Even after the massive proof since 2010
H/t Deontos
Jeffrey Stephan was a GMAC Mortgage employee who signed summary judgment affidavits on behalf of GMAC in foreclosure proceedings instituted in Maine. The notarization on the summary judgment documents falsely stated that Stephan personally appeared and swore before the notary, when he did not. The U.S. District Court for the District of Maine certified the following question of state law to the Maine Supreme Court: “Is Maine’s common law judicial proceedings privilege an available defense to both legal and equitable claims brought under the Maine Unfair Trade Practices Act based upon statements made in court filings of affidavits and certifications in state judicial foreclosure proceedings?” The Supreme Court declined to answer the certified question, where (1) if the Court answered the question in the affirmative, then the claim would be immediately and summarily dismissed even though the facts may have established that the privilege was not available to the defendant under any circumstances; and (2) if the Court answered the question in the negative, it would render a broad pronouncement of law that would have no application to this case if a threshold issue produced the same result – namely, that the judicial proceedings privilege was simply unavailable on these particular facts.
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2012 ME 131
Docket: Fed-11-295
Argued: February 16, 2012
Decided: November 29, 2012
Panel: ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
NICOLLE BRADBURY et al.
v.
GMAC MORTGAGE, LLC
MEAD, J.
EXCERPT:
[¶3] The court also included a recitation of facts2 within its certification that “[t]he Law Court may consider as true.” The factual recitation included the following statement: “[T]he notarization on the [summary judgment] documents falsely stated that Stephan3 personally appeared and swore before the notary, when he did not.”
[¶4] We conclude that the interplay between (1) the four corners of the certified question, (2) the representation that the lawsuit will be dismissed in its entirety if we answer the question in the affirmative, and (3) the fact of the defective notarization of the affidavits requires us to respectfully decline to answer the certified question.
This was a loss for GMAC and a good move by the Court for the homeowner. The Court rightly sidestepped the question because GMAC had no right to ask it in the first place; p. [9] – because Stephan’s affidavits bore false notarizations they were not testimony protected by the privilege, and the question was irrelevant.