Filed: Oct. 13, 2010
Latest Update: Mar. 03, 2020
Summary: 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 accompanying data included in the Vermont trial court opinion database is not guaranteed.] 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 r
Summary: 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 accompanying data included in the Vermont trial court opinion database is not guaranteed.] 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 ra..
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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
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
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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