They’re keeping me busy on appeals these days…the more they lose, the more the banks are forced to appeal.
Now this attorney did a really good job of fighting his case and frankly he does the best job he can with the facts he has….
Now read through the brief and the appellate record…..
appellantBrief
03222012AmericanHomeMortgage
© 2026 WeidnerLaw. Design by OPM
Can we all get copies of the note so I can be a holder … since being the owner means nothing…
Matt can you get discovery into AHM#2’s purchase of AHM#1 ,, or into Wylbur Ross’s purchase of collection rights from OOne….
I know this is a dumb question, but their IB is titled “ON MANDATORY REVIEW FROM….” What is a mandatory review? I am unfamiliar with the concept.
Seems to me if the lower court wanted an advisory opinion it could ask in it’s own right.
“Plaintiff requested that the lower court conform the pleadings to reflect the orignal and current Plaintiff’s were holders of the note for the purpose of foreclosure”
– Um – Lots of problems with that.
First and foremost, the request as stated is a request for a finding of fact, not an amendment to the pleading.
Second this is NOT the amendment requested in trial. (T92,21 on).
Third such amendment during trial is discretionary, not a right! Matt and the Court correctly pointed out the prejudice and confusion that would cause, in an already confused case.
Fourth, if the ability to prove authority to foreclose resets on a power of attorny, it should have been plead and attached to the complaint, as a document on which the complaint or defense relies.
“Light most favorable”, might apply to dismissal during trial, if the evidence is admitted, but it does not apply to the ‘admissibility of evidence’, and if admitted does not mean it must be believed if contrary to the pleading or other evidence. Maybe the correct standard is ‘directed verdict’. In this case plaintiff failed to prove the PLEAD case, as indicated by attempts to change the pleading to match the contrary evidence.
I think the Court was correct to exclude argument based on documents not in evidence or argument outside the pleading. Matt was right object to arguments about authority to foreclose through powers of attorny when they were outside the pleadings. As a general rule, you have got to amend the pleading first, then present argument and evidence within the amended pleading.
While you can move to conform pleading to the evidence during trial, such should not be prejudicial, and is discretionary. I am not sure how they are going to suggest abuse of discretion. Oh – That’s right, they think all three issues are going to be judged De Novo. The first yes, but the second and third are clearly discretionary. Even if Judge totally believed the witness, the evidence did not match the pleading and pointed the wrong way. Brief identifies no specific evidence that the court excluded or failed to credit to Plaintiff.
LAST
When was the last paragraph of F.S. 673.3011 changed or added? Was it after the complaint was filed ? There is now, what appears to be new language to me, that reads:
“A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.”
PS Technical note, It looks like the IB not properly ‘signed’ with attorny name, firm, address and bar number, although they appear on the cover. Cert of service is, but brief and cert of type face is not. Not even signed by person who’s name appears under the signature.
I went to court yesterday and the judge was totally for Mellon Bank and blaming me.
My attorney was useless and got walked over and bullied. I have filed a complaint with the FTC for fraud, he claimed to a foreclosure expert, even did a fox news spot. I believe he was being promised something from Mellon.
He would never listen to us and did not due what was promised, he believed Mellon it was not a sub-prime and that they had the note from the start of the loan.
The judge wrote a 44 page document on June 20th deciding already for the hearing on June 22. don’t know why he even had the hearing and oral arguments.
At the end I stood up and said don’t I get to say anything I am the homeowner. He said through your attorney, I would not let it go, finally he said go outside and talk we did and I fired him on the spot, went back in and I had the floor. I told him that I did everything I could to talk to Bank of America to do a loan mod, to Mellon after the deposition, and again before the hearing, they would not sit down.
At one point the did a 417 page Summary Judgment.
I did have mediation, New Jersey states that is the first, no trial, nothing, no due process. I said I am a Disabled Veteran who served her country and now her country as failed her.
If I come up with the arrears I can stay and I said if I had we would not be here.
I said what am I going to do they have deep pockets Mellon. The judge said I could appeal, but said they more than likely won’t over turn him. He ignored the inflated income, no signature on Assignment of mortgage, totally blamed me cause I took out the loan and signed the note, yes when I was making 2500.00 or more monthly, until I was not paid my commission, Mellon Kerri Duffy said the stopped paying because of income, but isn’t that what it is all about, lying on the application about that I could them not doing their due diligence, bound for failure which Mellon counted on.
My attorney was weak, never contacting me, won’t tell me anything going on, just so many ethical violations.
What until you read what the judge wrote. I have already contacted some media, but not sure if they are going to contact, please help me make this public. Kerri Duffy main point was that the loan signing lasted one to two hours, which it didn’t, we were shown only certain papers, that were tabbed for us to sign. I can’t stop crying we did nothing wrong.
This judge is changing laws.
My attorney said no he is a fair judge and is the best foreclosure judge in New Jersey, for the plaintiff he is. No homeowner is going to win in New Jersey. And the judge changed his way of ruling back in June 2010 he ruled in favor of the homeowner, without prejudice of course.
Judge Todd was total pro-plaintiff and I am going to file a Judicial complaint.
I am going to do everything to make them wish they would have sat down with me.
I am going to be filing a complaint with SEC and against Kerri Duffy for ethical violations and violating my rights.
As we were I got on the elevator with the ex-attorney and her and stood in the middle of them. Then downstairs she went into another room and I stood waiting because dirtball Michael Gaier was waiting for her, I walked behind them and heard them talking as we walked outside I walked past her and said at least someone can sleep at night and then I turned around and reminded gaier of client/attorney communication and duffy said something and said I know.
So much more, this needs to be investigated. But read what the judge wrote. thanks. Hey I have a learning disability and not great at writing. Dyslexia, have hard time understanding stuff, like math, loan documents.
Duffy asked me what my disability was during a deposition, but it seems it was removed from it, illegal to ask that question. I know there is other stuff, but have a hard time remembering.
Oh, time is another issue, lack of really having a concept of it.
over 10 hours in a deposition with mellon asking asking the same question and they still didn’t get to depo my partner.
Thanks, I appreciate your help with my request.
By the way the judge put us in with a loan that was done 2005, ours 2006
I am hurting and so angry.
Dear Lynn Tomaro,
Can you tell me a little bit about what type of defense your attorney used and are you currently still in the home? Was there any analysis done on your loan docs? Have you filed a complaint with the OCC or had a Certified Bank Foreclosure Examiner review your loan documents and applications for modification? both of the later are free services. Was your loan securitized? Some are winning in NJ but often these cases are hush or gagged. There is a lot of injustice happening in Pa NJ and DE.. but there are ways to turn the table. Knowledge is power, and having an attorney who gets it is VERY important. NOT all attorneys know how to argue securitization and fraud. Many still argue foreclosure the old way. I have trained and taught attorneys in the Tri-state area on how win against the banks. Don’t get discouraged and don’t give up that is what the banks want.. and you are right they have deep pockets and they set aside approx. 25 million to fight homeowners which is nothing in comaparison to what they have made on every loan.. THEN BANKS HAVE NO LOSS AND MADE MILLIONS,BILLIONS AND IN SOME CASES TRILLIONS ON LOANS.
This is what the 4DCA did in the MClean case: ” A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it owns and holds the note and mortgage in question””otherwise, the plaintiff lacks standing to
foreclose. ”
Then : February 8, 2012 ]
ON MOTION FOR CLARIFICATION
“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose. ”
So the final opinion is by the 4DCA : plaintiff has to be the HOLDER at the the the action was filed. They removed the owner part. So as far as that, plaintiff’s lawyer was correct. You do not have to be the owner in order to foreclose.
I love how the “lost note count” suddenly was just”incorrectly added”………..lol, so they claim!
Thanks for sharing this document. I think this will be a very interesting read and it might concern me one of these days.
Most people are unaware, including myself, of point #3.