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IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR HILLSBOROUGH COUNTY CIVIL DIVISION

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR HASCO MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-HE2

vs.

Plaintiff,

CASE NO: 29-2008-CA-016042 DIVISION: C RESIDENTIAL FORECLOSURE

SERGEY MISCHENKO, GALINA MISCHENKO, et al,

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Defendants.

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BEFORE:

THE HONORABLE PERRY A. LITTLE

DATE:

JUNE 14, 2012 2:08 P.M. -

4:31 P.M.

LOCATION:

HILLSBOROUGH COUNTY COURTHOUSE 800 E. TWIGGS STREET ROOM 500 TAMPA, FLORIDA

REPORTER:

VANESSA DURHAM-ANDREW NOTARY PUBLIC STATE OF FLORIDA AT LARGE

======================================================

D & D REPORTING THE WILDER CENTER 3000 GULF-TO-BAY BOULEVARD, SUITE 500 CLEARWATER, FLORIDA 33756 (727) 723-2002

A P P

E

A R A N C E S:

For the Plaintiff:

For the Defendants:

YUSUF E. HAIDERMOTA, ESQUIRE

ROBERT L. McDONALD, JR., ESQUIRE KASS, SHULER, P.A.

1505 NORTH FLORIDA AVENUE

TAMPA, FLORIDA 33602

DANIEL P. ROCK, ESQUIRE

BRENDAN R. RILEY, ESQUIRE DANIEL P. ROCK, P.A.

5426 CRAFTS STREET

NEW PORT RICHEY, FLORIDA 34652

LESLIE M. CONKLIN, ESQUIRE

1433 S. FORT HARRISON AVENUE

SUITE B CLEARWATER, FLORIDA 33756

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ALSO PRESENT: SERGEY MISCHENKO GALINA MISCHENKO

 

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E

X

H

I

B

I

T

S

Plaintiff's

Marked for

Exhibit Nos.

Description

Identification

1 Loan note

18

(Exhibit 2 introduced, however, never identified)

3 Assignment of Mortgage

20

4 Screen shot from Fidelity system

38

5 Composite of Demand Letters

75

6A & B

Payment history

79

7 Copy of mortgage note image

65

8 Screen shot image report

65

* *

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3

1 I N D E X 2 Page 3 Opening Statement by Mr. Haidermota 6
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Opening Statement by Mr. Haidermota
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Opening Statement by Mr. Rock
9
5
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6
Direct Examination of Megan Thompson
by Mr. Haidermota
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13
7
Voir Dire Examination by Mr. Rock
25
8
Examination resumed by Mr. Haidermota
27
9
Examination by Mr. McDonald
64
10
Voir Dire Examination by Mr. Rock
66
11
Examination resumed by Mr. Haidermota
69
12
Further Voir Dire Examination by Mr. Rock
71
13
Examination resumed by Mr. Haidermota
75
14
Further Voir Dire Examination by Mr. Rock
78
15
Cross-Examination by Mr. Rock
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84
16
Redirect Examination by Mr. Haidermota
91
17
Recross-Examination by Mr. Rock
93
18
19
20
21
22
23
24
25

4

1

P R O

C E

E D

I

N G S

2

THE BAILIFF:

The next case is

3

08-016042. Deutsche Bank vs. Sergey

4

Mischenko and Galina Mischenko.

5

MR. HAIDERMOTA: Your Honor, Yusuf

6

Haidermota, on behalf of the Plaintiff.

7

MR. ROCK: Daniel Rock, Leslie Conklin

8

and Brendan Riley, on behalf of the

9

Defendants.

10

THE COURT: Okay.

 

11

MR. CONKLIN: And, your Honor, I've

12

filled a Notice of Appearance today. I have

13

a time stamp in.

So the original is with

14

the Clerk, Your Honor.

That is a copy, with

15

the Clerk's stamp on it.

 

16

THE COURT:

Okay.

So it's set for

17

trial, is that correct?

 

18

MR. HAIDERMOTA: Yes, your Honor. And

19

we're ready to proceed.

 

20

THE COURT:

All right.

And we can do

21

it within an hour?

 

22

MR. HAIDERMOTA: Yes, your Honor.

23

THE COURT:

All right. All

24

parties -- anybody expecting any witnesses

25

that are going to testify?

 

5

1

MR. HAIDERMOTA: Your Honor, I have one

2

witness.

3

THE COURT: Okay. Anybody expected to

4

testify, please stand and raise your right

5

hand. You-all swear, or affirm, that any

6

testimony or statements you give today will

7

be the truth, so help you God.

 

8

MS. THOMPSON: Yes.

9

MR. McDONALD: If I might, your Honor.

10

THE COURT: Yes.

 

11

MR. McDONALD: Robert McDonald. I'm

12

also here for the Plaintiff. I don't know

13

whether the Court has any other cases. But

14

the Plaintiff would certainly be willing to

15

pass this --

16

THE COURT:

I think this is it, right,

17

for the 1:30 docket?

 

18

THE CLERK: There's one.

19

THE COURT:

We've got one more.

Do you

20

want to call that one now?

21

THE BAILIFF:

Yes. Can we, please.

22

(At this time a short recess was held

23

and resumed after completion of other

24

matters set on the Court's docket)

 

25

THE COURT:

All right.

Back to the

6

1

matter at hand. The Plaintiff, would you

2

mind giving me an Opening Statement of what

3

you expect the evidence to show. And then

4

you can respond.

5

MR. HAIDERMOTA: Yes, your Honor. May

6

I obtain the originals, which have been

7

filed with the Court?

8

THE COURT:

Is this the file here?

9

THE CLERK: I don't think that's it.

10

MR. HAIDERMOTA: Thank you, Your Honor.

11

THE COURT: All right.

Yes, sir.

12

MR. HAIDERMOTA: May it please the

13

Court.

14

THE COURT: Yes.

15

OPENING STATEMENT

16

MR. HAIDERMOTA: Your Honor, today

17

we're here on a foreclosure action. The

18

Defendants in this case, Sergey Mischenko

19

and Galina Mischenko, entered into an

20

agreement and signed a note and mortgage on

21

August 25, 2006. They signed this note and

22

mortgage, promising to pay back a loan to

23

purchase a property at 4615 Scott Road in

24

Lutz, Florida, 33558.

25

Your Honor, if you would look at

7

1

the -- you will see that in the Answer that

2

was filed last -- recently, by opposing

3

counsel, they have admitted to the fact that

4

they signed the note and mortgage. Your

5

Honor, the evidence will show that on May

6

18, 2008, my client sent out a Demand

7

Letter, or an Acceleration Letter, to the

8

Mischenkos. In that Demand Letter, they

9

told them that they were in default. They

10

told them how much they were in default.

11

And they told them how to cure the loan, and

12

bring it back to current.

13

The evidence will show that it was sent

14

out on or about the 18th, no later than the

15

19th.

They told them that they had 30 days

16

to cure this loan, which was June 17th.

And

17

the evidence will show that from the 19th,

18

through the 17th of June, is exactly 30

19

days.

20

Your Honor, the evidence will also show

21

that after the complaint was filed in this

22

case, there was a HAMP Modification, a Trial

23

HAMP Modification.

24

MR. ROCK: Objection, Your Honor. Any

25

evidence of settlement --

8

1

THE COURT: Sure.

 

2

MR. ROCK: -- during litigation is

3

inadmissible.

4

THE COURT:

All right.

I don't think

5

you can get into that.

 

6

MR. HAIDERMOTA: That's fine, your

7

Honor.

8

THE COURT: All right. The objection

9

is sustained.

10

MR. HAIDERMOTA: Your Honor, the

11

evidence will also show that they have not

12

cured this loan, since the default letter

13

has been sent on May 18, 2008.

And that for

14

over the past four years, my client has been

15

paying the taxes, the insurance. And they

16

have not received a mortgage payment from

17

the Defendants in this case.

 

18

You'll also see evidence that we were

19

in possession of the note, prior to the

20

complaint being filed. We had standing to

21

bring this action, that we've provided them

22

with a Demand Letter. And that this loan

23

has not been cured. Thank you.

 

24

MR. ROCK: Thank you, Your Honor.

25

THE COURT: Yes.

 

9

1

MR. ROCK:

May it please the Court.

 

2

THE COURT:

Yes, sir.

3

OPENING STATEMENT

 

4

MR. ROCK:

Your Honor, I secured this

5

case at the request of Bay Area Legal

 

6

Services to take this case over, because

7

they don't have sufficient staff to

8

represent indigent people.

 

9

The Amended Answer --

10

THE COURT:

Let me just tell you.

I

11

used to work for them a long time ago, 40

12

years ago.

But -- just so you know.

 

13

MR. ROCK: Okay.

 

14

THE COURT:

Just so you know.

 

15

MR. HAIDERMOTA: We have no objection,

16

your Honor.

17

MR. CONKLIN: No objection, Your Honor.

18

THE COURT: Okay.

 

19

MR. ROCK: I apologize.

I --

20

THE COURT:

I'm sorry.

I said 40 years

21

ago.

It was 1970, so that's -- yeah.

 

22

That's 40, plus. Okay.

 

23

MR. ROCK: All right.

And I did not

24

know that, Your Honor.

25

THE COURT: Okay.

10

1

MR. ROCK: So what's interesting is, I

2

recall -- I don't -- as I recall the Answer

3

that I filed on behalf of my clients, they

4

agree that they executed a note and a

5

mortgage. But as of this date, they haven't

6

seen it.

I'm sure -- they're here, and

7

they're going to take a look at it and

8

testify whether it's their signature or not.

9

The -- and it's probably a bit unusual for

10

Defendants to come in to admit or not admit

11

it's their signature, for this particular

12

document.

13

What's interesting -- in this

14

particular case, there's two issues;

15

standing, were they the owner of a note and

16

mortgage on the date the lawsuit was filed;

17

were they in possession of the original

18

note, which the complaint says was lost or

19

destroyed at the time of the filing of the

20

complaint. That count, as I stand here

21

today, still stands. Probably, perhaps the

22

linchpin --

23

May I approach, Your Honor?

24

THE COURT: Yes.

25

MR. ROCK: I've done a Memorandum of

11

1

Law on the issue of this document that was

2

referred to; the notice he referred to as

3

being dated May 18, 2008. Well, actually,

4

there's a previous notice from March 31,

5

2008 to Ms. Mischenko. And another notice

6

to Sergey Mischenkos on the 18th of May.

7

What's interesting is, how they -- I don't

8

know whether they're going to say which day

9

it went out. Because I believe this

10

information was outsourced by another

11

company, these notices.

12

However, what I'm going to ask your

13

Honor to do, is to carefully read those

14

notices. They are fatally defective.

15

Because they suggest that the Mischenkos, my

16

clients, had an obligation, if they wanted

17

to contest the foreclosure claim, that they

18

would have to file a lawsuit rather than the

19

agreement, Paragraph 22 -- which I believe

20

your Honor had a case earlier this week on

21

this very paragraph.

22

And Mr. Conklin, who has

23

successfully -- been successful in that

24

respect, I believe it was the Wink case, out

25

of St. Petersburg -- has volunteered to

12

1

assist, should the Court have any additional

2

questions about Judge Williams' ruling or

3

Judge Schafer's ruling, or even Judge

4

Tepper's ruling. Those cases are attached

5

to the memorandum.

6

The question is, is a condition

7

precedent, a condition precedent, a

8

condition precedent. Will the notice that

9

was sent out to the Mischenkos, if it's

10

fatally defective --

11

MR. HAIDERMOTA: Your Honor, objection.

12

Argument. This is Opening Statement. He's

13

supposed to tell -- explain what the

14

evidence will show, not make arguments to

15

the Court, as the trier of fact.

16

MR. ROCK:

I was trying to do that,

17

Your Honor.

18

THE COURT: The objection is overruled.

19

MR. ROCK:

Your Honor, I think the

20

ultimate question for you to decide, if they

21

can prove that they established standing, is

22

that, is this notice defective, or do they

23

have to go back and start over with an

24

appropriate, correct notice, that doesn't

25

tell the property owners that they have to

13

1

file a lawsuit if they disagree with the

2

claims of the Plaintiff. Thank you.

3

THE COURT: Okay.

4

MR. HAIDERMOTA: Your Honor, the

5

Plaintiff calls their first witness, Megan

6

Thompson.

 

7

THE COURT:

Have a seat right here,

8

Ms. Thompson.

9

DIRECT EXAMINATION

10

BY MR. HAIDERMOTA:

 

11

Q

Good afternoon.

12

A

Good afternoon.

13

Q

Could you please state your name, for the

14

record.

15

A

It's Megan Thompson. Megan, M-E-G-A-N,

16

Thompson, T-H-O-M-P-S-O-N.

17

Q

Who do you currently work for,

18

Ms. Thompson?

 

19

A

Wells Fargo Bank, N.A., doing business as

20

America's Servicing Company.

21

Q

And how long have you worked for Wells

22

Fargo?

23

A

Approximately five years.

24

Q

And what is your current position with

25

Wells Fargo?

 

14

1

A

Vice president of loan documentation.

2

Q

How long have you been in that position?

3

A

I've been in this position, roughly, nine

4

months.

5

Q

Okay. And prior to being in this position,

6

what were you doing for Wells Fargo?

7

A

I was an underwriter.

8

Q

And prior to being an underwriter.

9

A

I worked in Collections.

10

Q

Collections. Okay. What are your job

11

responsibilities and duties, in your current

12

position?

13

A

Currently, we work with local foreclosure

14

counsel on contested and non-contested foreclosure

15

cases.

16

Q

Ms. Thompson, are you familiar with how

17

Wells Fargo keeps their business records?

18

A

Yes.

19

Q

Have you reviewed the business records, in

20

regards to this foreclosure action?

21

A

Yes, I have.

22

Q

Are you prepared to testify as to those

23

documents today?

24

A

Yes.

25

Q

What is the system that is used by Wells

15

1

Fargo to keep their business records?

2

A

Fidelity. The system of record that I

3

reviewed today is Fidelity.

4

Q

And explain what Fidelity is.

5

A

Essentially, it's a secure database that

6

houses all of our business records.

7

MR. HAIDERMOTA: Okay. Your Honor, for

8

the record, I'm showing Defense counsel what

9

has been premarked as Plaintiff's 1.

10

MR. ROCK:

Your Honor, may I show this

11

to my clients?

12

THE COURT:

Sure. Your clients can

13

pull up a chair, if they want to sit at the

14

table.

15

MR. ROCK:

Your Honor, we could do

16

that.

But it's only one or two times.

17

THE COURT: All right. That's okay.

18

MR. HAIDERMOTA: Your Honor, I'm also

19

going to show them what's been premarked as

20

Plaintiff's 2.

 

21

THE COURT: Okay.

22

MR. HAIDERMOTA: Mr. Rock.

23

MR. ROCK: Your Honor, other than the

24

fact that they are acknowledging those

25

signatures on that document are their's,

16

1

however when they signed it there was no

2

endorsement, as appears on that original.

3

What they signed, appears on the copy of the

4

exhibit attached to the complaint. So

5

somewhere between the complaint today,

6

there's a blank endorsement on that note.

7

THE COURT: So their testimony is, it

8

was not there at the time that they signed

9

it?

10

MR. ROCK: Yes, Your Honor.

It will

11

be.

I mean, I'm suggesting that --

12

THE COURT: Okay.

13

MR. ROCK:

We're not saying it was

14

endorsed at the time of the filing. This

15

appears to be the way they signed it, on

16

that day.

 

17

THE COURT: Okay.

18

MR. HAIDERMOTA: Mr. Rock, do you have

19

any objection to having these entered into

20

evidence?

 

21

MR. ROCK:

Only to the extent that --

22

with the proviso, or the understanding, that

23

there was no endorsement on it at the time

24

that they signed it.

And there was no

25

endorsement at the time the case was filed.

17

1

MR. HAIDERMOTA: Your Honor, we seek

2

to introduce --

3

THE COURT: Will you acknowledge that?

4

MR. HAIDERMOTA: Yes, your Honor.

 

5

THE COURT: Okay.

6

MR. McDONALD: No.

7

MR. HAIDERMOTA: I'm sorry.

8

MR. McDONALD: If I might, your Honor.

9

Counsel has raised two issues. We don't

 

10

debate that when the original note was

11

signed at the closing of the transaction,

12

that there was no endorsement, for purposes

13

of Chapter 673.

We do not agree to his

14

additional statement, that there was no

 

15

endorsement at the time the action was

16

filed.

17

We're going to present the evidence as

18

to that, your Honor; that the endorsement

19

was made between the time of execution by

20

the makers, and the filing of the lawsuit,

21

which would be the normal course of

 

22

business.

23

MR. ROCK:

It could be, your Honor.

I

24

just didn't want to stipulate that we were

25

acknowledging that that was --

 

18

1

THE COURT: All right.

2

MR. ROCK: That endorsement was there,

3

prior to filing.

 

4

THE COURT: Okay.

5

MR. ROCK:

It did not appear to be,

6

according to the exhibits attached to the

7

complaint.

8

MR. HAIDERMOTA: Your Honor, at this

9

time we seek to enter -- introduce into

10

evidence Exhibits 1 and 2.

11

THE COURT: They will be admitted.

12

MR. ROCK: Yes, Your Honor.

13

THE COURT:

Do you want to mark them?

14

BY MR. HAIDERMOTA:

15

Q

Ma'am, I'm showing you what's been admitted

16

as Exhibit 1, Plaintiff's Exhibit 1. Do you

17

recognize that document as the note?

18

A

Yes.

19

Q

Okay. Who's the originator of that loan?

20

A

WMC Mortgage Corporation.

21

Q

Okay. And is there an endorsement from WMC

22

Mortgage Corp?

 

23

A

Yes. There's an endorsement from WMC

24

Mortgage Corp.; the blank.

25

Q

The blank.

19

1

A

Uh-huh.

2

Q

Okay. Thank you.

 

3

MR. ROCK: I'm sorry, your Honor.

I

4

didn't catch the last remark. There's an

5

endorsement from?

 

6

MR. HAIDERMOTA: WMC Mortgage Corp.;

7

the blank.

 

8

THE COURT: The blank endorsement.

 

9

MR. ROCK: Blank.

I'm sorry.

10

THE COURT: There's nobody named blank

11

here.

12

MR. HAIDERMOTA: Your Honor, at this

13

time, I'm seeking to introduce a Certified

14

Copy of the Assignment of Mortgage.

It is a

15

self-authenticating document to be admitted

16

into evidence, under 90.902.

 

17

MR. ROCK:

I have no objection to that.

18

I save my Voir Dire for Cross-Examination,

19

if it please the Court.

 

20

THE COURT: It'll be admitted as

21

Plaintiff's Exhibit 3.

22

MR. HAIDERMOTA: Thank you.

23

24

25

20

1

BY MR. HAIDERMOTA:

 

2

Q

Ms. Thompson, I've given you what's been

3

entered into evidence as Plaintiff's 3. It's the

4

Assignment of Mortgage. Who's this mortgage

5

assignment to, and from who, based on that Assignment

6

of Mortgage?

 

7

A

Transferred to Deutsche Bank National Trust

8

Company, as Trustee for Hasco Mortgage Pass-through

9

Certificate Series 2006-HE2.

10

Q

Okay.

If you go down to the third -- I'm

11

sorry, the fourth paragraph; to have and to hold.

12

Does it say the date that it was transferred over to

13

Deutsche Bank as Trustee?

14

A

The 25th of day of June, 2008.

15

Q

Okay.

I would like to back up a second,

16

Ms. Thompson. You work for Wells Fargo.

What is

17

your relationship -- what is Wells Fargo's

18

relationship with the Plaintiff in this case?

19

A

We are the servicing agent for the

20

Plaintiff.

21

MR. HAIDERMOTA: Okay. Your Honor, for

22

the record, I'm showing Defense counsel

23

what's been premarked as Plaintiff's 4.

24

MR. ROCK: May we approach?

25

THE COURT: Sure.

21

1

MR. ROCK:

I'm not sure what -- I'll

2

acknowledge that he's showing it to me. But

3

I have no idea why he's showing it to me.

4

I'm not sure whether it's a summary.

It

5

looks like it's an altered document, that

6

I'd like the Court to see.

7

MR. HAIDERMOTA: Well, your Honor, they

8

have to give my witness a chance -- or we

9

would request that you give my witness a

10

chance to authenticate this document.

11

THE COURT: Sure.

12

MR. ROCK: That's fine.

13

BY MR. HAIDERMOTA:

 

14

Q

Ms. Thompson, I'm showing you what's been

15

premarked as Plaintiff's 4. Do you recognize that

16

document?

17

A

Yes, I do.

18

Q

Okay. How do you recognize that document?

19

A

It is a screen shot from our Fidelity

20

system, our business records, which indicate that the

21

loan was acquired on November the 1st, 2006.

22

Q

Okay. Now, how is this record produced?

23

So when a loan is acquired by Wells, is it entered

24

into the system, this system?

25

A

Yes, it is.

22

1

Q

Okay.

2

MR. ROCK: Objection, your Honor.

3

Predicate. How would she know that?

4

THE COURT: Ask her questions about how

5

she would know that.

6

BY MR. HAIDERMOTA:

 

7

Q

We had discussed your position with Wells.

8

A

Yes.

9

Q

How familiar are you with the system --

10

with the Fidelity system?

11

THE COURT: Normal business practices.

12

MR. HAIDERMOTA: Business practice.

13

THE COURT: Whatever they are.

14

BY MR. HAIDERMOTA:

 

15

Q

Are you familiar with the business

16

practices of Wells Fargo?

17

A

Yes, I am.

18

Q

And how they're produced?

19

A

Yes.

20

Q

Okay.

So when a loan is acquired by

21

Wells --

22

A

Yes.

23

Q

-- how is it entered into the system?

24

A

It is entered at or near the time that the

25

loan is acquired.

 

23

1

Q

Okay.

And is it a routine practice in the

2

ordinary course of business at Wells Fargo to enter

3

in this information into the Fidelity system?

4

A

Yes, it is.

5

Q

So every time that Wells Fargo obtains a

6

loan, they do this for -- the same type of

7

information is entered into the system for every

8

loan, is that correct?

 

9

A

Correct.

10

Q

And that was done in this case, as well?

11

A

Yes, it was.

12

MR. HAIDERMOTA: Your Honor, may I have

13

one second?

14

MR. ROCK: Objection, foundation. But

15

I

16

MR. HAIDERMOTA: Your Honor, at this

17

time we seek to introduce Plaintiff's 4 into

18

evidence.

19

MR. ROCK:

Your Honor, may I show the

20

document -- is this the document -- your

21

Honor, you can see from what appears to be a

22

copy of the document, that there's been some

23

redactions. There's been some overlays.

24

This is a copy --

25

THE COURT: Go ahead.

24

1

MR. ROCK: Copy of a business record,

2

perhaps, that's not been --

3

THE COURT:

Are you -- are you

4

objecting to this?

5

MR. ROCK:

Yes.

6

THE COURT: And why?

7

MR. ROCK: Lack of foundation, your

8

Honor, under the Glarum case.

9

MR. HAIDERMOTA: Your Honor.

10

MR. CONKLIN: Also, it's a summary

11

that

12

MR. ROCK:

It also appears to be a

13

summary that we were not provided with,

14

prior to trial.

15

MR. HAIDERMOTA: Well, your Honor,

16

actually, the exhibit list -- the exhibit

17

and witness list does indicate that we were

18

going to provide a document that shows that

19

the Plaintiff had possession of the note,

20

prior to the complaint being filed. This is

21

that document. And, your Honor, she

22

explained the system that it's entered in

23

to.

24

Based on the Glarum case, she is to

25

indicate whether or not it's done near or at

25

1

the time of the event. She's also supposed

2

to inform that it was done -- that it was

3

kept in the ordinary course of Wells Fargo's

4

regularly conducted business. And that was

5

the regular practice of Wells Fargo to keep

6

such a record. And she's testified to all

7

of that.

 

8

MR. ROCK:

May I Voir Dire the client?

9

THE COURT: Sure. The witness.

10

MR. ROCK: Or the witness.

11

VOIR DIRE EXAMINATION

12

BY MR. ROCK:

 

13

Q

Ma'am, when you started working for them,

14

you were in Collections?

 

15

A

Yes, I was.

16

Q

Okay. So you didn't know what the practice

17

was in 2006, did you?

 

18

A

In 2006, no.

19

Q

So you didn't know that that was in the

20

account until sometime after it was in default?

21

A

Repeat your question.

22

Q

Isn't it true that you didn't know that it

23

was in the system until sometime after default?

24

A

Did I know that the loan was in the

25

system --

26

1

Q

Yes, ma'am.

2

A

-- until sometime after the default?

3

Q

Yes, ma'am.

4

A

I did not review the account until it

5

was

6

Q

Okay.

How do you know that that was

7

contemporary -- contemporarily entered into the

8

business system, back in 2006?

9

A

In 2006, I was not working for the company.

10

MR. HAIDERMOTA: Okay. Your Honor,

11

there's no requirement that she has to be

12

working for the company at the time that the

13

record was produced.

She has to be able to

14

testify that she has knowledge of how that

15

record was produced, based on her knowledge

16

of the business procedures of Wells Fargo.

17

MR. ROCK: She's testifying as to what

18

the business procedures are today, not what

19

the business procedures were in 2006.

20

THE COURT: Is that correct?

21

THE WITNESS:

In 2006, I was not

22

working for the company. Now, it is Wells

23

Fargo's business practices to enter

24

information at or near the time that it has

25

been received.

 

27

1

THE COURT: Now, right?

2

THE WITNESS: Correct.

3

THE COURT:

So you don't know what the

4

business practices were, five years ago? Or

5

do you know?

 

6

THE WITNESS: That was six years ago.

7

THE COURT: Six years ago.

8

THE WITNESS:

No.

I was not working

9

for the company.

And I do not know.

10

MR. ROCK: Therefore, I think my

11

objection

 

12

EXAMINATION

13

BY MR. HAIDERMOTA:

14

Q

Were you trained on Wells Fargo's business

15

practices?

16

A

Yes.

17

Q

And how they were kept and produced?

18

A

Yes.

19

Q

Okay. And to your knowledge, has that

20

changed at all --

 

21

A

No.

22

Q

-- since 2006?

 

23

A

No.

24

MR. ROCK: Objection. I don't think

25

she knew what it was in 2006.

28

1

MR. HAIDERMOTA: Your Honor --

2

MR. ROCK: She hasn't even testified

3

that that was the Fidelity system.

4

THE COURT: Well, how would she know?

5

I'm just curious. How would she know about

6

a system that she was not even remotely or

7

possibly related to in 2006, if she was

8

working in Collections?

9

MR. HAIDERMOTA: Your Honor, I believe

10

the intent of the rule, though, is that they

11

are -- the business record custodian should

12

have knowledge of how the business records

13

are kept, not that they were working at the

14

company at the time the business record was

15

produced.

16

The Fidelity system -- it's just to

17

show that the system that she is reviewing

18

is accurate. Her testimony is that the

19

system, the Fidelity system, information is

20

entered into the system at or near the time

21

of the event.

She --

22

MR. ROCK: Objection. He's testifying.

23

She hasn't said that. I think what your

24

Honor --

25

MR. HAIDERMOTA: She has said that.

29

1

MR. ROCK: -- has indicated, or heard

 

2

her say, she's familiar with the business

3

practices today, or at least since she works

4

there, which I'm not sure exactly what that

5

date was, or even in the Collections --

 

6

THE COURT: What, nine months ago, or

7

something? Is that --

 

8

THE WITNESS:

No.

I've been with the

 

9

company for five years.

 

10

THE COURT:

Five years. But you

 

11

started off in Collections, right?

12

THE WITNESS: Right. Correct.

13

THE COURT:

And then you got a

14

promotion?

15

THE WITNESS: Correct.

 

16

THE COURT: And that promotion took

 

17

place when, approximately?

 

18

THE WITNESS: Approximately three years

19

ago.

20

THE COURT:

Three years ago. Okay.

So

21

you would not have known what the practices

22

were, based on your experiences in

 

23

Collections --

24

THE WITNESS:

No.

No.

In 2006, I

25

wasn't with the company.

30

1

THE COURT: Period?

2

THE WITNESS: Period.

3

THE COURT: Okay.

4

MR. HAIDERMOTA:

Your Honor, if I

5

MR. McDONALD: May I inquire, your

6

Honor?

7

MR. CONKLIN: Objection, your Honor,

8

unless we're going to make this a

9

free-for-all. Then I guess I'm going to

10

inquire, as well.

11

MR. McDONALD: I already thought it was

12

a free-for-all.

13

THE COURT:

No, it's not.

It's not.

14

Why don't you talk to him.

I mean, I

15

don't --

16

MR. McDONALD: That's fine.

17

THE COURT: He's up asking the witness

18

questions. If you want to talk with him,

19

fine.

I'll give you a chance to talk with

20

him.

But changing in the middle of -- no.

21

It's prejudicial, in the sense that it's a

22

little unusual.

23

MR. HAIDERMOTA:

Your Honor, if I may

24

ask a few more questions of Ms. Thompson?

25

31

1

BY MR. HAIDERMOTA:

 

2

Q

Ms. Thompson --

3

MR. HAIDERMOTA: Your Honor, may I --

4

THE COURT: Yes.

5

6

BY MR. HAIDERMOTA:

 

7

Q

Ms. Thompson, let's go back a little bit to

8

your training. You were trained on this Fidelity

9

system when you first -- when were you trained on

10

this Fidelity system?

 

11

A

When I initially started with the company

12

in 2007.

13

Q

In 2007, okay.

Tell us a little bit about

14

that training.

15

A

Specifically, what would you like to know?

16

Q

About the Fidelity system; how documents

17

are produced and entered into the system.

18

A

Specifically, in Collections, payments are

19

entered when we receive them. Any notations are made

20

to the account when we speak to the customer. We

21

were taught

 

22

Q

So are you taught that information is

23

entered into this Fidelity system, at or near the

24

time that an event would take place; such as a

25

payment made, or a document received?

32

1

A

Yes.

Yes.

2

Q

So your regular business practice is to

3

make sure that this information is entered into the

4

system, the Fidelity system, at or near that time?

5

MR. ROCK: Objection, leading.

6

THE WITNESS: That is correct.

7

THE COURT:

Okay. Don't lead.

8

BY MR. HAIDERMOTA:

9

Q

Now, Ms. Thompson, with that training, does

10

that also include the other areas of the Fidelity

11

system? Explain that. Not only in Collections, but

12

is that the same procedure for --

13

MR. ROCK: Objection. Your Honor, it's

14

not been shown that she's had any training,

15

or that she's competent to testify to what

16

he's asking.

 

17

THE COURT:

Okay. I'll sustain the

18

objection, at this point. She's specified,

19

as I understand it, I'm not trying to put

20

words in her mouth, that that's what they

21

did in Collections.

 

22

MR. HAIDERMOTA: Right.

23

THE COURT:

But she has no knowledge as

24

to what they did with mortgage activity.

25

MR. HAIDERMOTA: Okay. Your Honor, may

33

1

I inquire?

2

THE COURT:

If she -- I don't know

3

whether she has had it or not.

4

MR. HAIDERMOTA: Okay. I understand.

5

BY MR. HAIDERMOTA:

 

6

Q

Ms. Thompson, as to servicing mortgages,

7

what is your training as to the document procedures

8

for servicing mortgages?

9

A

Specifically?

10

Q

How things are kept in the Fidelity

11

system; how documents are kept, or information

12

entered in.

 

13

A

As far as other departments go?

14

Q

As long as you've been with -- in your

15

current position.

 

16

A

I guess I don't understand your question.

17

Q

Your current position is --

18

A

The system -- go ahead.

19

Q

Your current position is?

20

A

I'm Vice president of loan documentation.

21

Q

Okay. And what does that entail?

22

A

We work with local counsel in different

23

state on contested and non-contested foreclosures.

24

Q

Do you review documents?

25

A

We do.

34

1

Q

Okay. Are you familiar with the business

2

records of how these records are kept, in regards to

3

mortgage servicing?

 

4

A

Yes.

5

Q

Okay.

Are you -- and tell us about that

6

procedure.

7

A

As far as mortgage servicing?

8

Q

Yes.

9

A

We send out correspondence to the

10

customer --

 

11

MR. ROCK: Objection, your Honor.

12

We're going back to 2007. And this account

13

was supposedly acquired, theoretically put

14

into some computer, in 2006, that she

15

doesn't have any knowledge of. She didn't

16

know what the system was.

 

17

MR. HAIDERMOTA: Well, your Honor, she

18

did indicate that the system was the

19

Fidelity system.

 

20

THE COURT:

Okay.

What she, I think,

21

testi -- what I understand her testimony to

22

be so far, is that she understands the

23

Fidelity system, as it relates to, I guess,

24

mortgage foreclosures and mortgage

25

information, as of a date after 2006. But

35

1

not before 2006.

2

MR. HAIDERMOTA:

That is -- that is

3

correct, your Honor.

4

THE COURT: That's correct. All right.

5

MR. HAIDERMOTA: But, your Honor --

6

THE COURT:

So what we need -- if she's

7

not -- if she can't testify to it, she can't

8

testify to it.

She doesn't know -- is there

9

any way for her to say how she would know

10

what the system -- how they were operating

11

it, at the time that this loan was acquired?

12

MR. HAIDERMOTA: Your Honor, if I could

13

ask some more questions. Just to clarify,

14

your Honor, I don't believe the rule or the

15

case law requires that the individual who's

16

testifying as to the business records had to

17

have been working for the company at the

18

time that the record was produced, or

19

entered into the system.

20

The case law indicates that they

21

have to -- that the witness should be able

22

to testify as to whether or not this

23

event -- I mean, the event was recorded at

24

or near the time that -- for instance, in

25

this case, they acquired the loan. Also --

36

1

THE COURT: How would she know that?

2

I'm just curious.

3

MR. HAIDERMOTA: Your Honor, that's

4

what I was trying to go into; into her

5