Justice Thomas Whelan of Suffolk County defies the Second Department and again advocates for financial institutions in the foreclosure context

Nicholas M. Moccia, Esq.
Law Offices of Robert E. Brown, P.C.

Justice Thomas Whelan of Suffolk County is now well-known by foreclosure practitioners to be a "bank friendly" judge.  This was particularly apparent in his recent decision, namely Deutsche Bank Natl. Trust Co. v. Pietra, 2011 NY Slip Op 21261 (Suffolk County July 27, 2011), wherein Justice Whelan critically and, at times, sarcastically disregards the Second Department's recent pronouncement in Bank of New York v. Silverberg, 2011 WL 2279723 (2d Dep't 2011), regarding the incapacity of MERS to transfer notes and mortgages on behalf of financial institutions.  In this vein Justice Whelan writes:

Recently, in Bank of New York v Silverberg, _AD3d_, 2011 WL 2279723 (2d Dept 2011), the Second Department, in explaining and examining the role of MERS, referenced a MERS website, About Us-Overview, MERS, http://www.mersinc.org/about/index.aspx, a particularly intemperate law review article(see Peterson, Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System, 78 U Cin L Rev 1359 [2010], newspaper articles, and the holding in a Bankruptcy Court case, In re Agard, 444 BR 231 (2011). [footnote omitted]. 

In an apparent attempt to cite presumptively more disinterested sources regarding the role of MERS,  Justice Whelan sees fit to ignore, among things, the "intemperance" of Christopher Peterson (a professor of law at the University of Utah), and instead cites R.K. Arnold, the former President and CEO of MERS for a "clearer" and undoubtedly more objective understanding.  Justice Whelan proceeds to discredit the authorities cited in  or consistent with Silverberg, and off-handedly distinguishes the matter before him from Silverberg purportedly because the note and mortgage in Silverberg were the product of a mortgage consolidation and extension agreement (i.e., a CEMA). 

Bottom line:  Justice Whelan is ripe for a Second Department reversal.