Justice Thomas Whelan
Plaintiff M&T Bank commenced an action to foreclose on an Aug. 16, 2006 mortgage securing a mortgage note of the same date given by defendant Romero to First West Mortgage Bankers Ltd. in connection with the purchase of residential real property located in Brentwood, NY. The note contains on its face a special indorsement dated Aug. 16, 2006, in favor of the M&T Mortgage Corporation, to whom the plaintiff is a successor by merger under a merger agreement dated Oct. 25, 2006. On Dec. 2, 2009, a nominee of the original lender, which was named as mortgagee of record in the mortgage indenture, executed an assignment of the note and mortgage to the plaintiff. Plaintiff alleged that Romero defaulted in making the payments due in July 2009. Romero claimed an entitlement to a stay of the foreclosure sale and to a dismissal for lack of subject matter jurisdiction, standing, failure to state a claim and failure to comply with certain notice predicates to foreclosure. The court denied Romero's motion, finding that the action was concluded as to all questions at issue between the parties and all matters of defense that were or could have been raised upon the grant of the judgment of foreclosure and sale to the plaintiff in 2012.
