Certain respondents to an application brought a motion to vacate a Certificate of Pending Litigation registered against a property following a power of sale transaction.
The moving parties argued the applicants, as subordinate mortgagees, had no reasonable claim to an interest in land and that their remedy, if any wrongdoing occurred in the power of sale process, was in damages or an accounting.
The court applied the analytical framework for CPLs, including the requirement of a reasonable claim to an interest in land and the equitable considerations described in Dhunna.
The court concluded the allegations relating to an allegedly defective notice of sale, premature closing, or improper conduct in the sale process did not support a proprietary remedy.
Finding that damages were the appropriate remedy and that the prejudice of maintaining the CPL outweighed any prejudice to the applicants, the court ordered that the CPL be vacated.