September Victories for Marcotte Law Firm

September saw a couple of significant victories as Marcotte Law Firm is settling into its new locale. Sean Kelly secured a not guilty verdict for a client charged with drunk driving after slamming into the rear of a car whose driver had stopped on a New Hampshire country road to turn left. The investigating officers determined that the client had failed field sobriety tests, and they admitted to consuming alcohol an hour earlier. The municipality did not use breathalyzers but opted for blood tests administered at a local hospital. The suspect declined, as they later would explain due to fear of COVID. Unlike Massachusetts, refusal to take the test can serve as evidence against the accused. The client testified that the accident occurred because they had gotten lost and was checking GPS. When they looked up, the vehicle ahead had stopped. The collision, however, was substantial. Attorney Kelly not only questioned the officer’s conclusions on the field sobriety tests (first having mastered all the training and grading methodology taught to the police), but also argued that any deficiencies in her performance were equally explained by the severity of the collision. The prosecution could not show beyond a reasonable doubt that whatever symptoms might have been attributed to alcohol could as easily have been due to the collision. Ironically, our client might have been guilty of distracted driving, but was never charged with it. Happily, they have been extra cautious since. Michael Najjar prevailed at the Appeals Court which reversed a Superior Court judgment in favor of Santander Bank. Our client was the beneficiary of a realty trust which owned her marital home. Her then husband established the trust, initially served as Trustee, then resigned while substituting his sister as Trustee. He thereafter signed a $400,000.00 mortgage to Santander, whose title abstracter missed the recorded resignation at the Registry of Deeds. He later had his sister resign and he resumed the trusteeship. All of this went on without his wife’s knowledge, that is, until she learned of the mortgage during divorce proceedings. She brought an action to determine that the mortgage was invalid, because her then husband did not have the authority to mortgage the property when he took the loan from Santander. The bank argued that because he resumed the trusteeship, he re-acquired title thereby retroactively validating the mortgage. The Superior Court concurred. Attorney Najjar then became involved in the case, and contended that the Superior Court wrongly concluded the original Trustee had the right under the trust terms to reacquire trustee status. The Trial Court had reasoned the trust language gave the original trustee, who had himself created the trust, the ability to serve as trustee if he so desired even though he had at one point resigned. The ex-wife’s position was that her ex-husband had to follow the steps in the trust that governed successor trusteeship and that, contrary to the Superior Court judge’s reasoning, those terms were unambiguous. The Appeals Court agreed thereby negating the mortgage and dismantling Santander’s foreclosure. The case is significantly more complex than can be explained in this summary, and there’s more to come, but finally, the ex-wife is operating from a position of some strength. Ironically, Mr. Najjar has been involved in many appellate cases that have dealt with personal injury and insurance coverage, but his firm’s first appellate victory in a team-up with Albert Marcotte, and its most recent one over three decades later, both involved bank issues which are not the mainstay of our office’s practice areas. With a combination of common sense and legal acumen, our firm’s attorneys tend to find their way. What’s unusual about these cases? They both were argued through Zoom. At Marcotte Law Firm our attorneys pursue every avenue to achieve good results preferably without the stresses to our clients that are part and parcel of full-blown litigation. If we have to go to the wall, however, obviously we do so.