Justice F. Dana Winslow
Wells Fargo Bank moved for summary judgment in an action to collect the balance due on a promissory note. It alleged the Corley defendants executed a fixed-rate note secured by a second mortgage on their property, and defaulted by failing to make the payments. Wells Fargo elected to sue upon the note rather than beginning a foreclosure action on the second mortgage. The court stated that where plaintiff elected to sue on the note rather than proceed under Real Property Actions and Proceedings Law, thereby avoiding the mandatory settlement process and additional procedural safeguards afforded residential borrowers, close scrutiny of the application is warranted. It noted Wells Fargo did not submit a copy of the second mortgage, or proof of ownership of it, stating while this was not explicitly required, the court could not ignore the “notorious industry practice of transferring mortgaged invisibly through the MERS system.” Thus, the court stated it required assurances that the second mortgage was not separated from the note such that the borrowers were not at risk of duplicate judgments on the same underlying debt. It ordered plaintiff to submit a copy of the second mortgage or proof it was not assigned or transferred.