GMAC Mortgage, LLC v. McCarty, No. S1543-09 CnC (Toor, J., Oct. 13, 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. S1543-09 CnC
                                                                         │
JULIA E. MCCARTY, 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 motion for summary judgment is pending. 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

September 29, 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 will not rule on the motion based upon a 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.
       However, because foreclosure mediation is currently scheduled, the court will

await its conclusion before scheduling any hearing. If a hearing is scheduled, the court

strongly urges Ms. McCarty to seek legal representation for the hearing, so that all

potential legal issues may be raised by both sides.


Dated at Burlington, Vermont this 13th day of October, 2010.



                                              _____________________________
                                              Helen M. Toor
                                              Superior Court Judge




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