Marie McDonnell relies on her statement of
interest as previously filed in this action onSeptember 30, 2011 and incorporates her facts andfindings expressed therein by reference.As before, this analysis is grounded in factsderived through McDonnell Property Analytics’ forensicexamination of the Essex County Southern DistrictRegistry of Deeds which provides empirical evidence andquantitative analysis with respect to how often thenote and mortgage are separated incident to aforeclosure action.
SUPPLEMENTAL BRIEFING ORDER
January 6, 2012
It has been claimed that requiring a unity of themortgage and the underlying promissory note, inorder for there to be a valid foreclosure, wouldcloud any title that has a foreclosure in the chainof title, regardless of how long ago the foreclosureoccurred. The parties are invited to address whetherthey believe that such a requirement would have suchan effect, and if so, what legal or practicalmeasures exist that might limit the consequences ofsuch a requirement.2.
It also has been suggested that, if the court wereto hold that unity of the mortgage and note isrequired under existing law, the court's holdingshould be applied prospectively only. The partiesare invited to indicate on what authority theybelieve (or do not believe) the court could makesuch a holding prospective only.