R. O'DONNELL: MIENL OH, RIKER, DANZIG, SCHERER, HYLAND AND PERRETTI, FOR THE BANK OF
NEW YORK. RANDOLPH C. LAFFERTY: RANDOLPH LAFFERTY FROM COOPER ON BEHALF OF
MARIANNE AND ANTHONY CORRADETTI. MICHAEL R. O'DONNELL: GOOD MORNING,
JUSTICES. I'D LIKE TO RESERVE ABD HAVE FIVE MINUTES FOR REPLY. MAY IT PLEASE
THE COURT. THIS IS AN APPEAL OF A TRIAL COURT DECISION BY THE APPELLATE DIVISION WITH
PARTIAL REMAND THAT WAS THE SUBJECT OF A RE-FINANCE BETWEEN ANTHONY AND MARIANNE
CORRADETTI. ON ANTHONY CORRADETTI'S SECOND HOME IN OCEAN CITY. THE EVIDENCE AT TRIAL
AND EVEN AT SUMMARY JUDGMENT LEVEL, THE RATIONAL FACTFINDER WOULD KNOW THAT THE MORTGAGE
WAS NOT -- THAT THE MORTGAGE WAS NOT FORGED AND THAT THE ONLY WAY 1.8 MILLION IN PRIOR
MORTGAGES THAT THE CORRADETTIS HAVE ADMITTEDLY AGREED WAS PAID OFF WAS THROUGH THIS RE-
FINANCE. THE LOWER COURT IGNORED THIS EVIDENCE TO SUCH AN EXTENT THAT INVOKES
THE ESSENTIAL WRONGNESS THAT STATE V. JOHNSON DISCUSSES WHEN IT SAYS THIS COURT UNDER
THE NEW JERSEY CONSTITUTION HAS THE ABILITY TO MAKE AMENDED FINDINGS OF FACT WHEN THERE IS
-- THE TRIAL COURT AND THE LOWER COURTS ARE SO WIDELY APART. NOW, THE ACTUAL EVIDENCE
THAT PROVES THIS FIRST ARE FIRST THE HAD YOU HAD ONE. THE HAD YOU HAD ONE WAS DATED SEPTEMBER
25TH AND THE CORRADETTIS WERE IN CROATIA ON THAT DAY. BUT THEY WERE BACK IN NEW JERSEY
THE VERY NEXT DAY. AND THE HAD YOU HAD ONE ACTUALLY SAYS ON THE UPPER SIDE OF THE BONGS,
IT SAYS THAT IT'S PRINTED ON SEPTEMBER 26, 2016. IT EXPRESSLY SAYS, TITLE OF SETTLEMENT.
QUOTE, 9262016 AT 1552 G S. REMARKABLY THE TRIAL COURT EVEN NOTED THAT BUT DID NO ANALYSIS,
MADE NO CONCLUSION AND SAID NOTHING MORE ABOUT IT. THE APPELLATE DIVISION MAJORITY SAID
NOTHING AT ALL ABOUT IT. JUDGE ACCURSO SHE TOLD YOU WHAT THAT MEANS IN AND OF ITSELF,
THAT THE MORTGAGE WAS BACKDATED AND THE CORRADETTIS DID IN-DEED SIGN. BUT
THE MOST IMPORTANT EVIDENCE AS TO THE HAD YOU HAD ONE IS THE ONLY EVIDENCE ANYONE PRESENTED
AS TO HOW THE CORRADETTIS PAID OFF MORTGAGE DEBT IN THE FACE AMOUNT 2.3 MILLION. AT THAT
-- IN 2006. THEY ADMIT THEY ENTERED INTO THE COMMERCE MORTGAGE IN 2003 FOR 2.3 MILLION.
AND MRS. CORRADETTI INITIALLY DENIED THAT. BUT SINCE THAT TIME THEY'VE ADMITTED IN THEIR
APPELLATE BRIEF AT PAGE FOUR AND THE APPELLATE DIVISION MADE A FINDING OF THAT. AND THE
HAD YOU HAD ONE ITEMIZES THE DISBURSEMENTS, 1.352 MILLION AND 4,000 TO WORLD BANK. THE
HAD YOU HAD ONE ALSO REFLECTS PROPERTY TAXES AND INSURANCE BE PAID. AND THE
ANSWER, THE LOGICAL CONCLUSION IS THOSE FUNDS PAID OFF THEIR MORTGAGES. BECAUSE WITHIN
SIX WEEKS, CANCELLATIONS OF BOTH MORTGAGES WERE FILED IN THE COURT. THE BANK OF NEW YORK
MORTGAGE IS ALSO NOTARIZED IN BURLINGTON COUNTY WHERE THE HOME IS. AND THEN WE ADD THE
BANK's PAYMENT LEDGER. SPECIFICALLY THE BANK's PAYMENT LEDGER WITH THE BANK OF AMERICA
RECORDS AND THE BABY RECORDS. THE BANK OF AMERICA BEING ADDRESSED TO THE CORRADETTI'S
HOME AND ADDRESSED TO THEM AT 130 TAILOR LANE, CINNAMON SON, NEW JERSEY, REFLECTS A PAYMENT
OF 13126.16. IT CONTINUES TO REFLECT AFTER THE TRANSFER TO BAYVIEW AND SERVICER PAYMENTS
OF INSURANCE AND ALSO OF TAXES THROUGH 2017. THAT WAS ADMITTED IN EVIDENCE AS P-FIVE. AND FINALLY, ON JULY 10TH, 2010, WHEN THE CORRADETTIS WERE FACING A FINAL JUDGMENT
FORECLOSURE UNIT AND SAID THAT THEY -- THAT YOU ARE HEREBY NOTIFIED THAT I OBJECT TO THE
EFRNT OF FINAL JUDGMENT IN THE ABOVE-REFERENCED MATTER. I DISAGREE AND DISPUTE THE AMOUNT
OWED. NOW, WITH SIGNIFICANT AMOUNT, THAT IS THE NUMBER. FIRST, MRS. CORRADETTI
DENIED THAT SHE SIGNED THAT LETTER AT TRIAL. NOW ON APPEAL THEY HAVE ADMITTED SHE DID.
THAT'S SET FORTH AT PAGE EIGHT OF THE DEFENDANT'S APPELLATE BRIEF. THEY EXPRESSLY SAY
ON JULY 19TH, MARIANNE AND ANTHONY CORRADETTI SENT A PRO SE LETTER TO THE PLAINTIFFS
COUNSEL. IF YOU DIDN'T ENTER INTO A MORTGAGE, YOU WOULDN'T JUST DISPUTE THE
AMOUNT. YOU WOULD SAY, I NEVER ENTERED INTO IT. THAT'S WHAT A LAYPERSON WOULD DO. AND
THAT'S WHAT JUDGE ACCURSO FOUND WHEN SHE DID HER REVIEW AND HER ANALYSIS AND FOUND THAT
THE COULD YOU RECALL TRIAL WENT SO FAR WIDE OF THE MARK. SPECIFICALLY I THINK
WHAT SHE FOUND GOES TO REASON. SHE FOUND TO BRIEF THAT THE CORRADETTIS DID NOT ENTER
INTO THIS MORTGAGE. YOU WOULD HAVE TO FIND THAT SOMEONE ELSE ENTERED INTO A RE-FINANCE
WHERE THEY GOT ABSOLUTELY NO MONEY FROM THE TRANSACTION. THEY PAID $8,000 FOR THE
TRANSACTION -- $8,000. THEN THEY MADE MORTGAGE PAYMENTS OF ALMOST $400,000 FOR ANOTHER
TWO AND A HALF YEARS. AND THEN THEY SIGNED -- ISSUED A THREE PAGE LETTER NOT DISPUTING
THE MORTGAGE BUT DISPUTING THE AMOUNT. NO RATIONAL FACTFINDER COULD COME TO THAT
CONCLUSION. AND THAT'S WHY WE SAY THIS IS THAT VERY RARE CASE THAT INVOKES THE STATE V.
JOHNSON PARAMETERS FOR THIS COURT AND ALSO THE BURDEN ON THE APPELLATE DIVISION TO DO
ITS OWN FACT-FINDING, BECAUSE THE TRIAL DIVISION JUDGE MISSED THE MARK SO WIDE THAT AN
IN-JUSTICE IS UNDENIABLY BEING DENIED. LET'S LOOK AT WHAT THE EVIDENCE PRESENTED
AS EVIDENCE OF FORGERY. MRS. CORRADETTI WAS THE ONLY WITNESS THAT TESTIFIED AT TRIAL.
SHE WAS FOUND TO BE NOT CREDIBLE IN EVERY SINGLE INSTANCE EXCEPT FOR THE FACT THAT THE
COURT FOUND SHE WAS CREDIBLE THAT SHE DIDN'T SIGN THE BANK -- JUSTICE ALBIN:
LET'S STOP THERE AND BREAK THIS ONE. NOW, I'M JUST TALKING ABOUT NOW THE MORTGAGE NOTE.
THE REASON WHY THE JUDGE FOUND MS. CORRADETTI CREDIBLE ABOUT THAT IS BECAUSE MS. CORRADETTI
WAS IN CROATIA ON SEPTEMBER 25TH. AND EIGHT DAYS BEFORE THAT. AND THAT PARTICULAR --
THE NOTARY PUBLIC AFFIRMED HER SIGNATURE THERE. AND THE DATE SEPTEMBER 25TH. NOW,
THE NOTARY PUBLIC MIGHT HAVE BEEN MISTAKEN ABOUT THE PEOPLE WHO WERE BEFORE HIM. BUT
SHOULDN'T HAVE BEEN MISTAKEN ABOUT SEPTEMBER 25TH. AND I THINK IT'S A CRIMINAL ACT FOR
THE NOTARY PUBLIC TO INTENTIONALLY NOTARIZE A SIGNATURE ON A DATE THAT IS IN-CORRECT.
BUT JUST WITH RESPECT TO THAT, WHY ISN'T THERE SUFFICIENT CREDIBLE EVIDENCE
IN THE RECORD TO SUPPORT THE JUDGE'S FINDING THAT MRS. CORRADETTI COULDN'T HAVE DONE THAT
ON SEPTEMBER 25TH WHEN SHE WAS IN ANOTHER COUNTRY. MICHAEL R. O'DONNELL:
FIRST, AS JUDGE ACCURSO POINTED OUT, THE REASON FOR THE BACKDATING WAS -- BUT I WOULD
ALSO SAY, JUSTICE, THE TRIAL COURT DIVISION JUDGE IF HE BELIEVED THAT COULD HAVE GRANTED
SUMMARY JUDGMENT. BUT HE DIDN'T. WHAT HE SAID IN HIS SUMMARY JUDGMENT DECISION IS THE
FACTS SUBMITTED BY THE DEFENDANTS IN SUPPORT OF THE ALLEGED FORGERY IS THAT THE SIGNATURES
WERE NOT PUT ON THE MORTGAGE DOCUMENTS ON SEPTEMBER 25TH AS THE NOTARY STATES.
EVERYONE KNEW THAT AT THE TIME OF THE DECISION. BUT THEN HE GOES ON TO SAY, IT DOES NOT
FOLLOW FROM THE FACT THAT THE SIGNATURES WERE FORGED. IT DOES NOT FOLLOW THAT THE MORTGAGE
DOCUMENTS ARE INVALID. IT DOES NOT FOLLOW THAT THE DEFENDANTS OWED MONEY TO THE. THE
EVIDENCE IS THE DEFENDANT INTEND TO DO GIVE THIS MORTGAGE PSHGS THE DEFENDANT DID SIGN
THE MORTGAGE DOCUMENT, WERE PAID IN FULL AND DISCHARGED, AND THAT THE DEFENDANTS MADE THE PAYMENTS NOR TWO YEARS AND DID NOT MAKE PAYMENTS TO THE TWO PREVIOUS MORTGAGES AFTER
O'DONNELL: THAT'S THE JUDGE's ANALYSIS ON THE SUMMARY JUDGMENT AT 813 OF THE APPENDIX.
JUSTICE ALBIN: NO. BECAUSE THERE WERE DISPUTED FACTS. HE DECIDED THERE WERE
DISPUTED FACTS AND HE CONDUCTED A TRIAL. AND HE HEARD THE WITNESSES -- I'M ONLY TALKING
NOW ABOUT THE MORTGAGE. HE HEARD THE WITNESSES AND HE MADE CREDIBILITY FINDINGS. SO
I'M ONLY TALKING ABOUT THE FORGERY NOW. FORGET ABOUT WHETHER OR NOT THEY MADE THE PAYMENTS
LATER ON. I'M ONLY TALKING ABOUT THE FINDING ABOUT THE FORGERY. WHAT IS OFF? WHY ISN'T
THERE SUFFICIENT CREDIBLE EVIDENCE TO SUPPORT HIS FINDING THAT THEY COULD NOT HAVE SIGNED
IT ON SEPTEMBER 25TH WHEN THEY WERE IN CROATIA ON SEPTEMBER 26TH? MICHAEL R.
O'DONNELL: I UNDERSTAND -- JUSTICE ALBIN: AND ASSUMING THERE WAS A PRESUMPTION
OF CORRECTNESS CONCERNING A NOTARY PUBLIC. WE DON'T ASSUME THAT THEY'RE CORRUPT. SO
GO AHEAD. MICHAEL R. O'DONNELL: I UNDERSTAND, JUSTICE, THAT IF WE'RE JUST
TALKING ABOUT THE FORGERY. BUT IT WASN'T A DISPUTED FACT AT THE SUMMARY JUDGMENT HEARING
THAT THEY WERE IN CROATIA ON SEPTEMBER 25TH. THAT WASN'T DISPUTED. JUSTICE
FERNANDEZ-VINA: COUNSEL, DOES THE DOCUMENT ITSELF NEGATE THE FACT INAUDIBLE.
MICHAEL R. O'DONNELL: ABSOLUTELY, JUSTICE. JUSTICE ALBIN: HOW DO YOU KNOW
WHAT EVIDENCE IS THERE IN THE RECORD THAT THAT WAS NOT -- THAT IT WASN'T PRINTED ON
SEPTEMBER 26TH WITH THEIR SIGNATURES ON FROM SEPTEMBER 25TH? WHAT EVIDENCE IN THE RECORD
DO YOU HAVE TO DISPUTE THAT? LET HIM RESPOND TO THAT QUESTION. MICHAEL R.
O'DONNELL: JUSTICE ALBIN, THE HAD YOU HAD ONE ITSELF. THE HAD YOU HAD ONE SXEFL SAYS,
I DON'T EXPRESS D BS 1552. THEY'RE NOT GOING TO TAKE SIGNATURES AND THEN SEND IT BACK.
JUSTICE ALBIN: WHAT IS THE DATE ON THE HUD-1? NOT THE PRINTED PART, WHAT
IS THE DATE -- MICHAEL R. O'DONNELL: THE HANDWRITTEN DATE IS SEPTEMBER 25TH.
JUSTICE ALBIN: HOW DO YOU KNOW THAT -- WHAT EVIDENCE IS THERE THAT IT WASN'T
SCANNED WITH THE SIGNATURES ON FROM SEPTEMBER 25TH ON SEPTEMBER 26TH? MICHAEL
R. O'DONNELL: WELL, THE DOCUMENT ITSELF -- AND NO ONE HAS EVER, EVER MADE THAT CONTENTION
THAT SOMEHOW THERE WAS SOME -- SOMEBODY SIGNED -- THEY SIGNED FORGED DOCUMENTS ON THE
25TH AND THEN SENT IT BACK -- JUSTICE ALBIN: SHE SAID IS SHE DIDN'T SIGN
IT ON THE 25TH. SHE SAID SHE WAS IN CROATIA. SHE SAID SHE DIDN'T SIGN THE HUD-1 ON THE
25TH. SHE WAS IN CROATIA. I'M NOT TALKING ABOUT THE REST OF IT. WHETHER OR NOT THEY
PAID. I DON'T KNOW WHETHER OR NOT TWO OTHER PEOPLE PRETENDING TO BE THE CORRADETTIS
ARRIVED ON SEPTEMBER 25TH AND DECEIVED THE NOTARY PUBLIC. I DON'T KNOW. BUT THE NOTARY
PUBLIC CERTAINLY KNEW THAT WHOEVER WAS SIGNING WAS SIGNING ON SEPTEMBER 25TH, UNLESS THE
NOTARY PUBLIC WAS CORRUPT. CHIEF JUSTICE RABNER: MR. O'DONNELL, CAN YOU HELP
US, THE PRINTED SEPTEMBER 26TH, HOW IS THAT GENERATED? IS IT GENERATED MORE THAN ONCE?
CAN YOU EXPLAIN HOW THAT FUNCTIONS? MICHAEL R. O'DONNELL: THE HUD-1 WOULD BE
GENERATED BY THE TITLE AGENT. AND THE TITLE AGENT WOULD BE GENERATING IT FROM HIS FORMS.
AND THEN YOU WOULD PUT IN THE NUMBERS. AND THEN YOU WOULD HAVE IT EXECUTED. BUT YOU WOULD
NOT -- CHIEF JUSTICE RABNER: CAN IT BE GENERATED TWICE? CAN IT BE GENERATED
THE DAY AFTER? THE POINT THAT JUSTICE ALBIN WAS HIGHLIGHTING, CAN YOU RESPOND TO THAT?
MICHAEL R. O'DONNELL: WELL, YOU CAN HAVE MULTIPLE HUD-1S GENERATED BUT IN
THIS CASE WE ONLY HAVE ONE HUD-1 WITH THE NUMBERS AND THAT HUD-1 HAS A DATE THAT IT WAS
PRINTED SEPTEMBER 26TH AT 15:52. . THAT'S WHEN IT WAS GENERATED. AND THERE IS NO EVIDENCE,
ZERO, OF A HUD-1 GENERATED ON SEPTEMBER 25TH. JUSTICE SOLOMON: CAN I ASK YOU
A QUESTION ABOUT THAT GENERATED? HUD-1 FORM ISN'T SOMETHING LIKE A TYPICAL CLARK's FORMS
WHERE YOU PULL IT OFF A TAB, IS IT? IT'S SOMETHING THAT THE ORIGINAL FORM IS GENERATED
BY A COMPUTER ON THE PAPER AND THAT'S THE DATE YOU'RE TALKING ABOUT, NOT THE DATE WHEN
IT WAS XEROX'D, COPIED OR PHOTOCOPIED. IT'S THE DATE THE FORM ITSELF BEFORE IT'S FILLED
OUT IS GENERATED BY SOME COMPUTER PROGRAMMED TO GENERATE HUD-1 FORMS. MICHAEL R.
O'DONNELL: THAT IS MY UNDERSTANDING. JUSTICE SOLOMON: THOSE TITLE AGENTS,
TITLE COMPANIES AND CLOSING AGENTS WOULD HAVE. SO THAT THE FORM BEFORE IT WAS SIGNED,
BEFORE IT WAS FILLED OUT, THIS IS WHAT YOU WERE RELYING ON. BEFORE IT WAS SIGNED, BEFORE
IT WAS FILLED OUT, WHEN IT WAS CREATED TO BE COMPLETED TO SHOW THE CLOSING FINANCIAL
DISTRIBUTIONS. THAT WAS ACTUALLY ON THE 26TH. THAT'S WHAT YOU'RE RELYING ON.
MICHAEL R. O'DONNELL: YES. THAT IS EXACTLY WHAT I'M SAYING. JUSTICE LA VECCHIA:
CAN YOU BREAK DOWN THE BURDENS OF PROOF THAT WERE APPLICABLE HERE. THE BURDENS FOR YOU
AND THEN THE BURDEN ON THE DEFENDANT TO PROVE THE AFFIRMATIVE DEFENSE OF FORGERY. LET'S
GO OVER THAT. MICHAEL R. O'DONNELL: THE BURDENS OF DEFENSE ON ME WITH REGARD
TO FIRST PROVING THE MORTGAGE AND ITS VALIDITY IS PREPONDERANCE OF THE EVIDENCE. THE
BURDEN TO ME AS TO EVERY EQUITABLE REMEDY, EQUITABLE SUBROGATION, RATIFICATION AND
UNJUST ENRICHMENT IS PREPONDERANCE OF THE EVIDENCE. FORGERY HAS TO BE
PROVED BY CLEAR AND CONVINCING EVIDENCE. WHICH IS A MUCH HIGHER STANDARD. JUSTICE
LA VECCHIA: MY QUESTION TO YOU IS, THERE IS SOME WAY WHICH WHAT HAPPENED HERE AT TRIAL
COULD BE PERCEIVED TO BE A SHIFTING OF THE BURDEN BACK TO YOU TO DISPROVE FORGERY. DO YOU
THINK THAT IS WHAT WAS GOING ON HERE? WAS THERE SHIFTING BACK OF THE BURDEN BEFORE SUFFICIENT
PROOFS HAD BEEN MADE BY THE CORRADETTIS? MICHAEL R. O'DONNELL: YES. I ABSOLUTELY
BELIEVE THAT IS WHAT HAPPENED, JUSTICE LAVECCHIA, BECAUSE THE ONLY PROOF OFFERED BY THE
CORRADETTIS IN ESSENCE WERE THEY WERE IN CROATIA ON SEPTEMBER 25TH. AND THE JUDGE, HER
DISSENT ALONE, WOULDN'T BE ENOUGH TO SHIFT THAT BECAUSE SHE WAS CONFUSED AS TO WHEN SHE
CAME BACK FROM CROATIA. BUT THAT'S IT. OTHER THAN THAT YOU HAD A HUD-1 THAT WAS GENERATED
SEPTEMBER 26TH. SHE COULDN'T EXPLAIN HOW PRIOR MORTGAGES THAT SHE ADMITTED SHE AGREED
TO WERE PAID OFF. IT REFLECTED A CLOSING. THE BANK LEDGER WAS PUT IN EVIDENCE OF 30
PAYMENTS. SHE SIGNED A LETTER TO THE FORECLOSURE UNIT, NOT DISPUTING THE VALIDITY OF THE
MORTGAGE, BUT THE AMOUNT. JUSTICE LA VECCHIA: AND ALL OF THESE WERE RECORDED
OF COURSE, CORRECT? MICHAEL R. O'DONNELL: YES. THE NEW MORTGAGES WERE
ABSOLUTELY RECORDED. AND THE OLD MORTGAGES WERE ABSOLUTELY -- WERE CANCELLED. SO EVEN
IF YOU BELIEVE THAT IT WAS FREE AND CLEAR, YOU'D HAVE TO BELIEVE THAT THE MORTGAGES ARE
FLOATING AROUND BEFORE NOTHING. THE FACTS ARE CLEAR THAT IN 2000 THEY TOOK OUT A $2 MILLION
LOAN. IN 2003 IT WAS 2.3 MILLION. THEN IN 20061.79 MILLION WAS PAID OFF. IT WAS A
MORTGAGE BY COUNTRYWIDE AT 6.75 PERCENT. SOME OF THE ATTACK ON THE BANK LEDGER WAS THAT
BANK OF AMERICA -- IT TRANSFERRED FROM COUNTRYWIDE TO BANK OF AMERICA, DIFFERENT
SERVICERS. CHIEF JUSTICE RABNER: CAN I TAKE YOU BACK IN LIGHT OF YOUR ANZ
TO JUSTICE LAVECCHIA's QUESTIONS TO SOMETHING THAT WAS BROUGHT UP EARLIER. WHETHER THERE
WAS SUFFICIENT EVIDENCE THAT MRS. CORRADETTI DIDN'T SIGN THIS ON SEPTEMBER 25TH. IT
STRIKES ME THAT THERE IS, BECAUSE IT'S UN-DISPUTED THAT SHE WAS IN CROATIA AND THAT A CONCESSION
ON THAT POINT DOESN'T REALLY HURT YOUR CASE. THERE'S SUFFICIENT EVIDENCE, IS THERE NOT,
THAT IT WASN'T SIGNED ON THE 25TH, CORRECT? MICHAEL R. O'DONNELL: THAT IS
CORRECT. SHE WAS IN CROATIA. THEY DID NOT SIGN IT. AND THAT IS PART OF OUR CASE.
CHIEF JUSTICE RABNER: SO LET'S GO TO THE NEXT QUESTION. IN LIGHT OF THE BURDEN THAT YOU'VE
JUST EXPLAINED WITH RESPECT TO FORGERY, WHAT PROOFS HAVE YOUR COLLEAGUES ON THE OTHER
SIDE OF THE AISLE COME FORWARD WITH THAT THIS IS A FORGED SIGNATURE OTHER THAN THE DISCREPANCY
IN THE DATE? MICHAEL R. O'DONNELL: THAT IS IT. YOU KNOW, MY CLIENT WAS
CRITICIZED FOR NOT HAVING A FORGERY EXPERT. BUT THE OTHER SIDE HAD THE BURDEN AND DID NOT
PRODUCE A FORGERY EXPERT. JUSTICE ALBIN: WHY DIDN'T YOU CALL YOUR FORGERY
EXPERT. YOU HAD ONE AND -- I KNOW YOU WEREN'T COUNSEL BELOW. BUT ONE WASN'T CALLED AT THE
TIME OF TRIAL. YOU COULD HAVE CALLED A FORGERY EXPERT. THEY HAVE A PRESUMPTION OF VALIDITY
THAT THE THING WAS SIGNED ON THE 25TH. THIS IS A LAW. THERE'S A PRESUMPTION OF VALIDITY
THAT THE NOTARIZATION OCCURRED ON THE 25TH. SO I'M TRYING -- UNDER THE -- UNDER OUR
STANDARD OF REVIEW, THERE JUST HAS TO BE SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD TO
SUPPORT THE TRIAL COURT'S FINDING. I'M TALKING ABOUT WHEN IT WAS NOTARIZED. THE JUDGE
FOUND BASED UPON THE PASSPORT, BASED UPON THE PRESUMPTION OF THE VALIDITY, IT WAS DONE
ON SEPTEMBER 25TH. WHY IS THAT CRAZY? WHY IS THAT IN-CREDIBLE? MICHAEL R.
O'DONNELL: BECAUSE THE JUDGE ALSO FOUND IN HIS SUMMARY JUDGMENT DECISION ALL OF THAT
DIDN'T MEAN THAT THERE WAS A FORGERY. THAT IT ALL DIDN'T FOLLOW. AND THE EVIDENCE AT
TRIAL THAT WAS PUT ON WAS THAT MRS. CORRADETTI DIDN'T KNOW WHAT SHE SIGNED. THAT MRS.
CORRADETTI DID EVERYTHING. THE EVIDENCE ASK EXPRESSED TO THE JUDGE SAID THAT MRS.
CORRADETTI WAS LOOKING TO HER LAWYER FOR THE ANSWERS. JUSTICE ALBIN: ASSUME
THAT. LOOK, EVEN ASSUME P YOU STILL HAVE A NOTARIZED MORTGAGE AND NOTE ON THE 25TH WHEN
SHE WAS IN CROATIA. YOU STILL HAVE THAT. MICHAEL R. O'DONNELL: AND I STILL
HAVE A HUD-1 THAT SAYS I PAID OFF THE PRIOR MORTGAGES. I STILL HAVE THE CANCELLATION
OF THOSE MORTGAGES. THAT'S THE ENTIRE AMOUNT OF THIS LOAN DEBT. JUSTICE ALBIN:
I'M NOT TALKING ABOUT THE RESPA. LET'S TALK ABOUT THE HUD-1. I'M NOT SAYING THEY WEREN'T
PAID OFF. I'M JUST TALKING ABOUT THESE DOCUMENTS NOW. THE HUD-1, THEY DON'T NECESSARILY
HAVE TO BE PRINTED OUT. YOU WERE SUGGESTING THAT IN YOUR RE-MARKS. YOU PUT ON A WITNESS
-- I'M NOT SAYING YOU. I'M NOT BLAMING YOU. OKAY. THE TRIAL. OF A PERSON WHO DIDN'T
KNOW ANY -- WHO ONLY KNEW THAT STUFF WAS IN THE FILE. HAD NO PERSONAL KNOWLEDGE OF ANYTHING.
WAS PRODUCING DOCUMENTS. COULD NOT SAY ANYTHING ABOUT ANY OF THOSE DOCUMENTS. THAT'S
NOT THE WAY A TYPICAL CASE SHOULD BE TRIED. DO YOU AGREE? MICHAEL R. O'DONNELL:
YES AND NO. THIS IS THE CHANCERY DIVISION. AND THIS IS WHAT DEALS WITH FORECLOSURES.
AND A LOT OF THESE WERE SECURITIZED LOANS AND A LOT OF TIMES YOU DON'T HAVE THOSE PEOPLE
WITH PERSONAL KNOWLEDGE. IN THIS PARTICULAR CASE THE TITLE AGENT WAS GONE. THE NOTARY
COULDN'T BE FOUND. THE MORTGAGE HAD BEEN ASSIGNED. SO THERE WASN'T -- MR. CORRADETTI,
WHO HAD ALL THE KNOWLEDGE OF THE FINANCING, UNFORTUNATELY HAD ALZHEIMER'S. SO THERE WAS
NO ONE WHO HAD PERSONAL KNOWLEDGE. THAT'S THE WHOLE POINT OF THE BUSINESS RECORDS RULE.
JUSTICE ALBIN: YOU DIDN'T PRESENT RECORDS SHOWING THAT YOU GUYS PAID OFF THE
MORTGAGE. YOU DIDN'T PRESENT CHECKS SHOWING THAT THE CORRADETTIS WERE MAKING PAYMENTS
ON THE MORTGAGE. I MEAN SO MANY THINGS THAT COULD HAVE BEEN DONE AND SHOULD HAVE BEEN
DONE AND WE WOULDN'T BE HERE TODAY. MICHAEL R. O'DONNELL: JUSTICE ALBIN, I
DISAGREE. I DID PRESENT RECORDS. I PRESENTED's A HUD-1 WITH THE EXACT AMOUNTS OF THAT
MORTGAGE AND THERE WERE SATISFACTIONS THREE TO SIX WEEKS LATER. THEY ARE RECORDS. YOU
KNOW, YOU DON'T HAVE TO PROVE -- PROVIDE EVERY SINGLE CHECK. AND THE CORRADETTIS PROVIDE
D NOTHING. NOTHING. IN FACT, AT THE SUMMARY JUDGMENT MOTION WHEN ASKED WHO DISCHARGED
THE MORTGAGE, THEIR RESPONSE WAS, I HAVE NO IDEA THEY WERE DISCHARGED. CHIEF
JUSTICE RABNER: ARE THERE CANCELLED CHECKS AND BANK STATEMENTS FROM THE CORRADETTIS?
ARE THEY AVAILABLE? FOR THE 30 MONTHS OF MORTGAGE PAYMENTS. MICHAEL R.
O'DONNELL: I KNOW A DEMAND FOR DISCOVERY WAS MADE OF THE CORRADETTIS. AND, YOU KNOW,
I DON'T KNOW WHETHER -- THE CANCELLED CHECKS WERE NOT PRODUCED. THAT'S ALL I CAN REALLY
SAY ON THAT SPECIFIC POINT. CHIEF JUSTICE RABNER: JUSTICE LAVECCHIA.
JUSTICE LA VECCHIA: I'M CURIOUS NOW. I'LL STICK TO THE STANDARDS THAT ARE APPLIED TO
THIS CASE. WE'RE AN APPELLATE BODY AS WAS THE APPELLATE DIVISION. OBVIOUSLY THE
CREDIBILITY FINDING THAT THE TRIAL COURT MADE IN OBSERVING MRS. CORRADETTI ARE NOT ASSAIL
ABLE. BUT AREN'T WE ALLOWED TO REVIEW THE RATIONALE OF THE INFERENCES THAT THE TRIAL
COURT HAS CHOSEN TO DRAW AND IS THAT REALLY WHAT YOU'RE ASKING US TO RE-EVALUATE LEGITIMATE
LY AS AN APPELLATE COURT TO DETERMINE WHETHER OR NOT THE WEEKS THERE WERE MADE BY THE TRIAL
COURT IN THE EVIDENCE THAT YOU'RE POINTING TO CONNECTING THE CORRADETTIS TO BENEFIT,
ACHIEVE FROM THIS TRANSACTION THAT YOU SAY WERE NOT RATIONAL AND DID NOT LEAD TO THE
CONCLUSION THAT THE TRIAL COURT REACHED. IS THAT A FAIR WAY OF VIEWING WHAT IT IS YOU ARE
ARGUING FOR ON APPEAL? MICHAEL R. O'DONNELL: IT'S THE FIRST PART. I DO SAY
THE CORRADETTISES CREDIBILITY IS ASSAIL LABL AND REVIEWABLE BY THIS COURT. JUSTICE
LA VECCHIA: I REALLY DO WANT YOU TO FOCUS ON THE INFERENTIAL LEAPS THAT THE TRIAL COURT
HAS MADE HERE IN THE FACE OF -- AND DIFFERENT JUDGES MAY DO IT DIFFERENTLY -- BUT YOU'RE
MAKING AN ARGUMENT THAT THERE WERE CONSIDERABLE PROVES AT THE TIME OF THIS TRANSACTION,
IMMEDIATELY AFTERWARD AND FOR A CONSIDERABLE PERIOD THEREAFTER. MICHAEL R.
O'DONNELL: I REFERENCE THE COURT TO THE APPELLATE COURT DECISION WHERE THE COURT SAID
THE FOCUS OF THE DISPUTE IS NOT ON CREDIBILITY. THE ALLEGED ERROR IS THE FACTFINDER's
EVALUATION. AND I THINK THAT'S THE REAL ERROR BOTH LOWER COURTS ENGAGED IN HERE. IS
THE EVALUATION OF ALL OF THE FACTS COULD LEAD TO ONLY REALLY ONE RATIONAL CONCLUSION.
THAT THERE WAS A CLOSING AND THE MORTGAGES WERE SIGNED. AND THERE'S JUST A NUMBER OF
FACTORS TO THAT. THERE'S NO OTHER EXPLANATION AS TO HOW THE -- JUSTICE LA VECCHIA:
WELL, DO WE HAVE TO GO THAT FAR? COULD WE SIMPLY GO SO FAR AS TO SAY THERE WERE NOT SUFFICIENT
RATIONAL BASES FOR THE INFERENTIAL LEAPS THAT THE TRIAL COURT MADE ON THE FORGERY ISSUE
EXCLUSIVELY? AND WITHOUT CHALLENGING SOME OF THE OTHER FACTUAL DETERMINATIONS OF THE
TRIAL COURT CHOSE TO MAKE. IT WAS BEING SENT BACK ANYWAY. MICHAEL R.
O'DONNELL: YOU ABSOLUTELY COULD DO THAT, JUSTICE LAVECCHIA. BUT YOU ASKED ME TO ITEMIZE
ALL OF THE ITEMS. I WOULD JUST SAY THE ISSUES OF THE PRIOR MORTGAGE, THE ISSUES OF THE
HUD-1 HAVING BEEN GENERATED IN 2006, ALL OF THOSE, THE FACT THAT THE MORTGAGE
CANCELLATIONS CAME WITHIN THREE TO SIX WEEKS. THE FACT THAT THE CORRADETTIS HAD NO OTHER
EXPLANATION FOR THAT. THE STRIKING SIMILARITIES IN THE SIGNATURES. IN EVERY SINGLE INSTANCE.
ALL OF THAT COULD LEAD TO THERE'S NO OTHER RATIONAL CONCLUSION. AND I THINK THAT'S WHAT
JUSTICE ACCURSO WAS REALLY GETTING AT, IS THE LOGIC OF LOOKING INTO WHAT HAPPENED. THERE'S
NO EXPLANATION THAT SOMEONE FORGED THESE MORTGAGES. NO ONE ELSE COULD HAVE GOTTEN
ANYTHING OUT OF THOSE CLOSING BUT THE CORRADETTIS. BUT THEY DIDN'T LOOK AT TESTIFIED AS
A WHOLE AS STATE V. JOHNSON SAYS. NOW, AS TO MY SECOND PART, I THINK THIS COURT
VERY WELL CAN REVIEW THE TRIAL COURT'S CREDIBILITY DECISION. AND I WOULD SIMPLY
CITE TO THE COURT PIONEER TITLE V LUCAS. WHERE THE COURT SAID THAT THE INTEREST OF JUSTICE
INAUDIBLE WE SHOULD APPRAISE THE RECORD AS IF WE WERE INAUDIBLE -- JUSTICE ALBIN:
COUNSEL, IT'S BECAUSE OF YOUR LAST RESPONSE THOSE SIGNATURES WERE SO SIMILAR. WHY DIDN'T
YOU HAVE A HANDWRITING EXPERT? WHY DIDN'T YOU PRESENT A HANDWRITING EXPERT AT TRIAL?
I MEAN, THE OTHER SIDE HAS A PASSPORT. NOT JUST A PASSPORT SAYING I'M IN A DIFFERENT
COUNTRY ON THE DAY OF THIS NOTARIZATION AND YOU WANT NOW THE COURT TO BE LOOKING AT THESE
SIGNATURES AND FIGURING OUT WHETHER OR NOT THEY'RE THE SAME ONES. WHY DIDN'T YOU
PRESENT A HANDWRITING EXPERT? MICHAEL R. O'DONNELL: I DIDN'T SAY THE COURT
NEED TO DO LOOK AT THESE SIGNATURES. I SAID THAT WAS JUST ONE MORE ELEMENT OF PROVE,
JUSTICE ALBIN. JUSTICE ALBIN: YOU WANT US TO LOOK AT THE SIGNATURES AND FIGURE
OUT WHETHER OR NOT THEY'RE THE SAME WITHOUT PRESENTING A HANDWRITING EXPERT?
JUSTICE FERNANDEZ-VINA: WHOSE BURDEN OF PROOF IS IT TO PROVE THAT IT'S A FORGERY, THE
DEFENDANT'S -- JUSTICE ALBIN: I'M ASKING A QUESTION. JUSTICE
FERNANDEZ-VINA: I'M ASKING A QUESTION TOO, JUSTICE ALBIN. JUSTICE ALBIN: BUT
I WANT A RESPONSE AND THEN WE CAN GET TO YOUR QUESTION. MICHAEL R. O'DONNELL:
YES. THAT WOULD BE THE LAST PORTION OF WHAT I WOULD WANT YOU TO LOOK AT. I WOULD WANT
YOU TO LOOK AT THE HUD-1. JUSTICE ALBIN: LET'S SAY WE COMPARE THE SIGNATURES,
IS WHAT I'M ASKING YOU. MICHAEL R. O'DONNELL: YES. YES. IF YOU FOUND THE
TRIAL COURT JUDGE WENT SO WIDE AT THE MARK THAT INTERVENTION IS REQUIRED, YES, THAT IS
WHAT I'M ASKING FOR, JUSTICE ALBIN. NOW, JUSTICE FERNANDEZ-VINA, TO ANSWER
YOUR QUESTION, THE PARTY THAT HAS THE BURDEN OF PROOF BY CLEAR AND CONVINCING EVIDENCE
AS JUDGE ACCURSO POINTED OUT AND NOTED THAT THEY DID NOT PRESENT A FORGERY EXPERT, HANDWRITING
EXPERT AT ANY TIME. AT ANY TIME. AND THE COURT CERTAINLY GAVE THEM A DEADLINE OF --
JUSTICE FERNANDEZ-VINA: WAS THAT A TRIAL STRATEGY DECISION THAT THEY DIDN'T
PROVIDE AN EXPERT SO IN TURN THERE'S NO NEED FOR YOU TO PROVIDE A COUNTER EXPERT.
MICHAEL R. O'DONNELL: I WAS NOT THE TRIAL COUNSEL. JUSTICE FERNANDEZ-VINA:
I UNDERSTAND. MICHAEL R. O'DONNELL: BUT, YES, I CAN IMAGINE THE TRIAL COUNSEL
AT THAT TIME SAT DOWN AND HAD A WITNESS BASICALLY WHO WAS NOT CREDIBLE, THERE WAS NO
EXPLANATION FOR THE PAYOFF OF THE PRIOR MORTGAGES WHICH SUBSUMED THE ENTIRE AMOUNT OF THE
DEBT. AND HE -- YOU KNOW, HE RESTED. AND HE ALSO HAD A CHANCERY DIVISION JUDGE WHEN
HE DENIED THE CORRADETTI'S SUMMARY JUDGMENT ACTUALLY SAID, COUNSEL SAID THIS IS NOT THE
WEAKEST -- MAYBE ONE OF THE WEAKEST SUMMARY JUDGMENT MOTIONS I SUBMITTED. I HOPE SO.
SO HE HAD NO INDICATION THAT JUDGE PECKER MAN WAS GOING TO ENDURE THE EVIDENCE THAT HE
PUT ON AND HAD AT LEAST SOME PERSUASIVE AT SUMMARY JUDGMENT AND THEN WENT ON AGAIN AT
TRIAL AND HIS -- MR. EXPRESSLY SAID WITH REGARD TO THE BANK OF AMERICA RECORDS, THE COURT
FINDS THE BANK OF AMERICA WOULD HAVE A DUTY TO MAKE SURE THEIR RECORDS ARE ACCURATE.
THEY WERE CERTAINLY BUSINESS RECORDS AND BECAUSE OF THAT THE DOCUMENTS WERE FOR THE PURPOSE
OF RULE RELEVANT 803 THE DOCUMENTS WERE TRUSTWORTHY. CHIEF JUSTICE
RABNER: WE'RE A LITTLE BIT BEYOND THE HALF HOUR AT THIS POINT AND I WONDER IF YOU COULD
JUST TELL US, WHAT'S THE RELIEF YOU SEEK AT THIS POINT. THE JUDGE SAID THIS MATTER SHOULD BE
REMANDED EITHER FOR A RE-TRIAL OR A DISMISSAL WITHOUT PREJUDICE. WHAT ARE YOU ASKING
FOR? MICHAEL R. O'DONNELL: FIRST, IT SHOULD NOT BE A DISMISSAL WITHOUT PREJUDICE.
I THINK THIS COURT SHOULD REVERSE INSTRUCTIONS AND AT A MINIMUM IT SHOULD BE REVERSED
WITH INSTRUCTIONS THAT AN EQUITABLE SUBROGATION AWARD BE ENTERED. I THINK
ALSO THIS COURT HAS THE ABILITY TO REVERSE IT WITH INSTRUCTIONS AS TO THE FORGERY. AND
AS TO THE RATIFICATION. THE RECORDS ARE WHAT THEY ARE. AND OBVIOUSLY THE COURT ALWAYS
HAS THE ABILITY TO REMAND FOR CONSIDERATION OF FORGERY AND EQUITABLE SUBROGATION. BUT
THE EVIDENCE ON A REMAND IS NOT GOING TO CHANGE THAT DRAMATICALLY. IT'S ALL SET FORTH
HERE. CHIEF JUSTICE RABNER: OTHER QUESTIONS, ANYONE? MR. LAFFERTY:
THANK YOU MR. CHIEF JUSTICE AND GOOD MORNING MEMBERS OF THE COURT AND COUNSEL. I HAD
THE PRIVILEGE OF REPRESENTING ANTHONY AND MARIANNE CORRADETTI, ANTHONY UNFORTUNATELY
WAS ILL DURING MY HANDLING OF THIS MATTER, IT WAS PREVIOUSLY HANDLED BY MY PARTNER MICHAEL
JACOBSON WHO UNFORTUNATELY PASSED AWAY IN OCTOBER, BUT ANTHONY PASSED AWAY ON OCTOBER
19TH, 2019, AND MARIANNE PASSED AWAY ON DECEMBER 9TH, 2019. AND FOR THE LAST 10 YEARS
OF THEIR LIFE, THEY WAGED A BATTLE WITH THIS LENDER HOP REPEATEDLY TRIED TO DISPOSSESS
THEM OF THIS PROPERTY, ALL THE WHILE CONTESTING THE VALIDITY OF THIS MORTGAGE. WHAT WE'RE
HERE ABOUT IS THERE'S -- THESE EVENTS BEGAN BACK IN SEPTEMBER OF 2006 AND AS THE JUSTICES
CORRECTLY NOTED, THE CORRADETTIS WERE ON A RELIGIOUS PILL GRIM MATCH TO THE SLIEN IN
CROATIA AND WHILE THEY WERE ON THIS PILL GRICH MICH, (CASE CITED) WHO IS IS A NOTORIOUS
LENDER, PUT A LIEN ON THEIR OCEAN CITY HOME ON SEPTEMBER 25TH WHEN THEY WERE CLEARLY HALFWAY
AROUND THE WORLD. THEY RETURNED ON SEPTEMBER 26TH UNAWARE OF WHAT HAPPENED, AND THIS
WAS A (CASE CITED) MORTGAGE, BANK OF NEW YORK PURCHASED THIS MORTGAGE SOMETIME AFTER IT
HAD BEEN PUT IN PLACE, THERE IS A PAST HISTORY BETWEEN THE PARTIES, THERE WAS AN INITIAL
FORECLOSURE ACTION THAT WAS FILED I BELIEVE IN 2009, MR. AND MRS. CORRADETTI SAID THEY
OBJECTED TO THE ENTRY OF A FINAL JUDGEMENT AND FOR SOME ININEXPLICABLE REASON, (CASE CITED)
VOLUNTARILY DISMISSED THAT COMPLAINT, AND THEN NOTHING HAPPENED FOR A PERIOD OF 4 YEARS
AND THEN THEY INSTITUTED THIS ACTION IN 2014, THIS IS WHEN THE CORRADETTIS RETAINED
COUNSEL, A CONTESTED ANSWER WAS FILED, IT WAS CLEAR FROM THE ANSWER THAT THERE WAS A
DISPUTE AS TO THE VALIDITY OF THE NOTE AND MORTGAGE, IT WAS CLEARLY ALLEGED THAT THESE
WERE FORGERIES, AND THEN APPARENTLY IN 2015, CONCERNED ABOUT THOSE ALLEGATIONS THE BANK OF
NEW YORK FILED AN AMENDED COMPLAINT SEEKING EQUITABLE RELIEF. THERE WAS EXTENSIVE
DISCOVERY TAKEN FOR A PERIOD OF YEARS IN THIS CASE, THERE WERE CROSS-MOTIONS FOR SUMMARY
JUDGMENT THAT WERE FILED AND IN THEIR PLEADINGS THE PLAINTIFF TRIES TO CONFLATE WHAT WAS
PRODUCED THEY SUMMARY JUDGMENT MOTION AND WHAT WAS PRODUCED AT TRIAL AND I WOULD
RESPECTFULLY ASK THAT THE COURT KEEP THAT DISTINCTION BECAUSE THAT'S IMPORTANT. THERE
WERE CROSS-MOTIONS FOR SUMMARY JUDGMENT THAT WERE DENIED, THERE WAS A MOTION FOR
RECONSIDERATION THAT WAS DENIED, JUDGE OUTLINED IN DETAIL WHAT ISSUES HE HAD WITH THE MATERIAL
FACTS PRENTSDED BY THE PLAINTIFF AND THE PLAINTIFF DID NOTHING IN ADVANCE OF THE TRIAL
TO ADDRESS THOSE CONCERNS OF THE COURT. THE TRIAL WAS HEARD OVER A 2 DAY PERIOD ON MAY
30TH AND MAY 31ST 2017, THE PLAINTIFF HAD AN UNRESTRICTED RIGHT TO INTRODUCE WHATEVER
REL VANLT EVIDENCE THEY CHOSE TO AND THEY CHOSE TO INTRODUCE THE TESTIMONY OF ONE WITNESS,
JAMES D'ORLANDO WHO IS A LITIGATION MANAGER FOR THE SERVICEING COMPANY WHO HAD ABSOLUTELY
NOT ONE SLED OF RELEVANT EVIDENCE THAT WOULD ADDRESS THE ISSUES BEFORE THE TRIAL COURT.
SO JUDGE HEARD THE EVIDENCE, MADE DECISIONS AS TO CREDIBILITY, MADE ASSESSMENTS AS TO
CREDIBILITY, HE HEARD FROM MISS CORRADETTIS WHO EMPHATICALLY SAID WE WERE NOT IN THE
UNITED STATES ON SEPTEMBER 25TH, WE DID NOT SIGN THOSE DOCUMENTS, WE NEVER AGREED TO HAVE
(CASE CITED) PLACE A MORTGAGE ON OUR PROPERTY AND THEY DISPUTED ALL OF THE CRITICAL FACTS
THAT WERE ALLEGED BY THE PLAINTIFF AND THE JUDGE FOUND HER TO BE CREDIBLE, NOT SATISFIED
WITH THE JUDGE'S DECISION, PLAINTIFF APPEALS TO THE APPELLATE DIVISION AND THE APPELLATE
DIVISION IN A WELL REASONED OPINION AUTHORED BY JUDGE VERNOIA AND SCOMBROIND IN BY JUDGE
FUNS TES AFFIRMED THE TRIAL COURT'S FINDINGS, AND NOT BEING SATISFIED WITH THAT, HERE
WE ARE TODAY. THERE WAS DISCUSSION ABOUT THE BURDEN OF PROOF AND TO PUT IT SUCCINCTLY,
THE PLAINTIFF HAS THE BURDEN OF PROOF TO ESTABLISH THAT THE DOCUMENT WAS AUTHENTIC,
THEY FAILED TO ESTABLISH THAT, THEY FAILED TO ESTABLISH THAT THERE WAS EVER A MEETING OF
THE MINDS BETWEEN THE CORRADETTIS AND (CASE CITED) TO ALLOW (CASE CITED) TO PLACE A LIEN
ON THIS PROPERTY. CHIEF JUSTICE RABNER: MR. LAFFERTY, YOU ACCEPT THAT YOU
HAD THE BURDEN OF ESTABLISHING EVIDENCE BY CLEAR AND CONVINCING EVIDENCE. MR.
LAFFERTY: I DO, AND I BELIEVE IT WAS CLEARLY ESTABLISHED, WE HAVE A DOCUMENT AND THOSE
ARE PROCEDURES THAT ARE IN PLACE TO PROTECT ANYONE. CHIEF JUSTICE RABNER:
I WANT YOU TO FINISH THAT FIRST SENTENCE, IT WAS IMPOSSIBLE BECAUSE. MR.
LAFFERTY: BECAUSE THE SWORN TESTIMONY OF THE NOTARY, WHO IS AUTHORIZED BY THE STATE TO
AT TEST TO THE EXECUTION OF DOCUMENTS AND THE TITLE AGENCY WHO IS LICENSED BY THE STATE
TO CONDUCT CLOSINGS ON BEHALF OF PARTIES, THE CLEAR EVIDENCE IS THAT THIS CLOSING TOOK
PLACE ON SEPTEMBER 25TH. CHIEF JUSTICE RABNER: SO THAT'S A REASONABLE
ARGUMENT BY ANY STANDARD THAT THE DOCUMENT WAS NOT SIGNED ON THAT DATE LISTED ON SEPTEMBER
25TH. BUT WHAT PROOF IS THERE THAT IT'S A FORGERY, THAT IT WASN'T SIGNED ON SOME OTHER
DATE, SEPTEMBER 26TH FOR EXAMPLE. MR. LAFFERTY: COUPLED WITH THAT
UNCONTROVERTED TESTIMONY, I MEAN WE HAVE TESTIMONY FROM A NOTARY PUBLIC THAT THIS WAS SIGNED
ON SEPTEMBER 25TH, THAT'S THE TESTIMONY, AND IT WAS A SELF ATTESTATION CLAUSE, SO WE HAVE
THAT TESTIMONY. AND THEN MRS. CORRADETTI EMPHATICALLY TESTIFIED THAT SHE DID NOT
EXECUTE THAT DOCUMENT AND IT WAS NOT HER HUSBAND'S SIGNATURE AND IN THE FACE OF THAT, THE
PLAINTIFF BROUGHT FORTH NO EVIDENCE, NOT ONE SLED OF EVIDENCE TO SUPPORT THEIR POSITION.
CHIEF JUSTICE RABNER: MAY I ASK, CAN YOU TELL US YOUR THEORY OF WHAT HAPPENED
HERE? IT'S START WITH A FORGERY, AS YOU'VE EXPLAINED, AND THEN WHAT? HOW ARE YOU TWO
MORTGAGES PAID OFF TO THE TUNE OF 1.7 MILLION DOLLARS SOON AFTER THIS LOAN WAS MADE?
WHO PAID THEM? MR. LAFFERTY: MR. CHIEF JUSTICE, I WASN'T PRESENT IN 2006
SO I CAN'T TELL THE COURT AND I'M NOT GOING TO SPECULATE BEFORE THIS COURT AS TO WHAT
MAY OR MAY NOT HAVE HAPPENED WITH OTHER FINANCING OR OTHER ARRANGEMENTS, I HAVE NO IDEA,
ALL I KNOW IS THAT IT WAS -- IT'S THE BURDEN OF THE PLAINTIFF TO ESTABLISH THAT MONEY
TRAIL, AND THEY DID NOTHING, THERE'S NOT ONE WIRE TRANSFER, NOT ONE CANCELED CHECK, NOT
-- THERE'S ABSOLUTELY NO -- THE ONLY EVIDENCE IS A FORGED HUD 1 THAT WE KNOW IS FORGED
BECAUSE IT'S DATED WHEN THE CORRADETTIS WERE HALFWAY AROUND THE WORLD. CHIEF
JUSTICE RABNER: I'M NOT ASKING YOU TO SPECULATE HERE, I'M ASKING YOU TO FACTOR IN THE
OTHER EVIDENCE THAT EXISTS IN THE FORM OF THE DOCUMENTS THAT HAVE BEEN PRESENTED. WE
KNOW THAT THE MORTGAGES WERE PAID OFF, WE KNOW THAT THERE ARE 30 MONTHS OF PAYMENTS 2
AND A HALF YEARS WORTH OF MORTGAGE PAYMENTS THAT ARE MADE, AND SO ON. AND WE HAVE THE
LETTER IN WHICH THE OBJECTION IS TO THE AMOUNT DUE AND OWING, NOT TO THE EXISTENCE OF THE
MORTGAGE ALTOGETHER. IS IT FAIR TO SAY THAT ALL OF THAT FACTORS INTO THE ANALYSIS AS
TO WHETHER THIS IS AN ENTIRE FRAUD, THIS IS A FORGERY? MR. LAFFERTY: MR.
CHIEF JUSTICE, I WOULD REFINE THE QUESTION, WHERE IS THE EVIDENCE THAT A GUY WITH (CASE
CITED)'S MONEY FOUND ITS WAY INTO THOSE PAY-OFFS, THERE IS ABSOLUTELY NO EVIDENCE.
CHIEF JUSTICE RABNER: AND THAT'S WHY I ASKED YOU, WHAT'S YOUR THEORY, WHERE DID THAT MONEY,
THAT 1.7 MILLION DOLLARS MAGICALLY COME FROM. MR. LAFFERTY: I CAN'T ANSWER,
I CAN'T ANSWER YOUR HONOR, I DON'T KNOW WHERE MR. CORRADETTI LOCATED THOSE FUNDS OR WHERE
THOSE FUNDS ORIGINATED FROM BUT WHAT I DO KNOW IS THAT IT'S THE BURDEN OF THE PLAINTIFF
TO ESTABLISH THAT (CASE CITED) FUNDS WERE UTILIZED TO PAY-OFF THOSE MORTGAGES.
JUSTICE ALBIN: COUNSEL, CAN YOU RESPOND TO THE HUD 1 ISSUE, YOU HEARD MR. O'DONNELL
AND JUSTICE SOLOMON MONDAY RAISE THE ISSUE TOO, THE DATE ON THE HUD 1, THE PRINTOUT IS
THE 26TH AT WHAT, 325 OR WHATEVER, WHAT DO YOU HAVE TO SAY ABOUT THAT? EVEN THOUGH IT'S
DATED, THE SIGNATURE IS DATED THE 25TH, THE PRINTOUT IS THE 26TH, HOW DO YOU EXPLAIN
THAT? MR. LAFFERTY: WELL MY RESPONSE WOULD BE FIRST OF ALL, I AM NOT A
TITLE AGENCY SO I HAVE NO IDEA HOW THESE HUD ONES ARE GENERATED, I HAVE NO IDEA WHETHER
THAT DATE IS INSERTED OR WHETHER THAT DATE IS SELF GENERATED OR WHETHER IT CAN BE GENERATED
ON MULTIPLE COPIES OF THE HUD 1, I HAVE IN IDEA, AND THERE WAS NO TESTIMONY IN THE RECORD
BELOW THAT INDICATED THAT THERE WAS THE ONLY DATE UPON WHICH THAT FORM COULD HAVE BEEN
GENERATED. AND I JUST, I DON'T KNOW, JUSTICE ALBIN, I MEAN -- JUSTICE ALBIN:
SO HERE'S THE OTHER, AND THIS CAN PIGGY BACK ON THE OTHER QUESTION, EVERYONE IS WONDERING
ABOUT YOUR CLIENT IS SITTING IN A HOUSE FOR A NUMBER OF YEARS, AND THEY'RE PAYING --
SOMEONE PAID OFF (CASE CITED), SOMEONE PAID OFF THE MUNICIPAL COURT, AND WHO IS DOING THAT,
WHAT'S GOING ON? MR. LAFFERTY: JUSTICE ALBIN I CAN'T ANSWER WHO MADE THOSE
PAYMENTS WHAT I'M SAYING IS THE PLAINTIFF FAILED TO ESTABLISH WHO DID AND MORE IMPORTANT
THEY FAILED TO ESTABLISH THAT THE CORRADETTIS HAD ANYTHING TO DO WITH THOSE PAYMENTS,
AND THAT IS THEIR BURDEN, THAT ISN'T OUR BURDEN, THAT'S THEIRS. AND THEY HAD 10 YEARS
TO DEVELOP THAT EVIDENCE. JUSTICE LAVECCHIA: I HAVE A QUESTION, THE HUD
CALCULATIONS ARE DONE TO A PRECISE DAY, SO DID YOU OR ANYONE OF THE -- RESPONSIBLE FOR
DEFENDING YOUR CLIENTS ENGAGE IN THE FORENSIC RECALCULATION OF THOSE AMOUNTS TO DETERMINE
WHETHER OR NOT THE ANTICIPATED DATE OF CLOSING WAS THE 25TH OR THE 26TH? BECAUSE THAT IS
A DETERMINEABLE FACT, ANYBODY WHO HAS DONE A CLOSING KNOWS THAT IT'S CALCULATED TO THE
PRECISE DATE OF THE CLOSING. EVEN IF A CLOSING IS DONE ON A ROLLING BASIS, THE HUD FORM
IS THE ULTIMATE DETERMINER, BECAUSE THAT'S WHAT GETS FILED. DO YOU HAVE AN ANSWER TO THAT?
MR. LAFFERTY: JUSTICE LAVECCHIA, I DID NOT DO THOSE CALCULATIONS, MY CLIENT
TESTIFIED AND CREDIBLY SO THAT THAT DOCUMENT WAS ALSO A FORGERY, THAT HER SIGNATURE WAS
NOT ON THAT DOCUMENT, AND THAT SHE NEVER -- AND THAT SHE NEVER ATTENDED THAT CLOSING.
JUSTICE LAVECCHIA: BUT THIS IS IMPORTANT TO UNDERSTAND WHAT HAPPENED WITH
THE PAY-OFF OF THEIR PRIOR MORTGAGES WHICH YOUR CLIENTS ARE NOT DISPUTING HAPPENED, SO
THERE WAS A PRECISE CALCULATION MADE OF THE EXACT AMOUNT OF PRINCIPAL AND INTEREST THAT
NEEDED TO BE PAID OFF WHEN THOSE CANCELED PRIOR MORTGAGES WERE SENT IN AND THEN RETURNED
BY THE RECORDING AGENT, THE COUNTY -- YOU KNOW, THE COUNTY OFFICER RESPONSIBLE FOR THAT
IN BURLINGTON. MR. LAFFERTY: THERE IS NO -- THERE IS ABSOLUTELY NO EVIDENCE,
YOUR HONOR, THAT THOSE TWO PRIOR MORTGAGES WERE PAID OFF FROM COUNTRYWIDE FUNDS SO THAT
CALCULATION WOULDN'T COME INTO PLAY UNLESS YOU ACCEPT THAT FACT AND WE DON'T ACCEPT THAT
FACT. JUSTICE LAVECCHIA: WELL IT WOULD CERTAINLY HELP SUPPORT THE FACT THAT
IT WAS PAID OFF BY THAT MONTH, WOULDN'T IT, IF IT WAS DONE PRECISELY TO THAT DATE, IT WOULD
CERTAINLY HELP FILL IN SOME OF THE GAPS THAT SEEMS TO BE AT LEAST YOU'RE SUGGESTING
APPEARED IN THIS RECORD. MR. LAFFERTY: WELL, AND I DO SUGGEST AS DID THE
APPELLATE DIVISION, AND THOSE GAPS WERE PLAINTIFF'S BURDEN TO ESTABLISH AND PLAINTIFF
FAILED TO ESTABLISH THOSE EVIDENTIARY FACTS. MRS. CORRADETTI TESTIFIED CREDIBLY THAT
SHE DID NOT SIGN THIS DOCUMENT. JUSTICE SOLOMON: CAN I ASK YOU ONE QUESTION
ABOUT THAT, THE EVIDENCE, TO SHOW WHO PAID OFF 1. MR. LAFFERTY: YES, YOUR HONOR.
JUSTICE SOLOMON: I WANT TO TALK ABOUT A HUD 1, THERE'S A LOT OF IMPLICATIONS
TO FALSIFYING A HUD 1, IS THE HUD 1 NOT EVIDENCE OF WHO AND WHAT FUJDZ PAID OFF WHAT AMOUNTS?
IN FACT ISN'T THAT INDEED CONCLUSIVE EVIDENCE THAT THOSE MORTGAGES WERE DEDUCTED FROM
THE AMOUNT OF THE MORTGAGE OF THE PLAINTIFFS NOW AND THAT THAT MONEY WENT TO PAY-OFF THE
EXISTING MORTGAGES? ISN'T THE HUD 1 NOT ONLY EVIDENCE OF THAT FACT BUT CONCLUSIVE EVIDENCE
OF THAT FACT? MR. LAFFERTY: THE TRIAL COURT, JUSTICE SOLOMON, FOUND THAT
THE HUD 1 WAS NOT EVIDENTIARY. MR. LAFFERTY: WELL, SICHLTH WELL, I'M ASKING
YOU, THAT COULD BE A LEGAL ERROR, WHAT DOES THE HUD 1 DO, WHAT DOES IT TELL US, IT'S REQUIRED
BY FEDERAL LAW AS I UNDERSTAND IT AND IT'S REQUIRED TO HAVE CERTAIN THINGS IN IT AND
WHAT IT'S REQUIRED TO SHOW IS WHAT MONEY WAS RECEIVED AND WHAT THAT MONEY -- WHO THAT
MONEY WENT TO. ISN'T THE HUD 1 AT LEAST EVIDENCE, YOU SAID THERE WAS NOT A SCINTILLA,
NO EVIDENCE THAT THE MORTGAGE FROM BANK OF NEW YORK PAID OFF COUNTRYWIDE, WELL, YES,
THERE IS, THERE'S A HUD 1, IT SAYS IT WAS, IT SAYS IT WAS MONEY USED TO PAY TAXES, TO A
CERTAIN DATE AS JUSTICE LAVECCHIA HE HAD. ISN'T THAT EVIDENCE AND MAYBE EVEN CONCLUSIVE
EVIDENCE, I HAVEN'T LOOKED AT THAT FEDERAL STATUTE SINCE I STOPPED PRACTICING LAW, BUT.
MR. LAFFERTY: JUSTICE SOLOMON, BUT THE TRIAL COURT FOUND AND WHAT THE APPELLATE
DIVISION AFFIRMED WAS THAT THE HUD 1 WAS INCREDIBLE BECAUSE IT WAS A FORGED DOCUMENT
AS WELL. JUSTICE SOLOMON: NOT WHAT I ASKED. THE CHIEF ASKED YOU A QUESTION,
WELL WHO PAID OFF THE COUNTRYWIDE MORTGAGE AND YOU SAID THERE'S NO EVIDENCE OF WHO PAID
IT OFF, THERE'S CERTAINLY NO EVIDENCE THAT BANK OF NEW YORK PAID IT OFF, AND MY QUESTION
IS WELL, YES THERE IS R-THERE'S NOT JUST EVIDENCE THERE'S EVIDENCE THAT HAS ALL KINDS
OF LEGAL IMPLICATIONS, IT'S CALLED A HUD 1. MR. LAFFERTY: BUT YOUR HONOR,
AND I'M NOT TRYING TO BE ARGUMENTATIVE. JUSTICE SOLOMON: YOU CAN.
MR. LAFFERTY: I THINK WHERE WE'RE DISCONNECTING IS THAT IT HAS TO BE CREDIBLE COMPETENT
EVIDENCE AND THAT HUD 1, THAT FORGED HUD 1, IS NOT CREDIBLE COMPETENT EVIDENCE. IF YOU'RE
ASKING ME IN HYPOTHETICAL WHERE YOU DON'T HAVE A FORGED DOCUMENT WHERE THE COURT FINDS
THAT IT IS CREDIBLE EVIDENCE, THEN THE HUD 1 MAY IN FACT BE EVIDENTIAL, BUT THAT WASN'T
WHAT THE TRIAL COURT DETERMINED AND THAT ISN'T WHAT THE APPELLATE DIVISION DETERMINED.
JUSTICE SOLOMON: BUT MY QUESTION GOES NOT TO THE SIGNATURE OF THE HUD 1,
REGARDLESS OF WHOSE SIGNING IT, REGARDLESS OF WHETHER IT WAS A FORGERY OR NOT, THE HUD
1 IS A FEDERALLY REQUIRED DOCUMENT WITH CERTAIN AS I UNDERSTAND IT VERY SPECIFIC STATUTORY
REQUIREMENTS, AND THE HUD 1 IN THIS CASE, THE ONLY THING DISPUTED IS THE SIGNATURE, SHOWS
THE EXACT AMOUNT OF THE MORTGAGE THAT WAS -- THAT CAME IN AND THE EXACT AMOUNT AS JUSTICE
LAVECCHIA POINTED OUT OF FOUND THAT WENT OUT AND WHERE THEY WENT. AND NOBODY HAS CHALLENGED
THAT, THAT HUD 1 WAS IN EVIDENCE, MAY OR MAY NOT HAVE BEEN SIGNED BY -- AND WE CAN DISPUTE
WHAT THE EVIDENCE WAS OF FORGERY OR PROOF OF FORGE YEE, MAY OR MAY NOT HAVE BEEN SIGNED,
BUT NOBODY IS QUESTIONING OR HAS QUESTIONED THE CONTENTS OF THE HUD 1 WHICH IS IN EVIDENCE.
SO DOESN'T THE HUD 1 ANSWER THE CHIEF'S QUESTION? MR. LAFFERTY: RESPECTFULLY
NO, YOUR HONOR. I MEAN THE HUD 1 WAS QUESTIONED. FOR EXAMPLE, THERE'S A REPRESENTATION
ON THERE THAT THE CORRADETTI'S CONTRIBUTED OVER EIGHT THOUSAND DOLLARS TO THIS SETTLEMENT,
THERE'S NO PROOF OF THAT. JUSTICE LAVECCHIA: IT'S ON THE FORM.
JUSTICE SOLOMON: IT'S ON THE HUD 1 FORM. MR. LAFFERTY: I UNDERSTAND THAT,
BUT BANKS ARE HIGHLY REGULATED, WE ALL KNOW THAT, AND THERE IS NO BUN BANKING RECORD THRL
SUPPORTS ANYTHING THAT IS ON THIS HUD 1, THERE'S NOT 1 -- JUSTICE FERNANDEZ-VINA:
ARE YOU DISPUTING THE PAYMENTS ON THE HUD 1 WERE PAID TO SATISFY THE MORTGAGES AND THE
TAXES, ARE YOU CHALLENGING THAT, YOU'RE SAYING THAT THAT DIDN'T HAPPEN. MR.
LAFFERTY: WE'RE CHALLENGING THAT THERE'S ANY PROOF IN THIS RECORD THAT ANY FUNDS FROM
COUNTRYWIDE WERNT TO THE BENEFIT OF THIS PROPERTY. JUSTICE
FERNANDEZ-VINA: SO YOU'RE CHALLENGING THAT NO MONEY WAS PAID FOR TAXES OR MORTGAGES,
THERE'S NO PROOF THAT THAT EVER HAPPENED, IS THAT WHAT YOU'RE CHALLENGING. MR.
LAFFERTY: NO, YOUR HONOR. JUSTICE FERNANDEZ-VINA: OKAY, SO WERE THERE ANY
LAWSUITS BY THE OTHER MORTGAGE ORES OR ANY TAX LIENS ON THAT PROPERTY BECAUSE NOTHING
WAS PAID. MR. LAFFERTY: NO, THE CORE DAETS AND THE BANK OF NEW YORK HAVE BEEN
PAID TAXES FOR THE LAST 10 YEARS ALTERNATELY, BUT NOT TO MY KNOWLEDGE, THERE'S BEEN NO
OTHER LITIGATION. JUSTICE FERNANDEZ-VINA: THE TAXES WERE PAYING ON
THAT PROPERTY. MR. LAFFERTY: THEY HAVE BEEN IN CONJUNCTION WITH THE BANK OF NEW
YORK, IT'S BEEN A RACE TO THE TAX COLLECTOR'S OFFICE FOR THE LAST FEW YEARS TO SEE WHO
GETS THE PAYMENT IN FIRST. JUSTICE ALBIN: DOES THE HUD 1 INDICATE WHERE
THE MONIES WERE -- EXACTLY TO WHOM THE MONIES WERE GOING TO PAY-OFF THE MORTGAGE?
MR. LAFFERTY: THE HUD 1 DOES MENTION WORLD SAVINGS AND COMMERCE BANK, YOUR HONOR,
YES. JUSTICE ALBIN: SO DO YOU THINK THIS IS -- THAT'S REALLY AN INCREDIBLE
COINCIDENCE THAT SHORTLY AFTER HUD 1 THAT MORTGAGE WINDS UP BEING SATISFIED, YOU HAVE TO
ADMIT THAT THAT'S AN INCREDIBLE COINCIDENCE THAT THIS HUD 1 WOULD INDICATE THAT COUNTRYWIDE
IS DOING THAT AND THEN SOME OTHER PHANTOM FINANCING SOURCE IS PAYING OFF THE LOAN?
YOU'VE GOT TO ADMIT THOSE ARE LIKE INCREDIBLE COINCIDENCES, NO? MR. LAFFERTY:
LOOK, JUSTICE, WHAT I KNOW IS THAT WE HAVE EVIDENTIARY RULES IN OUR JURISPRUDENCE AND
WHAT I KNOW IS THAT THE BANK OF NEW YORK HAS NEVER ESTABLISHED THAT ANY COUNTRYWIDE FUNDS
WENT TO THE BENEFIT OF THIS PROPERTY. JUSTICE ALBIN: LOOK, IT DOESN'T LOOK
TO ME LIKE THIS CASE WAS WELL PROSECUTED BY THE PLAINTIFF BUT NOW THE QUESTION IS IS WHETHER
OR NOT THE COURT IS GOING TO PUT COMPLETE BLINDERS ON IN TERMS OF WHAT PROBABLY OCCURRED
HERE. AND PERMIT A PARTY TO BE COMPLETELY UNJUSTLY ENRICHED THAT IS SITTING IN A HOUSE,
OKAY, WHERE THEY'VE BEEN PAYING SOMEONE, A MORTGAGE OFF, AND THEN WANTING TO GET IT FREE
AND CLEAR, PRETEND BEING THAT THERE IS NO MORTGAGE. WHAT ARE YOUR RESPONSES TO THOSE
SUGGESTIONS. MR. LAFFERTY: SURE, JUSTICE ALBIN, THE ROLE OF THE APPELLATE
COURT IS NOT THO SUBSTITUTE ITS JUDGEMENTS FOR THE TRIAL COURT FINDINGS THAT THEY WERE
IN THE RANGE OF AN ACCEPTABLE HOLDING, AND IT'S NOT FOR THE APPELLATE DIVISION TO MAKE
DECISIONS THAT ARE NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE AND THE PLAINTIFF IS
ASKING THIS COURT TO INTERPRET THE EVIDENCE OR LACK THEREOF DIFFERENTLY THAN THE TRIAL COURT
HAD THE BENEFIT OF SEEING AND HEARING THE WITNESSES, AND THE APPELLATE DIVISION RE
FUSED TO DO THIS AND IT'S OUR ARGUMENT RESPECTFULLY THAT THIS COURT SHOULD LIKEWISE.
THE PLAINTIFF HAS THE BURDEN OF PROOF TO ESTABLISH ENTITLEMENT TO THEIR FORECLOSURE,
THEY FAILED MISERABLY IN THAT BURDEN, AND IT'S NOT FOR THIS COURT TO SPECULATE OR TO MAKE
LEAPS IN EVIDENTIARY FINDINGS THAT ARE REALLY THE PROVIDENCE OF THE TRIAL COURT IN ORDER
TO PROTECT THE PLAINTIFF'S CASE, THAT'S JUST NOT WHAT -- THAT'S NOT HOW IT WORKS IN OUR
SYSTEM. JUSTICE LAVECCHIA: MR. LAFFERTY, THAT'S A PROPOSITION WITH WHICH
I ABSOLUTELY AGREE, BUT THERE IS APPOINTS IN WHICH, AND THE U. S. SUPREME COURT
ACKNOWLEDGES IT, WHERE WHEN INFERENCES MADE BY A TRIAL COURT CAN BE SAID TO BE IRRATIONAL,
THAT IS THE POINT AT WHICH AN APPELLATE COURT MAY STEP IN, YOU'RE RIGHT, GREAT DEFERENCE
IS TYPICALLY SHOWN TO THE TRIAL COURT BUT THERE DOES REACH A POINT WHERE EVEN THE U. S.
SUPREME COURT ACKNOWLEDGES THAT AN APPELLATE COURT CAN PLAY A ROLE IN REVIEWING AND
REJECTING THOSE FINDINGS. YOU WOULD AGREE WITH THAT, RIGHT, EVEN THOUGH YOU'RE ACKNOWLEDGING
IT'S A HIGH STANDARD. MR. LAFFERTY: I THINK IT IS, IT'S A VERY REFINED REVIEW,
AND THE REVIEW, AND BELIEVE ME, I HAVE ALL DUE RP FOR THIS COURT, BUT THE REVIEW BY THIS
COURT IS A REVIEW OF THE APPELLATE DIVISION'S ACTION AND WHETHER THE APPELLATE DIVISION
ACTED APPROPRIATELY IN REACHING THE CONCLUSION THAT JUDGE FUENTES AND JUDGE VERNOIA REACHED
IN THEIR REVIEW OF THE TRIAL COURT'S ACTIONS. SO I DO AGREE WITH YOU, JUSTICE LAVECCHIA
-- JUSTICE SOLOMON: WERE YOU STILL ANSWERING JUSTICE LAVECCHIA'S QUESTION
BECAUSE IF NOT I HAVE ONE QUESTION. MR. LAFFERTY: NO, I WAS ACTUALLY GOING
TO AM COULD BACK TO YOU JUSTICE SOLOMON. JUSTICE SOLOMON: ALL RIGHT, GOOD,
BECAUSE I GOT YOU. WHAT WAS THE EVIDENCE OF FORGERY, YOU HAVE A BURDEN, IT'S BY CLEAR AND
CONVINCING EVIDENCE, WHAT WAS THE EVIDENCE OF FORGERY BEYOND THE DATE ON THE HUD WUJ.
YOU HAD THE PASSPORT SHOWING THEY GOT THEY'RE NOT HERE ON THE 25TH, YOU HAVE THE HUD 1
DATING THE 25TH, THE TRIAL COURT RELIED IT LOOKS LIKE IN READING ITS OPINION EXCLUSIVELY
ON THAT TO DETERMINE THE DEFENDANT WAS CREDIBLE THAT SHE DID NOT SIGN THAT DOCUMENT.
BUT HE DIDN'T FIND HER CREDIBLE AS TO THE OTHER MATTERS. WHAT WAS THE EVIDENCE OF FORGERY
BESIDE THE DATE ON THE HUD 1? MR. LAFFERTY: WELL, THE ILLEGAL NOTE RI
SAGS OF THE DATE ON THE MORTGAGE WAS ANOTHER COMPONENTS I BELIEVE WHEN IT WAS PHYSICALLY
IMPOSSIBLE FOR THESE FOLKS TO BE ANYWHERE NEAR TOMS RIVER, NEW JERSEY. JUSTICE
SOLOMON: SO IF THE NOTARY BACKDATED IT, THAT'S A CRIME. MR. LAFFERTY: I BELIEVE
IT IS, I BELIEVE JUSTICE AL DOES TOO. MR. LAFFERTY: I'M NOT DISPUTING IT
IS OR ISN'T, THE NOTARY COMMITTED A CRIME IF THEY BACKDATED. MR. LAFFERTY:
I BELIEVE WHTS A VIOLATION OF THEIR OBLIGATIONS UNDER THE LAW, YES. MR.
LAFFERTY: IS THERE ANY OTHER EVIDENCE THAT IT WAS A FORGERY. MR. LAFFERTY:
MRS. CORRADETTI'S UNREBUTTED TESTIMONY THAT IT WAS NOT THEIR SIGNATURES.
JUSTICE SOLOMON: I BELIEVE THE COURT CONCLUDED THAT SHE COULD NOT HAVE SIGNED IT ON THE
25TH BECAUSE SHE WAS ( IN CROATIA AND THE PASSPORT SUPPORTED HER CREDIBILITY ON THAT
ISSUE. MR. LAFFERTY: AND THE COURT ALSO FOUND AS CREDIBLE HER TESTIMONY THAT
SHE DID NOT SIGN THOSE DOCUMENTS AND HER HONEST BELIEF THAT SHE OWNED THE PROPERTY FREE
AND CLEAR, AND THAT WAS IN JUDGE PICK RING'S LENDER THE 50 PAGE OPINION.
JUSTICE SOLOMON: SO IF I SUGGEST SHE RELIED EXCLUSIVELY ON THE DATE IN CONCLUDING THAT
SHE WAS CREDIBLE ON THAT ONE ISSUE, I WOULD BE WRONG. MR. LAFFERTY: I WOULD
NEVER SAY YOU'RE WRONG, JUSTICE. BUT NO, I DON'T BELIEVE THAT'S MY OF THE JUDGE'S DECISION,
I BELIEVE HE LOOKED AT THE THE EVIDENCE BY THE DEFENSE AND THE LACK OF EVIDENCE BY THE
PLAINTIFF AND REACHED THE DECISION THAT THOSE WERE FORGED INSTRUMENTS. JUSTICE
ALBIN: DID ANYONE ASK THE JUDGE TO COMPARE SAMPLES FROM A KNOWN SAMPLES OF THE
CORRADETTIS TO THE ONES THAT WERE ON THE HUD 1 AND THE MORTGAGE NOTE. MR. LAFFERTY:
I DON'T BELIEVE -- IF YOU'RE ASKING WHETHER EXEMPLARS WERE PRODUCED FOR THE COURT AND
FOR THE COURT TO EXAMINE THOSE EXEMPLARS, I DON'T BELIEVE THAT HAPPENED AT TRIAL.
CHIEF JUSTICE RABNER: BUT WE DO HAVE THEIR SIGNATURES ON THE LETTER THAT WAS SENT TO THE
BANK DATED JULY 19TH, 2010, IT'S 9308 A IN THE APPENDIX, THERE'S NO DISPUTE SHE SIGNED
THAT LETTER, CORRECT. MR. LAFFERTY: MRS. CORRADETTI INDICATED SHE DIDN'T
RECOGNIZE HER SIGNATURE ON THAT LETTER. CHIEF JUSTICE RABNER: THAT'S CORRECT
AND THEN THERE'S A DECISION THAT IT WAS SIGNED IN THE APPELLATE COURT. MR.
LAFFERTY: I BELIEVE WHAT WAS IN THE APPELLATE BRIEF WAS THAT THE TRIER OF FACT FOUND IN
MRS. CORRADETTI DID IN FACT SIGN THAT LETTER, JUDGE PICK RING. CHIEF JUSTICE
RABNER: SO WE HAVE TWO SETS OF SIGNATURES AT LEAST, THE HUD 1 WHICH YOU CLAIM IS A
FORGERY, WE UNDERSTAND, AND THE JULY 2010 LETTER THAT THE JUDGE FOUND WAS SIGNED BY THEM.
MR. LAFFERTY: YES. CHIEF JUSTICE RABNER: MAY I ASK TWO OTHER
QUESTIONS, AND I KNOW YOU WEREN'T COUNSEL OF RECORD AT TRIAL. MR. LAFFERTY:
I WAS. THE COURT: YOU WERE? MR. LAFFERTY: I WAS.
CHIEF JUSTICE RABNER: YOUR CLEAR HAS TOLD US THAT THERE WAS A REQUEST MADE FOR CANCELED
CHECKS FROM THE CORRADETTIS. WHAT WAS THE RESPONSE? MR. LAFFERTY: JUDGE,
WE PRODUCED THOUSANDS OF PAGES OF DOCUMENTS AT THE REQUEST -- IT WASN'T MR. O'DONNELL
OR RIKER DAN SICK, MILK NATURALLY I BELIEVE WAS REPRESENTING THE PLAINTIFF AT THAT TIME,
WE PRODUCED WHATEVER DOCUMENTS WE HAD WHICH WAS BANK LEDGERS, ALL THOSE DOCUMENTS WERE
AVAILABLE, ALL OF THOSE DOCUMENTS WERE ACCESSIBLE. CHIEF JUSTICE
RABNER: WERE BANK STATEMENTS AND CANCELED CHECKS FOR THE PERIOD PROVIDED. MR.
LAFFERTY: I'LL BE HONEST I CAN'T REPRESENT WHETHER THE CANCELED CHECKS WERE, I BELIEVE
THE BANK STATEMENTS WERE, THE DISCOVERY WAS HANDLED BY MR. JACOBSON AND NOT BY ME.
CHIEF JUSTICE RABNER: ARE THERE DEBITS FOR THE MORTGAGE PAYMENTS IN THE 30 MONTHS
OF BANK STATEMENTS. MR. LAFFERTY: I CAN'T ANSWER THAT QUESTION, I DON'T KNOW.
CHIEF JUSTICE RABNER: ONE OTHER QUESTION, AND I'M NOT ASKING YOU TO ABANDON
YOUR POSITION HERE, IT IS WHAT IT IS AND WE ACCEPT THAT, IF THE COURT GOES WITH THE
DISSENTER, JUDGE A CURE SO'S DESCENT, WHAT'S THE APPROPRIATE REMEDY FROM YOUR PERSPECTIVE.
MR. LAFFERTY: WELL, IF THE COURT GOES WITH THE DESCENT AND REVERSES THE WELL
REASONED FINDINGS OF THE TRIAL COURT AND THE APPELLATE DIVISION, FIRST OF ALL THERE WILL
BE A MESS RIDGE SENT TO UNSCRUPULOUS LENDERS ON COUNTRYWIDE AND UNSCRUPULOUS NOTE REES
THAT YOU CAN CONDUCT YOURSELF IN ANY WAY YOU CHOOSE EVEN IF VIOLATIVE OF THE LAW AND YOU
CAN DO SO WITH IMPUNITY. CHIEF JUSTICE RABNER: WHAT WOULD THE PROPER REMEDY
BE NONETHELESS. MR. LAFFERTY: IF YOU WERE TO REVERSE? CHIEF
JUSTICE RABNER: YES. MR. LAFFERTY: I MEAN REMANDING IT FOR A NEW TRIAL,
I MEAN MRS. CORRADETTI IS NOT GOING TO BE ABLE TO TESTIFY OBVIOUSLY AND HER TESTIMONY
WOULD BE BASED ON THE RECORD BELOW, SO I PROBABLY AGREE WITH MR. O'DONNELL THAT A RETRIAL
WILL BE ESSENTIALLY THE SAME EVIDENCE THAT WAS PRESENTED AT THE FIRST TRIAL, AT LEAST
FROM MY PERSPECTIVE IT WOULD BE. JUSTICE ALBIN: MAYBE NOT, MAYBE THOSE
CANCELED CHECKS WILL BE PRESENTED, LIKE WHERE THOSE CHECKS WERE ACTUALLY GOING TO, ASSUMING
THAT THEY EXIST. MR. LAFFERTY: WELL, IF THE PLAINTIFF WANTED THOSE INTO
EVIDENCE, THEY SHOULD HAVE DONE IT IN THE FIRST TRIAL, IT'S -- JUSTICE ALBIN:
AGREED, AGREED, BUT NOW WE'RE TALKING IF THERE WAS A NEW TRIAL YOU SAID IT WOULD BE
PRESENTED ON THE SAME EVIDENCE BUT THERE MAY BE OTHER EVIDENCE THAT CAN BE PRESENTED THAT
WOULD CLARIFY SOME OF THE QUESTIONS WHICH HAVE BEEN RAISED DURING THE ARGUMENTS.
MR. LAFFERTY: I UNDERSTAND THAT, THE QUESTIONS -- JUSTICE FERNANDEZ-VINA:
COUNSEL, THOSE CANCELED CHECKS WOULD HAVE BEEN IN YOUR CLIENT'S POSSESSION. IS THAT RIGHT?
MR. LAFFERTY: I DON'T KNOW IF MY CLIENTS KEPT THOSE -- JUSTICE
FERNANDEZ-VINA: WELL NORMALLY EITHER A COPY IS SENT BACK WITH THE BANK STATEMENTS OR
THE ACTUAL CHECKS ARE SENT BACK WITH THE STATEMENTS. MR. LAFFERTY: WELL,
THIS IS 10 YEARS BEFORE, TWEFRL YEARS BEFORE. JUSTICE FERNANDEZ-VINA: I'M
JUST ASKING NORMAL PROCESS THOSE CHECKS COME BACK WITH THE MONTHLY STATEMENT OR A STATEMENT OF THE CHECKS THAT WERE CASHED WHO THEY WERE MADE PAYABLE TO, THEY WOULD HAVE BEEN IN
BE NO WAY FOR THE BANK TO BE ABLE TO PROVIDE THOSE AT THE TIME OF TRIAL. MR.
LAFFERTY: YOUR HONOR, I BELIEVE BANKS KEEP COPIES OF ALL OF THE CHECKS AT LEAST IN MY
EXPERIENCE AND COPIES OF ALL THE CANCELED CHECKS. JUSTICE LAVECCHIA: CAN
I ASK THE QUESTION IN A DIFFERENT WAY, MR. LAFFERTY. IF THERE IS ANYTHING DIFFERENTLY
TO BE RE TRIED, WE DO NOT ACCEPT THE FINDING OF FORGERY AND REVERSE ON THAT POINT, WHAT
MORE DO YOU HAVE TO PROVE ON BEHALF OF YOUR CLIENTS TO DEFEND AGAINST THE PLAINTIFF'S
ACTION. MR. LAFFERTY: JUSTICE LAVECCHIA, WE BELIEVE THAT WE CARRIED OUR
BURDEN OF PROOF, OUR BURDEN OF PROOF -- PLEASE ANSWER MY QUESTION, WHAT MORE BEYOND FORGERY
DO YOU WANT TO PRESENT IN DEFENSE OF THIS CLAIM OF YOUR CLIENTS HAVING DEFAULTED ON THE
MORTGAGE. MR. LAFFERTY: JUSTICE WE PRESENTED ALL THE EVIDENCE THAT WE WANTED
TO PRESENT AT THE FIRST TRIAL. JUSTICE LAVECCHIA: OKAY, THANK YOU.
JUSTICE ALBIN: I HAVE ONE QUESTION, IS IT POSSIBLE FOR THIS COURT TO FIND THAT EVEN
IF THERE WAS A FORGERY, IT WAS FORGED BY THE AUTHORIZED REPRESENTATIVES OF THE
CORRADETTIS. THE COURT: LET'S STOP FOR A SECOND, DID WE JUST LOSE COUNSEL?
I THINK WE DID, LET'S PAUSE AND SEE IF OUR I T STAFF CAN HELP OUT. SORRY MR. LAFFERTY.
(BRIEF RECESS.) A VOICE: CHIEF, HE LOST ALL POWER IN HIS HOUSE
SO I'M GOING TO HAVE HIM PHONE IN. IS THAT APPROPRIATE? CHIEF JUSTICE
RABNER: PLEASE DO. (BRIEF RECESS.) CHIEF JUSTICE RABNER: LET'S
SEE WHERE WE ARE. IF NEED BE WE CAN PAUSE THE ARGUMENT AND COME BACK LATER THIS MORNING
TO COMPLETE IT, BUT LET'S STAY IN PLACE FOR JUST A FEW MOMENTS. YOU'RE WELCOME TO SIT,
MR. LAFFERTY, IF YOU'RE MORE COMFORTABLE. (BRIEF RECESS. ) CHIEF
JUSTICE RABNER: DO YOU NEED THE QUESTION REPEATED MR. LAFSHT WHERE WE LEFT OFF.
MR. LAFFERTY: I BELIEVE THAT WE LEFT OFF -- CHIEF JUSTICE RABNER: DON'T
GO INTO THE MERITS, WE CAN GO LIVE. DO YOU WANT THE QUESTION POSED AGAIN, THAT'S ALL
I'M ASKING. (BACK IN SESSION. CHIEF JUSTICE RABNER: THANK YOU,
SORRY FOR THE INTERRUPTION, MR. LAFFERTY, DO YOU WANT THE QUESTION POSED AGAIN.
MR. LAFFERTY: YES, YOUR HONOR, PLEASE. JUSTICE ALBIN: MR. LAFFERTY, MY QUESTION
IS THIS, EVEN IF THE COURT WERE TO FIND THAT THE SIGNATURES WERE AUTHORIZED -- WERE FORGERIES,
COULD THE COURT ALSO FIND THAT THE FORGERIES MUST HAVE BEEN BY THE AUTHORIZED REPRESENTATIVES
OF THE CORRADETTIS, BECAUSE EVERYTHING ELSE THAT LINES UP IN TERMS OF THE HUD LOAN AND
THE PAYMENTS AND THE TAKING CARE OF THE OTHER MORTGAGE, COULD THE COURT DO THAT, BASED
UPON THIS RECORD? MR. LAFFERTY: JUSTICE ALBIN, I WOULD SUBMIT NOT, I MEAN
THERE'S ABSOLUTELY NO EVIDENCE THAT THE CORRADETTIS AUTHORIZED ANYONE TO SIGN
ANYTHING ON THEIR BEHALF AND IN FACT MARIANNE CORRADETTI CREDIBLY TESTIFIED AT TRIAL THAT
SHE AUTHORIZED NO ONE TO EXECUTE DOCUMENTS ON HER BEHALF AND THAT THIS WAS NOT A POSTDATED
DOCUMENT EXECUTED BY HER AND HER HUSBAND OR A PREDATED DOCUMENT EXECUTED BY HER AND HER
HUSBAND. SO THE CREDIBLE EVIDENCE HERE IS SIMPLY THAT THESE DOCUMENTS WERE FORGED INSTRUMENTS,
AND THAT'S THE ONLY CREDIBLE EVIDENCE, AND THE HUD 1 IN AND OF ITSELF WAS NOT ACCEPTED
BY THE TRIAL COURT AS SUBSTANTIVE EVIDENCE AND A HUD 1 ACCORDING TO MY UNDERSTANDING IS
ONLY A FACT OF IF IT HAS SIGNATURES AFFIXED TO IT BY THE PARTIES TO BE CHARGED, AND IT WAS
DETERMINED THAT THAT DOCUMENT ALSO WAS A FORGED DOCUMENT. SO, I MEAN -- JUSTICE
ALBIN: WHO WOULD HAVE DONE THIS, I MEAN THIS IS THE LAST QUESTION I'M GOING TO ASK AND
IT'S MAYBE REDUNDANT, THAT THE MORTGAGE COMPANY COMES IN AND FIXES A MORTGAGE AND THEN
MAGICALLY THE PRIOR MORTGAGE IS IS PAID OFF AND THE CORRADETTIS ARE MAKING PAYMENTS TO
SOMEONE BUT NOT TO THIS MORTGAGE COMPANY, I MEAN WHO WHAT DEGREE IS THE COURT JUST TO
PUT BLINDERS ON? MR. LAFFERTY: WELL, I THINK THE APPROPRIATE QUESTION IS
TO WHAT DEGREE DOES THE COURT REQUIRE SOMEONE ATTEMPTING TO FORECLOSE ON A PROPERTY TO
PRESENT THE COMPETENT, CREDIBLE EVIDENCE THAT THE LAW REQUIRES THEM TO PRODUCE AND THAT'S
I THINK THE REAL QUESTION HERE, AND THE REAL ANSWER HERE IS THAT THE PLAINTIFF WOEFULLY
FAILED TO PRESENT THE EVIDENCE REQUIRED TO PROVE ITS CASE AND IT IS NOT FOR THIS COURT
OR THE APPELLATE DIVISION OR ANY COURT TO SPECULATE OR FILL IN GAPS OR DO ANY WORK ON
BEHALF OF ANY PARTY BUT RATHER TO ASSESS OBJECTIVELY THE CREDIBLE EVIDENCE. AND IF
YOU LOOK AT THE CREDIBLE EVIDENCE, THERE'S NO CREDIBLE EVIDENCE THAT ANY KOURJ WIDE LOAN
WAS PAID TO ANY PRIOR LENDER, THERE'S NO CREDIBLE EVIDENCE THAT THE CORRADETTIS MADE ANY
PAYMENT TO A TITLE COMPANY TO -- JUSTICE PIERRE-LOUIS: COUNSEL, I HAVE ONE
QUESTION, I KNOW YOUR POSITION IS THERE'S NO EVIDENCE THAT THE CORRADETTIS MADE THESE
PAYMENTS AND THE CHIEF ASKED EARLIER WHETHER YOU PRODUCED PURSUANT TO THE DISCOVERY REQUESTS
OF THE PLAINTIFFS, BANK RECORDS AND OTHER INFORMATION THAT WAS REQUESTED, YOU INDICATED
THAT YOU DID BUT THAT YOUR COLLEAGUE HANDLED A LOT OF THE DISCOVERY BUT THEN WHEN YOU WERE
ASKED WHETHER THOSE BANK RECORDS REFLECTED ANY PAYMENTS ON THAT MORTGAGE, YOU DIDN'T KNOW,
SO I JUST WANTED TO GO BACK TO THAT BECAUSE I WANT AN UNDERSTANDING OF WHETHER YOU KNOW
WHAT THOSE BANK RECORDS REFLECT BECAUSE YOUR POSITION IS THERE'S NO EVIDENCE THAT THEY
MADE THOSE PAYMENTS, YOU HAVE NO IDEA, WE'RE SUPPOSED TO BE OPERATING IN A WORLD WHERE
WE HAVE NO IDEA WHO MADE THOSE PAYMENTS AND THERE'S NO EVIDENCE THAT YOUR CLIENTS MADE
THOSE PAYMENTS, SO IF THE RECORDS WERE PRODUCED, IF YOU HAVE THOSE RECORDS, WHAT DO THEY
SHOW, DO THEY SHOW DEBITS, DO THEY SHOW PAYMENTS MADE ON THOSE MORTGAGES? MR.
LAFFERTY: MADAM JUSTICE, I CAN'T, I'M NOT GOING TO SPECULATE WHAT THOSE RECORDS SHOW,
I DON'T RECALL WHAT THOSE RECORDS SHOW, I DO KNOW THAT THEY WERE NOT PART OF THE RECORD
IN THE TRIAL COURT, SO I'M ASSUMING THAT PLAINTIFF'S COUNSEL FOUND THOSE TO BE NOT
BENEFICIAL OR SUPPORTIVE OF THEIR CASE, BUT I CAN'T, AS I STAND HERE NOW, I CAN'T RECITE
AND I'M NOT GOING TO MAKE A REPRESENTATION TO THIS COURT ABOUT WHAT THOSE RECORDS DO OR
DON'T SHOW. I JUST KNOW THAT THE RECORD BELOW FAILS TO DEMONSTRATE ANY RECORD OF ANY
PAYMENT BY THE CORRADETTIS TO COUNTRYWIDE. CHIEF JUSTICE RABNER: OTHER
QUESTIONS, ANYONE? ANYTHING YOU'D LIKE TO SAY IN CLOSING, MR. LAFFERTY? MR.
LAFFERTY: WELL, I'M OVER MY TIME, BUT VERY CLEEFL, WHAT WE'RE ASKING THIS COURT TO DO
IS TO MAKE A DECISION SUSTAINING THES WELL REASONED DECISION OF JUDGE FUENTES AND JUDGE
VERNOIA AND THE WELL REASONSED DECISION, THE FINDINGS OF FACT AND CORRECT OF THE TRIAL
COURT AND WE ASK THAT YOU AFFIRM THE DECISION OF THE APPELLATE DIVISION. CHIEF
JUSTICE RABNER: THANK YOU, MR. O'CONNELL, REBUTTAL, AND IF I MAY ASK A QUESTION, CAN
YOU AT SOME POINT COVER THIS, IN DISCOVERY, YOU SAID THERE WERE NO CANCELED CHECKS, ABOUT
THERE BANK STATEMENTS, DID YOU RECEIVE BANK STATEMENTS IN DISCOVERY IN RESPONSE TO
REQUESTS? MR. O'DONNELL: I DID NOT, I WAS THE APPELLATE COUNSEL AND I DON'T,
FROM OUR REVIEW OF THE RECORDS, NO, I DON'T RECALL BANK STATEMENTS. I'M NOT SAYING BANK
STATEMENTS WERE NOT PRODUCED, I DON'T RECALL THAT, I DON'T RECALL ANY, I JUST DON'T RECALL
IT TO BE HONEST. CHIEF JUSTICE RABNER: PLEASE GO AHEAD. MR.
O'DONNELL: ALL RIGHT, I'D LIKE TO CORRECT 3 FACTUAL ISSUES IN THE OPPOSITION. FIRST,
MR. LAFFERTY SAID THE CORRADETTIS AND BANK OF NEW YORK HAD BEEN PAYING TAXES AND INSURANCE
AND IT'S BEEN A RACE TO THE COURTHOUSE, THAT'S ONLY TRUE AFTER THE APPELLATE DIVISION,
AFTER THE APPELLATE DIVISION ARGUMENT, FROM 2006 ALL THE WAY UP TO THE APPELLATE DIVISION
ARGUMENT, THE ONLY ONE WHO PAID TAXES WAS THE BANK OF NEW YORK. WE KNOW THAT BY IF YOU
LOOK AT THE BANK OF AMERICA LEDGER FOR ALL 30 PAYMENTS, THERE'S ANOTHER SUBSEQUENT PAYMENT
BY BANK OF AMERICA FOR TAXES AND FOR INSURANCE, AND THEN IF YOU GO TO THE LEDGER, THERE ARE
ALL OF THE PAYMENT FOR TAXES AND INSURANCE ARE MADE BY THE BANK. WE ALSO
HEARD FROM REFERENCE TO COUNTRYWIDE AS BEING UNSCRUPULOUS, WELL, THIS WAS NOT -- THERE'S
NEVER BEEN Aly A GAGS OF ANY PREDATORY LENDING, THE INTEREST RATE ON THIS LOAN WAS 6.7
FIVE PERCENT AND WE KNOW FROM A COMMITMENT LETTER THAT THE CORRADETTIS PAID OVER 3,000
DOLLARS A MONTH ON THE PAYMENTS, WE ALSO KNOW THAT THE POSSIBILITY MRS. CORRADETTI WAS
NOT IN TOMS RIVER BUT THE MORTGAGE WAS NOTARIZED IN BURLINGTON AND THAT'S WHERE SHE LIVED
UNTIL 2013 AT 130 TALL LA LANE. NOW, I WANT TO ADDRESS AN ILLEGAL ERROR
BOTH LOWER COURTS MADE, AND BOTH LOWER COURTS WERE ABLE TO JUST DISMISS THE HUD 1 ON THE
BASIS THAT THE TRIAL COURT FOUND IT WAS FORGED AND THEREFORE INVALID, AND A VALID INSTRUMENT
CAN STILL BE COMPETENT AND ADMISSIBLE EVIDENCE AND I WOULD CITE THE COURT TO 30 N.J. L
35 AND RIDER V STRAK BOWLER 111 N.J. L. SPECIFICALLY IN THOSE CASES, IN OR THELY,
EVEN THOUGH THE DEED WAS NOT EFFECTIVE, IT STILL WAS EVIDENT OF A CONTRACT, AND IN THE
OTHER WAYS THE CONTRACT WAS NOT ADMISSIBLE UNDER THE STATUTE OF FRAUD BUT IT WAS STILL
ADMISSIBLE UNDER THE TERMS OF THE PAYMENT, AND THAT'S WHAT WE'RE SAYING. WE KEEP REFERRING
TO THE HUD AS BEING FORGED, IT WASN'T FORGED BY THE SETTLEMENT AGENT, I SIGNED WITH REGARD
TO THE PAYMENTS THAT WERE MADE, SO THE HUD IS ABSOLUTELY ADMISSIBLE EVIDENCE AND IF IT
WASN'T, YOU ALMOST COULD NEVER HAVE OITABLE SUBROGATION IN ANY CASES, AND WE KNOW YOU CAN
FROM THE CASE LAW. I'D ALSO CITE THE COURT TO WE'VE HAD A LOT OF DISCUSSION
ABOUT THE BURDEN OF PROOF AND WHAT CLEAR AND CONVINCING EVIDENCE IS. AND I'D LIKE THE
COURT -- TO CITE THE COURT TOLL OCCURS STON WHERE IT SAYS CLEAR AND CONVINCING EVIDENCE
IS EVIDENCE THAT IS "SO CLEAR, DIRECTLY CONVINCING AS TO ENABLE THE FACTFINDER TO
COME TO IS A CLEAR CONVICTION WITHOUT HESITANCY OF THE PRECISE FACTS AT ISSUE. AND I WOULD
SUBMIT THAT ALL JUDGE PICK RING AND THE APPELLATE DIVISION RELIED ON WAS THAT MRS. CORRADETTI
WAS IN CROATIA ON SEPTEMBER 25TH. THERE WASN'T ONE OTHER FACT IN EVIDENCE THAT THEY COULD
HAVE RELIED ON THAT SHE DIDN'T SIGN THE DOCUMENT ON THE 26TH. THE PAYMENT OF THE PRIOR
MORTGAGES, THE MORTGAGE BEING NOTARIZED IN BURLINGTON, EVERYTHING LEADS TO THE VERY FACT THAT JUDGE A CURE STOVE POINTED OUT TO THE 3 DAY PERIOD OF RECISION, IT WAS REQUIRED FROM
ACCURSO IN FOOTNOTE 10 IN HER OPINION EXPRESSLY KRIETSZ THE CASES THAT BACK DATING DOES
SOMETIMES INDEED OCCUR AND THAT'S EXACTLY WHAT HAPPENED HERE. ALSO THERE WAS
A REFERENCE TO BANK OF NEW YORK GETTING THIS LOAN ON A DISCOUNTED BASIS, THAT'S NOT REALLY
RELEVANT BUT THERE'S NO EVIDENCE OF THAT HAPPENING AT ALL. SO I WOULD SIMPLY AND
FINALLY, MR. LAFFERTY REFERRED TO THERE WAS TESTIMONY FROM THE NOTARY, HIS SELF
ATTESTATION, THE DOCUMENT WAS NOTARIZED, THE NOTARY COULDN'T BE FOUND, THERE WAS NO
TESTIMONY FROM ANYONE OTHER THAN MRS. CORRADETTI AS TO WHAT HAPPENED AND MRS. CORRADETTI
WAS FOUND TO BE NOT CREDIBLE IN EVERY SINGLE INSTANCE EXCEPT THIS ONE INSTANCE THAT SHE
DIDN'T SIGN THE BANK OF NEW YORK MORTGAGE AND THE ONLY EVIDENCE TO SUPPORT THAT CREDIBILITY
IS THE VERY FACT THAT SHE WAS IN CROATIA. THAT'S IT. AND MR. LAFRTD ALSO SAID THAT WHEN
THEY ASKED ABOUT WHETHER SHE CONCEDED IN THE A PEP LIT BRIEF THAT SHE SIGNED THE JULY
2010 LETTER, JUDGE PICK RING EXPRESSLY IN HIS OPINION RELIED ON THE EVIDENCE THAT SHE
TESTIFIED SHE DID NOT SIGN THAT LETTER. IN THEIR APPELLATE BRIEF, THEY STATED SHE DID,
THAT IS AN ADMISSION, THAT IS NOT A STATEMENT OF WHAT ARE THE TRIAL COURT FOUND. THAT IS
VERY, VERY SIGNIFICANT BECAUSE BASICALLY THEY'VE ADMITTED THEY PUT A FALSE FACT IN FRONT OF
THE FAK FINDER, AND IN ADDITION WITH REGARD TO THE 2003 COMMERCE MORTGAGE, EVEN THOUGH
JUDGE PICK RING FOUND IT WAS SIGNED, SHE DENIED SHE SIGNED THAT AS WELL, AND ON PAGE FOUR
OF THEIR APPELLATE BRIEF THEY AGAIN ADMIT THAT MRS. CORRADETTI DID INDEED INTO INTO THE
2003 COMMERCE MORTGAGE. SO YOU HAVE A WITNESS THAT IS NOT ONLY FOUND TO BE NOT CREDIBLE
BY THE TRIAL COURT, BUT THAT EVEN AFTER TRIAL CONTRADICTED HERSELF. AND THE REASON FOR
THAT IS THE STORY IS TOO BIZARRE TO BE TRUE. NO RATIONAL FACTFINDER COULD FIND THAT THIS
MORTGAGE WAS NOT SIEPD BY BOTH CORE DAETS. CHIEF JUSTICE RABNER: ONE QUESTION
WITH RESPECT TO REMEDY. MR. LAFFERTY SAYS OF COURSE THAT THERE SHOULD BE AN AFFIRMANCE
HERE BUT IF NOT A RETRIAL. IS THERE ADDITIONAL EVIDENCE THAT YOU WOULD PRESENT ON A
RETRIAL, YOU'VE ALLUDED TO THINGS THAT TOOK PLACE AFTER THE TRIAL AND WE'VE DISCUSSED OTHER
MATTERS AS WELL. MR. LAFFERTY: YES, YOUR HONOR. MR. O'DONNELL:
YES, YOUR HONOR, I CERTAINLY THINK THERE COULD BE ADDITIONAL ARGUMENTS, THE JUSTICES
HAVE EDUCATED ME, I CERTAINLY WOULD BE LOOKING AT THOSE BANK RECORDS TO SEE WHETHER THERE WAS
ANY EVIDENCE, I SUSPECT I'M GOING TO FIND THERE HAVE BEEN NO BANK RECORDS PRODUCED BUT
I CAN'T SAY THAT, I CAN CERTAINLY SEND SUBPOENAS OUT DIRECTLY TO THE BANKS AND WE CAN
CERTAINLY GET TO THE BOTTOM OF IT. CHIEF JUSTICE RABNER: UNDERSTOOD,
UNDERSTOOD. MR. O'DONNELL: A HANDWRITING EXPERT IF THERE IS ANY, I WOULD
PRESENT. CHIEF JUSTICE RABNER: ALL RIGHT, THANK YOU, THANK YOU BOTH COUNSEL,
I APPRECIATE YOUR PATIENCE. JUSTICE SOLOMON: CAN I ASK ONE QUESTION. VERY
BRIEF. THE CHIEF ASKED A QUESTION AS TO WHETHER THE TRIAL COURT EVER COMPARED SIGNATURES,
EITHER FROM ANY DOCUMENTS TO THE DOCUMENTS OF THE HUD 1, DID THE TRIAL COURT MAKE ANY
COMPARISON, MAYBE IT WAS JUSTICE ALBIN, MAKE ANY COMPARISONS AMONG THE SIGNATURES.
MR. O'DONNELL: NO, THE TRIAL COURT DID NOT, YOUR HONOR. CHIEF JUSTICE RABNER:
THANK YOU. WE'LL TAKE THE CASE UNDER ADVISEMENT.