Ice Legal - Ocwen HSBC - Bank - Trial - Redacted

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APPEARANCES: On Behalf of PLAINTIFF: MORRIS HARDWICK SCHNEIDER 5110 Eisenhower Boulevard, Suite 120 Tampa, Florida 33634 754-201-3550 BY: SILVER J. DEUTCH, ESQUIRE sdeutch@closingsource.net On Behalf of DEFENDANTS: ICE LEGAL, P.A. 1015 N. State Road 7, Suite C Royal Palm Beach, Florida 33411 561-729-0530 BY: AMANDA LUNDERGAN, ESQUIRE SCOTT HOTLZ, ESQUIRE STEVE BROTHMAN, ESQUIRE ANISHA ATCHANAH, ESQUIRE scottholtz@icelegal.com
WWW.USLEGALSUPPORT.COM 561-835-0220
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INDEX OF PROCEEDINGS Witness: LOUISE PLASSE Direct Examination by MS. DEUTCH ............24 Cross Examination by MS. LUNDERGAN...........60 Redirect Examination by MS. DEUTCH...........88 Recross Examination by MS. LUNDERGAN.........92 Page
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P R O C E E D I N G S - - THE COURT: Bank against MS. DEUTCH: THE COURT: I believe this is the matter of HSBC is that correct? That is correct, Your Honor. And we are set for trial? Yes, Your Honor.
MS. LUNDERGAN: THE COURT: MS. DEUTCH:
Is the plaintiff prepared? We are prepared, Your Honor. We
actually wanted to discuss a possible settlement before hand, but we were waiting for my witness to get down here before doing so. So we would request a
couple of more minutes to do so to do that? THE COURT: That's fine. We will be in recess.
Let me know when you're ready. MS. DEUTCH: Okay. Thank you.
MS. LUNDERGAN:
Thank you, Your Honor.
(A recess was taken.) THE COURT: will. All right folks. Have a seat if you
I understand we are going to trial; is that
correct? MS. DEUTCH: THE COURT: MS. DEUTCH: THE COURT: That's correct, Your Honor. The plaintiff is ready? Yes. Is the defendant ready?
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sanctions for failure to comply with the court order or on the alternative motion in lemony. motion and I have a copy for, Your Honor. have a courtesy copy for counsel. you received it. It's a trial I also
I don't know if
It was filed late yesterday.
Essentially, Your Honor, the issue here is we are here because this case -- this trial was reset from June 26th -- it was reset from June 26th because of plaintiff's failure to comply with the pretrial discovery, and failure to provide us with the name of a witness, the opportunity to depose that witness and their trial exhibits. Today, Your Honor, we are in essentially the same position as we were on June 26th. Plaintiff failed
to provide us with the name of their witness through formal discovery. They never filed a witness list or
exhibit list that had the name or identity of this individual, Louise Plasse. identified to us. Ms. Plasse was never
She was identified via an informal And during that same conversation
conversation via email.
we requested to take the deposition of Ms. Plasse as soon as we learned of her identity. We were only given one
opportunity to do so, and that opportunity was to take place yesterday afternoon. The purpose of which really
didn't make any since to us seeing as how taking the
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deposition the afternoon before trial would leave us with little to no chance of obtaining a transcript to use at trial. Additionally, Your Honor, if we were to do so we would have to do so at exceedingly great costs. So
essentially our ability to depose this witness which we do have the right by rules of civil procedure was foreclosed, and no pun intended, by plaintiff's actions in this case. More over, Your Honor, we are still to this day without any receipt or knowledge of which exhibits the defendant (sic) intends to use at trial. While they did
file an exhibit list for this case on August 1st, 6 business days before this trial. Despite numerous
requests throughout the life of this case we have not yet received from plaintiff any copies from any trial exhibits that they intend to use in this case. Essentially, we are being forced to try this case facing trial by ambush tactics. I have not had an
opportunity to review the payment records that plaintiff is going to specifically rely on for purposes of this trial. I have not had the opportunity to review any of
the exhibits that plaintiff intends to introduce into evidence before you. The purposes of the trial order, and the trial order is very specific and clear that we are to conduct
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to abide by the trial order for the second time when today this case was specially set by Judge Biebel at the last trial setting for the exact same reasons we had to come before you and make this motion today. THE COURT: entered? MR. BROTHMAN: THE COURT: June 26th. And when was the trial order
This year? Yes.
MR. BROTHMAN: THE COURT: MS. DEUTCH:
Counsel, how do you respond? For starters, Your Honor, the last
motion in lemony at the previous trial was in fact denied. to today. Since that trial it was reset at that date Forgive me because counsel was jumping a
little bit all over the place here, but for starters we filed two witness exhibit lists. I would like you
to know that the one filed on August 1st was actually withdrawn yesterday. As I had myself inform counsel
previously that we would be going off of our previously filed witness and exhibit list which was filed for the June 26th nonjury trial in here. Where
we do attach -- we have numerous exhibits listed and we do attach an Exhibit A where we have various possible witnesses. When I was requested -- when I was contacted by
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their office more recently, I believe it was perhaps around the 22nd of July -- well, let me see, it was around the 22nd of July. I had been speaking with a Scott Holtz
in their office numerous times ever since mid July where we actually had a conference to confer about this beforehand on June 19th. touch. And after that we had been in
He had asked me who my witness is, and I responded
as promptly as possible telling them the exact name of our witness. Afterwards on last Wednesday after I furnished the name they requested a deposition of our witness. I
immediately contacted my witness to ask what her available times may be, and she responded to me over the weekend first thing Monday morning. I let them know that the only I
day that she had available was yesterday afternoon. cannot make my witness available.
They have had our witness and exhibit list for -- when was this filed, for it looks like well over a month at this point, that they were free to notice her for deposition and every person on that list. They were free
to contact us ahead of time if they wanted to. The fact is they asked for a deposition of our actual witness nine days before trial. The fact that my
witness doesn't have any available time I can't do anything about that, but I responded in due course to all
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of their requests, and in as good fashion as possible. And regarding any filed exhibits, number one; the note and mortgage, the original documents had been filed in the court file since 2009. On top of that I was
served with a pretrial request for production asking for my exhibits that I attached the note, mortgage, payment history and demand letter. And that pretrial request for They have
production was done even before last trial.
known what exhibits I intended to introduce at trial today. To argue that there is any ambush is misguided. THE COURT: comments? MR. BROTHMAN: Yes, Your Honor, I have to Thank you. Counsel, any further
disagree respectfully with counsel's framing of the current situation. First of all, we've asked for the
deposition in the life of this case, not referring to the specific trial setting, but referring to the overall life of the case. And in the previous trial
setting we asked for the deposition of their trial witness three months ago for the first time. That
was the first time we asked to take the deposition of their trial witness. We did not get the name Louise Plasse until July 31st, and it was that same day July 31st that we asked to take the deposition once they actually gave us
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the name of the witness. So for counsel to argue that we waited until nine days before trial to ask to take the deposition of their witness that's only because it was nine days before trial that they actually gave us the name of that trial witness. And in that correspondence that is when Ms.
Deutch referred to the fact that Ms. Plasse is listed on the last witness and exhibit list filed by the plaintiff. But up until that point up until July 31st the defendants had no idea what witness list they were going to be using. They had not filed a new witness list. They
had not indicated that they would affirmatively be relying upon their previously filed witness and exhibit list, and frankly I have to disagree with Ms. Deutch's assessment of the situation that somehow it's defendant's burden to inquire who the witness is going to be, what witness and exhibit list plaintiff is going to rely on. The plaintiff -- the parties -- each party has an affirmative duty under the trial order to list and identify the witnesses and exhibits that each party is going to rely on or use at trial. It is not up to me to
investigate which witnesses she's going to call, it's up to the plaintiff to list those witnesses, identify those witnesses and then if we would like to take their depositions or if we would like to investigate further
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operating under when we wrote this motion and when we finalized this motion in lemony. Exhibit A attached to it is a list that goes down the length of the page, and onto a second page of witnesses. How are we supposed to discern from this list
with no help whatsoever that Louise Plasse is the individual who is going to be there, and that's the person whose deposition we have the right to take. what remedy we have, Your Honor. I don't see
How could we have
conducted ourselves any differently? The fact is we were not provided the exhibits when we requested them. We were not provided the name of As soon as we They failed
the witness until nine days before.
received that name we asked for a deposition.
to provide us with a legitimate opportunity to take that deposition. As such my clients have been prejudiced. We can
not in good conscience go forward today when we have not had -- and it's not through any means of our own fault. It's solely based on the plaintiff's inability or unwillingness to comply with this Court's trial order. We are simply asking this Court to stand by it's trial order and enforce the conditions of it. THE COURT: MS. DEUTCH: Counsel, anything further? Yes, Your Honor. Actually drawing
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your attention to the actual trial order, and reiterating some of our discussions in this case. On
July 16th I was contacted by Scott Holtz's firm, Ice Legal to coordinate a time to confer on the 19th of the above case, pursuant to the trial order I'm assuming, and we did. We did speak on the morning of
the 19th and we did discuss settlement options or whatever else might, you know, be -- that we might discuss at that time. I would like to note that the actual order itself is specific that on the last business day no later than 20 days prior to trial the parties shall confer and discuss settlement, simplify the issues and stipulate in writing as many facts and issues as possible and list all objections to trial exhibits. trial exhibits. Paragraph E additional exhibits, witnesses or objections states in big bold letters, failure to state objections to previously disclosed exhibits pursuant to this order constitutes a waiver. There were no objections List all objections to
raised at our discussion on the 19th, as such I believe that they have waived any objections to our exhibits or our witness at that time. They had knowledge. We
previously filed this witness and exhibit list, and any objections were more than welcome to be raised at that
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time. On top of that the trial order discusses motions that must be set in courtroom 4B. yesterday afternoon. This motion was filed And if we are
This motion is late.
going to discuss ambush we are standing here today where the only reason even that this motion existed was, because I had a feeling they were going to file something. I went
into our service inbox and I happened to find it sitting there. We didn't even have enough time to put it in our If we are going to argue ambush
system for us to find it.
there is a reason why these motions should be filed and heard prior to more than, you know, one day before an office closes a day before trial. THE COURT: MS. DEUTCH: THE COURT: Anything further? That's all for now, Your Honor. Sir, you have the final word. I appreciate that, Your Honor. I
MR. BROTHMAN:
don't think it's fair to try and hold the trial against us in raising this motion when by her own admission, plaintiff's counsel hadn't even finalized their witness and exhibit list until yesterday. Seeing as how on August 1st they filed a witness list and then yesterday they withdrew. So the point is
that this is exactly what goes to the heart of what we have been arguing.
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THE COURT:
You said they withdrew it? I believe plaintiff said that
MR. BROTHMAN: they withdrew it -MS. DEUTCH:
There was one filed on August 1st, Someone else from my However, I
we withdrew it yesterday.
office filed it and we withdrew it.
previously mentioned to them that we were going off the previously filed witness and exhibit list and last Wednesday furnished them the name when I received it of the exact witness who would be here today. THE COURT: Go ahead. And my problems with that whole
MR. BROTHMAN:
scenario, Your Honor, is that for the listed witnesses and exhibits to be fluent up until the day before trial it completely precludes our ability to represent our clients to the best of our abilities and prepare for trial. How are we supposed to
prepare adequately when the listed witnesses, the listed exhibits they change and they are filed and they are withdrawn up until they on the eve of trial. It's impossible, Your Honor. We have been holy
prejudiced by the plaintiff's inability to abide by the trial order in this case. Additionally, Your Honor, we did preserve our
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objections specifically to the exhibits by filing timely as I read the trial order to defendant's objections to plaintiff's exhibit list, and that was filed June 24th, which I believe complies with the trial order. I will agree that Ms. Deutch and I did confer on the phone. We did discuss settlement issues, we did
generally discuss issues of the case, but in no way do I construe or should this Court construe the trial orders mandates to confer to limit our ability to raise legitimate grounds for why this case ought to be dismissed as a sanction and as a failure to comply with court order, or in the alternative to dismiss this case because we have not -- because defendants actions have so severely prejudiced us that we cannot possibly adequately prepare for trial. It is a direct violation of the trial order. THE COURT: MS. DEUTCH: All done? Yes, Your Honor. We do have all of
the information that we need -- I believe you have all of the information. THE COURT: All right. Let's see apparently,
these are separate motions, one is the motion for sanctions and the other one is the motion for other objections to the trial. MR. BROTHMAN: Your Honor, that is something in
evidence for us preserving --
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THE COURT:
So we are not arguing that? No, we are not, Your Honor. And
MR. BROTHMAN:
in fact if you noticed we couldn't even properly raise objections because as we note we had not actually received any exhibits. THE COURT: I understand. All right. With
regards to defendant's
motion to sanctions
for failure to -- court order or in the alternative motion in lemony that motion will be denied. Are we ready to start the case? MS. DEUTCH: THE COURT: Yes, Your Honor. All right. Your Honor, we have a formal
MS. LUNDERGAN:
motion for continuance based on that ruling. THE COURT: I beg your pardon? We have a formal motion for
MR. BROTHMAN:
continuance based on, Your Honor's ruling. THE COURT: be denied. MS. LUNDERGAN: I just want the record to Okay. Motion for continuance will
reflect that the Court has denied the motion without reading it. THE COURT: right. All right. Anything further? All
Let's have some opening statements.
How long
do you think you will need?
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MS. DEUTCH: THE COURT: MS. DEUTCH: back and --
Only a minute or two, Your Honor. Okay. Go right ahead.
If you would just allow me to step
MS. LUNDERGAN:
Your Honor, how long are you Because we are
going to allow us to stay today? anticipating three or four hours. THE COURT: I don't know.
We will go as long as
we can and hopefully we will be out of here before it's dark. MS. LUNDERGAN: Your Honor, we appreciate it.
We are going to need a lot of leeway since we didn't have the deposition to ask questions. THE COURT: this case? May I ask this, who is going to try
I don't -I am, Your Honor.
MS. LUNDERGAN: THE COURT:
I don't want to be double teamed. I am, Your Honor.
MS. LUNDERGAN: THE COURT: MS. DEUTCH: MR. BROTHMAN:
Counsel, go right ahead. Thank you. Can we get orders signed on the
motions before we get started? THE COURT: If you have some then by all means.
Of course they are right in the record, because we do have a reporter here.
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MS. LUNDERGAN:
Yes, Your Honor, but you can't
appeal them without an order, so we need an order. And just for the record here is our signed motion for continuance that Your Honor, did not review. just want to make sure it's in the record. formally signed motion for continuance. MR. BROTHMAN: to opposing counsel. THE COURT: Today is the 9th; is it not? Yes, Your Honor. I have shown the proposed orders It is a I
MS. LUNDERGAN: THE COURT:
All right. Thank you.
MS. LUNDERGAN: THE COURT: MS. DEUTCH: a few minutes.
Counsel, go right ahead. Yes, Your Honor and I'll only need Your Honor, as you will see from the
evidence presented and from my witness' testimony this is a very clear-cut case. The borrower signed
the note and mortgage, the borrower defaulted on this loan, and as such they haven't curred this default to this date. My witness will also testify to the
original note and mortgage which is in the court file which I had brought up here today. And as you will see the notes is endorsed to blank and in such standing is evident and the only issues that really should be looked at today are the fact that
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does the plaintiff in this case have standing, and based on the blank endorsement you will see that they clearly do and based on my witness testimony, you will see that they clearly do, and also what did the defendant's -- the borrowers default on the loan and was this default curred? And as you will see the borrowers did in fact default on this loan and to date this default has not been curred since this is a, I believe a 2008 case. We are
here several years later where my client, the plaintiff in this case has been severely harmed by not receiving any payments to this date, and I do feel that this is a clear cut case and there are no real issues that would prevent a final judgment being entered for the plaintiff in this action. Thank you. THE COURT: Thank you. Counsel.
MR. BROTHMAN:
Your Honor, before beginning the
opening statement I'd like to just for the record formally object to starting the trial at this hour, it's 2:52 and we don't believe that we will be able to complete this trial on this day at this time. This was set for an all day trial and we are starting this late. We are likely going to have to start this
trial and stop it and then continue it at a later time, which we believe prejudices our ability to defend this case.
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THE COURT: move forward.
Your objection is overruled, let's
MR. BROTHMAN:
Your Honor, in this case you will
find that unlike the picture the plaintiff has painted for you this case is not simple, it is not cut and dry. There are issues with the endorsements
or whether -- and the timing of those endorsements. Because as, Your Honor is going to find from the evidence the note that was attached to the complaint in this case did not have any endorsements on it. So
there will be questions that the plaintiff will have to answer, and they can't answer as to when those endorsements that they're going to try to use today to establish standing in this case were placed on that note. The evidence will show -- will prove that they do not have the standing to bring this action. Moreover,
Your Honor, you will find that through close examination of the other necessary evidence that plaintiff will try to introduced in this case that they do not have the requisite payment records, and do not have the requisite records in general. And they will not be able to meet the
evidentiary burdens of even establishing the documents in which they rely are business records, and thus they will not be able to prove their case.
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THE COURT:
Thank you kindly.
All right.
Are
you ready to call your first witness? MS. DEUTCH: I am, yes, Your Honor. The
plaintiff calls Louise Plasse to the stand. THE COURT: hand. Ma'am, will you raise your right
Do you swear the testimony you are about to
give will be the truth, the whole truth, and nothing but the truth? THE WITNESS: MS. DEUTCH: Yes, Your Honor. Also, Your Honor, before I begin I
would also request that if I could have the original note and mortgage from the court file to use as exhibits. THE COURT: MS. DEUTCH: THEREUPON, LOUISE PLASSE having been first duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MS. DEUTCH: Q A Q A What is your first and last name? Louise Plasse, P-L-A-S-S-E. And who are you employed by? Ocwen Financial Services. All right. Thank you.
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Q A Q
What is your position? I'm a loan annalist. Do you have authority to testify on behalf of
the plaintiff in this action? A Yes. MS. LUNDERGAN: foundation. Objection, Your Honor, lack of
There is no documented evidence or that
she's proffered, that she would have any authority to testify on behalf of the plaintiff. THE COURT: BY MS. DEUTCH: Q A Q action? A Q We are the current loan servicer for this loan. And -THE COURT: Excuse me could you pick up the mic. And who is your employer? Ocwen Financial Services. What is their relation to the plaintiff is this Rephrase if you will.
Thank you so much. THE WITNESS: BY MS. DEUTCH: Q A Q I'm sorry. Could you repeat that. I'm sorry.
We are the loan servicer for this loan. And thus do you have authority to testify on
behalf of the plaintiff for this action?
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MS. LUNDERGAN: for hearsay.
Objection, Your Honor.
It calls
The document that would speak to that
is some sort of power of attorney, or authorization on behalf of the plaintiff. It's not here, and it
hasn't been introduced into evidence and therefore it's hearsay. THE COURT: MS. DEUTCH: BY MS. DEUTCH: Q Do you have personal knowledge of the business Okay. Overruled.
Thank you, Your Honor.
practices and procedures of Ocwen? MS. LUNDERGAN: for hearsay again. Objection, leading. It calls
She hasn't laid any foundation as
to how she would have any knowledge or to speak to as to service record policies. THE COURT: BY MS. DEUTCH: Q case? A Q question? A Q Yes. Since you did not answer. Do you have personal Yes. I'm sorry. Can I go back to the previous Are you familiar with the instant loan in this Overruled.
knowledge of the business practices and procedures?
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MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q this case? A Q this loan? A Yes, I have. MS. LUNDERGAN: Yes, I am.
Same objection. Go ahead.
Same ruling.
Do I have personal knowledge, yes.
And are you familiar with the instant loan in
Have you reviewed the Ocwen records related to
Leading.
What records is she referring to?
Just saying has
she reviewed the records is vague, Your Honor. THE COURT: BY MS. DEUTCH: Q And do you have personal knowledge of these Overruled.
business records with respect to this loan? A Q Yes, I do. Are these business records input
contemporaneously when the transaction occurs? MS. LUNDERGAN: Your Honor, objection. We
haven't heard anything about what department she works in, how she would have knowledge about the business records of section and these are all leading questions, Your Honor.
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THE COURT:
Okay.
I'm going to let you take
care of that in cross-examination. MS. DEUTCH: Your Honor, they are more than
welcome to voir dire my witness. MS. LUNDERGAN: I would request to voir dire
her, Your Honor, on her relationship with the plaintiff. THE COURT: I'm sorry. What was that?
MS. LUNDERGAN:
I would request to voir dire the I
witness on her relationship to the plaintiff.
don't believe she has any authority to testify on behalf of the plaintiff. plaintiff. THE COURT: time. I don't think that's proper at this Go ahead. She does not work for the
Your request will be denied.
BY MS. DEUTCH: Q So have you reviewed the Ocwen records related
to this loan? MS. LUNDERGAN: Same objections, Your Honor,
hearsay, lack of authenticity, lack of foundation. THE COURT: THE WITNESS: BY MS. DEUTCH: Q And do you have personal knowledge of these Overruled. Yes, I have.
records with respect to this loan?
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MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q
Same objections.
Overruled. Yes, I do.
Are these records input contemporaneously when a
transaction occurs? MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q Are these records made by a person with Same objections, Your Honor.
Overruled. Yes, they are.
knowledge of such records? MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q Are these records kept in the ordinary course of Same objections, Your Honor.
business and regular conducted business activity? MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q And is it your regular business practice to keep Same objections, Your Honor.
such records? MS. LUNDERGAN: Same objections, Your Honor.
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THE COURT: THE WITNESS: MS. DEUTCH:
Overruled. Yes, it is. At this time do you need to see -Yes, I do. Several objections, The
MS. LUNDERGAN: Your Honor.
First, if I may show you a case.
complaint in this case has no promissory note attached to the complaint and therefore it's outside of the -THE COURT: Wait, what are you objecting to? I'm objecting to this note as
MS. LUNDERGAN:
being irrelevant on the grounds that it's not attached to the complaint. THE COURT: There is no --
Well, has it been introduce or
attempted to be introduced into evidence? MS. LUNDERGAN: I believe she is trying to mark
it for identification at this point, Your Honor. MS. DEUTCH: No, I was just showing it to
opposing counsel before I questioned my witness. MS. LUNDERGAN: And it's irrelevant, Your Honor
to show it to the witness because it's outside of the scope of the pleadings. directly on point. THE COURT: But there is no question that you I have a case that is
could object to that I would have to rule on, so wait for the question and I'll be glad to hear your
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objection and I'll rule on it. MS. LUNDERGAN: That's fine, Your Honor, and I
believe they were to be pre-marked as exhibits and they are not marked at all. MS. DEUTCH: Well, they were in the court file
prior to me having them here today, Your Honor. THE COURT: evidence? MS. DEUTCH: THE COURT: identification. MS. DEUTCH: Okay. Yes. Let's get it marked for Do you want to put that into
(Plaintiff's Exhibits 1 and 2 were marked for identification.) BY MS. DEUTCH: Q All right. Ms. Plasse, I'm now going to show
you a document entitled Plaintiff's Exhibit Composite 1 for identification purposes. second page on it. If you can flip to the
Do you recognize this document? Same objections, Your Honor, and
MS. LUNDERGAN:
if I may approach with my case law? THE COURT: Yes, ma'am. Your Honor, the complaint in
MS. LUNDERGAN:
this case has no promissory note at all attached to it. There is a case right on point, Your Honor, out
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of the 2nd DCA where a Court was reversed for entering a judgment on a case where there was no promissory note attached to the complaint. What it
stated was a subsequent filing would not procure the default -THE COURT: What is the objection? It's irrelevant, Your Honor, and
MS. LUNDERGAN:
it's outside of the scope of the pleadings. THE COURT: have to say. MS. LUNDERGAN: Thank you, Your Honor. The Now, I'll be glad to hear what you
Feltis (Phonetic) case what I was stating out of the 2nd DCA reversed a Court when they entered a judgment on a complaint when there was no promissory note attached to the complaint. filing of the note. There was a subsequent
But what the case says is
subsequent filing is a nullity, you have to amend the complaint and attach the operative instrument and in this case the promissory note. So, I'm objecting, Your Honor, that it's one outside of the scope of the pleadings, two; it's irrelevant since it's not part of the pleadings and I'm also reiterating my objections to the authenticity and hearsay. THE COURT: All right. Your objection is
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overruled.
Let's move on. Thank you. And I also wanted to
MS. LUNDERGAN:
let the record reflect that the Court overruled it without reading the case law. BY MS. DEUTCH: Q A Q A Do you recognize this document? Yes, I do. And what is it? This is the -MS. LUNDERGAN: THE COURT: THE WITNESS: Same objections.
Overruled. This is the original adjustable
rate note dated March 21, 2006 with the address being listed as 2725 Fox Hall Drive East West Palm Beach, Florida 33417. It is made in the amount of $260,000
and the lender is listed as Fremont Investment and Loan. MS. LUNDERGAN: her testimony. Your Honor, I'm moving to strike
She is reading from a document that The case of Sas verses Federal
is not in evidence.
National Mortgage Association stands for the proposition that a witness cannot read from documents that have not been introduced into evidence. THE COURT: I tend to agree with you, it's not
in evidence and I will grant your motion.
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MS. LUNDERGAN: THE COURT: BY MS. DEUTCH: Q is? A
Thank you.
Go right ahead.
So can you please reiterate what this document
This is the original adjustable rate note dated
March 21, 2006 and -Q I can continue from here. Is this document kept
in the ordinary course of business practices of Ocwen? MS. LUNDERGAN: foundation. THE COURT: THE WITNESS: BY MS. DEUTCH: Q Do you have personal knowledge of this record? MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q Is this record input contemporaneously when a Same objection. Overruled. Yes, it is. Objection, hearsay, lack of
transaction occurs? MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Same objection.
Overruled. Yes, it is.
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Q for?
Is this note related to the loan we are here
MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q
Same objection.
And have you reviewed this document prior to
coming to court today? A Q Yes, I have. And do you recognize this to be the note related
to the loan which you are here today in court for? MS. LUNDERGAN: THE COURT: THE WITNESS: MS. DEUTCH: Same objection.
Overruled. Yes, I do. Your Honor, I would like to at this
time move to admit Exhibit 1 into evidence. THE COURT: All right. This is the note now
that we are talking about? MS. DEUTCH: Well, it's a composite document.
Would you prefer it to be entire document or the note and mortgage separately? MS. LUNDERGAN: Your Honor, I have to object.
She hasn't asked any questions about the mortgage, and to introduce it into evidence as a composite -THE COURT: I will admit it as Plaintiff's
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THE WITNESS: BY MS. DEUTCH: Q
March 21, 2006.
What was the original amount of the loan as
stated on the note? A Q note? MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q A And is there an endorsement on this note? There is a blank endorsement on the back from Same objections. $260,000. And do you recognize this to be the original
Fremont Investment and Loan. Q entity? A Q No, it's not. Was the plaintiff in possession of this original And is that endorsement endorsed to a particular
blank endorsed note prior to filing of this suit? MS. LUNDERGAN: Objection, hearsay, calls for There would be a document Her testifying
speculation, authenticity.
that speaks to them acquiring it.
about what their records show there are no records in evidence at that point. MS. DEUTCH: Your Honor, she's testified that
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she has reviewed the records surrounding this note. MS. LUNDERGAN: But her testimony about records So until she
which aren't into evidence are hearsay.
gives you those records she can't testify about what her knowledge of those records say. THE COURT: Okay. Objection is overruled. You
may answer the question. THE WITNESS: BY MS. DEUTCH: Q Was the plaintiff in possession of this original I forgot what the question was.
blank endorsed note prior to the filing of this suit? MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q All right. I would now like you to flip to -Same objection.
Overruled. Yes, they were.
if I can help you, a document with the word mortgage written at the top. MS. DEUTCH: And I can let the record reflect
that this is part of what has previously been marked as Plaintiff's Composite Exhibit 1. THE COURT: MS. DEUTCH: you. BY MS. DEUTCH: For identification purposes. For identification purposes. Thank
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Do you recognize this document? MS. LUNDERGAN: Same objections, Your Honor,
authenticity, hearsay, lack of foundation. THE COURT: THE WITNESS: Overruled. Yes, this is the original mortgage
recorded in Palm Beach on 4-24-2006. BY MS. DEUTCH: Q Is this document kept in the ordinary course of
business practices of Ocwen? MS. LUNDERGAN: foundation. THE COURT: THE WITNESS: BY MS. DEUTCH: Q Do you have personal knowledge of this record? MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q Is this record input contemporaneously when a Same objections. Overruled. Yes, it is. Objection, hearsay, lack of
transaction occurs. MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Same objection.
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the mortgage? MS. LUNDERGAN: THE COURT: THE WITNESS: Same objection.
Overruled. The address listed is 2725 Fox
Hall Drive East West Palm Beach, Florida 33417. BY MS. DEUTCH: Q And again has this mortgage been recorded? MS. LUNDERGAN: Same objections, Your Honor. She
How is she going to know if it's been recorded? doesn't work in recording department. THE COURT: overruled. THE WITNESS:
It's hearsay.
Thank you for your comments, it's
Yes, this document was recorded on
4-24-2006 and the pages are 742 to 765. BY MS. DEUTCH: Q And will you let the Court know where this
document has been recorded? MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q Thank you. Ms. Plasse, I'm now going to show Same objection.
Overruled. Palm Beach County.
you what's been previously marked as Plaintiff's Exhibit 3 for identification purposes. document? Do you recognize this
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MS. LUNDERGAN: THE COURT: THE WITNESS:
Objection, hearsay.
Overruled. Yes, I do. This is know as the
breach letter or default letter. BY MS. DEUTCH: Q And where do you recognize this document from? MS. LUNDERGAN: foundation. THE COURT: THE WITNESS: Mrs. BY MS. DEUTCH: Q And is this document kept in the ordinary course Overruled. This document was part of Mr. and Objection, hearsay, lack of
loan portfolio in our system.
of business practices of Ocwen? MS. LUNDERGAN: foundation. THE COURT: THE WITNESS: BY MS. DEUTCH: Q And you have personal knowledge of this record? MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q Is this record input contemporaneously when a Same objection and leading. Overruled. Yes, it is. Objection, hearsay, lack of
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transaction occurs? MS. LUNDERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q And you previously reviewed this document prior Same objection.
to coming to court here today? A Yes, I did. MS. DEUTCH: Your Honor, at this time I would
like to move to admit Exhibit 3 into evidence? MS. LUNDERGAN: Objection, Your Honor. This is
a document from a third party which is neither the plaintiff's document nor the company for which the witness works for. They have laid no foundation as
to how she would have any familiarity with a third parties business records. foundation. She hasn't laid any
So I'm going to renew my objection to And I
hearsay, authenticity, lack of foundation. would request to voir dire the witness. THE COURT:
Your objection is overruled and it
will be admitted into evidence as Plaintiff's Exhibit 3. BY MS. DEUTCH: Q What is the purpose of this letter? MS. LUNDERGAN: Objection, calls for
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MS. LUNDERGAN: and hearsay. THE COURT: THE WITNESS: sent this letter. BY MS. DEUTCH: Q
Objection, lack of foundation,
Overruled. Popular Mortgage Servicing, Inc.
And in looking at the document can you please
read the first sentence. MS. LUNDERGAN: Objection, Your Honor. The
document speaks for itself.
We don't need to sit
here and have the witness read the document into the record. THE COURT: BY MS. DEUTCH: Q Now, in your reviewing of this record have you I agree with you. Sustained.
been able to see is this loan in default according to this record? MS. LUNDERGAN: foundation. THE COURT: I'm sorry. Would you kindly repeat Objection, hearsay, lack of
the question, Miss reporter. MS. DEUTCH: BY MS. DEUTCH: Q default? According to this record is this loan in That's all right.
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MS. LUNDERGAN: THE COURT: THE WITNESS: default. BY MS. DEUTCH: Q
Same objection.
Overruled. Yes, they are currently in
And does this letter indicate a timeframe within
which the borrowers are to cure this default? MS. LUNDERGAN: Your Honor, objection the
document speaks for itself. THE COURT: BY MS. DEUTCH: Q And in reviewing this record has the borrower Sustained.
cured the default? MS. LUNDERGAN: Objection, hearsay, lack of
foundation, facts are relying on records which are not into evidence. THE COURT: You said in reviewing this letter
has the borrower curred the default? MS. DEUTCH: Right. That would be relying on payment
MS. LUNDERGAN:
records that have not admitted into evidence. MS. DEUTCH: THE COURT: MS. DEUTCH: Honor. I'll withdraw the question. Repeat the question. I'll withdraw the question, Your
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THE COURT: MS. DEUTCH: THE COURT:
All right. All right. Thank you.
Counsel, let me interrupted you for
a moment at this point I have to take about a five minute break. We will be in recess for five minutes. The witness is still on the
MS. LUNDERGAN: stand, Your Honor? THE COURT:
I beg your pardon? The witness is still on the
MS. LUNDERGAN:
stand and still under oath? THE COURT: Yes, ma'am. Thank you.
MS. LUNDERGAN:
(A recess was taken.) THE COURT: You may proceed. Are you entering this as a
MS. LUNGERGAN: composite exhibit? MS. DEUTCH:
Yes. Your Honor, I'm going to renew
MS. LUNGERGAN: my objection.
These documents were never provided We I'm now having
prior to today, besides the last few pages. specifically requested these in discovery.
to look at payment records on the spot and figure out if they are accurate. compare them. these records. I can't show them to my client and
So this is the first time I've seen part of
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MS. DEUTCH:
Your Honor, actually I believe --
I'm going to have to check the pretrial request for production -MS. LUNGERGAN: Honor. THE COURT: I'm sorry. My objection is withdrawn. Counsel, you may proceed. I withdraw my objection, Your
MS. LUNGERGAN: THE COURT: BY MS. DEUTCH: Q
Okay.
I'm showing you what's been previously marked as Do you recognize
Exhibit 4 for identification purposes. this document? MS. LUNGERGAN: hearsay.
Objection, lack of foundation,
She hasn't laid any foundation that she is
familiar with the servicing department or servicing the records. THE COURT: THE WITNESS: Overruled. Yes, I do recognize this. This is
a copy of the payment history. BY MS. DEUTCH: Q And is this document kept in the ordinary course
of business practices of Ocwen? MS. LUNGERGAN: foundation. THE COURT: Overruled. Objection, hearsay, lack of
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THE WITNESS: BY MS. DEUTCH: Q record? MS. LUNGERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q
Yes, it is.
And do you have personal knowledge of this
Same objection.
Are these records input contemporaneously when
the transaction occurs? MS. LUNGERGAN: THE COURT: THE WITNESS: MS. DEUTCH: Same objection.
Overruled. Yes, they are. Your Honor, at this time I would
like to move to admit Exhibit 4 into evidence. MS. LUNGERGAN: Objection, Your Honor, hearsay We have heard zero testimony
and lack of foundation.
from this witness that she has any familiarity with the records servicing department, what those requirements are, that she's familiar with the policies and procedures which is a requirement for business records exception. Furthermore, the
majority of these documents are from a servicer that she's never worked for. servicer. It's not the current
So she'd have to lay the foundation for
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that corporations business records exception as well. THE COURT: Thank you. Overruled.
Did you offer to admit that into evidence? MS. DEUTCH: THE COURT: Yes, Your Honor. All right. It will be received as
Plaintiff's Exhibit 4. MS. LUNGERGAN: witness, Your Honor? THE COURT: BY MS. DEUTCH: Q Did you review this document prior to coming to Save it for cross-examination. I request to voir dire the
court today? A Q A Q Yes, I did. And what is this document? It is a copy of the loan transaction history. And what exactly does this document reflect? MS. LUNGERGAN: for itself. document. THE COURT: BY MS. DEUTCH: Q According to this record what is the date of I agree, sustained. Your Honor, the document speaks
We don't need to have her read from the
default of this loan as indicated in the payment? MS. LUNGERGAN: foundation. Objection, hearsay, lack of
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THE COURT: THE WITNESS: February 1, 2008. THE COURT: THE WITNESS: THE COURT: BY MS. DEUTCH: Q
Overruled. They are in default as of
I'm sorry what was the date again? February 1, 2008. Thank you.
And does this payment history accurately reflect
all of the payments and disbursements on this loan? MS. LUNGERGAN: foundation. THE COURT: THE WITNESS: BY MS. DEUTCH: Q According to this document has the borrower Overruled. Yes, it does. Objection, hearsay, lack of
reinstated this loan? MS. LUNGERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q And according to this document is this loan Same objections.
Overruled. No, they have not.
still in default? MS. LUNGERGAN: THE COURT: THE WITNESS: Same objections.
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MS. LUNGERGAN:
Your Honor, I object.
She's
trying to show the witness a proposed final judgment. That is in no way the imagination a business record of any sort. We sent, Your Honor, rules to present
at final judgment, but showing the final judgment to the witness is holy improper. THE COURT: Showing the final judgment to --- to the witness. She wants to
MS. LUNGERGAN: show -MS. DEUTCH:
I'm not trying to move this into
evidence, Your Honor. MS. LUNGERGAN: from it. Then the witness can't testify
There is no since in showing it to the
witness if she's not trying to move it into evidence. It's completely prejudicial, Your Honor, to have her witness try to testify from the proposed final judgment. Furthermore, there is case law, Your
Honor, that the Court is not supposed to take one parties final judgment. They are supposed to be able So to be --
to submit both parties final judgment.
to the extent that she's trying to let her witness read from the proposed final judgment or testify from it a document that she has said that she is not moving into evidence she can't show it to the witness.
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It's a document created for litigation. there is not anything more definitive of a document
If
created for litigation, it's the proposed final judgment. THE COURT: Well, is the witness going to sign
the final judgment? MS. LUNGERGAN: She wants the witness to testify
as to the veracity of her proposed final judgment which is improper, Your Honor. The witness can put
into evidence whatever business records she has, but that is not one of them. THE COURT: MS. DEUTCH: THE COURT: Well -It is -On the assumption -- everybody is On the assumption she's
jumping ahead in this game.
going to show that to the witness I think the question would be the purpose for which that is shown, and I haven't heard that one yet. So for the Let's
moment I'm going to overrule the objection. see what happens. MS. DEUTCH:
Would you like to review it? I've never seen this proposed
MS. LUNGERGAN: final judgment.
So I'd ask for a few minutes since I'd
this was not provided to me prior to right now. ask for a few moments to go through the final judgment.
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THE COURT: MS. DEUTCH: Honor. BY MS. DEUTCH: Q judgment.
By all means. We have no objection to that, Your
I'm now showing you a copy of the proposed final
MS. LUNGERGAN:
She
can't show the witness a document prepared for and in anticipation of litigation. It's not any sort of
business record or document from her corporation. This is a document prepared for by the attorneys. THE COURT: it is presented. objection. BY MS. DEUTCH: Q Have you reviewed the figures on this proposed Let's find out the purpose for which For the moment I will overrule the
Go ahead.
final judgment? THE COURT: BY MS. DEUTCH: Q Have you reviewed the figures on this proposed I'm sorry. Would you repeat that.
final judgment? MS. LUNGERGAN: Objection, Your Honor, relevance
if she's not moving this final judgment into evidence what does it matter if the witness has reviewed the document?
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THE COURT: THE WITNESS: BY MS. DEUTCH: Q
Overruled. Yes, I have.
And are these -- are the figures in the proposed
final judgment accurate according to the business records that you have reviewed prior to this trial? MS. LUNGERGAN: Objection Your Honor -- I'm
sorry I didn't mean to cut her off. THE COURT: Overruled. Can I finish my objection for
MS. LUNGERGAN: the record?
It's improper for the witness to be
reading from a document that is not in any since of the word a business records. They are trying to use
this to circumvent or her actually getting the numbers in through the payment records that she has not done. This is a document prepared for in It is completely
anticipation of litigation. hearsay.
It is not a document created by her This is a document
company, a prior servicer.
created by the law firm for litigation here today. Secondly, the document is not into evidence, so to any imagination she is trying to some how verify the figures that are on that document. They are not in
evidence and she shouldn't be reviewing them. THE COURT: I understand. Overruled.
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THE WITNESS: BY MS. DEUTCH: Q I'm sorry.
Your question again, I'm sorry.
Are these figures accurate according
to the business records you have reviewed prior to today? MS. LUNGERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q And according to these figures what is the Same objection.
specific amount that is due and owing? MS. LUNGERGAN: Objection, Your Honor. The
document is not in evidence.
She can't read as to
the amounts on that piece of paper when it's not in evidence. THE COURT: My understanding is that counsel is
simply asking whether the figures on this proposed judgment comports with the payment history now in evidence. MS. LUNGERGAN: reporter -THE COURT: Overruled. Can the court reporter read back I would like -- can the court
MS. LUNGERGAN:
the question, because I believe it was a different question, Your Honor. read it back? Can we have the court reporter
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THE COURT:
Of course. I believe the question was asked
MS. LUNGERGAN:
to the effect of how much is the principal according to this proposed final judgment? THE COURT: Okay. We've heard the question and Let's move on.
the objection is overruled. MS. LUNGERGAN:
Your Honor, do you want the I'm
court reporter to read back the last question?
just recalling what I believe the question to be. THE COURT: By all means go right ahead.
(The court reporter read back the last question asked.) MS. LUNGERGAN: Again, objection, Your Honor,
that is not -- she is asking her to read from a record that is not a record, and it is not in evidence. She cannot testify as to what that
document says. THE COURT: THE WITNESS: BY MS. DEUTCH: Q What is the amount that is due and owing I understand. Overruled. I'm sorry.
Your question again?
according to this document? MS. LUNGERGAN: THE COURT: THE WITNESS: Same objection.
Overruled. According to this it's
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$399,383.49. BY MS. DEUTCH: Q And does this amount comport with the business
records that you previously reviewed? MS. LUNGERGAN: foundation. Same objection, hearsay, lack of
And furthermore the business records For the record I don't
she's reviewed are vague.
know which business records she is referring to. THE COURT: THE WITNESS: BY MS. DEUTCH: Q And did you have to retain the legal services of Overruled. Yes, it does.
Morris Hardwick Schneider? MS. LUNGERGAN: Objection. We object to any
testimony of attorneys fees.
The case law supports
that if the parties object the attorneys fees have to be done at a separate evidentiary hearing with expert witnesses as to the reasonableness of those fees. So I do object at this point as to any
introduction or testimony regarding attorney's fees as it is going to require a separate evidentiary hearing. THE COURT: BY MS. DEUTCH: Q Again, did you have to retain the legal services All right. Overruled.
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of Morris Hardwick Schneider? MS. LUNGERGAN: THE COURT: THE WITNESS: BY MS. DEUTCH: Q And do the figures on this proposed final Same objection.
Overruled. Yes, we did.
judgment accurately reflect the amount attorney's fees that were accrued? MS. LUNGERGAN: THE COURT: THE WITNESS: MS. DEUTCH: further questions. THE COURT: Very good. Are we ready for Same objection.
Overruled. Yes, they did. Your Honor, at this time I have no
cross-examination? MS. LUNGERGAN: I just want to be clear for the
record, is plaintiff resting its case? THE COURT: Is plaintiff what? Resting?
MS. LUNGERGAN: MS. DEUTCH: opportunity -THE COURT:
Yes, I would like the
Well, you can't rest until you have
cross-examination. MS. LUNGERGAN: I didn't know if she had any
other witnesses or anything else?
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THE COURT:
You want to know if there are any
other further witnesses? MS. LUNGERGAN: THE COURT: MS. DEUTCH: Yes, Your Honor.
Are there? The plaintiff has no further
witnesses, Your Honor. THE COURT: All right. Then let's proceed.
CROSS-EXAMINATION BY MS. LUNGERGAN: Q name. A Q It's Plasse. Ms. Plasse, I'm now showing you what's been Is it Plasse? I don't want to mispronounce your
marked as Plaintiff's Exhibit 3, what you referred to, I believe earlier as the default breach letter. recognize that? A Q Yes, I do. This letter was produced by a third party Do you
vendor; correct? A Q A Q Yes, it was. You don't work for that company; correct? No, I do not. And this document is actually a recreation of
the letter that was sent; correct? A Yes, it is.
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You don't actually have a physical copy of the
letter that was sent; correct? A Q No, I do not. You hadn't seen this breach letter prior to
being called to testify in this matter; correct? A Q That is correct. And you don't supervise the maintenance of
breach letters for that company do you? A Q A Q letter? A Q No, because I do not work for this company. You don't have any knowledge as to the policies No, I do not. You don't prepare default letters? No, I do not. You don't know who prepared these default
and procedures of the company that sent that default letter regarding sending default letters; correct? A When we took over the mortgage portfolio for
Linton who was the prior servicer after this their records become our records, and at that time our records and their records become one. And it's the business, you know, the
business industry dictates that this is the normal procedure to send out these letters. Q But you don't know what their policies and
procedures were; correct?
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A Q
No, I do not. And you are not an expert about the policies and
procedures in the industry; correct? A Q No. You've never been called to testify as an expert
about the policies and procedures? A Q No. Since you didn't work in that office and you
didn't work for that corporation you've never supervised anyone in that office; correct? A Q That is correct. You have no knowledge as to whether or not that
letter was sent certified mail; correct? A Q No, I do not. You have no knowledge as to whether the
defendants received that letter; correct? A Q No, I do not. Earlier you testified that you believe this
letter had been sent on April 1, 2008, but you are basing that testimony solely on the fact that the letter says April 1, 2008; correct? A Q Yes. You have never seen any documents or records
that show that this letter was actually mailed on April 1, 2008; correct?
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A Q 2, 2008? A Q A Q A
Yes. For all you know it could have been mailed April
Yes. Or April 3, 2008? Yes. Or not at all? It's the business industry that, you know, to And I believe you know the
mail these letters out.
mortgage also states that, you know, it is our right to mail these letters out. So I know that based on looking
at this particular default letter there appears to be a mailing encoding encryption on it. So I can fairly say
that I'm fairly confident that, yes this was in fact mailed out. Q So you are assuming because you're supposed to
send it out? A Q I didn't say I'm assuming. But you don't have any documents showing that it
was actually mailed out? A Q No, I do not. You are basing your belief because that's the
way it should have been done? A Q That's business industry standards. But again, you are not an expert on the business
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industry standards; correct? A Q No, I'm not. As you previously stated you have no idea of the
policies and procedures of the company that actually sent out that default letter; correct? A Q No. And in fact you weren't even working at Ocwen at
the time when that default letter was sent out; correct? A Right. MS. LUNGERGAN: Your Honor, at this time I move Clearly
to strike the default letter from evidence.
this witness has no knowledge about this letter being created or sent. The mortgage requires that this
default letter be sent 30 days prior to acceleration. The witness just testified that she has absolutely no idea if and when this letter was sent. She has no
business records or documents from the prior servicers showing that it was sent, no certified first class mail receipts or any other evidence stating that this letter was in fact sent. So at
this time I would renew my objections and move to strike this document from evidence. THE COURT: You are moving to strike? Yes, Your Honor. Let's
MS. LUNGERGAN: THE COURT:
Your motion will be denied.
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move on. BY MS. LUNGERGAN: Q I didn't catch earlier, what's your job
description with Ocwen, your job title? A Q A Q I'm a loan annalist. Did you receive any training as a loan analysis? Yes, I did. Did you receive any training regarding
testifying at trials? A Q A Yes, I did. What kind of training would that be? I had a whole -- quite a few lengthy days of
training from superior attorneys that work directly in our firm in preparation to prepare us for trials. Q counsel? A Q A Q Yes. Did that include role playing? Yes. Did you ever receive any written materials or When you say your firm, you mean in-house
videos, anything other than role playing? A Yes, we did receive some information. It was
just basically on different depositions and how to handle, you know, ourselves in different situations whether it's depositions, mediations, or trial.
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Q A Q
How to answer certain types of questions? Right. What percentage of your job involves testifying,
whether it be at trials or depositions? A my job. What percentage? I would say it's the bulk of
I travel frequently for trials and mediations, So I'd say it's the bulk of it. I mean
and depositions.
in preparation -- prep work and traveling it's about 90 percent of my job duties. Q And your job -- in your job you don't get
involved in foreclosure cases until there is a trial or deposition set; is that correct? A Q Correct. And your knowledge of what you call the industry
standards has really come from that training that you've received; correct? A Q A Q Yes. You never worked for any prior servicers? No, I did not. Do you receive compensation related to your
performance at trials? A Q at trials? A No, we do not. No. Do you receive reviews based on your performance
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Forgive me because I can't remember what you
said to this one, are there any written documents or manuals regarding your job responsibilities and roles? A Most everything is online within our system, our
computer system, most everything is online. Q Because you testify so much you are almost like
a professional witness; correct? A Q More or less. I'm now going to show you what was marked as --
they are stapled together, but I really only want to focus on Plaintiff's Exhibit 1 which is the original promissory note at this point. They are stapled together so I'm
handing you two which is the note and mortgage, but for right now -- Ocwen was not the custodian of the document; correct? A Q Correct. And in fact, at one point this document was
lost; correct? A Q I do not know. I'm now going to show you what's been marked for
identification and as Exhibit 1, which is a copy of the complaint. I'm going to show it to your attorney. If you
could please turn for me -- I don't have page numbers so bear with me. Count two of the complaint, it looks like
it's going to be about the fifth page, I believe.
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A Q
Okay. Do you see there where is says, reestablishment
of promissory note? A Q Yes. And it goes on in paragraph 17 to say that the
subject promissory note has been lost or destroyed or is not in the custody, control or plaintiff? A Q correct? A Q Yes. Earlier you testified that you believe the Yes. So this promissory note at some point was lost;
plaintiff had the promissory note when the complaint was filed, but the complaint says the note was lost. you rectify that? A This information that you are providing for me How can
right now is new information to me that I had not been privy to reading. Q A Q lost? A Q A No, I do not. No knowledge as to who may have found it? No, I do not. So you have no knowledge as to when it was lost? No, I do not. No knowledge as to where it was when it was
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Q found?
No knowledge as to whether or not it was ever
MS. DEUTCH:
Your Honor, objection.
We have the
original note and mortgage here today. THE COURT: I'll sustain it. Your Honor, we have affirmative
MS. LUNGERGAN:
defenses directly on point which goes to plaintiff's unclean hands in alleging that there was a loss of the promissory note. So I would ask for some These are
latitude in asking this witness questions.
plaintiff's allegations, and I would need a chance to question them about why they made these allegations, because we do have an affirmative defense directly on point. THE COURT: The objection is sustained. Furthermore, Your Honor, there
MS. LUNGERGAN:
is a case called McClean out of the 4th which does require that the bank prove they had their original note in their possession at the time of the filling of the complaint. T.
He complaint in this case, Your Honor alleges that there was no promissory note in their possession at the time of filing. Well, the witness just testified that There's now a direct
she believes that there was.
contradiction between the plaintiff's testimony and their
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own allegations, and I'm asking to question them about that. At the end of the day do we have to prove they were
in possession of the original promissory note and the complaint does seem to at least argue to the opposite. THE COURT: Is this further argument on the same
motion or is this a different motion? MS. LUNGERGAN: THE COURT: forth. else? MS. LUNGERGAN: BY MS. LUNGERGAN: Q You have no idea when the original note was That's fine, Your Honor. Excuse me, Your Honor.
I don't want to argue back and Now, is there something
I've made a ruling.
transferred from the custodian to the plaintiff; correct? A I believe Ocwen took over servicing for this
particular loan from Linton in 2011. Q But if Ocwen wasn't the custodian that wouldn't
have involved the transfer of the original documents; correct? A Q That is correct. So you have no idea when the custodian would
have transferred the documents to the plaintiff; correct? A Q correct? No, I don't. And you are not an employee of the custodian;
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A Q
No, I am not. Ocwen has never had physical possession of the
original note and mortgage; correct? A Q To my knowledge, no. And in fact Ocwen was not the servicer of the
loan at the time this complaint was filled; correct? A Q That is correct. Earlier you testified that you believe the
plaintiff was in possession of the original note and mortgage at the time the complaint was filed, but you didn't work for Ocwen during that time, the prior servicer did; correct? A Q A Q Correct. And you didn't work for that prior servicer? No, I did not. So what are you basing your belief then that the
plaintiff was in possession of the original note and mortgage on if you were not an employee of the custodian or of the plaintiff or of the prior servicer at the time the complaint was filed? A I'm basing my belief on the fact that when Ocwen
took over Linton's loan servicing platform as part of our procedures -- policies and procedures when we take over portfolios we do quality control checks. sampling. We do random
There is a certain amount of time frame with
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which previous loan servicers, document have to be scanned and put into our system. So we do, you know a random
check of notes and assorted documents. Q So what notes and assorted documents did you see
to indicate that HSBC was in physical possession of the original note with a blank endorsement at the time the complaint was filed? A Q I did not see any notes. Thank you. So you have no idea when that
endorsement was created? A Q No, I do not. If you could please for me -- I'm going to take And if you could turn to the page of
back the complaint.
the promissory note that contains the purported endorsement. A Q Okay. You don't know whether that endorsement existed
prior to the filing of the complaint; correct? A Q A Q A Q correct? I do not know, no I don't. Can read the name for me on the endorsement? It appears to be a Michael Koch. You don't know Michael Koch; correct? No, I do not. You don't know if that's actually his signature;
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No, I do not. MS. LUNGERGAN: Your Honor, there is only one May I approach the
copy with the endorsement.
witness so that I can see it while I'm asking her questions? They don't have any other copies in the
courtroom with an actual endorsement on it. THE COURT: By all means. Thank you.
MS. LUNGERGAN: BY MS. LUNGERGAN: Q
You don't know whether Mr. Koch works for
Fremont Investment and Loan; correct? A Q No, I do not. You don't know whether or not he's in fact vice
president of Fremont Investment and Loan? A Q No, I do not. You do not know whether or not he was authorized
to endorse this or create this endorsement on behalf of Fremont Investment and Loan? A Q No, I do not. You have never seen this original note -- or
alleged original note prior to today; correct? A Q A Q Connect. Do you still have the complaint that I gave you? No, you took it back. There's no promissory note attached to this
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So this could possibly be a color copy of a
promissory note? MS. DEUTCH: speaks for itself. MS. LUNGERGAN: Not when we have contested the Objection, Your Honor, the document
authenticity of a document in our affirmative defenses, Your Honor. THE COURT: BY MS. LUNGERGAN: Q Earlier you stated that you were authorized to Where does that authorization Your objection is sustained.
testify on behalf of HSBC. come from? A Q A Q A Q A Q
From the limited power of attorney. And that document is not here today; correct? No, it's not. Did you create that document? Did I create it personally? Yes. No, I did not create it personally. Do you supervise or oversee the department that
creates that document? A Q A Q No. Do you maintain that document? No, I do not. Have you ever read that document?
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I'm sure I've read it before for other loans
that I've worked on? Q Does it give you specifically authorization to
testify on behalf of HSBC Bank? A It gives me power of attorney as attorney in
fact, yes it does. Q A Q A Q You specifically by name? Yes, it does. But again that document is not here today? No. If I were to give you a calculator can you
calculate how much the principle is owed on this case by just looking at the promissory note? A How much the principle was if you were to give
me a calculator? Q If I only gave you a calculator and the
promissory note could you calculate the principal owed? MS. DEUTCH: Objection, Your Honor. What's the
relevancy of this question? MS. LUNGERGAN: Your Honor, we have contested
that this is a negotiable instrument under article 3 of the UCC. Part of the requirements to be a
negotiable instrument are that the terms are clear on it's face and you wouldn't have to look to outside instruments in order to know the terms of this.
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I'm going to go through some questions regarding the requirement of article 3 of the UCC. Should this be
found to not be a negotiable instrument they would have to prove ownership and not just holder ship. This is one of
the affirmative defenses that we have risen and when they moved to strike it, it was denied. THE COURT: And therefore -And therefore, Your Honor, I
MS. LUNGERGAN:
have the right to examine the witness regarding the evidence I need for my affirmative defenses, which are whether or note this note is negotiable. THE COURT: please. (The court reporter read back the last question asked.) THE COURT: She is capable of answering that. Could you repeat the question,
The objection is overruled. BY MS. LUNGERGAN: Q A You can answer. If you gave me a calculator clearly the I am not a math
principal amount on this states $260,000.
expert, so, you know, I don't feel comfortable with you giving me a calculator to calculate the principle when it's clearly stated on the note $260,000. Q The question was could you calculate the
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principle that was owed today? A Q The principle? No, I couldn't, no.
How about the interest that's owed today, could
you calculate that from the face of a promissory note? A No, I couldn't. I'd have to look up the per
diem rate, and I probably could come to a relatively fair amount. Q How about the late fees that are owed, could you
calculate that from the face of the promissory note? A Q No, I could not. How about the amount of taxes or insurance
that's owed can you calculator that from the face of the promissory note? A Q No. So you have to look at other documents in order
to determine other amounts that are due and owing in this case? A Q Yes. Can you turn to plaintiff's second exhibit. THE COURT: question? BY MS. LUNGERGAN: Q Plaintiff's second exhibit, it's part of the You had I'm sorry. What was that
composite exhibit that she has in front of her.
never seen the purported original note and mortgage prior
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to today? A Q No. And your company was not the custodian of the
purported original mortgage; correct? A Q That is correct. And you have no knowledge as to the physical
transfer of the original promissory note from the original lender to plaintiff; correct? A The only knowledge that I have is based on the
information that's been provided fro me from my peers on, you know, the processes of which, you know, transpire when we take over a loan portfolio. Q So the only information that you have in your
system is regarding from when Ocwen came into the case going forward? A Q Correct. I might have a few more questions about that,
but I'm going to ask some other things first. MR. HOTLZ: You Honor, we do appreciate the These are all
leeway that you are providing to us.
topics that we would've covered if we were able to depose the witness or look through previous depositions of the witness. So we do appreciate your
leeway on allowing us to ask some of these questions. It would have been resolved earlier if we had been
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given the opportunity to depose the witness. BY MS. LUNGERGAN: Q I'm now showing what's been marked as
Plaintiff's Exhibit 4. The composite Exhibit 4 which the plaintiff has introduced contains records from two different companies; correct? A Q Correct. It contained documents from Linton Loan
Servicing; correct? A Q A Q correct? A Q No, I have not. You were not in charge of the department that Correct. As well as a summary from Ocwen; correct? Correct. You've never worked for Linton Loan Servicing;
created those payment records from Linton; correct? A Q No, I was not. You were not in charge of maintaining those
payments for Linton; correct? A Q No. You weren't involved inputting that information
into the servicing; correct? A Correct.
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You don't know what programs Linton Loan Service
used to create those records; correct? A Q Correct. You didn't write the programs that created the
record; correct? A Q No, I did not. You were not trained on the programs and systems
that created those documents; correct? A Q Correct. You haven't personally tested the accuracy of
those documents from Linton Loan Servicing have you? A Q No. You don't know the person or persons who imputed
the information of those Linton Loan Servicing documents do you? MS. DEUTCH: Your Honor, I'm going to object to
this as to the relevancy, as the witness has already testified that these are now part Ocwen's business records. THE COURT: BY MS. LUNGERGAN: Q In fact you can't name a single person in the I'll allow it. Overruled.
department that created these records; correct? A Q That is correct. You don't know who imputed the tax transaction
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information into those payment record; correct? A Q Correct. You didn't supervise the department that imputed
the information regarding taxes; correct? A Q No, that's correct. You didn't input the information regarding the
escrow amounts; correct? A Q Correct. You didn't -- you're not familiar or you don't
know the policies and procedures from Linton Loan Servicing regarding the timing of posting payments in those transaction records; correct? A Q Correct. You have never seen the payment posting policy
from Linton Loan Servicing; correct? A Q Correct. Regarding the payment documents or payment
history from Linton Loan Servicing you don't know whether or not those documents were made at or near the time the payments were received; correct? A Q Correct. You don't know if they were created by someone
with personal knowledge; correct? A Q Correct. You don't know whether those Linton Loan
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Servicing documents were kept in the ordinary course of business do you? A Q No, I do not. You are also not an employee of the department
that boarded that information into Ocwen; correct? A Q Correct. I'm looking at the history for a lack of a
better word from Linton Loan Servicing, but in looking at it I don't actually see where there is any payment history on there. A Q Do you see actual payments being made? No, I do not see any payments listed on here. So we don't actually have payment records from
Linton Loan Servicing here today do we? A According to what the document says, it says
it's a Linton payment history, but I see no payments applied on here. So it would indicate to me one of two
things either the customer never made a payment or perhaps this is not the full loan servicing history on this. Q So this -- do you believe sitting here today
that the defendants made not a single payment on this loan? A I know right now they are in default, that's
what I know. Q the loan? Do you know what the last payment was made on
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The last payment if I'm looking correctly the
last payment was 1-1-08. Q A yes. Q But there's not a single payment record from So there were payments made on the loan? To my knowledge that's what it would indicate,
Linton Loan Servicing despite the fact, and correct me if I'm wrong that these payment records appear to go -- and I just lost it bear with me, please. These records appear
to go from 2006 all the way up to 2011? A Q Yes. So for what you are reviewing look to only be
partial records; correct? A Q Correct. In looking at the documents from Ocwen this is a
summary of some of the amounts that are allegedly due; correct? A Q correct? A Q Correct. There is other data in Ocwen's system that is Correct. These aren't the actual payment records;
not reflected on this summary; correct? A Q Yes. The Ocwen summary you didn't look at that until
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you were prepared to testify in this case; correct? A Q Correct. You don't work in the department that created
that summary; correct? A Q Correct. I just want to ask you a couple of follow-up
questions regarding Plaintiff's Exhibit 3, which is the default letter. second. I think we've already established that you've never worked for Popular Mortgage Servicing; correct? A Q Correct. So you don't know whether or not this default So I'm going to switch with you for a
letter was made at or near the time that this information was received; correct? A Q Correct. And you don't know if this default letter was
prepared by somebody with personal knowledge; correct? A Q No, I do not. And you don't know whether or not this default
letter was kept in the ordinary course of business; correct? A Correct. MS. LUNGERGAN: Your Honor, can we just have a
few moments just to confer before I finish, and make
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sure that I have covered everything with my counsel? THE COURT: five minutes. MS. LUNGERGAN: THE COURT: proceed. MS. LUNGERGAN: Yes, Your Honor. Thank you, Your Honor. We are going to be in recess for
Tell me when you are ready to
At this time I would move to strike first the default letter. As, Your Honor, saw I went through each
elements of the business records with the witness and she indicated that she had no knowledge as to each element of the business records exception. Therefore, her testimony
as you have seen is hearsay in regards to the default letter. There is no evidence here today that that default So I
letter was ever sent or that it was timely sent. would move to strike the default letter.
Secondly, I would move to strike the payment records. I went through again each element of the
business records exception with the witness, the witness indicated that she had no knowledge regarding the payment records as far as the business records exception. I also object and move to strike that on the rule of completeness. Those documents as you have seen There's no payment
don't contain any payment history.
records before the Court today as to what payments were
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made or what payments were missed.
She testified that
they seem to be missing from the payment records from the server or a two year span. rule of completeness. I also object and move to strike the document from Ocwen on the grounds that it is in fact a summary. Under the Florida Rules of Evidence 9.956, I believe if a party is going to rely on a summary which she has agreed with me is in fact a summary they have to give written notice to all of the parties of their intent to rely on summary. I also have to provide the underlying records So I would object under the
that created that summary to the opposing party. In this case those underlying records would have been those payment histories which are nowhere here today, in fact she has admitted are missing from the documents that they have introduced into evidence. So I do move to
strike the payment records on those grounds, hearsay, business records exception, she hasn't complied with the Rule of Completeness and that it's a summary. I then move to strike the note and mortgage. She clearly cannot testify as to the timing of the endorsement or the authenticity of the endorsement. law after case law has come out, Your Honor, that the essential element of plaintiff's case is that they prove that they were in possession of the promissory note at the Case
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time of the filing of the original complaint with a blank endorsement. I went through that with her, she says she She has no
has no idea when the endorsement was created.
idea when plaintiff came in possession of the original note. So I do move to strike the default letter of the
payment records, the note and the mortgage from evidence as you can see from the cross-examination. THE COURT: exhibits? MS. LUNGERGAN: Honor. THE COURT: All right. Motion to strike all of That would be all of them, Your That would be, I believe all of the
the exhibits is denied. MS. LUNGERGAN: THE COURT: MS. DEUTCH: minute here. Thank you, Your Honor. Any redirect? If I might have a
All right.
Yes, Your Honor.
Please let the record reflect that I am
showing the witness, Plaintiff's Exhibit 1 which is the note. RE-DIRECT EXAMINATION BY MS. DEUTCH: Q Ms. Plasse, you previously testified that you
had reviewed -- had seen this document prior to coming here today? A Yes.
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And as part of your review did you also review
any records by Ocwen surrounding this document, the note? MS. LUNGERGAN: THE COURT: THE WITNESS: Objection, hearsay, Your Honor.
Overruled. What I reviewed in preparation for
today's trial were the documents that have been scanned into our system including the adjustable-rate note, including the mortgage and any correspondence and miscellaneous documents that might be included in the items that were scanned into the system. BY MS. DEUTCH: Q And based on your review of the documents and
what was any of the records entered along with these did the plaintiff in this action have possession of the note prior to filing this? MS. LUNGERGAN: Objection. Your Honor, she's
asking the witness to testify from documents and records and computers systems which have not been introduced here today, so that is hearsay. Secondly,
the witness has already been asked and answered that question in the negative. THE COURT: MS. DEUTCH: Did I hear did the defendant? I believe I said did the plaintiff.
If I said the defendant then I apologize. THE COURT: That's what I thought. All right.
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Ask her again. BY MS. DEUTCH: Q Based on your review of the business records did
the plaintiff have possession of this note prior to filing the complaint? MS. LUNGERGAN: THE COURT: THE WITNESS: Same objection, Your Honor. Overruled.
All right.
Did the plaintiff have possession
of the note prior to the filing of the default; is that the question that you are asking? BY MS. DEUTCH: Q A The complaint? The complaint, yes. MS. DEUTCH: Let the record reflect that I'm now
showing to witness Plaintiff's Exhibit 3 which is the proffered letter of default. BY MS. DEUTCH: Q You previously testified that you reviewed this
document prior to coming here today? A Q Yes. And although you testified that you did not have
any business practices of the popular banks mailing of this, is there anything on the document itself to indicate that it was in fact mailed? A I am assuming that what is on this document
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would be some sort of a bar code scanning that would indicate that perhaps maybe this was in fact mailed on April 1, 2008. MS. LUNGERGAN: that as speculative. Your Honor, I move to strike She is just speculating based
on something that appears on the document as to whether or not it was in fact mailed. THE COURT: it's worth. BY MS. DEUTCH: Q And based on your knowledge of this industry it Well, we will take it for whatever
Your objection is overruled.
is standard business practice to mail letter of this kind; right? MS. LUNGERGAN: Objection. Your Honor, she has
not been proffered as an expert on industry standards. She can't testify as to that. All right. Sustained.
THE COURT: MS. DEUTCH:
Let the record reflect that I'm
showing the witness Plaintiff's Exhibit 4. BY MS. DEUTCH: Q A Q The top few pages what company is that from? Ocwen. And you reviewed these business records prior to
coming here today; correct? A Correct.
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And on these records can you tell what is the
principal balance owed? MS. LUNGERGAN: Your Honor, objection, the We don't have to go
document speaks for itself. through. THE COURT: MS. DEUTCH: Sustained. Thank you.
I have no further
questions, Your Honor. MS. LUNGERGAN: THE COURT: Can I just request a brief -Go right ahead.
All right.
(A recess was taken.) RE-CROSS EXAMINATION BY MS. LUNGERGAN: Q question. Now, we have two conflicting answers to the same She just asked you whether or not HSBC Back was
in possession of the original note before the complaint was filed with an endorsement and you stated that you believe it was, but when I asked you the question you said you weren't sure. A Perhaps it was in the way that you answered --
gave me the question that I misunderstood you. Q Sitting here today was -- you don't know whether
or not the plaintiff, HSBC was in physical possession of the original promissory note with a blank endorsement; isn't that correct?
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MS. DEUTCH:
Your Honor, I'm going to object to
this as irrelevant, as physical possession is not necessary they can be in constructive possession of the document as well. MS. LUNGERGAN: THE COURT: can. THE WITNESS: BY MS. LUNGERGAN: Q possession You don't know whether HSBC was in physical of an original promissory note with a blank Please rephrase your question. That is not correct, Your Honor. Answer it if you
I'll allow it.
endorsement in this case prior to the date the plaintiffs filed; isn't that correct? A Based on the information that I have reviewed,
and based on the knowledge that I have upon reviewing the pooling and servicing agreement, the power of attorney, the mortgage loan schedule, all things that are part of my job description, to my knowledge yes, they were in possession of the note. Q A So you -The way you phrased your question perhaps the So to my knowledge
first time around I misunderstood you.
yes, they were in possession of the note. Q So your belief then that HSBC was in possession
of a blank endorsement prior to filing this complaint is
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based on a pooling and servicing agreement, a power of attorney and a mortgage loan schedule which are not in evidence here today; correct? A Correct. MS. LUNGERGAN: Your Honor, then I have to move It's complete hearsay for
to strike her testimony.
her to testify that her belief that they have standing is based on three documents which are before the Court here today. THE COURT: BY MS. LUNGERGAN: Q What exactly in the pooling and servicing Your motion is denied.
agreement, power of attorney, and mortgage loan schedule led you to believe that HSBC had physical possession of a blank endorsement? A Based on the date of the pooling and servicing
agreement, and I don't know the exact date of the pooling and servicing agreement, but it is public knowledge. If
you go on the SEC you can find it, which I'm sure if you wanted to you could pull it up right now. I don't know
the exact date, but based on the date of that it was in our possession. Q What specifically did the pooling and servicing
agreement say with regards to this loan? A Nothing specifically with regards to this loan,
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but based on the investor information that I've looked up on, you know, in preparation for the trial it would indicate that this loan was part of the pooling and servicing agreement. Q A Q And none of those documents are here today? No, they are not. And these is nothing specific in the pooling and
servicing agreement that shows that the note was endorsed prior to the complaint being filed? A Not that I read. I mean it's about a 180 page
document, and that's not something I've -- you know I skimmed through it. Q I don't know where --
And it is -- correct me if I'm wrong, because
the pooling and servicing agreement required the documents to be received by a certain date that this loan must have been received by a certain date? A Q Yes. But you don't have any particular knowledge as
to whether or not the original endorsed note was actually transferred to them prior to the -A Q I do not. And you have no knowledge as we previously had
gone over when the endorsement was created? A Q No, I don't. So for all you know it could have been created
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after the complaint was filed; correct? A It could have. THE COURT: Are we through with two questions? Yes, Your Honor. I renew my
MS. LUNGERGAN: motion to strike.
She clearly has no knowledge as to She's testifying hearsay
when the note was created.
about documents which are not in evidence. Here is the case, Your Honor, it is Sas versus Fannie Mae, and it stands for the proposition, I believe, it is out of the 2nd DCA. Here the trial court abused its
discretion in allowing Greenly, who is the bank's witness, to testify other objection about the contents of Fannie Mae's business records to prove the amount of the debt without having first admitted those business records into evidence. She's testifying about documents which have not only been admitted into evidence, but are not even here today, Your Honor. motion to strike. THE COURT: All right. MS. DEUTCH: THE COURT: The motion will be denied. Have we concluded with this witness? I have, Your Honor. May the witness be excused? Yes, Your Honor. No further So under that case I do renew my
MS. LUNGERGAN: questions.
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THE COURT: THE WITNESS: THE COURT:
Ma'am you may be excused. Thank you. All right. Do we have any further
witnesses for the plaintiff? MS. DEUTCH: No more witnesses from the
plaintiff, Your Honor. THE COURT: MS. DEUTCH: THE COURT: The plaintiff rests? Yes, Your Honor. Defense? At this time we move for an I have several
MS. LUNGERGAN:
involuntary dismissal, Your Honor. cases here if I can hand them up.
First, Your Honor, is the case of McClean verses JP Morgan Chase which stands for the proposition that the plaintiff must prove the timing of its endorsement and they have been unable to do that here today as you have seen from her repeated testimony. She cannot testify as
to the date of the endorsement or when HSBC acquired the original note or if they ever acquired the original note. So we are moving for an involuntary dismissal on the grounds that they have not proved standing at the time of the filing of the complaint. Secondly, Your Honor, I have a case that's actually our case. The opinion just came out in the 4th
DCA where we reversed Judge Sasser -- I'm sorry, Judge
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Lewis.
The case stands for the proposition that when you
raise authenticity of the endorsements it shifts the burden to the plaintiff to prove the authenticity of those endorsements. You have heard no testimony here today that plaintiff has been able to authenticate the endorsement on this promissory note. In fact when I asked their witness
about the promissory note, she didn't know who the endorser was, whether or not he had authority, whether or not if in fact the original endorsement or original promissory note -- so I would move for an involuntary dismissal on that grounds. Would you like some time to read the cases, Your Honor? THE COURT: Well, what I plan to do after you
get all done is -MS. DEUTCH: read the cases. THE COURT: Unless there is something that comes I would like to have some time to
up I was going to take the matter under advisement. MS. LUNGERGAN: THE COURT: That is fine, Your Honor.
I want to go over it. Then I'll just hand you all of
MS. LUNGERGAN:
the cases, we will go through it and then I'll just let you keep the cases.
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THE COURT: MS. DEUTCH: well, please?
All right.
Thank you.
Can I have copies of these cases as
MS. LUNGERGAN: THE COURT:
Sure.
And if any of you have any proposed
final judgments I would like to have those also. MS. DEUTCH: Yes, Your Honor.
Your Honor, may I approach with the orders? THE COURT: By all means. Next, Your Honor, I move for an
MS. LUNGERGAN:
involuntary dismissal on Feltis (phontic) which stands for the proposition that their promissory note that they are moving under had to be attached to the complaint. They failed to state a cause of action,
Your Honor, and therefore a judgment cannot be entered in their favor, since their complaint doesn't state a cause of action. There was originally a lost note in this case. It was at some point dropped and the original mote was filed. But Feltis stands for the proposition that they
have to actually amend their pleadings and attach a copy of the promissory note. So an endorsement on this case the first time we ever saw it was today, and there is no copy attached to the complaint, the notice of filing the original
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promissory note that was done months and years later didn't contain an endorsement, and I don't know if that's because there wasn't an endorsement at the time, but it didn't contain an endorsement. So their complaint has
failed to state a cause of action. Next, Your Honor, I move for an involuntary dismissal under Holly Hill. The Holly Hill case, Your
Honor, stands for the proposition that not all promissory notes are negotiable, and the Court must take a review of the promissory note to determine whether or not it falls under Article 3 of the UCC. In order to be guaranteed the
short cut of Article 3 of the UCC which is the holder provision, they have to show that it is in fact a negotiable instrument. This case the Court looked at the
promissory note and found that the note was not negotiable, because it incorporated terms of the mortgage. The promissory note in this case is almost identical to the one in the Holly Hill case in that you cannot understand all of its terms and requirements from just looking at the promissory note alone. You have to That
take it in conjunction with the mortgage as well. destroys its negotiability. article 3 of the UCC. It cannot travel under
It must travel under owner, which
is a more onerous burden for plaintiff, but non of which they have not proven here today. So the Holly Hill case,
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the first place.
The witness couldn't even testify as to
whether no payments were made or whether there were years of payments. There are no payment records that have been There is no testimony as to the
introduced into evidence.
default occurring and the default letter being sent. And, Your Honor, I would just renew all of my grounds for my motion to strike as to the default letter, the payment records and the mortgage at this time. THE COURT: response. MS. DEUTCH: THE COURT: Counsel? MS. LUNGERGAN: THE COURT: We think we did, Your Honor. This is on a motion for Your Honor -I'm sorry. Have you concluded, Thank you. Counsel do you have a
Thank you.
involuntary dismissal? MS. DEUTCH: Right. Your Honor, I mean before I
can give an adequate response I would need time to review these cases, since I have not previously seen them before coming here today. I mean their motion for involuntary dismissal is for -- well, various -- they are moving under various cases, and various circumstances. THE COURT: Do you have any comments? I don't
want to cut anybody short.
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MS. DEUTCH:
Just that I can't make an adequate
response as to these cases as I have not previously seen then or had time to review them, but I just want to make a notes as to the fact that the default letter was sent to one individual and it does specify in the mortgage in paragraph 15 that mailing the notice to one borrower constitutes mailing to all borrowers. And regardless this issue wasn't even
brought up on direct examination of my witness or I could have redirected her as to this point. THE COURT: judgments? MS. LUNGERGAN: Your Honor, we did not come with What we would ask is to Do you have any proposed final
a proposed final judgment.
give us a few days to order the transcript, review the evidence, and prepare a final judgment to submit to, Your Honor with a cover letter. THE COURT: All right. Do you think this could
be done by next Friday. only Mondays and Fridays.
I'm only here for this month I don't want it floating I'd like to have it
around somewhere and get lost.
handed to me if you think that can be done. MS. LUNGERGAN: Your Honor, if I may ask my
court reporter how long it will take to get the transcript.
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THE COURT:
All right. Off the record.
MS. LUNGERGAN:
(An off-the-record discussion was held.) MS. LUNGERGAN: It will take them ten days, Your
Honor to get the transcript. THE COURT: probably. MS. LUNGERGAN: but the next Friday. Maybe not this coming Friday, That will give us two full The cost to rush it, All right. Then a week from Monday
weeks and that gives her time.
Your Honor, is thousands of dollars. THE COURT: No point to it. We will just confer and what we
MS. LUNGERGAN:
can actually do is get our proposed judgments under one cover letter that way they don't get separated. MS. DEUTCH: Well, I have already submitted
mine, Your Honor, and I have no objection to you holding on to that until defendant submits theirs as well. THE COURT: MS. DEUTCH: Counsel? I have already submitted my final
judgment to you, and I have no objection to you holding onto it until they have submitted theirs as well. THE COURT: I haven't looked at your proposed
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final judgment, but they usually contain a blank day for a sale date. MS. DEUTCH: THE COURT: Yes. Let me ask this, counsel, in the
event the Court should find for the plaintiff do you have any comments on a sale date, or how many days you need? MS. LUNGERGAN: Yes, we would ask for some extra
time, I believe they have children and they would need time to get out of the house. So in the event
that the Court does find for the plaintiff we do ask for some time. That would also give us time to file
our notice of appeal and come in on a motion to stay the pending appeal so that we are not rushing trying to get back in here. THE COURT: days? MS. LUNGERGAN: at least 90 days. THE COURT: Do you have any problem with 90 days Yes, Your Honor, I would ask for Well, let me throw out a number, 90
in the event that Court finds for the plaintiff? MS. DEUTCH: Only that this is a 2008 case, and
this trial has been put off for an extended period of time but ultimately I would leave it with the Courts discretion.
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THE COURT:
Okay.
Thank you.
MS. LUNGERGAN:
Your Honor, if there is any
additional case law that you would like us to submit with our proposed final judgment -- I know I gave you some of it, but there is a whole bunch floating around here. THE COURT: I'm sorry. If the parties want to give you
MS. LUNGERGAN:
any additional case law while you are ruling would you like us to submit that to you? THE COURT: If you find any I am always willing
to read something. MS. LUNGERGAN: THE COURT: we adjourn? MS. LUNGERGAN: I just want to make the record Thank you, Your Honor. Anything further before
All right.
clear that I did object to attorney's fees and ask for an evidentiary hearing on that. THE COURT: I can only tell you that normally if
it's found for the plaintiff and for that matter even for the defendant who might be entitled to fees the Court usually reserves jurisdiction for entitlement and amount anyways. MS. LUNGERGAN: You would think so, Your Honor,
but I have had a few trials where they have disagreed
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on that, but I agree with you to reserve as to entitlement and amount. THE COURT: Thank you.
(The trial was concluded at 5:30 p.m.)
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C E R T I F I C A T E
THE STATE OF FLORIDA) COUNTY OF PALM BEACH)
I, Shannon Gregory, Court Reporter, State of Florida at large, certify that I was authorized to and did report the foregoing proceedings and that the transcript is a true and complete record of my notes. Dated this 15th day of August, 2013.
__________________________________ Shannon Gregory Notary Public - State of Florida My Commission Expires: 2/28/17 My Commission No.: DD0044666
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A $260,000 33:15 37:5 77:21,24 $399,383.49 58:1 abide 9:1 17:23 abilities 17:17 ability 7:6 17:16 18:9 22:24 able 22:19 23:22 23:25 45:16 52:19 79:21 98:6 absolutely 64:15 abused 96:10 acceleration 64:14 accrued 59:8 accuracy 81:10 accurate 47:23 55:5 56:3 accurately 51:8 59:7 acquired 97:18,19 acquiring 37:22 action 22:14 23:17 25:4,15,25 89:14 99:14,17 100:5 actions 7:8 18:13 activity 29:18 actual 10:23 15:1 15:10 73:6 83:10 84:19 additional 15:17 106:3,9 Additionally 7:4 17:25 address 5:3 33:13 40:25 41:4 44:12 adequate 102:18 103:1 adequately 17:19 18:14 adjourn 106:15 adjustable 33:12 34:6 adjustable-rate 89:7 admission 16:20 admit 35:16,25 40:7 43:10 49:15 50:3 admitted 43:21 46:21 87:15 96:14,17 advisement 98:20 affirmative 12:19 69:6,13 75:6 77:5,10 affirmatively 12:12 afternoon 6:24 7:1 10:15 16:4 ago 11:20 agree 18:5 33:24 45:13 50:20 107:1 agreed 87:8 agreement 93:16 94:1,13,17,18,24 95:4,8,14 ahead 5:8 8:22 10:21 17:12 20:2 20:19 21:13 27:2 28:15 34:2 53:14 54:14 57:10 92:10 allegations 69:11 69:12 70:1 alleged 73:21 allegedly 84:16 alleges 69:21 alleging 69:8 allow 20:3,6 81:20 93:6 allowing 79:24 96:11 alternative 6:2 18:12 19:8 Amanda 2:10 5:9 ambush 7:18 11:10 16:5,10 amend 32:17 99:21 amount 33:15 37:3 56:10 57:21 58:3 59:7 71:25 77:21 78:7,11 96:13 106:23 107:2 amounts 56:13 78:16 82:7 84:16 analysis 65:6 Anisha 2:11 5:17 annalist 25:2 65:5 answer 23:12,12 26:24 38:7 66:1 77:19 93:6 answered 89:20 92:20 answering 77:16 answers 92:14 anticipating 20:7 anticipation 54:9 55:17 anybody 102:25 anyways 106:23 apologize 89:24 apparently 18:20 appeal 21:2 105:13 105:14 appear 84:8,9 appearances 2:1 5:6 appears 40:25 63:12 72:21 74:22 91:6 applied 83:16 appreciate 16:17 20:11 79:19,23 approach 31:21 73:3 99:8 April 44:10 62:19 62:21,24 63:2,5 91:3 argue 11:10 12:2 16:10 70:4,8 arguing 16:25 19:1 argument 70:5 article 76:21 77:2 100:11,12,23 101:3 asked 10:7,22 11:15,19,21,25 14:14 35:23 57:2 57:12 77:15 89:20 92:15,18 98:7 asking 8:10,24 11:5 14:22 56:16 57:14 69:10 70:1 73:4 89:17 90:10 assessment 12:14 ASSET-BACKED 1:7 Association 1:6 33:21 assorted 72:3,4 assuming 15:6 63:16,18 90:25 assumption 53:13 53:14 Atchanah 2:11 5:17 5:17 attach 9:22,23 32:18 99:21 attached 11:6 14:3 23:9 30:7,12 31:24 32:3,15 73:25 99:13,24 attempted 30:14 attention 15:1 attorney 26:3 67:22 75:13 76:5 76:5 93:16 94:2 94:13 attorney's 58:20 59:7 106:17 attorneys 54:11 58:15,16 65:13 August 1:18 7:12 9:17 13:24 16:22 17:4 108:11 authenticate 98:6 authenticity 28:20 32:23 36:5 37:21 39:3 40:10,21 43:18 75:6 87:22 98:2,3 authority 25:3,8 25:24 28:11 98:9 authorization 26:3 75:11 76:3 authorized 73:16 75:10 108:7 available 10:12,15 10:16,24 B back 20:4 26:21 36:16 37:13 56:22,25 57:8,11 70:8 72:13 73:24 74:3 77:14 92:15 105:15 balance 92:2 bank 1:6 4:4 5:21 69:18 76:4 bank's 96:11 banks 90:22 bar 91:1 based 14:20 19:14 19:17 22:1,3 63:11 66:23 74:22 79:9 89:12 90:3 91:5,11 93:14,15 94:1,8 94:16,21 95:1 basically 65:23 basing 62:19 63:22 71:16,21 Beach 1:2,18,19 2:9 33:14 39:6 41:5,20 44:14 108:3 bear 67:24 84:9 beg 19:15 47:8 beginning 22:16 behalf 2:2,7 5:10 5:13,16,18 25:3 25:9,25 26:4 28:12 73:17 75:11 76:4 belief 63:22 71:16
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71:21 93:24 94:7 believe 4:3 10:1 15:21 17:2 18:4 18:18 22:8,19,24 28:11 30:15 31:3 48:1 56:23 57:2 57:9 60:15 62:18 63:9 67:25 68:12 70:15 71:8 74:5 83:19 87:7 88:8 89:23 92:18 94:14 96:9 105:9 believes 69:24 best 17:17 better 83:8 Biebel 9:2 big 15:18 bit 9:15 blaming 13:21 blank 21:24 22:2 37:13,19 38:11 72:6 88:1 92:24 93:11,25 94:15 105:1 1:10 5:11 5:13,16,18 8:10 13:10 36:20 40:23 74:12 101:7 blue 74:23 boarded 83:5 bold 15:18 borrower 21:17,18 46:12,18 51:15 103:7 borrowers 22:5,6 46:7 103:8 Boulevard 2:3 breach 42:4 60:15 61:4,8 break 47:5 BREGER 1:16 brief 92:9 bring 23:17 Brothman 2:11 5:2 5:15,15,24 8:20 8:23 9:7,9 11:13 16:17 17:2,13 18:24 19:2,16 20:21 21:7 22:16 23:3 brought 21:22 103:9 bulk 66:5,7 bunch 106:5 burden 12:15 13:1 13:1 98:3 100:24 burdens 23:23 business 7:13 15:11 23:24 26:10,25 27:17 27:19,24 29:18 29:18,23 34:9 36:6 39:9 40:11 42:14 43:16 48:22 49:22 50:1 52:3 53:9 54:10 55:5,13 56:4 58:3,6,8 61:21 61:22 63:8,24,25 64:17 81:18 83:2 85:21 86:10,12 86:19,21 87:18 90:3,22 91:12,23 96:13,14 C C 2:8 4:1 108:1,1 CA 1:4 calculate 76:12,17 77:23,25 78:4,9 calculator 76:11 76:15,16 77:20 77:23 78:12 call 12:22 24:2 66:14 called 61:5 62:5 69:17 calls 24:4 26:1,12 36:17 37:20 43:25 capable 77:16 care 28:2 case 1:4 6:7 7:8 7:12,14,16,18 8:14,18,18,25 9:2 11:16,18 15:2,5 17:24 18:7,10,12 19:10 20:15 21:17 22:1 22:8,10,12,25 23:3,5,10,14,20 23:25 26:19 27:6 30:5,6,21 31:21 31:24,25 32:2,12 32:16,19 33:4,20 52:17 58:15 59:17 69:17,21 76:12 78:17 79:14 85:1 87:13 87:22,23,24 93:12 96:8,18 97:13,23,24 98:1 99:18,23 100:7 100:14,17,18,25 101:7,8,8,13,17 105:22 106:3,9 cases 66:11 97:12 98:13,18,24,25 99:2 102:19,23 103:2 1:10 5:10 5:13,16,18 8:10 13:9 36:20 40:23 44:13 74:12 101:7 catch 65:3 cause 99:14,17 100:5 certain 66:1 71:25 95:15,16 CERTIFICATES 1:7 certified 62:13 64:18 certify 108:7 chance 7:2 69:11 change 17:20 charge 80:17,20 Chase 97:14 check 48:2 72:3 checks 71:24 children 105:9 CIRCUIT 1:1,1 circumstances 8:17 102:23 circumvent 55:14 civil 7:7 class 64:19 clear 7:25 22:11 59:16 76:23 106:17 clear-cut 21:17 clearly 22:2,4 64:11 77:20,24 87:21 96:5 clerk 36:1 client 22:9 47:23 clients 13:23 14:17 17:17 close 23:18 closes 16:13 code 91:1 color 74:24 75:1 come 5:4 9:4 66:15 75:12 78:6 87:23 103:13 105:13 comes 98:19 comfortable 77:22 coming 35:8 43:7 50:11 88:23 90:19 91:24 102:20 104:8 comments 11:12 41:11 102:24 105:6 Commission 108:18 108:18 companies 80:6 company 43:13 55:19 60:21 61:8 61:14,16 64:4 79:3 91:21 compare 47:24 compensation 66:20 complaint 23:9 30:6,7,12 31:23 32:3,14,15,18 67:22,24 68:13 68:14 69:20,21 70:4 71:6,10,20 72:7,13,18 73:23 74:1 88:1 90:5 90:12,13 92:16 93:25 95:9 96:1 97:22 99:14,16 99:25 100:4 complete 22:20 94:6 108:9 completely 17:16 52:15 55:17 completeness 86:23 87:4,19 complied 8:7 87:18 complies 18:4 comply 6:1,9 14:21 18:11 comport 58:3 comports 56:17 composite 31:17 35:19,24 38:21 47:16 78:24 80:5 computer 67:5 computers 89:18 concluded 96:21 102:12 107:4 conditions 14:23 conduct 7:25 conducted 14:10 29:18 confer 10:5 15:4 15:12 18:5,9 85:25 104:13 conference 10:5 confident 63:14 conflicting 92:14 confused 74:4 conjunction 100:21 Connect 73:22
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way 18:7 52:3 63:23 84:10 92:20 93:21 104:15 we've 11:15 57:5 85:10 Wednesday 10:10 17:9 week 104:6 weekend 10:13 weeks 104:10 welcome 15:25 28:4 went 16:7 86:9,18 88:2 weren't 64:7 80:23 92:19 West 1:19 33:14 41:5 44:14 whatsoever 14:6 willing 106:11 withdraw 46:22,24 48:4 withdrawn 9:18 13:25 17:21 48:7 withdrew 16:23 17:1,3,5,6 witness 3:2 4:11 5:22 6:10,11,15 6:16 7:6 8:1 9:16,20 10:7,9 10:11,12,16,17 10:23,24 11:20 11:22 12:1,4,6,8 12:10,11,13,16 12:16 13:3,6,8 13:14,20,23 14:13 15:23,24 16:21,22 17:8,10 21:16,20 22:3 24:2,9 25:20 27:3 28:4,10,22 29:3,9,15,21 30:2,18,20 33:12 33:22 34:13,18 34:24 35:5,14 36:11,20 37:1,10 38:8,14 39:5,13 39:18,24 40:5,13 40:23 41:4,13,20 42:3,10,18,23 43:4,14,19 44:9 44:21,23 45:4,11 46:3 47:6,9 48:18 49:1,7,13 49:18 50:8 51:2 51:5,13,19,25 52:2,6,8,12,14 52:16,21,25 53:4 53:6,8,15 54:8 54:24 55:2,11 56:1,7 57:19,25 58:10 59:4,11 64:12,15 67:7 69:10,23 73:4 77:9 79:22,23 80:1 81:17 86:10 86:19,19 88:18 89:5,17,20 90:8 90:15 91:19 93:8 96:11,21,23 97:2 98:7 102:1 103:9 witnesses 8:15 9:24 12:20,22,23 12:24 13:12,15 14:5 15:17 17:15 17:19 58:18 59:25 60:2,6 97:4,5 word 16:16 38:17 55:13 83:8 work 28:12 41:10 60:21 61:14 62:8 62:9 65:13 66:8 71:11,14 85:3 worked 49:24 66:18 76:2 80:14 85:11 working 64:7 works 27:23 43:14 73:10 worth 91:9 would've 79:21 wouldn't 70:17 76:24 write 81:4 writing 15:14 written 38:18 65:20 67:2 87:9 wrong 84:8 95:13 wrote 14:1 X Y year 9:8 87:3 years 22:9 100:1 102:2 yesterday 5:25 6:5 6:24 9:18 10:15 16:4,21,23 17:5 Z zero 49:17 0 016037XXXX 1:4 1 1 1:13 31:13,17 35:16 36:1,10,16 38:21 44:10 51:3 51:5 62:19,21,24 67:11,21 88:18 91:3 1-1-08 84:2 1:30 1:19 1015 2:8 120 2:3 15 103:6 15th 108:11 16th 15:3 17 68:5 180 95:10 19th 10:6 15:4,7 15:21 1st 7:12 9:17 16:22 17:4 2 2 1:13 31:13 40:8 40:16,19 63:3 2/28/17 108:18 2:52 22:19 20 13:5,12 15:12 2006 33:13 34:7 37:1 84:10 2006-FM2 1:8 2008 1:4 22:8 44:10 51:3,5 62:19,21,25 63:3 63:5 91:3 105:22 2009 11:4 2011 70:16 84:10 2013 1:18 13:24 108:11 21 33:13 34:7 37:1 22nd 10:2,3 24 3:4 24th 18:3 26th 6:8,8,14 9:7 9:21 2725 33:14 41:4 2727 44:13 2nd 32:1,13 96:10 3 3 41:23 43:10,22 60:14 63:5 76:21 77:2 85:7 90:15 100:11,12,23 101:3 30 13:12 64:14 31 13:15 31st 11:24,24 12:9 33401 1:19 33411 2:9 33417 33:15 41:5 44:14 33634 2:4 4 4 48:11 49:15 50:6 80:4,5 91:19 4-24-2006 39:6 41:14 4B 16:3 4th 69:17 97:24 5 5:30 1:19 107:4 50 1:4 5110 2:3 561-729-0530 2:9 561.835.0220 1:24 561.835.3583 1:25 6 6 7:12 60 3:5 7 7 2:8 742 41:14 754-201-3550 2:4 765 41:14 8 88 3:6 9 9 1:18 13:24 9.956 87:7 90 66:9 105:16,19 105:20 92 3:7 9th 21:9

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2

MS. LUNDERGAN: THE COURT: MS. DEUTCH:

Is the plaintiff prepared? We are prepared, Your Honor. We

Thank you, Your Honor.

I understand we are going to trial; is that

It was filed late yesterday.

conversation via email.

didn't make any since to us seeing as how taking the

This year? Yes.

MR. BROTHMAN: THE COURT: MS. DEUTCH:

He had asked me who my witness is, and I responded

production was done even before last trial.

How could we have

the witness until nine days before.

received that name we asked for a deposition.

This motion is late.

system for us to find it.

You said they withdrew it? I believe plaintiff said that

MR. BROTHMAN: they withdrew it -MS. DEUTCH:

office filed it and we withdrew it.

evidence for us preserving --

Let's have some opening statements.

do you think you will need?

MS. DEUTCH: THE COURT: MS. DEUTCH: back and --

Only a minute or two, Your Honor. Okay. Go right ahead.

If you would just allow me to step

Your Honor, how long are you Because we are

I don't -I am, Your Honor.

MS. LUNDERGAN: THE COURT:

I don't want to be double teamed. I am, Your Honor.

MS. LUNDERGAN: THE COURT: MS. DEUTCH: MR. BROTHMAN:

Yes, Your Honor, but you can't

MS. LUNDERGAN: THE COURT:

All right. Thank you.

MS. LUNDERGAN: THE COURT: MS. DEUTCH: a few minutes.

Your Honor, before beginning the

THE COURT: move forward.

Your objection is overruled, let's

Your Honor, in this case you will

Thank you kindly.

Do you swear the testimony you are about to

There is no documented evidence or that

behalf of the plaintiff for this action?

MS. LUNDERGAN: for hearsay.

Objection, Your Honor.

The document that would speak to that

Thank you, Your Honor.

She hasn't laid any foundation as

knowledge of the business practices and procedures?

Same objection. Go ahead.

Do I have personal knowledge, yes.

And are you familiar with the instant loan in

Have you reviewed the Ocwen records related to

Objection, Your Honor.

What records is she referring to?

Just saying has

I'm going to let you take

I would request to voir dire the I

witness on her relationship to the plaintiff.

Your request will be denied.

BY MS. DEUTCH: Q So have you reviewed the Ocwen records related

to this loan? MS. LUNDERGAN: Same objections, Your Honor,

records with respect to this loan?