Thornburg Mtg. Home Loans, Inc.
2011 NY Slip Op 32035(U)
July 11, 2011
Supreme Court, New York County
Docket Number: 106026/09
Judge: Joan A. Madden
The mortgage refers to Thornburg as the “lender” and Mortgage Electronic Registration Systems, Inc. (“MERS”) as “a separate corporation that is acting solely as a nominee for Lender,” and states that “[for purposes of recording this mortgage, MERS is the mortgagee of record.” On October 15,2007, the mortgage was recorded, listing Beltrami and Spiering as the “mortgagor/borrower,” and MERS as the “mortgagee/lender.” On May 8,2009, MERS, as nominee for Thornburg executed an assignment of mortgage, assigning the mortgage to Thornburg. The assignment was recorded on September 22,2009, and states that it is “effective as of October 4, 2008.”
Based on the foregoing, the complaint must be dismissed on the ground that Thornburg failed to comply with RPAPL 1304. Id. In view of this conclusion, the court need not determine the additional grounds for dismissal raised by Beltrami. The court notes, however, that Thornburg complied with the RPAPL 1303 notice requirement, which is a separate condition precedent to the commencement of this action. See First -1 Bank o f Chicago v. Silva, 73 AD3d 162 (2“d Dept 2010). Also, in the event Thornburg commences a new mortgage foreclosure action, the issues raised herein as to the assignment of the mortgage by MERS, would presumably be rendered academic, since the assignment would necessarily pre-date the commencement of any subsequent action.
Accordingly, it is
ORDERED that plaintiffs motion is denied in its entirety; and it is further
ORDERED that defendant Beltrami’s cross-motion for summary judgment dismissing the complaint is granted and the complaint is dismissed in its entirety without prejudice, and the Clerk is directed to enter judgment accordingly.
DATED: July 11,2011
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