage null and void:

… [T]he plaintiff borrowed the sum of $671,250 from Webster [Bank], as evidenced by an adjustable rate note payable to Webster. Together therewith, the plaintiff executed a mortgage, securing the loan with her home … (hereinafter the subject property). As is relevant to this appeal, the mortgage defined the plaintiff as the “Borrower,” Webster Bank N.A. as the “Lender,” and “MERS” as Mortgage Electronic Registration Systems, Inc., “a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns” and “FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD.” The loan is serviced by the defendant Bank of America, N.A. (hereinafter Bank of America).

The plaintiff erroneously contends that the naming of MERS as the mortgagee, even though Webster was the payee designated on the note, constituted a violation of the clear prohibition against separating the collateral from the debt and, as such, the mortgage instrument was rendered null and void … . The plaintiff relies upon the Court of Appeals decision of Merritt v Bartholick (36 NY 44), wherein the Court stated: “As a mortgage is but an incident to the debt which it is intended to secure, the logical conclusion is, that a transfer of the mortgage without the debt is a nullity, and no interest is acquired by it. The security cannot be separated from the debt and exist independently of it” (id. at 45; citations omitted).

The use of the term “nullity” by the Court in Merritt, however, does not mean, as the plaintiff argued, that the mortgage instrument itself was rendered null or void, but rather, that the enforceable interest which was intended to be transferred by the assignment of the mortgage alone was ineffective, as “no interest is acquired by it” … . Ruiz v Mortgage Elec. Registration Sys., Inc., 2015 NY Slip Op 06325, 2nd Dept 7-29-15

 

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