Earl S. David Attorney at Law Riviera Executive Center 216 River Ave,Lakewood NJ 08701 Tel.

908-907-0953 Attorney for Defendant(s) GMAC Mortgage, LLC Plaintiff SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION ATLANTIC COUNTY

VS. Tracy Boots , ET AL, Defendant


I , Tracy Boots, am the defendant in the above captioned matter. 1. I making this certification in support of my emergency application as a Sheriff will sell my home on October 28, 2010 and I will end up on the street. Based on the facts of this case, I am eligible for relief based on newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49. See copy of law below as a reference.

RULE 4:50. RELIEF FROM JUDGMENT OR ORDER 4:50-1. Grounds of Motion On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the

judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
2. It was reported in newspapers on September 20, 2010 that GMAC halted all home evictions in 23 states that included New Jersey. See attached article as a reference. Although the Court denied my previous motion on September 10, 2010 the fact that GMAC halted evictions based on faulty paperwork is grounds for the Court to vacate the judgment in the interests of justice as my loan is now with GMAC. 3. Although my note and mortgage was originally made with BNC mortgage, my mortgage was assigned to GMAC Mortgage LLC based on a MERS assignment. However, I was never notified of the transfer of my mortgage. 4. I have been advised that Courts across the country have thrown out foreclosure actions based on faulty MERS assignments. See the Kansas Supreme Court decision in Landmark National Bank v. Kesler, 2009 Kan. LEXIS 834 (Aug 28, 2009), where it said "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. The law generally understands that a mortgagee is not distinct from a lender: a mortgagee is

³[o]ne to whom property is mortgaged: the mortgage creditor, or lender.´ Black¶s Law Dictionary 1034 (8th ed. 2004). By statute, assignment of the mortgage carries with it the assignment of the debt. K.S.A. 58-2323. Although MERS asserts that, under some situations, the mortgage document purports to give it the same rights as the lender, the document consistently refers only to rights of the lender, including rights to receive notice of litigation, to collect payments, and to enforce the debt obligation. The document consistently limits MERS to acting ³solely´ as the nominee of the lender. It is our humble opinion that the assignment is a mere sham obscuring from the public the actual ownership of a mortgage, thereby creating the opportunity for substantial abuses and prejudice to mortgagors and especially the defendant in this instant action.´
5. Justice evades me as I have never even seen the actual assignment of the mortgage.

Moreover, many assignments have been faulted as they were signed by members of the law firm that filed suit. This is a conflict of interest. Unfortunately, till date, I nor my attorney have seen the assignment although my attorney filed a notice of appearance with Plaintiff¶s attorney but has yet to see the assignment of mortgage. In one certification it said that I owed $249,231.76 and in another paper it said I owed $51,800.00. They can¶t even get the numbers right. It is crucial for the Court to vacate the judgment to allow for discovery so that we can verify that all documents submitted by Plaintiff are truthful, accurate and correct.
6. It is patently unfair and unjust to lose my home to a bank that has run roughshod over

me with paperwork that may be faulty or even fraudulent. 7. In any event, I did attend Court ordered mediation pursuant to Court order, dated September 10, 2010. However, the mediator asked for additional documents that I need to bring back. 8. Your honor, I beg you to do justice. Please vacate the default judgment rendered against me and let my lawyer do his due diligence so that he can review all of plaintiff¶s documents to ensure I am not being cheated out of my home. I certify that the above statements made by me are true and that if any of the statements are willfully false, I am subject to punishment.

____________________ Tracy Boots

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