The following decision affects all mortgage foreclosure proceedings in the state of Delaware
whether proceeding on the mortgage, the note or both. Plaintiff’s counsel must now include a
statement in the pleading confirming that the Plaintiff is the current holder of the note at the
time the complaint is filed. This requires the Plaintiff to provide counsel with a copy of the
note and/or any allonge so that Plaintiff’s counsel can confirm the note is either endorsed to
the Plaintiff or endorsed enblank and that the Plaintiff is the holder of the note with the right
The District of Columbia Court of Appeals, in an en banc decision, ended the application of
the Frye test for determination of the admissibility of expert testimony and adopted the
standards of Rule 702 of the Federal Rules of Evidence. In Motorola Inc. v. Murray, Case No.
14-CV- 1350, 2016 WL 6134870 (D.C. 2016), entered on October 20, 2016, the Court concluded
that Rule 702 was preferable, due to its focus on the reliability of principles and methods and
whether they have been reliably applied
The Frye “general acceptance” test has been superseded by Rule 702 in the Federal courts
and many other jurisdictions, beginning with the 1993 Supreme Court Case of Daubert v.
Merrell Dow Pharmaceuticals, Inc. Daubert’s list of specific factors to be considered in
evaluating expert testimony applies to testimony based on scientific knowledge as well as
technical or other specialized knowledge.
Under Rule 702, as applied in Daubert, a witness may be qualified as an expert if (1) the
testimony will help the trier of fact to understand the evidence or determine a fact in issue, (2)
the testimony is based on sufficient facts or data, (3) the testimony is the product of reliable
principles and methods, and (4) the expert has reliably applied the principles and methods to
Rule 702 will be applied to the trial of any civil or criminal case in the District of Columbia
courts that proceeds to trial after the date of the opinion, October 20, 2016.
New Jersey Supreme Court Holds That First Mortgagee May Lose Priority On Optional Future Advances Made After Notice of an Intervening Lien
The New Jersey Supreme Court has held that optional advances under a loan
agreement are subordinate to a junior lienholder when made after the lender receives
actual notice of the intervening lien. The case, Rosenthal & Rosenthal v. Benun, et. al.,
pitted Rosenthal & Rosenthal, Inc., a factoring company and holder of two senior
mortgages which allowed optional future advances against Riker, Danzig, Scherer,
Hyland & Perretti, L.L.P., a law firm which took a subordinate mortgage to secure the
payment of its legal fees.
Rosenthal & Rosenthal, Inc. (The First Mortgagee) held two mortgages on certain real
property in New Jersey. The mortgages secured loans made to a group of businesses
known as the Jazz Entities. The loans secured by the mortgages provided that
Rosenthal had the option to make future advances to the Jazz Entities up to a maximum
principal of one million dollars. Later, the Jazz Entities became indebted to the law firm
of Riker, Danzig, Scherer, Hyland & Perretti, L.L.P. (Riker) in the amount of $1.67
million in unpaid legal fees. In exchange for the firm’s agreement to continue to provide
legal services, the Jazz Entities gave a mortgage to Riker on the property secured by
the Rosenthal mortgages. Riker continued to perform legal services, and its unpaid fees
eventually grew to $3 million. Then, in connection with a contemplated new loan,
Rosenthal became aware of Riker’s mortgage and sent an e-mail to the firm stating that
Riker’s mortgage would need to be subordinated to any new mortgage made by
Part 2: Why Do You Need A Last Will?
Why you should have a Will. We wrote recently about why one should not write their
own will. Of course, that begets the question, why does one need a will in the first
place? Let me illustrate. I recently was told by a married couple, with 2 children, that
they didn’t think they needed a will. They thought when one of them died all of their
property would go to the surviving spouse. After they were both deceased, they
continued, then everything would go to their kids. This seems like a logical position,
right? Wrong! I had to break the bad news to them. Without a will, the surviving spouse
might inherit only part of the deceased spouse’s estate. Part of the remaining estate
would go to their children, even though the surviving spouse was … still alive. Anyhow,
crisis averted. They promptly had me prepare new wills. On a larger scale, the musical
artist (formerly known as) Prince died last year, with an estate estimated in the $300
million dollar range. Published reports indicate that he died without a will. Chaos ensued
(and continues to this day). Numerous relatives or persons claiming to be relatives filed
papers with a Minnesota probate court claiming to be rightful heirs. He also appointed
no-one to handle his affairs upon his death, requiring a count appointed administrator
for his estate. It could take years for the court to determine who the legitimate heirs to
his estate are. Without a will, history and experience have shown that disputes often
result among potential heirs, and in many cases require expensive litigation to resolve.
Give you and your heirs peace of mind, put a proper estate plan in place today.
S&E Attorneys &
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