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Attorney at Law
216 River Avenue Riviera Executive Center Lakewood, NJ 08701 Tel. 908.907.0953
2/14/11 Hon. Mary C. Jacobson, P.J. Ch. Mercer County Superior Court 210 S. Broad Street Trenton, NJ 08650 RE: THE BANK v. THE HOME OWNER Docket # F-0000-09 Dear Hon. Judge Jacobson: This office represents the Defendants in the above referenced matters. Please accept late response as I first received opposition on Thursday, February 10,2011. Please accept this letter brief in lieu of a more formal pleading in support of defendant¶s motion to vacate Plaintiff's grant of a default against Defendants. The standard for vacating default is good cause. According to R. 4:43-3, "For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 4:50.´ New Jersey courts have affirmatively cited the Federal Rules standard as to what constitutes ³good cause,´ stating that the determination is inherently subjective, and ³requires the exercise of sound discretion by the court in light of the facts and circumstances of the particular case.´ See, e.g., O'Connor v. Altus, 67 N.J. 106, 129 (1975). Moreover, a party entitled to vacation of a default judgment under R. 450-1 is necessarily also entitled to vacation of default, as the standard of R. 4-50 is more stringent than that of R. 4-43. See, e.g. Bernhart v. Alden Cave, 374 N.J. Super 501, 508 (App. Div. 2009, certify. Granted 201 NJ.440 (2010)).
In the case at bar, defendants claim to have never been served with process. R. 4:4-4(a)(1) states the following
(a) Primary Method of Obtaining In Personam Jurisdiction. The primary method of obtaining in personam jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served within this State pursuant to R. 4:4-3, as follows:
(1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individual's behalf;
"A default judgment will be set aside for a substantial deviation from the service of process rules." Sobel, supra, 329 N.J. Super. at 293. "Where due process has been afforded a litigant, technical violations of the rule concerning service of process do not defeat the court's jurisdiction." Rosa, supra, 260 N.J. Super. at 463 (citing O'Connor v. Altus, 67 N.J. 106, 127-28 (1975). "'An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated . . . to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" O'Connor, supra, 67 N.J. at 126 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed 865, 873 (1950)). Plaintiff¶s proof of process in the case at bar is a bare-bones certification asserting that the process server made "7" attempts , left cards, no response. Business address." By the process server's own admissions it shows that Mr. Herman of ProVest did not make any attempts to serve Mr. Homeowner at his dwelling place, which is 1400Main Street, Anywhere USA. This address was in possession of Plaintiff as the address was listed on the Uniform Residential Loan Application as his present address. See copy as a reference. Plaintiff Attorney's claim that service was proper is untrue. Plaintiff did not make a good faith attempt to personally serve the Defendant. It is my opinion that Plaintiff deliberately attempted to serve Defendant at his investment property and or place of business so that they could obtain a quick default and subsequent sale of the property. Mr. Bank Lawyer's certification that," Tenant Gabriel Jones informed the process server that Homeowner does not reside at this address" was moot as Mr. Homeowner never lived at that address as noted in the Uniform Residential Loan Application, which I assume the Plaintiff has a copy of it as well. As such, Plaintiff had a reasonable excuse for not answering the complaint since he was never personally served and as such, he was unaware of the action at that time. Based on above analysis, Plaintiff did not make a good faith effort to serve Defendant and Plaintiff should not be awarded with a default. It is also important to point out that the process server, ProVest is under investigation in the
State of Florida regarding based on "Numerous Complaints being looked into, among them are questionable proper service of complaints, questionable billing practices, filing questionable affidavits filed with the Courts." See printout from the Florida State Attorney General's office. In any event, why would a New Jersey law firm use a Florida process server for New Jersey cases? As per meritorious defense, the contract lists the Mortgage Electronic Registration Systems (MERS) as nominee. See Mortgage in Plaintiff's exhibit marked as Exhibit B. In my humble opinion,the use of MERS is suspect as the Kansas Supreme Court, although not a New Jersey Court, noted in Landmark National Bank v. Kesler, 2009 Kan. LEXIS 834 (Aug 28, 2009), that "The relationship that MERS has to (to holder of a loan) is more akin to that of a straw man than to a party possessing all the rights given a buyer. A mortgagee and a lender have intertwined rights that defy a clear separation of interests, especially when such a purported separation relies on ambiguous contractual language." If the Plaintiff is the same entity as the lender, then what is the purpose of making up an assignment of mortgage a mere three days before the filing of the complaint? It's as if Plaintiff is creating it's own paper trail. Another reason why this case should be reopened, which is deemed "good cause", is due to a claim of predatory lending based on the New Jersey's Consumer Fraud Act, N.J.S.A. 56:8-2, that states the following,"the act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, . . .in connection with a sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been mislead, deceived or damaged thereby, is declared to be an unlawful practice. " According to Legal Service of New Jersey, "Predatory lending has been defined by the New Jersey courts as: A ³mismatch between the needs and capacity of the borrower«[T]he loan does not fit the borrower, either because the borrower¶s underlying needs are not being met or the terms of the loan are so disadvantageous to that particular borrower that there is little likelihood that the borrower has the capability to repay the loan.´ (Associates Home Equity Services v. Troup, 343 N.J. Super. 254, 267 (App. Div. 2000); Nowosleska v. Steele, 400 N.J. Super. 297 (App. Div. 2008)." In the case at bar, there is clear evidence of predatory lending. First of all, Defendant's loan application was "packaged correctly" to ensure that it would pass the company underwriters. Although the Uniform Residential Loan Application states under year acquired "2005", the US Department of Housing and Development (HUD) Settlement date states 01/12/2006. As noted in Plaintiff's complaint, the mortgage was executed on 07/02/2007. In my opinion, the mortgage broker falsely stated the year, "2005" for the purpose of showing an increase in value in order to allow the cash out in the amount of $108,500.00 which is the amount of the mortgage. The loan had to be "seasoned" for 24 months to justify an increase of value between $65,000.00,
which was the purchase price in 2006 and the mortgage amount of $108,500.00. See Uniform Loan Residential Application and HUD settlement as a reference. There was also a fraud with the housing expense. The loan originator stated that the housing expense in the Present Column was $2896.00. The Proposed column shows a benefit to the borrower and states $1088.06. The information on page 1 states that the Present Column should have state $0 and also on page 3 on the Schedule of Real Estate Owned the mortgage amount also states $0. With the correct information the loan would have no benefit to the borrower and the loan would have been denied. See attached Fannie Mae Form as a reference. Defendant's contract must be voided. Another point worth noting is that THE Bank is not even registered in the State of New Jersey. Why should they benefit in obtaining judgments against individuals if they are not even licensed in the State of New Jersey? See attached gateway search form. Based on above analysis ,it is important that the Court vacate Plaintiff's default so that justice can be served and that the defendants have the opportunity to defend themselves in this action. Wherefore, defendant respectfully requests that defendant¶s motion be granted in its entirety. Sincerely,
Earl S. David cc: Bank lawyers
AUTHORS NOTE: THIS IS A REAL CASE SO SOME OF THE NAMES HAVE BEEN CHANGED TO PROTECT THE INDENTITY OF THE PARTIES. YOU MAY COPY THIS DOCUMENT FOR YOUR OWN INTERESTS. JUST GIVE APPROPRIATE CREDIT AND SOURCES. I WOULD LIKE TO THANK SCRIBD FOR ALLOWING ME TO MAKE THIS PUBLIC SO THAT JUSTICE CAN BE SERVED.
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