Another game changer from NY's Appellate Division 2nd. Dept., might help other states as well! I feelthat the landscape of judicial foreclosures with MERS involved in NY has now changed, finally some smart judges are not accepting the banks and foreclosure mills take on MERS. And the best is this was done by a defendant, PRO SE!!
"Although the mortgage instrument identified MERS as the nominee, and purported to grant MERS the authority to foreclose on the subject property, the mere presence of such language in the mortgage instrument itself "cannot overcome the requirement that the foreclosing party be both the holder or assignee of the subject mortgage, and the holder of the underlying note, at the time the action is commenced"
"Moreover, although there was evidence that MERS assigned the mortgage instrument to the plaintiff during the course of the action, such an assignment would not render the plaintiff the holder of the note, since MERS could not transfer that which it did not hold......", that statement in conjuction with MERS' own words, in the appellates brief, MERS v. Nebraska Dept. of banking, might just render MERS void in NY.
Homecomings Fin., LLC v Guldi, 2013 NY Slip Op 05048