Earl S.

David
Attorney at Law
1091 River Avenue, Unit 17 Lakewood, NJ 08701 Tel. 908.907.0953
Email:earlsdavid@yahoo.com

August 16, 2011 The Honorable , P.J.C.H. Ocean County Superior Court 206 Courthouse Lane Toms River, NJ 08754 Re: Docket # Bank v. Home owner.* Motion return date Dear Judge : Please accept this letter in lieu of a formal brief which is in reply to plaintiff's opposition to defendant's motion to vacate default judgment. Please excuse our late response as we recently received plaintiff's opposition which incorrectly lists the return date as Friday July 19, 2011. In light of the recent Appellate Division decisions in Bank of New York v. Laks, A-4221-09, and Deutsche Bank National Trust Company, et al v. Mitchell et al, A-4925-09T3, I am respectfully requesting vacatur of the default judgment. In Bank of New York v. Laks, the Appellate Division stated that the notice of intention to foreclose must not only identify the lender, but it must list the phone number of a representative. The Court said the following," The third, and the one critical in this case, is the "name and address of the lender and the telephone number of a representative of the lender whom the debtor may contact if the debtor disagrees with the lender's assertion that a default has occurred or the correctness of the mortgage lender's calculation of the amount required to cure default." N.J.S.A. 2A:50-56(c)(11). As per the notice of intent to foreclose in this particular case, it is lacking the telephone number and representative and it is thus in violation of the law and the intent of the legislature who drafted the provision of the law. See attached copy of Notice of Intention to Foreclose as Exhibit A.

Moreover, the original complaint was filed on or about January 16, 2009 in the name of a different Plaintiff, Bank . This was not listed in the Notice of Intent to Foreclose. This is a novel issue of first impression that the Court must entertain;A notice of intent to foreclose with a different entity than the named Plaintiff in the complaint. As Mr. Homeowner is not a native of the United States the process was aliento himand he was genuinely confused with the document that he received. Moreover, despite calls to Plaintiff's attorney that nothing would happen as long as he seeks a modification, he and his wife felt swamped by the paperwork and the office of Zucker Goldberg was unhelpful. See supplemental certification of Mr. Homeowner. Another important issue that needs to be addressed in this case is the amended complaint that was filed on June 10, 2009. In Deutsche Bank National Trust, et al v. Mitchell et al, the Appellate Division vacated summary judgment since the assignment of mortgage was not perfected until after the filing of the complaint, the Court stated that plaintiff lacked standing to prosecute the action. In the case at bar,the assignment of mortgage was made on January 15, 2009, just one day before the original complaint was filed. Moreover, it was not perfected until January 29, 2009 when it was recorded with the County Clerk. See attached copy of Assignment of Mortgage that was retrieved from the online website of the Ocean County Clerk, marked as exhibit B. In Plaintiff's opposition response to my motion, they also attached the same assignment of mortgage which can be found at page 8 of their 15 page opposition to my motion. However, there are two glaring differences which I respectfully request the Court to address. First, the loan number on the top right corner is clearly blacked out. On the County Clerk website the loan number is listed as xxxxxxx. The original mortgage which is also located on the County Clerk web page lists the number as xxxxxx. Moreover, on the County Clerk web page on the bottom right side of the page there is a bar code with the date the document was recorded and that is 01/29/2009. In the document provided by Plaintiff's attorney, that section is not there. Was it whited out? If it was removed the question is why was it removed? In my opinion, it was done as a diversion so the Court should not notice that the document was not perfected until after the complaint was filed, which we recently learned in Deutsche Bank v. Mitchell, is a fatal flaw that is not fixed with an amended complaint but the action must be dismissed, which was the ruling in that Appellate Division case and that is binding on this Court. A document presented to Court should be transparent and not be riddled with blackouts and white outs. This questionable behavior should not be tolerated by this Court or any Court. If the Court is not ready to dismiss this action based on Plaintiff's nefarious actions, then we should at least have the right to have the case reopened and depose the individual who actually changed the official document. On a final note, Plaintiff is in breach of it's own contract as per point 20. of the mortgage as it says that , "If there is a change of the Loan Servicer, Borrower will be given written notice of the change which will state the name and address of the new loan servicer." Plaintiff's written notice appears to be the complaint which is not in compliance with the mortgage contract that was

drafted by the lender. See attached point 20 of the mortgage marked asExhibit C as a reference.

Another point worth mentioning is that the agent of the assignment of mortgage, , was a former employee of Plaintiff law firm and it appears that he was wearing two hats, as attorney in fact of Wells Fargo and as employee of the law firm that instituted the lawsuit. Unfortunately, as noted above, Plaintiff's response to our motion raises more questions and it shows the Court that their case is procedurally defective and legally deficient. Wherefore, we respectfully request the Court to grant our motion in the entirety.

Sincerely,

Earl S. David cc:

*Names of parties have been changed to protect the identity of the actual parties. This is a real case. The lesson to be learned is to always review all of the paperwork. You may find mistakes that can save your home. Please visit me at www.foreclosure-defenders.com. I do not charge for initial consultation.