Earl S.

David
Attorney at Law
216 River Avenue
Riviera Executive Center
Lakewood, NJ 08701
Tel. 908.907.0953
Email:earlsdavid@yahoo.com

2/14/11

Honorable Frank A. Buczynski

Superior Court of New Jersey
Ocean County
206 Courthouse Lane
Toms River, NJ 08754

RE: Wells Fargo Bank, NA v. Ester Shira Friedman, et al

Docket # F-21044-10

Dear Hon. Judge Jacobson:

This office represents the Defendants in the above referenced matters. Please accept our late
response as we just received an appraisal report which is crucial to the outcome of this case.

Please accept this letter brief in lieu of a more formal pleading in support of defendant’s motion
to vacate Plaintiff's grant of a default against Defendants.

The standard in opposition of a motion for summary judgment is Rule 4:46-2 (b) which states
the following;

"(b) Requirements in Opposition to Motion. A party opposing the motion shall file a
responding statement either admitting or disputing each of the facts in the movant's
statement. Subject to R. 4:46-5(a), all material facts in the movant's statement which are
sufficiently supported will be deemed admitted for purposes of the motion only, unless
specifically disputed by citation conforming to the requirements of paragraph (a)
demonstrating the existence of a genuine issue as to the fact. An opposing party may also
include in the responding statement additional facts that the party contends are material
In the case at bar, summary judgment is inappropriate at this time as there exists a genuie issue
of material fact.

According to the mortgage papers, defendants were given a loan of $630,000.00 based on an
inflated appraisal of World Savings Bank in the amount of $900,000.00 . However , according to
the appraisal of Mr. Flanagan, a certified residential appraiser, the property was only worth
$565,00.00 on January 1, 2007, which is approximately the date that the mortgage with World
Savings Bank was executed. Based on the inflated appraisal issued on behalf of World Bank, the
defendants were granted the loan.

This is inflated appraisal fits squarely into the realm of predatory lending based on the New
Jersey's Consumer Fraud Act, N.J.S.A. 56:8-2, that states the following, "the act, use or
employment by any person of any unconscionable commercial practice, deception, fraud, false
pretense, false promise, misrepresentation, . . .in connection with a sale or advertisement of any
merchandise or real estate, or with the subsequent performance of such person as aforesaid,
whether or not any person has in fact been mislead, deceived or damaged thereby, is declared to
be an unlawful practice. " 

According to Legal Service of New Jersey, "Predatory lending has been defined by the New
Jersey courts as:

A “mismatch between the needs and capacity of the borrower…[T]he loan does not fit the
borrower, either because the borrower’s underlying needs are not being met or the terms of the
loan are so disadvantageous to that particular borrower that there is little likelihood that the
borrower has the capability to repay the loan.” (Associates Home Equity Services v. Troup, 343
N.J. Super. 254, 267 (App. Div. 2000); Nowosleska v. Steele, 400 N.J. Super. 297 (App. Div.
2008)."

In the case at bar, based on the attached appraisal report, which was made on behalf of and at the
behest of World Savings Bank, that is being made a part of the record, there is clear evidence of
predatory lending. The appraised value of $900,000 is dependent on, and subject to, a list of
necessary repairs as stated on the addendum. Yet final inspection was never done. Moreover,
pictures of unfinished kitchen were left out of the appraisal document, further misrepresentation.
These alleged “improvements” do not reflect in any way on the actual value of the property.

Moreover, the appraisal, dated January 2007, states the property’s value as $565,000. However,
this quote uses comparable sales from 2005, at the height of the market bubble, instead of 2006
or forecasts for 2007. The appraisal also states that the average value in the area is $365,000,
and yet values the home at $900,000. All of this amounts to a showing of likelihood of fraud,
which we would like the opportunity to prove further in court.

Moreover, another unconscionable practice of the lender is the so called, Pick-A-Payment Loan
that was made a part of the mortgage. Based on the payment plan, one would never even pay off
interest debt but would forever be in debt to the lender. Defendant was given such an option as it
is made a part of the exhibits of Plaintiff. See attached CBS video expose regarding the
corrupt practices of World Savings Bank.

Based on above analysis , it is important that the Court deny Plaintiff's motion as premature as
there are genuine issues of fact that can only be decided upon by a trial.

Wherefore, defendant respectfully requests that Plaintiff’s motion be granted in its entirety.

Sincerely,

Earl S. David

cc: Powers Kirn LLC