Justice Diccia Pineda-Kirwan
DLJ Mortgage Capital filed a summons and complaint with a notice of pendency seeking to foreclose on a mortgage given by Dunkowski and Robinson as record owners on the subject real property. A loan was extended to Dunkowski by WMC Mortgage secured by a note on the property. The Ravenell defendants alleged they were the prior record owners for over 40 years and occupied the property, claiming a right to title and possession. They claimed Dunkowski and Robinson were to refinance their mortgage, but fraudulently tricked them into signing over their home. DLJ moved for summary judgment and an order of reference. The Ravenells raised an affirmative defense that DLJ lacked standing to begin the action, noting it neither presented evidence MERS was in possession of the note at the time of the assignment nor did the mortgage permit MERS to assign the note from WMC. The court ruled the standing issue could not be determined as there was an issue of fact of whether DLJ was the lawful holder of the note when it began the action. It also noted there were issues of fact as to the validity of the deed from the Ravenells to Dunkowski and Robinson. Thus, DLJ’s motion for an order of reference and judgment of foreclosure was denied.
