Justice Saitta of the Supreme Court, Kings County has rendered a crisp decision pertaining to the controversial issue (at least for mortgage foreclosure practitioners) of defining the role of a "nominee". The case is Bank of New York v. Alderazi, 2010 NY Slip Op 20167, and the procedural posture from which this decision arises pertains to an application of the Bank of New York for an order of reference—i.e. a preliminary step toward a judgment of foreclosure and sale whereby an independent referee computes the total amount owed by the defaulting borrower. Justice Saitta denied the Bank of New York’s application without prejudice, with leave to renew upon providing the Court with proof that MERS had the right to assign and transfer the mortgage from the originating lender, America’s Wholesale Lender, to the Bank of New York.
Of particular interest in this decision is Justice Saitta’s discussion pertaining to MERS’ role as “nominee” of many, if not most, mortgage lenders. As noted in a previous post, MERS has its hand in virtually every mortgage foreclosure action, although its actual role is little understood and met with increasing suspicion among judiciary. Justice Saitta opines:
[I]n Schuh Trading Co. v. Commisioner [sic] of Internal Revenue, 95 F.2d 404, 411 (7th Cir. 1938), [the Court] defined a nominee as follows: “The word nominee ordinarily indicates on designated to act for another as his representative in a rather limited sense. It is sometimes used to signify an agent or trustee. It has no connotation, however, other than that of acting for another, or as grantee of another…Id. Emphasis added.
Black’s Law dictionary defines a nominee as “[a] person designated to act in place of another, usually in a very limited way”. Agency is a fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. Hatton v. Quad Realty Corp., 100 AD2d 609, 473 NYS2d 827, (2nd Dept 1984). "[A]n agent constituted for a particular purpose, and under a limited and circumscribed power, cannot bind his principal by an act beyond his authority." Andrews v. Kneeland, 6 Cow. 354 N.Y.Sup. 1826.
Justice Saitta’s pronouncement on the role of a "nominee" is welcome, since very little legal authority has been recently published in this regard. The significance of Justice Saitta’s clarification is that any foreclosing bank, who was assigned a mortgage and note by MERS as nominee, must provide proof that MERS was authorized to make the assignment. Such authorization is not implied, nor is reference to the boilerplate language of the mortgage sufficient to grant MERS, as nominee, authority to alienate or assign a mortgage. MERS must have received explicit authority to do so from the entity in whose name MERS purports to act. Such authority is typical embodied in a power of attorney or some other resolution.
The bottom line is that MERS’ status as “nominee”, without more, is not sufficient to vest MERS with the authority to effect a proper assignment of a note and mortgage.