A defendant appealed from a trial court order which, inter alia, granted the plaintiff’s motion for summary judgment on its cause of action to foreclose on a mortgage and denied the defendant’s cross motion for summary judgment dismissing the action.

The plaintiff sought a judgment of foreclosure and sale based upon a mortgage and note extension and modification agreement (CEMA) which the defendant had executed. The plaintiff had lent $500,000 to borrowers who had claimed to own the real estate property that they sought to mortgage (property). The borrowers had signed a note and a mortgage. However, the borrowers had acquired the property through “fraudulent means.” After the lawful owner, the defendant, reacquired the property, he executed the CEMA with the lender. The CEMA contained the defendant’s acknowledgement of the plaintiff’s rights under the note and mortgage and the plaintiff’s agreement to forbear from foreclosing for a year, “presumably to permit [defendant] to obtain refinancing.”