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What is the current law as to mers in New York State as to using it for forclosure defense and it not owning note & mortgage.?

Albany, NY |

I will going into foreclosure very soon.The mortgage has been transferred 4 to 5 times by mers as the mortgages were sold.My understanding is that new york law does not allow mers the right to foreclose ,transfer,etc and a bankruptcy judge eastern district just declared there transfers illegal about 2 months ago.I want to use this as a defense that they don't own the mortgage or note,but the law seems to be changing back and forth alot over this issue.

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Attorney answers 3


Recently the Appellate Division of the Second Department (intermediate appeals court of New York) ruled in BONY vs. Silverberg that under some circumstances, a mortgage transferred through MERS, without proof of the negotiation of the note by MERS may bar it from foreclosure. Whether you have this situation is a complex question that depends on a number of variables. Moreover, it is very, very easy for the bank to do an "end around" on this ruling if you do not perform the proper discovery. Accordingly, simply saying to a Judge that MERS is in the chain of title for the mortgage is not necessarily enough to defeat a foreclosure. You need to fully understand the implications of the Silverberg decision and also be prepared for the bank's counterarguments to the Court (the Bank and its attorney's are very aware of this decision and its implications and also how to defeat it.)

I would recommend that if you want to save you home, consult an attorney knowledgeable about this area of the law.

Good luck,

No attorney client relationship has been created by this answer.


All you're going to do is waste time, and by doing so, costing yourself more money. If you really want to raise a defense based on this theory, be prepared to retain counsel and be prepared to spend thousands of dollars on litigation. But, maybe from a business perspective, this makes sense in your case.

good luck.

I may be guessing or not licensed in your state. No atty/client relationship exists. I earn my living collecting points for "helpful" answers.


Actually, each county treats MERS differently. Ultimately, if you don't pay the foreclosure will be completed. However, a lawyer may be able to delay sufficiently to serve its purpose and the cost to retain a lawyer to do so will likely be less than paying the mortgage.

I do NOT know you. I am NOT your lawyer. This answer is provided for the general public who may have similar queries. The answer provided is NOT definitive. I do NOT know all of the facts of your case and NO attorney-client relationship is established. Please do not use my answer to tell your lawyer what to do. Free advise is worth exactly what you are paying. Trust the lawyer who is charging you for his/her time and expertise. If you can no longer trust your lawyer, then hire someone else. I am always interested in new clients and business opportunities and would welcome your call or email to discuss matters further. For more information, please feel free to visit my website or schedule an appointment.

Daniel H. Richland

Daniel H. Richland


Each Appellate Department - specifically the 1st and 2nd, treat MERS differently. Whether you have a "standing" defense due to an origination into MERS is heavily dependent on the foreclosure attorneys' complaint and proofs. If you would like details, contact me and I can explain it to you.

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