GMAC Mortgage, LLC v. Jones, No. S1545-09 CnC (Toor, J., Oct. 12, 2010)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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                                               VERMONT SUPERIOR COURT
                                                  CHITTENDEN UNIT
                                                   CIVIL DIVISION

                                                                         │
GMAC MORTGAGE, LLC                                                       │
 Plaintiff                                                               │
                                                                         │
 v.                                                                      │      Docket No. S1545-09 CnC
                                                                         │
CYNTHIA K. JONES, et al.                                                 │
 Defendants                                                              │
                                                                         │


                                                              ORDER

           This is a foreclosure case raising an issue that has lately been all over the news:

the massive filing of potentially false affidavits by certain lenders in foreclosure cases

across the country.               A foreclosure judgment was issued based upon an affidavit of

amounts due signed by Jeffrey Stephan. Plaintiff has recently submitted an amended

affidavit of amounts due, indicating that the prior one “may not have been executed on

personal knowledge of the affiant and may not have been executed in the physical

presence of a notary public.” Letter of Joshua Lobe, Esq. dated October 4, 2010. The

new affidavit is proffered as “a corrective Affidavit, which does not have these defects.”

Id.

           While the court appreciates the candor of Plaintiff’s counsel and attributes no

inappropriate conduct to him, the court is at a loss to understand how it can rely upon an

affidavit from a party that has apparently previously filed a false affidavit with the court.

The court therefore declines to rely upon the written affidavit. The court will require that

the affiant appear personally in court to testify to the accuracy of the information in the

affidavit – not by telephone, but in person, so that the court can fully judge the affiant’s
credibility. A hearing will be scheduled for that purpose. If the court is not convinced of

the reliability of the information, the judgment may be vacated.

       The court strongly urges Ms. Jones to seek legal representation for the hearing, so

that all potential legal issues may be raised by both sides.


Dated at Burlington, Vermont this 12th day of October, 2010.



                                               _____________________________
                                               Helen M. Toor
                                               Superior Court Judge




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