HTFC Corporation & Aaron Wider Motion to Dismiss GMAC Mortgage Lawsuit

FOR IMMEDIATE RELEASE
(Free-Press-Release.com) June 22, 2010 -- UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GMAC BANK


Plaintiff, Civil Action CV-00106-ER

V.

HTFC Corporation, et al.,

Defendants.


AARON WIDER’S REPLY TO MOTION OF CONTINUED RENEWAL RE-ARGUMENT OF DISMISSAL

I, Aaron Wider Pro Se, being duly sworn depose and say:

SUPPLEMENTAL ARGUMENT

Under NY law, substitute service may be used only after diligent efforts to effect personal service have failed. In this case, the plaintiff did not effect these efforts and this is evidenced by the use of an improper address used by plaintiff’s counsel on mailings and correspondence. Exhibit#1 (Deed) The plaintiff has the legal duty to establish jurisdiction over a defendant. This begins with the commencement of an action against the defendant and it is the duty of the plaintiff to check public records of a defendant to be served, to ascertain that the correct address and correct name are found on the Summons and Complaint to avoid improper service. If plaintiff had checked records then this discrepancy regarding 324 Clocks Blvd would not exist. The burden and duty rests on the plaintiff. The fact that Mr. Wider uses the address 324 Clocks Blvd on his mailings and legal correspondence does not deflect the responsibility of the plaintiff to use the correct address. This assumption that an address is correct because of its use by the defendant clearly shows that plaintiff’s counsel did not do due diligence, and did not properly initiate a lawsuit as the Summons and Complaint was not delivered to the correct address. Mistakes are made regarding wills, deeds, and notes by client’s attorneys alike. Clearly, if the plaintiff had first used all diligent efforts to effect personal service, the correct address would have been listed on the original Summons and Complaint and would have been carried over to any new suits See CPLR 305. Summons.

NY CPLR 305 Summons; supplemental summons. “A summons shall specify the basis of the venue designated and if based upon the residence of the plaintiff it shall specify the plaintiff’s address”

Under NY law, substitute service occurs when the process server leaves one copy of the summons at the residence for the person to be served or place of business with a roommate, relative, or other responsible party known as a person of suitable age and discretion and mails a second copy of the summons to the person to be served at his or her last known address. In this case, Wider’s service was not left at the address last known, it was served to one that was unknown or assumed. In the Affidavit of Service, it does list age but makes no reference to discretion. What is legal discretion in reference to service? It is determining that the relationship to defendant is suitable as listed above, or a resident of the dwelling. In the legal system, discretion is a very key legal concept, police, prosecutors, litigants, judges, and juries must exercise their ability to make responsible decisions, to have clarity, using good judgment. A person with verified relationship to the defendant has discretion and will deliver the summons to the defendant as opposed to someone who has no relationship to the defendant and does not understand its importance or can’t be held accountable for their actions. See NY CPLR 308. Personal Service Upon a Natural Person. See FED C.P. 4(e)

NY CPLR 308(2) by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business actual place of business…

FED C.P. 4 (e) leaving a copy of each at the individuals dwelling or usual abode with someone of suitable age or discretion who resides there…

Plaintiff’s counsel did not mail a second copy of the summons to the defendant at his residence or to his actual place of business and has implied that the process server mailed it on behalf of the plaintiff. Instead plaintiff’s counsel enclosed a copy of a letter Exhibit # 2 which states service was sent to an attorney in another state who was not employed by Wider nor was this attorney a designated agent. Therefore, the person who was served was not a proper substitute to be mailed service, by law. Plaintiff’s counsel states that substitute service was properly served as evidenced by this letter which is an example of improper substitute service and he disproves himself according to NY CPLR 308 (2).

Widers proof of facts are irrefutable and are not contradictory. It is not the responsibility of the defendant to give the plaintiff a proper address for proof of service to serve a summons and complaint before the process starts. It was Bodzin that served HTFC Corporation maliciously at 400 Garden City Plaza NY 11530, knowing it was out of business with the incorrect residential address as per the civil cover sheet attached of Aaron Wider at 324 Clocks Blvd Massapequa, NY 11758 as per case number’s 08-2985, & 06-5291 Exhibit # 3 and subsequently every decision that the court made was mailed to the corporate address and returned. As stated previously, Mr. Bodzin relied on old inaccurate information. HTFC corporation was already sued once and obtained a default judgment and was out of business. Bozdin attempted to pierce the corporate veil to sue Wider which is the right of the plaintiff however Wider never lived at the old corporate address and never lived at 324 Clocks Blvd. The Plaintiff that hires counsel has the responsibility and burden of proof through simple due diligence procedures to obtain the legal residency of the defendant. The defendant is not employed by the plaintiff and has no legal responsibility in correcting the plaintiff if in error. Both the defendant and plaintiff have the tools to validate residency. Disco, Fraud Guard, Lexis Nexis, Accurint, Fire Serve, Avista Solutions, Interthinx, Sitexdata.com, Mari, Hud, NYS Banking Department public records, county records, assessor’s records, court records, town records, village records, recorded deeds and the most important United States Post office. Nor was certified mail, express mail, Fed Ex, UPS or any other courier utilized.

Statement of Facts:

The Due Process clauses in the United States Constitution prohibit Courts from exercising personal jurisdiction over a defendant unless the defendant has proper notice of the court's proceedings. To meet this rule, courts require plaintiffs to arrange for defendants to be served with a court summons and a copy of the plaintiffs' complaint. These papers are collectively called process. It is not enough to simply mail process to the defendant. The summons and complaint must be either given directly to defendants (personal service) or left with a suitable person at their home or place of business (substitute service) or a conspicuous service (nail and mail).

A process server employed by an attorney who has repeatedly misrepresented the truth to the courts as evidenced that allegedly served an address that does not exist in the county is not proper service. The summons and complaint must be either given directly to defendants (personal service) (never happened) or left with a suitable person at their home or place of business (Could not of happened business has been closed for 2.4 years and process server affidavit reflects service to a non existing address in my County(substitute service) or a conspicuous service (nail and mail) could not happen no such address exist. The court should know not only was 312 Clocks Blvd an oversight but Bozdin can’t provide evidence to the court for the obvious, that Bozdin will not be able to provide a deed for 324 Clocks Blvd because it does not exist. Service may usually be performed by any adult who is not a party to the lawsuit. Plaintiffs may hire professional process servers to serve defendants. Serving an address that does not exist is not professional. Neither personal nor proper substituted service was given by the plaintiff.

Bozdin purports that Wider’s new allegation that he does not reside at 324 Clocks Blvd is contradictive. This is not an allegation this is fact. The Deed has been provided to the Courts exhibit# 2 that existed since 2004 when Wider purchased his home before HTFC’s relationship with GMAC providing evidence to the court that Plaintiffs counsel Bozdin and did not do the due diligence required by law to initiate a lawsuit. .Widers deposition in Philadelphia is a continuance of Bodzins negligence. Bodzin submitted the Civil Cover sheet exhibit# 3 with the address of 324 Clocks Blvd. The burden of proof lies on the Plaintiff of proper service. The plaintiff served HTFC Corporation and UTILIZED an address that never existed 324 Clocks Blvd for the defendants assumed residence on its coversheet providing evidence to the Court from the inception of the GMAC vs. HTFC Corporation that Bodzin never did what he was paid to do. It is not the responsibility of the defendant to coach, help or correct plaintiff s counsel.



WIDER WAS NOT SERVED PURSUANT TO FED.CP.4(e) AND N.Y. CPLR 308.2

The summons and complaint was never served to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode. As per public records HTFC Corporation has not been at 400 Garden City Plaza Garden City, NY 11530. Since November 2007, Bozdin used this business address knowing that it no longer existed. Secondly, Bodzin never performed the required due diligence to provide proof of defendants address to the court which is 312 Clocks Blvd which has been provided to the court. Bozdin cannot provide a deed to 324 Clocks Blvd where Bozdin alleges proper service. FED.CP.4(e) AND N.Y. CPLR 308.2 requires strict compliance and thus even a defendant's subsequent receipt of actual notice of a lawsuit will not cure a defect or confer evidence of jurisdiction upon the court (see Raschel v Rish, 69 NY2d 694, 697 [1986]; Feinstein v Bergner, 48 NY2d 234, 241 [1979]). While a process server's sworn affidavit of service ordinarily constitutes prima facie Proper service (see Bankers Trust Co. of Cal. v-3- 96847 Tsoukas, 303 AD2d 343, 344 [2003]), a defendant may rebut that Affidavit with a "detailed and specific contradiction of the allegations in the process server's affidavit" sufficient to create a question of fact warranting a hearing (id. at 344; see Federal Home Loan Mtge. Corp. v MacPherson, 277 AD2d 418, 418
[2000]).

Here, Plaintiff’s process server submitted an affidavit claiming, without proof of discretion that he served Gianna Decarlo ( No existing person exist in in the US except a Persain Porn Star who Mr. Malaussena determined was of suitable age and discretion at 324 Clocks Blvd which address does not exist, therefore, defendant maintains, service was not made at his "dwelling place" or "usual place of abode" within the meaning of CPLR 308 (2) (see generally Feinstein v Bergner, supra at 239-241). This affidavit of service is defective by law because it does not reflect discretion, meaning by law, it does not state any relationship to the defendant or if the person served resides at that address. In accordance of NY law Bodzin alleges Mr. Malaussena mailed the summons and complaint to Wider but no proof of such mailing exist and no certificate of service exist except an affidavit of service to an assumed address docketed on line with pacer which is a misrepresentation. Bodzin purports that he received a letter from Joseph Ziccardi who was Wider’s former attorney Receiving a letter from a former attorney and former registered agent does not constitute proper service. Sending a summons and complaint outside of both plaintiffs and defendants jurisdictions is not proper service. Because my former attorney states that he mailed me the summons and complaint does not constitute proper service. Plaintiff’s counsel did not mail a second copy of the summons to the defendant at his home or to his place of business and has implied that the process server mailed it on behalf of the plaintiff yet no affidavit or certificate of service can be produced. Instead plaintiff’s counsel enclosed a copy of a letter exhibit # 2 which states service was sent to an attorney in another state who was not employed by Wider nor was this attorney a designated agent and therefore not a proper substitute to be mailed service, by law. Plaintiff’s counsel states that substitute service was properly served as evidenced by this letter which is an example of improper substitute service and he disproves himself according to NY CPLR 308 (2).

The Summons & Complaint was never properly served. Plaintiff ‘s counsel purports that it’s process server served Wider on February 5,2009, however, Pacer reflects the clerk docketed the Affidavit of Service by Robert Malaussena to a Gianna DeCarlo to an address that is not Wider's residence to Gianna DeCarlo of whom discretion by law was not stated. Wider was unable to respond to the Summons & Complaint because it was never served to him. Bodzin argues that I had 1 year since the lawsuit and 9 months since the default judgment without an explanation. it was Bozdins negligence of improper service which explains itself. Default judgments have no time limits on reasonable excuses.

WIDER IS NOT SUBJECT TO PERSONAL JURISDICTION IN THE COMMONWEALTH OF PENNSYLAVANIA

Bozdin states that GMACB SATISFIES ALL THREE PRONGS OF THE CALDER TEST. This is a gross misrepresentation, and is questionable. GMACB never sued for fraud nor ever alleged it. GMAC & RFC both sued HTFC Corporation jointly exhibits # 4 for breach of contract diversity case #s cv-05291-ER & cv-0393-ADM-AJB. Subsequently, Bozdin sued again case #CV-02985 exhibit # 5 for diversity breach of contract which was dismissed by the Court. Bozdin again sued for diversity breach of contract on this case #CV-00106-ER exhibit# 6 If Plaintiff wanted to allege fraud it had 4 legal separate opportunities to do so in since the inception of the first lawsuits dated 10-04-06. Plaintiff however only alleged fraud in Widers Bankruptcy proceedings in an attempt to keep Wider from receiving a discharge. The plaintiff never alleged fraud because it never happened, could not be proven and could never prove breach of contract.

On January 23rd 2008, GMAC conducted a deposition of Joseph Frank Mirando that performed appraisals for 12 of the 27 properties and it is true that the Appraiser was instructed to appraise the subject properties subject to completion of construction as required by law. Even without Widers instruction it would be a requirement of any appraiser to appraise the property subject to completion or after repaired value, if construction is being performed. Any property that is going through renovation or construction must be noted. The appraiser did his job, HTFC did their job and subsequently GMAC knew about it because they purchased the loans. If GMAC did not know about it, then their due diligence efforts were negligent, if the proper due diligence procedures were performed, then GMAC would not be in a position to make an allegation four years later. In essence, the Court should examine the threat of lack of protection to the stockholders of GMAC at the time of occurrence. HTFC and Wider are not responsible for the internal poor corporate procedures of GMAC and cannot be held responsible for its own internal negligence. GMAC has attempted to hide its deficiencies proven by these core proceedings, at the expense of the US government. If Mirando had not appraised the subject properties subject to completion, then it would be an act of fraud on Mirando’s part and a misrepresentation on HTFC’s part. If you’re renovating property an After-Repaired Value (ARV) or subject to completion appraisal is performed before you start work, as required by law which was disclosed in Joseph Mirando’s deposition to Bozdin, to document the expected resale value of the property. Bodzin calls this inflating. Bozdin purports that Mirando testified that Wider instructed him not to appraise the properties for the subject loans at the time of the appraisal. This is absolutely correct. The purpose of an appraisal is to evaluate the value of the property not a property for the subject loan, as Bozdin states. The valuation of any property by any appraiser is to establish fair market value for the subject property, not for a subject loan. If Bodzin has the impression that the purpose of an appraisal is to appraise properties for subject loans at their market value then the Plaintiff has a serious problem and needs to find an attorney who knows the difference that the purpose to evaluate real estate is to access value. Loaning money has nothing to do with valuations. A loan comes after the valuation. This information, combined with the appraisal ordered by the buyer’s lender provides evidence that the increase in value is justified. To sustain a finding of common law fraud, the trial court in most cases must make findings of fact as to each of the nine elements of fraud. Howell v. Kraft, 10 Wash. App. 266, 517 P.2d 203 (1973). Those elements generally are: (1) a representation of an existing fact, Plaintiff has misrepresented the facts. (2) its materiality, there is no material (3) its falsity, (nothing is false, hidden, or concealed and was properly disclosed as per Mirando’s testimony, (4) the speaker's knowledge of its falsity or ignorance of its truth, The speaker has proven that these are all facts (5) his intent that it should be acted on by the person to whom it is made. There was never any attempt as demonstrated (6) ignorance of its falsity on the part of the person to whom it is made, Plaintiff is ignorant and misrepresented the facts (7) the latter's reliance on the truth of the representation, There is no truth of its representation (8) his right to rely upon it, and (9) his consequent damage. (There has been no damage) See Turner v. Enders, 15 Wash .App. 875, 878, 552 P.2d 694 (1976).

Pennsylvania’s Uniform interstate and international Procedure Act codified as 42 Pa. C.S5322-5329 provides for the personal jurisdiction over persons outside of the commonwealth. Section 5322(a) (4) authorizes courts in the commonwealth by an act or omission outside the commonwealth. GMACB cannot claim jurisdiction over Wider because fraud was never alleged by the plaintiff and could never establish it. Wider has demonstrated that no fraud ever occurred as plaintiff suggest and has provided evidence that the allegations of fraudulent tortuous acts committed outside of Pennsylvania causing harm to GMAC in Pennsylvania is a misrepresentation in an attempt to hijack jurisdiction in a failed attempt to keep jurisdiction in the Common Wealth of Pennsylvania.

While Bodzin believes that the Calder applies the evidence demonstrates the contrary. The court should realize the Bodzin never alleged fraud in any proceeding that Bozdin is not incompetent, and not mentioning fraud in the course of 4 years implies one thing. It never happened. Therefore an intentional Tort cannot be established. The plaintiff by its own management negligence has inflicted its own brunt of harm by a tort inflicted upon itself and finally the defendant has proved that no Tort ever existed therefore their belief in the Calder Test fails.

A flip is not an illegal act. Every distributor in the country that drop ships on behalf of a manufacturer follows this practice and the law allows it because of free enterprise. Bozdin is paid for performing legal services and then charges for these services. The Indians sold New Amsterdam for the equivalent of $24.00 which is now Manhattan. The real estate market in the United States is based on Capitalism and today’s market came from the practice of higher pricing. I have legally learned through the combination of Finance and banking how to do what the Dutch did in one transaction that took 300 years to perfect. The courts just don’t prosecute people for conducting business who are better, smarter, seasoned and more legally advanced than the competitors. The Sherman Antitrust Act (Sherman Act,[1] July 2, 1890, ch. 647, 26 Stat. 209, 15 U.S.C. § 1–7) requires the United States Federal government to investigate and pursue trusts, companies and organizations suspected of violating the Act. It was the first Federal statute to limit cartels and monopolies, and today still forms the basis for most antitrust litigation by the United States federal government. GMAC is violating this act by attempting to prevent Commerce of Aaron Wider. GMAC has alleged that I illegally committed fraud by flipping properties which has been proven to be false and unsubstantiated. Property flipping is legal in all states and the IRS classifies this business as a Real Estate Dealer and if this Federal Agency states that loan flipping is legal then Bodzin has misrepresented the truth without the understanding of how things work in mortgage banking & real estate and subsequently has no knowledge of the rules and laws of the IRS a sister agency of the United States Federal Government How does the IRS determine dealer status? The IRS determines real estate dealer status based on the "intent" of the taxpayer holding or buying the property. The characterization of gain or loss on the sale or exchange of real property turns on whether the property was held "primarily" for sale or investment. The Courts have come up with their fifteen items that they look for in determining the status:
• Taxpayer's purpose for acquiring, holding and selling the property
• Number, frequency and continuity of sales
• Duration of ownership
• Time and effort expended by the taxpayer in promoting sales
• Taxpayer's use of brokers
• Extent of improvements and subdivision made to facilitate sales
• Ordinary business of the taxpayer
• Extent and value of the taxpayer's real estate holdings
• Extent and nature of the transactions involved

• Amount of income from sales as compared with the taxpayer's other sources of income
• Taxpayer's desire to liquidate landholdings unexpectedly obtained
• Taxpayer's overall reluctance to sell the property
• Amount of advertising
• Use of a business office for sales
• Taxpayer's control over any sales representatives
What is "Flipping"?

There are two definitions of “flipping” when it comes to real estate. The first (and original) definition means buying a property and quickly reselling it for a profit. Usually, the property is distressed in some way, and you’ll be reselling it to a rehabber who will renovate the property. The rehabber will then sell the fixed-up property to a new homeowner..

This is also called wholesaling – buy low, sell high. It’s the Great American Way, and it’s NOT illegal. Not in any way, in any state, at any time. It’s a perfectly legal way of doing business. In fact, the Internal Revenue Service will classify you as a Real Estate Dealer if you do this for a living. If they say it’s legal, it absolutely, positively must be legal. Although people and Corporations due this and make a substantial living Widers Corporation GCF Development (Genesis Christian Foundation) performed a variety of services for free. Buying properties and renovating them exceeding industry standards is an act of philanthropy. Paying for the closing cost and buying down interest rates to any persons unrelated is an act of philanthropy. Millions of dollars and thousands of hours of time donated to better the quality of life and bettering communities is an act of philanthropy. This section depicts Widers actions!

The second definition for “flipping”, as coined by our thoughtful and informed press corps, is loan fraud – pure and simple. The Department of Housing and Urban Development (HUD) defines flipping as: the practice whereby a property recently acquired is resold for a considerable profit with an artificially inflated value, often abetted by a lender's collusion with the appraiser” (HUD Prohibition of Property Flipping in HUD's Single Family Mortgage Insurance Programs; Final Rule; 24 CFR Part 203, Doc. No. FR-4615-F-02). This never happened. This is limited to conforming loan amounts and at the time the conforming loan amounts were $417,000. Secondly any loan amount of $80% requires PMI insurance. All these loans do not fit Hud’s loan requirements because these loans are higher than the conforming loan limits and GMAC circumvented the law by allowing two mortgages 1st at lien and 2nd lien at a higher interest rates to borrowers to compete in the market so the borrower would not have to pay the PMI insurance. HUD only regulates conforming loan limits and does not regulate loans outside its regulated domain. BODZIN is confused. BODZIN has misrepresented the process of flipping from wholesaling which is legal and has attempted to imply that Wider & HTFC committed Fraud (HUD Prohibition of Property Flipping in HUD's Single Family Mortgage Insurance Programs; Final Rule; 24 CFR Part 203, Doc. No. FR-4615-F-02). The evidence presented shows that Bodzin has no idea what the difference of the two are.

It refers to buying a junked house, and reselling it to an unsuspecting consumer for far more than it is worth. (Never happened) Usually, that consumer is a low-income buyer who can’t qualify for a normal mortgage,( Did not happen) so they jump at the chance to own their own home. Unfortunately, they find out too late that they can’t afford the payments and the home needs a bunch of repairs that they can’t pay for.( Did not happen) So the home goes into foreclosure. The homeowner loses their down payment and credit rating, and the mortgage insurer loses because they have to pay off the loss. The only ones who win are the criminal who orchestrated this fraud, and their associates who helped make it happen. That’s right, it can’t done alone – it takes an investor, an appraiser, and usually a mortgage broker all working together to pull it off. In this case GMAC was the investor & had foreknowledge and possession of all loan exhibits and closing exhibits prior to purchase. HTFC never did business with mortgage brokers as a national policy. The appraiser disclosed that the properties were subject to. No borrower has implied that renovations were not ever needed to any municipality nor has GMAC inferred that upon any foreclosed property that any of the properties needed work or was lacking in appeal both interior or the exterior of the properties. In addition HTFC bought the interest rates down on 11 Quail Run, & 1004 Broadway in Massapequa to 4.5% at a cost of $80,000 per loan. Bodzin can provide the purchase advices from the Plaintiff to the Court but will allude to it because it will show that GMAC received $160,000 in loan interest by downs on two separate properties. No one can afford to pay this amount of money to buy an interest rate down except someone with deep pockets. This was not a red flag to GMAC and is not something that happens in the normal course of business.

If the buyer quits making their mortgage payments, the lender will foreclose on the property. If the value of the property is less than what is owed on the mortgage, the lender will turn the property over to the PMI insurer. They receive the amount owed, and the insurer (e.g., HUD) liquidates the property for as much as the market will bear. The insurer absorbs the difference. This never happened. This is limited to conforming loan amounts and at the time the conforming loan amounts were $417,000. Secondly any loan amount of $80% requires PMI insurance. All these loans do not fit Hud’s loan requirements because these loans are higher than the conforming loan limits and GMAC circumvented the law by allowing two mortgages 1st at lien and 2nd lien at a higher interest rates to borrowers to compete in the market so the borrower would not have to pay the PMI insurance. HUD only regulates conforming loan limits and does not regulate loans outside its regulated domain. Hud’s ruling applies only to financing that carries FHA mortgage insurance therefore in addition to the evidence that has been provided to the court. Bozdins allegations are not warranted by the laws passed by HUD and have been manufactured.

CONCLUSION

For each and all of the foregoing reasons, the defendant respectfully requests that the Court vacate the following default judgment with prejudice based upon the above explained and reasonable excuse.

Dated: Massapequa, New York
February 21, 2010 Time 10:03 am

Robert B. Bozdin
Kleinbard Bell & Brecker LLP
One Liberty Place 46th Floor
1650 Market Street
Philadelphia, Pa 19103

215-568-2000 Dr. Aaron Wider
Pro se
Aaron Wider
__________________
Aaron Wider
312 Clocks Blvd 11758
Massapequa, NY

347-245-5524









UNITED STATE S DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA


Re: Case # CV-00106-ER


GMAC BANK Plaintiff


-against-



HTFC Corporation, et al.,

Defendant