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 SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION
Plaintiff ATLANTIC COUNTY

VS. DOCKET NO: F-33406-08

Tracy Boots , ET AL, CERTIFICATION IN SUPPORT OF
MOTION
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 Although my note and mortgage was originally made with BNC mortgage,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

“[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 “solely” 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