Quote: What did the Court mean by declaring "Grossman's holding.....constitut[ed] an unconstitutional advisory opinion on the role of MERS."?
Where does this case go from here?
J, go back and read the In Re Agard decision. Then read Judge Seybert's holding.
Look at what Mr. Roper posted.
In the U.S. Bankruptcy Court decision, Judge Robert Grossman first found that the issues relating to the creditors claims had already been litigated to conclusion in state court in the underlying foreclosure case and were therefore barred by res judicata and the Rooker-Feldman doctrine.
Basically, Judge Grossman said that the arguments by Ferrel Agard didn't matter, because the U.S. Bankruptcy Court lacked the subject matter jurisdiction to re-litigate the validity of the creditor's claim. Then Judge Grossman went on to discuss the MERS business model and to reach findings of fact and conclusions of law about whether MERS' involvement was Kosher.
Once Judge Grossman decided that the U.S. Bankruptcy Court lacked the jurisdiction to re-litigate the creditor's claim, the matter was over. Everything else he had to say about the case was not merely dicta, but constituted an impermissible advisory opinion.
Mr. Roper saw this instantly and noted it in his thoughtful post.
It must be realized that while Judge Seybert's decision vacates the opinion and removes any authority therein, it does not find Judge Grossman's analysis to be legally erroneous (other than that he lacked the authority to reach this holding at all) nor does it really detract from the legal analysis about MERS appearing within the In Re Agard decision.
Also, bear in mind that there were two other far more important MERS decisions out of New York State in the Spring of 2011. Both of these were chronicled and discussed by Mr. Roper. These were the Weisblum and the Silverberg decisions, especially the latter!
It should be noted that while U.S. Bankruptcy Court rulings interpreting New York State law are NOT binding on New York State Courts, New York appellate decisions enunciating and articulating New York law ARE binding upon the U.S. Bankruptcy Courts in New York State!
So the practical effects of the ruling are nil. Realize that since Ferrel Agard had already LOST the property to foreclosure and Judge Grossman had allowed the relief of stay, Agard had no dog in this hunt. For this reason, MERS' appeal to the U.S. District Court was unopposed!
No doubt, it was also unopposed for another different reason. As Mr. Roper pointed out in his post in February 2011, Judge Grossman's decision was legally erroneous because it was dicta!
MERS will of course use the decision to spread false propaganda that its business model has been vindicated upon appeal to the U.S. District Court, but this is simply untrue! The U.S. District Court didn't need to discuss the merits of Judge Grossman's analysis, since he shouldn't have entered this aspect of the opinion at all.
Realize that in another U.S. Bankruptcy case where res judicata and Rooker-Feldman do not apply (where the borrower files for Bankruptcy before the foreclosure rather than after), Judge Grossman can enter this SAME decision, now also quoting both Weisblum and Silverberg as additional authority.
The very same decision and reasoning in respect of a live controversy would then probably be upheld rather than reversed on appeal!