| Ruiz v Mortgage Elec. Registration Sys., Inc. |
| 2015 NY Slip Op 06325 [130 AD3d 1000] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| Eneida Ruiz, Appellant, v Mortgage ElectronicRegistration Systems, Inc., et al., Respondents, et al.,Defendant. |
Irwin Popkin, Melville, N.Y., for appellant.
Bryan Cave LLP, New York, N.Y. (Suzanne M. Berger and Christine L. Andreoli ofcounsel), for respondents.
In an action pursuant to RPAPL article 15 to determine claims to real property, theplaintiff appeals from a judgment of the Supreme Court, Suffolk County (Pitts, J.),entered May 15, 2013, which, upon an order of the same court dated January 29, 2013,denying her motion for summary judgment on the complaint and granting the crossmotion of the defendants Mortgage Electronic Registration Systems, Inc., and Bank ofAmerica, N.A., for summary judgment dismissing the complaint, is in favor of thosedefendants and against her dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff seeks a judicial determination that the mortgage she executed in favorof the defendant Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), ascollateral for a $671,250 loan made to her by Webster Bank, N.A. (hereinafter Webster),is void ab initio and, therefore, should be canceled and discharged of record, and herproperty should be adjudged free therefrom. For the reasons explained below, theSupreme Court properly concluded that no triable issues of fact existed and that theplaintiff was not entitled to such relief, and dismissed the complaint.
On or about March 28, 2007, the plaintiff borrowed the sum of $671,250 fromWebster, as evidenced by an adjustable rate note payable to Webster. Together therewith,the plaintiff executed a mortgage, securing the loan with her home, located in Water Mill(hereinafter the subject property). As is relevant to this appeal, the mortgage defined theplaintiff as the "Borrower," Webster Bank N.A. as the "Lender," and "MERS" asMortgage Electronic Registration Systems, Inc., "a separate corporation that is actingsolely as a nominee for Lender and Lender's successors and assigns" and "FORPURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OFRECORD." The loan is serviced by the defendant Bank of America, N.A. (hereinafterBank of America).
The plaintiff erroneously contends that the naming of MERS as the mortgagee, eventhough Webster was the payee designated on the note, constituted a violation of the clearprohibition against separating the collateral from the debt and, as such, the mortgageinstrument was rendered null and void (see generally Deutsche Bank Trust Co. Ams.v Vitellas, 131 AD3d 52 [2d Dept 2015]). Theplaintiff relies upon the Court of Appeals decision of Merritt v Bartholick (36NY 44 [1867]), wherein the Court stated: "As a mortgage is but an incident to the debtwhich it is intended to secure, the logical conclusion is, that a transfer of the mortgagewithout the debt is a nullity, and no interest is acquired by it. The security cannot beseparated from the debt and exist independently of it" (id. at 45 [citationsomitted]).
The use of the term "nullity" by the Court in Merritt, however, does notmean, as the plaintiff argued, that the mortgage instrument itself was rendered null orvoid, but rather, that the enforceable interest which was intended to be transferred by theassignment of the mortgage alone was ineffective, as "no interest is acquired by it"(id.). This interpretation of the term has been faithfully, and consistently, appliedby the Courts of the State of New York (see Deutsche Bank Trust Co. Ams. vVitellas, 131 AD3d 52 [2015]; Since the plaintiff was not entitled to the judicial determination cancelling anddischarging the subject mortgage and adjudging the subject property free therefrom, thejudgment dismissing the complaint must be affirmed. The plaintiff's remaining contentions need not be addressed in light of ourdetermination. Rivera, J.P., Roman, Sgroi and Duffy, JJ., concur.