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Saturday, September 11, 2010

Judge Rules Against MERS Assignments As Nominee

Decided on April 19, 2010
Supreme Court, Kings County

The Bank of New York, as trustee for the benefit of the Certificateholders, CWABS, Inc., Asset Backed Certificates, Series 2007-2, Plaintiff.


Sameeh Alderazi, Bank of America, NA, New York City Environmental Control Board, Defendants.

Here is the end part of the judge's decision of MERS acting as nominee:

Plaintiff submitted no other documents which purport to authorize MERS to assign or otherwise convey the right of the mortgagor to assign the mortgage to another party.

A party who claims to be the agent of another bears the burden of proving the agency relationship by a preponderance of the evidence, Lippincot v. East River Mill & Lumber Co., 79 Misc. 559, 141 NYS 220 (1913), and “[t]he declarations of an alleged agent may not be shown for the purpose of proving the fact of agency”. Lexow & Jenkins, P.C. v. Hertz Commercial Leasing Corp., 122 AD2d 25, 504 NYS2d 192 (2nd Dept 1986). See also Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 NYS2d 744 (2nd Dept 1985), Moore v. Leaseway Transp. Corp., 65 AD2d 697, 409 NYS2d 746 (1st Dept 1978). “The acts of a person assuming to be the resentative of another are not competent to prove the agency in the absence of evidence tending to show the principal’s knowledge of such acts or assent to them”. (2 NY Jur
2d, Agency and Independent Contractors, 26).

Plaintiff has submitted no evidence to demonstrate that the original lender, the mortgagee America’s Wholesale Lender, authorized MERS to assign the secured debt to Plaintiff.

Thus, Plaintiff has not made out a prima facie case that it is entitled to foreclose on the mortgage in question.WHEREFORE, it is ORDERED that the Plaintiff’s application for an Order appointing referee to compute amounts due to the Plaintiff is denied with leave to renew upon proof of authority.

This shall constitute the decision and order of this Court.

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