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SHORT FORM ORDER

SUPREME COURT - STATE OF NEW YORK

PRESENT: HON. THOMAS A. ADAMS,

Supreme Court Justice

W ACHOVIA BANK , NATIONAL ASSOCIATION, AS FORECLOSURE PART

TRUSTEE FOR THE CERTIFICA TEHOLDERS FOR NASSAU COUNTY
MERRILL LYNCH MORTGAGE INVESTORS
TRUST , MORTGAGE LOAN ASSET- BACKED
CERTIFICATES, SERIES 2005

Plaintiff INDEX NO. : 014812/09

MOTION DATE: 1/22/10
- against - MOTION SEa. : 2

STUART BRENNER, et aI.

Defendants.

The following papers were read on this application:

Notice of Motion , Affrmation, Affidavit and Exhibits. . . . . . . . . . . . . . . . 1

Affrmation in Opposition and Exhibits. .

Motion by plaintiff for summary judgment (CPLR 3212) and an order of reference
(RPAPL 1321) is denied and the complaint is dismissed without prejudice.

Defendant' s answer contains a defense of " lack of standing. " Plaintiff has failed to
establish it was the holder of the note and the mortgage securing it when the action was
commenced. In that regard, plaintiff relies on an undated assignment of the mortgage by
MERS as nominee acknowledged by a Texas notary on July 18, 2009. The note sued on
does not contain an indication it has been negotiated. The undated assignment by MERS
contains a provisio at the assignment of the mortgage is " TOGETHER with the notes
described in said m rtgage. " The record before me is devoid of proof that MERS as
nominee for purposes of recording had authority to assign the mortgage. However,
assuming it pad such authority since it is a party to the mortgage and such authority might
be implied , W-ere has been a complete failure to establish MERS, as a non- party to the
note, to negotiate its transfer. A transfer of the note effects a transfer of the mortgage
MERS vs. Coakley , 41 AD3 674), the assignment of a mortgage without a valid transfer
of the mortgage note is a nullity ( Kluge vs. Fugazv , 145 AD2 537).
 Under the circumstances, the complaint must and hereby is dismissed without
prejudice.

E NT E R:

Dated: 2010

mas A. Adams
Supreme Court Justice

ENTERED
AUG 20 2010
NASSAU COUNTY
COUNTY CLERK' S OFFICE