Dated: March 24. 2010
Lyons, New York

Mortgage Electronic Registration Systems (MERS) moves under Article 11 of the Real Property Tax Law (RPTL) and within the limitations period set forth in RPTL § 1137 for an order setting aside a deed issued pursuant to a tax foreclosure proceeding under Article 11. The operative facts are uncomplicated and undisputed.

The central question presented in the instant matter are the rights, if any, Wilmington Finance and/or MERS gained under RPTL §I 125(a) by virtue of these references in the Mortgage.

To accept MERS’ argument would require the County to read every mortgage from A to Z to make sure there are no “Nominees” of the Lender entitled to notice of tax foreclosure in lieu of or in addition to the Lender.

Second, the Mortgage from which MERS derives its claim of right to statutory notice under RPTL § 1125 is by no means crystal clear as to what MERS’ involvement as “Nominee” requires after the recording of the mortgage. Indeed, MERS does not explain what role the “Nominee” plays in the recording of a mortgage, or thereafter, except perhaps as something akin to a power-of-attorney or agent, albeit with independent standing. If the later is the case, it is incumbent upon the “Nominee” to state its status as one due notice in the separate declaration of interest form required under section RPTL §1126, which the County does have a categorical duty to read.

According, the application of MERS shall be, and the same hereby is, denied.

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