Judges: JIM COLE, Assistant Solicitor General
Filed Date: 4/5/2001
Status: Precedential
Modified Date: 7/5/2016
Alfred Samenga, Esq. Informal Opinion County Attorney No. 2001-2 County of Nassau Ralph G. Caso Executive Legislative Building One West Street Mineola, N Y 11501-4820
Dear Mr. Samenga:
You have advised that Mortgage Electronic Recording Systems, Inc. ("MERS"), in its capacity as nominee, has been submitting mortgages to the Nassau County Clerk for purposes of recording. You further indicate that MERS has no legal interest in the mortgages it submits. Your inquiries are:
1. What are the potential consequences of MERS' use of the following language inserted in a mortgage: "FOR PURPOSES FOR RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD."?
2. What is the duty of the County Clerk with respect to indexing such documents?
We conclude that N.Y. Real Property Law §
Under New York Real Property Law, a county clerk "shall" record a "conveyance of real property" upon the request of "any party," so long as that conveyance has been "duly acknowledged by the person executing the same," or proved and certified as required. N.Y. Real Property Law §
In general, the clerk or registrar of each county must form "general indexes of instruments recorded in his office" to afford "correct and easy reference to the records in his office." Id. § 316. The statute requires a separate set of indexes for "mortgages or securities in the nature of mortgages," and specifies that this set must contain
two lists in alphabetical order, one consisting of the names of the . . . mortgagors . . ., followed by the names of their . . . mortgagees . . ., and the other list consisting of the names of the . . . mortgagees . . ., followed by the names of their . . . mortgagors . . . .
. . .
Such indexes shall form a part of the record of each instrument hereafter recorded.
Id.
We believe that the plain meaning of N.Y. Real Property Law §
MERS's effort to designate itself as mortgagee solely for recording purposes also undermines the general purposes of the Real Property Law's recording provisions. See People v. Finnegan,
Accordingly, "a purchaser of an interest in land . . . has no cause for complaint under the statute when its interest is upset as a result of a prior claim against the land the existence of which was apparent on the face of the public record at the time it purchased." Id. (citations omitted). See First National Bank v. Riccio,
By the same token, errors in indexing may vitiate constructive notice, because section 316 provides that the index "shall form a part of the record of each instrument hereafter recorded," N.Y. Real Property Law §
In this case, since MERS has no legal interest in the mortgages it seeks to file, designating MERS as the mortgagee in the mortgagor-mortgagee indices would not fully satisfy the intent of Real Property Law's recording provisions to inform the public about the existence of encumbrances, and to establish a public record containing identifying information as to those encumbrances. If MERS ever went out of business, for example, it would be virtually impossible for someone relying on the public record to ascertain the identity of the actual mortgagee if only MERS had been designated as the mortgagee of record.
In sum, despite MERS' statement inserted in the mortgages it submits, the County Clerk has no obligation to record MERS as the mortgagee of record where MERS is not the actual mortgagee, because doing so (1) violates the terms of N.Y. Real Property Law §
The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this Office.
Very truly yours,
JIM COLE, Assistant Solicitor General In Charge of Opinions
By:______________________________ SACHIN S. PANDYA
Assistant Solicitor General
Andy Associates, Inc. v. Bankers Trust Co. , 424 N.Y.S.2d 139 ( 1979 )
Baccari v. De Santi , 431 N.Y.S.2d 829 ( 1979 )
People ex rel. Harris v. Sullivan , 546 N.Y.S.2d 821 ( 1989 )
First National Bank v. Riccio , 652 N.Y.S.2d 908 ( 1997 )
People v. Finnegan , 85 N.Y.2d 53 ( 1995 )
Federal National Mortgage Ass'n v. Levine-Rodriguez , 579 N.Y.S.2d 975 ( 1991 )