Justice Anthony J. Cutrona
Citigroup Global sought an order of reference in this mortgage foreclosure action. The court noted debtor Smith failed to serve an answer and was in default. Mortgage Electronic Registration Systems assigned the mortgage to Citigroup, but the court noted as MERS was not a party to the underlying note, it failed to assign same to Citigroup upon assignment of the mortgage. The court stated as there was no assignment of the note, a transfer of a mortgage without the debt was a nullity and no interest was acquired by it. The court also found no evidence Citigroup owned the note, despite an attempt to transfer it to plaintiff by an undated endorsement to Citimortgage—a different corporate entity than Citigroup Global. The court noted there was also no evidence as to the relationship between these two corporations. It stated, however, any objection to plaintiff’s standing was waived as Smith did not serve an answer or move to dismiss. Yet, the court concluded it would be inappropriate to grant Citigroup an order of reference where it was clear it could not make out its prima facie case of entitlement to judgment. As Citigroup cannot show it owned the mortgage, it was not entitled to the relief sought, even on default.
