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 Plaintiff, vs. CASE NO: 29-2008-CA-016042 DIVISION: C RESIDENTIAL FORECLOSURE

SERGEY MISCHENKO, GALINA MISCHENKO, et al, Defendants. : : : : : : : : : : : : : : : : : : : : : : : : : : :

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 VANESSA DURHAM-ANDREW NOTARY PUBLIC STATE OF FLORIDA AT LARGE

REPORTER:

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

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: 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 * ALSO PRESENT: * * *

For the Defendants:

SERGEY MISCHENKO GALINA MISCHENKO * * *

E Plaintiff's Exhibit Nos. 1

S Marked for Identification 18

Description

Loan note

(Exhibit 2 introduced, however, never identified) 3 4 5 6A & B 7 8 Assignment of Mortgage Screen shot from Fidelity system Composite of Demand Letters Payment history Copy of mortgage note image Screen shot image report * * * * 20 38 75 79 65 65

1 2 3 4 5 6 7

X Page

Opening Statement by Mr. Haidermota . . . . . Opening Statement by Mr. Rock . . . . . . . . * * * *

6 9

Direct Examination of Megan Thompson by Mr. Haidermota . . . . . . . . . . . . . . Voir Dire Examination by Mr. Rock . . . . . .

13 25 27 64 66 69 71 75 78

8 Examination resumed by Mr. Haidermota . . . . 9 Examination by Mr. McDonald . . . . . . . . . 10 Voir Dire Examination by Mr. Rock . . . . . . 11 Examination resumed by Mr. Haidermota . . . . 12 Further Voir Dire Examination by Mr. Rock . . 13 Examination resumed by Mr. Haidermota . . . . 14 Further Voir Dire Examination by Mr. Rock . . 15 Cross-Examination by Mr. Rock 16 Redirect Examination by Mr. Haidermota . . . . 91 17 Recross-Examination by Mr. Rock . . . . . . . 18 19 20 21 22 23 24 25 93 . . . . . . . . 84

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P R O C E E D I N G S THE BAILIFF: 08-016042. The next case is

Deutsche Bank vs. Sergey

Mischenko and Galina Mischenko. MR. HAIDERMOTA: Your Honor, Yusuf

Haidermota, on behalf of the Plaintiff. MR. ROCK: Daniel Rock, Leslie Conklin

and Brendan Riley, on behalf of the Defendants. THE COURT: MR. CONKLIN: Okay. And, your Honor, I've I have

filled a Notice of Appearance today. a time stamp in.

So the original is with That is a copy, with

the Clerk, Your Honor. the Clerk's stamp on it. THE COURT: Okay.

So it's set for

trial, is that correct? MR. HAIDERMOTA: Yes, your Honor. And

we're ready to proceed. THE COURT: All right. And we can do

it within an hour? MR. HAIDERMOTA: THE COURT: Yes, your Honor. All

All right.

parties -- anybody expecting any witnesses that are going to testify?

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MR. HAIDERMOTA: witness. THE COURT: Okay.

Your Honor, I have one

Anybody expected to

testify, please stand and raise your right hand. You-all swear, or affirm, that any

testimony or statements you give today will be the truth, so help you God. MS. THOMPSON: MR. McDONALD: THE COURT: Yes. If I might, your Honor.

Yes. Robert McDonald. I'm

MR. McDONALD:

also here for the Plaintiff.

I don't know But

whether the Court has any other cases.

the Plaintiff would certainly be willing to pass this -THE COURT: I think this is it, right,

for the 1:30 docket? THE CLERK: THE COURT: There's one. We've got one more. Do you

want to call that one now? THE BAILIFF: Yes. Can we, please.

(At this time a short recess was held and resumed after completion of other matters set on the Court's docket) THE COURT: All right. Back to the

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matter at hand.

The Plaintiff, would you

mind giving me an Opening Statement of what you expect the evidence to show. you can respond. MR. HAIDERMOTA: Yes, your Honor. May And then

I obtain the originals, which have been filed with the Court? THE COURT: THE CLERK: Is this the file here? I don't think that's it. Thank you, Your Honor. Yes, sir.

MR. HAIDERMOTA: THE COURT:

All right.

MR. HAIDERMOTA: Court. THE COURT: Yes.

May it please the

OPENING STATEMENT MR. HAIDERMOTA: Your Honor, today The

we're here on a foreclosure action.

Defendants in this case, Sergey Mischenko and Galina Mischenko, entered into an agreement and signed a note and mortgage on August 25, 2006. They signed this note and

mortgage, promising to pay back a loan to purchase a property at 4615 Scott Road in Lutz, Florida, 33558. Your Honor, if you would look at

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the -- you will see that in the Answer that was filed last -- recently, by opposing counsel, they have admitted to the fact that they signed the note and mortgage. Your

Honor, the evidence will show that on May 18, 2008, my client sent out a Demand Letter, or an Acceleration Letter, to the Mischenkos. In that Demand Letter, they They

told them that they were in default.

told them how much they were in default. And they told them how to cure the loan, and bring it back to current. The evidence will show that it was sent out on or about the 18th, no later than the 19th. They told them that they had 30 days And

to cure this loan, which was June 17th.

the evidence will show that from the 19th, through the 17th of June, is exactly 30 days. Your Honor, the evidence will also show that after the complaint was filed in this case, there was a HAMP Modification, a Trial HAMP Modification. MR. ROCK: Objection, Your Honor. Any

evidence of settlement --

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THE COURT: MR. ROCK: inadmissible. THE COURT:

Sure. -- during litigation is

All right.

I don't think

you can get into that. MR. HAIDERMOTA: Honor. THE COURT: is sustained. MR. HAIDERMOTA: Your Honor, the All right. The objection That's fine, your

evidence will also show that they have not cured this loan, since the default letter has been sent on May 18, 2008. And that for

over the past four years, my client has been paying the taxes, the insurance. And they

have not received a mortgage payment from the Defendants in this case. You'll also see evidence that we were in possession of the note, prior to the complaint being filed. We had standing to

bring this action, that we've provided them with a Demand Letter. has not been cured. MR. ROCK: THE COURT: And that this loan Thank you.

Thank you, Your Honor. Yes.

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MR. ROCK: THE COURT:

May it please the Court. Yes, sir.

OPENING STATEMENT MR. ROCK: Your Honor, I secured this

case at the request of Bay Area Legal Services to take this case over, because they don't have sufficient staff to represent indigent people. The Amended Answer -THE COURT: Let me just tell you. I

used to work for them a long time ago, 40 years ago. But -- just so you know. Okay. Just so you know. We have no objection,

MR. ROCK: THE COURT:

MR. HAIDERMOTA: your Honor. MR. CONKLIN: THE COURT: MR. ROCK: THE COURT:

No objection, Your Honor. Okay.

I apologize. I'm sorry.

I -I said 40 years

It was 1970, so that's -- yeah. Okay. And I did not

That's 40, plus. MR. ROCK:

All right.

know that, Your Honor. THE COURT: Okay.

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MR. ROCK:

So what's interesting is, I

recall -- I don't -- as I recall the Answer that I filed on behalf of my clients, they agree that they executed a note and a mortgage. seen it. But as of this date, they haven't I'm sure -- they're here, and

they're going to take a look at it and testify whether it's their signature or not. The -- and it's probably a bit unusual for Defendants to come in to admit or not admit it's their signature, for this particular document. What's interesting -- in this particular case, there's two issues; standing, were they the owner of a note and mortgage on the date the lawsuit was filed; were they in possession of the original note, which the complaint says was lost or destroyed at the time of the filing of the complaint. That count, as I stand here Probably, perhaps the

today, still stands. linchpin --

May I approach, Your Honor? THE COURT: MR. ROCK: Yes. I've done a Memorandum of

11

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Law on the issue of this document that was referred to; the notice he referred to as being dated May 18, 2008. Well, actually,

there's a previous notice from March 31, 2008 to Ms. Mischenko. And another notice

to Sergey Mischenkos on the 18th of May. What's interesting is, how they -- I don't know whether they're going to say which day it went out. Because I believe this

information was outsourced by another company, these notices. However, what I'm going to ask your Honor to do, is to carefully read those notices. They are fatally defective.

Because they suggest that the Mischenkos, my clients, had an obligation, if they wanted to contest the foreclosure claim, that they would have to file a lawsuit rather than the agreement, Paragraph 22 -- which I believe your Honor had a case earlier this week on this very paragraph. And Mr. Conklin, who has successfully -- been successful in that respect, I believe it was the Wink case, out of St. Petersburg -- has volunteered to

12

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assist, should the Court have any additional questions about Judge Williams' ruling or Judge Schafer's ruling, or even Judge Tepper's ruling. Those cases are attached

to the memorandum. The question is, is a condition precedent, a condition precedent, a condition precedent. Will the notice that

was sent out to the Mischenkos, if it's fatally defective -MR. HAIDERMOTA: Argument. Your Honor, objection. He's

This is Opening Statement.

supposed to tell -- explain what the evidence will show, not make arguments to the Court, as the trier of fact. MR. ROCK: Your Honor. THE COURT: MR. ROCK: The objection is overruled. Your Honor, I think the I was trying to do that,

ultimate question for you to decide, if they can prove that they established standing, is that, is this notice defective, or do they have to go back and start over with an appropriate, correct notice, that doesn't tell the property owners that they have to

13

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file a lawsuit if they disagree with the claims of the Plaintiff. THE COURT: Okay. Your Honor, the Thank you.

MR. HAIDERMOTA:

Plaintiff calls their first witness, Megan Thompson. THE COURT: Ms. Thompson. DIRECT EXAMINATION BY MR. HAIDERMOTA: Q A Q record. A It's Megan Thompson. Megan, M-E-G-A-N, Good afternoon. Good afternoon. Could you please state your name, for the Have a seat right here,

Thompson, T-H-O-M-P-S-O-N. Q Who do you currently work for,

Ms. Thompson? A Wells Fargo Bank, N.A., doing business as

America's Servicing Company. Q Fargo? A Q Approximately five years. And what is your current position with And how long have you worked for Wells

Wells Fargo?

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A Q A months. Q

Vice president of loan documentation. How long have you been in that position? I've been in this position, roughly, nine

Okay.

And prior to being in this position,

what were you doing for Wells Fargo? A Q A Q I was an underwriter. And prior to being an underwriter. I worked in Collections. Collections. Okay. What are your job

responsibilities and duties, in your current position? A Currently, we work with local foreclosure

counsel on contested and non-contested foreclosure cases. Q Ms. Thompson, are you familiar with how

Wells Fargo keeps their business records? A Q Yes. Have you reviewed the business records, in

regards to this foreclosure action? A Q Yes, I have. Are you prepared to testify as to those

documents today? A Q Yes. What is the system that is used by Wells

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Fargo to keep their business records? A Fidelity. The system of record that I

reviewed today is Fidelity. Q A And explain what Fidelity is. Essentially, it's a secure database that

houses all of our business records. MR. HAIDERMOTA: Okay. Your Honor, for

the record, I'm showing Defense counsel what has been premarked as Plaintiff's 1. MR. ROCK: to my clients? THE COURT: Sure. Your clients can Your Honor, may I show this

pull up a chair, if they want to sit at the table. MR. ROCK: that. Your Honor, we could do

But it's only one or two times. THE COURT: All right. That's okay.

MR. HAIDERMOTA:

Your Honor, I'm also

going to show them what's been premarked as Plaintiff's 2. THE COURT: Okay. Mr. Rock.

MR. HAIDERMOTA: MR. ROCK:

Your Honor, other than the

fact that they are acknowledging those signatures on that document are their's,

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however when they signed it there was no endorsement, as appears on that original. What they signed, appears on the copy of the exhibit attached to the complaint. So

somewhere between the complaint today, there's a blank endorsement on that note. THE COURT: So their testimony is, it

was not there at the time that they signed it? MR. ROCK: be. Yes, Your Honor. It will

I mean, I'm suggesting that -THE COURT: MR. ROCK: Okay. We're not saying it was This

endorsed at the time of the filing.

appears to be the way they signed it, on that day. THE COURT: Okay. Mr. Rock, do you have

MR. HAIDERMOTA:

any objection to having these entered into evidence? MR. ROCK: Only to the extent that --

with the proviso, or the understanding, that there was no endorsement on it at the time that they signed it. And there was no

endorsement at the time the case was filed.

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MR. HAIDERMOTA: to introduce -THE COURT:

Your Honor, we seek

Will you acknowledge that? Yes, your Honor.

MR. HAIDERMOTA: THE COURT: Okay.

MR. McDONALD:

No. I'm sorry.

MR. HAIDERMOTA: MR. McDONALD:

If I might, your Honor. We don't

Counsel has raised two issues.

debate that when the original note was signed at the closing of the transaction, that there was no endorsement, for purposes of Chapter 673. We do not agree to his

additional statement, that there was no endorsement at the time the action was filed. We're going to present the evidence as to that, your Honor; that the endorsement was made between the time of execution by the makers, and the filing of the lawsuit, which would be the normal course of business. MR. ROCK: It could be, your Honor. I

just didn't want to stipulate that we were acknowledging that that was --

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THE COURT: MR. ROCK:

All right. That endorsement was there,

prior to filing. THE COURT: MR. ROCK: Okay. It did not appear to be,

according to the exhibits attached to the complaint. MR. HAIDERMOTA: Your Honor, at this

time we seek to enter -- introduce into evidence Exhibits 1 and 2. THE COURT: MR. ROCK: THE COURT: BY MR. HAIDERMOTA: Q Ma'am, I'm showing you what's been admitted Do you They will be admitted. Yes, Your Honor. Do you want to mark them?

as Exhibit 1, Plaintiff's Exhibit 1. recognize that document as the note? A Q A Q Yes. Okay.

Who's the originator of that loan?

WMC Mortgage Corporation. Okay. And is there an endorsement from WMC

Mortgage Corp? A Yes. There's an endorsement from WMC

Mortgage Corp.; the blank. Q The blank.

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A Q

Uh-huh. Okay. Thank you. I'm sorry, your Honor. I

MR. ROCK:

didn't catch the last remark. endorsement from? MR. HAIDERMOTA: the blank. THE COURT: MR. ROCK: THE COURT: here. MR. HAIDERMOTA:

There's an

WMC Mortgage Corp.;

The blank endorsement. Blank. I'm sorry.

There's nobody named blank

Your Honor, at this

time, I'm seeking to introduce a Certified Copy of the Assignment of Mortgage. It is a

self-authenticating document to be admitted into evidence, under 90.902. MR. ROCK: I have no objection to that.

I save my Voir Dire for Cross-Examination, if it please the Court. THE COURT: It'll be admitted as

Plaintiff's Exhibit 3. MR. HAIDERMOTA: Thank you.

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BY MR. HAIDERMOTA: Q Ms. Thompson, I've given you what's been It's the

entered into evidence as Plaintiff's 3. Assignment of Mortgage.

Who's this mortgage

assignment to, and from who, based on that Assignment of Mortgage? A Transferred to Deutsche Bank National Trust

Company, as Trustee for Hasco Mortgage Pass-through Certificate Series 2006-HE2. Q Okay. If you go down to the third -- I'm

sorry, the fourth paragraph; to have and to hold. Does it say the date that it was transferred over to Deutsche Bank as Trustee? A Q The 25th of day of June, 2008. Okay. I would like to back up a second, What is

Ms. Thompson.

You work for Wells Fargo.

your relationship -- what is Wells Fargo's relationship with the Plaintiff in this case? A Plaintiff. MR. HAIDERMOTA: Okay. Your Honor, for We are the servicing agent for the

the record, I'm showing Defense counsel what's been premarked as Plaintiff's 4. MR. ROCK: THE COURT: May we approach? Sure.

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MR. ROCK:

I'm not sure what -- I'll But

acknowledge that he's showing it to me. I have no idea why he's showing it to me. I'm not sure whether it's a summary. It

looks like it's an altered document, that I'd like the Court to see. MR. HAIDERMOTA: Well, your Honor, they

have to give my witness a chance -- or we would request that you give my witness a chance to authenticate this document. THE COURT: MR. ROCK: BY MR. HAIDERMOTA: Q Ms. Thompson, I'm showing you what's been Do you recognize that Sure. That's fine.

premarked as Plaintiff's 4. document? A Q A Yes, I do. Okay.

How do you recognize that document?

It is a screen shot from our Fidelity

system, our business records, which indicate that the loan was acquired on November the 1st, 2006. Q Okay. Now, how is this record produced?

So when a loan is acquired by Wells, is it entered into the system, this system? A Yes, it is.

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Okay. MR. ROCK: Objection, your Honor.

Predicate.

How would she know that? Ask her questions about how

THE COURT:

she would know that. BY MR. HAIDERMOTA: Q A Q We had discussed your position with Wells. Yes. How familiar are you with the system --

with the Fidelity system? THE COURT: Normal business practices. Business practice.

MR. HAIDERMOTA: THE COURT: BY MR. HAIDERMOTA: Q

Whatever they are.

Are you familiar with the business

practices of Wells Fargo? A Q A Q Wells -A Q A Yes. -- how is it entered into the system? It is entered at or near the time that the Yes, I am. And how they're produced? Yes. Okay. So when a loan is acquired by

loan is acquired.

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Okay.

And is it a routine practice in the

ordinary course of business at Wells Fargo to enter in this information into the Fidelity system? A Q Yes, it is. So every time that Wells Fargo obtains a

loan, they do this for -- the same type of information is entered into the system for every loan, is that correct? A Q A Correct. And that was done in this case, as well? Yes, it was. MR. HAIDERMOTA: one second? MR. ROCK: I ... MR. HAIDERMOTA: Your Honor, at this Objection, foundation. But Your Honor, may I have

time we seek to introduce Plaintiff's 4 into evidence. MR. ROCK: Your Honor, may I show the

document -- is this the document -- your Honor, you can see from what appears to be a copy of the document, that there's been some redactions. There's been some overlays.

This is a copy -THE COURT: Go ahead.

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MR. ROCK:

Copy of a business record,

perhaps, that's not been -THE COURT: Are you -- are you

objecting to this? MR. ROCK: THE COURT: MR. ROCK: Yes. And why? Lack of foundation, your

Honor, under the Glarum case. MR. HAIDERMOTA: MR. CONKLIN: that ... MR. ROCK: It also appears to be a Your Honor.

Also, it's a summary

summary that we were not provided with, prior to trial. MR. HAIDERMOTA: Well, your Honor,

actually, the exhibit list -- the exhibit and witness list does indicate that we were going to provide a document that shows that the Plaintiff had possession of the note, prior to the complaint being filed. that document. And, your Honor, she This is

explained the system that it's entered in to. Based on the Glarum case, she is to indicate whether or not it's done near or at

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the time of the event.

She's also supposed

to inform that it was done -- that it was kept in the ordinary course of Wells Fargo's regularly conducted business. And that was

the regular practice of Wells Fargo to keep such a record. of that. MR. ROCK: THE COURT: MR. ROCK: May I Voir Dire the client? Sure. The witness. And she's testified to all

Or the witness.

VOIR DIRE EXAMINATION BY MR. ROCK: Q Ma'am, when you started working for them,

you were in Collections? A Q Yes, I was. Okay. So you didn't know what the practice

was in 2006, did you? A Q In 2006, no. So you didn't know that that was in the

account until sometime after it was in default? A Q Repeat your question. Isn't it true that you didn't know that it

was in the system until sometime after default? A system -Did I know that the loan was in the

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Q A Q A was ... Q

Yes, ma'am. -- until sometime after the default? Yes, ma'am. I did not review the account until it

Okay.

How do you know that that was

contemporary -- contemporarily entered into the business system, back in 2006? A In 2006, I was not working for the company. MR. HAIDERMOTA: Okay. Your Honor,

there's no requirement that she has to be working for the company at the time that the record was produced. She has to be able to

testify that she has knowledge of how that record was produced, based on her knowledge of the business procedures of Wells Fargo. MR. ROCK: She's testifying as to what

the business procedures are today, not what the business procedures were in 2006. THE COURT: THE WITNESS: Is that correct? In 2006, I was not Now, it is Wells

working for the company.

Fargo's business practices to enter information at or near the time that it has been received.

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THE COURT: THE WITNESS: THE COURT:

Now, right? Correct. So you don't know what the Or

business practices were, five years ago? do you know? THE WITNESS: THE COURT: THE WITNESS: for the company. MR. ROCK: objection ... EXAMINATION BY MR. HAIDERMOTA: Q practices? A Q A Q Yes. And how they were kept and produced? Yes. Okay.

That was six years ago. Six years ago. No. I was not working

And I do not know.

Therefore, I think my

Were you trained on Wells Fargo's business

And to your knowledge, has that

changed at all -A Q A No. -- since 2006? No. MR. ROCK: Objection. I don't think

she knew what it was in 2006.

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MR. HAIDERMOTA: MR. ROCK:

Your Honor --

She hasn't even testified

that that was the Fidelity system. THE COURT: I'm just curious. Well, how would she know? How would she know about

a system that she was not even remotely or possibly related to in 2006, if she was working in Collections? MR. HAIDERMOTA: Your Honor, I believe

the intent of the rule, though, is that they are -- the business record custodian should have knowledge of how the business records are kept, not that they were working at the company at the time the business record was produced. The Fidelity system -- it's just to show that the system that she is reviewing is accurate. Her testimony is that the

system, the Fidelity system, information is entered into the system at or near the time of the event. MR. ROCK: She -Objection. He's testifying.

She hasn't said that. Honor -MR. HAIDERMOTA:

I think what your

She has said that.

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MR. ROCK:

-- has indicated, or heard

her say, she's familiar with the business practices today, or at least since she works there, which I'm not sure exactly what that date was, or even in the Collections -THE COURT: something? What, nine months ago, or

Is that -No. I've been with the

THE WITNESS:

company for five years. THE COURT: Five years. But you

started off in Collections, right? THE WITNESS: THE COURT: promotion? THE WITNESS: THE COURT: Correct. And that promotion took Right. Correct.

And then you got a

place when, approximately? THE WITNESS: Approximately three years

THE COURT:

Three years ago.

Okay.

So

you would not have known what the practices were, based on your experiences in Collections -THE WITNESS: No. No. In 2006, I

wasn't with the company.

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THE COURT: THE WITNESS: THE COURT:

Period? Period. Okay. Your Honor, if I ...

MR. HAIDERMOTA: MR. McDONALD: Honor? MR. CONKLIN:

May I inquire, your

Objection, your Honor,

unless we're going to make this a free-for-all. Then I guess I'm going to

inquire, as well. MR. McDONALD: a free-for-all. THE COURT: No, it's not. It's not. I already thought it was

Why don't you talk to him. don't -MR. McDONALD: THE COURT: questions. fine. him.

I mean, I

That's fine.

He's up asking the witness

If you want to talk with him,

I'll give you a chance to talk with But changing in the middle of -- no.

It's prejudicial, in the sense that it's a little unusual. MR. HAIDERMOTA: Your Honor, if I may

ask a few more questions of Ms. Thompson?

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BY MR. HAIDERMOTA: Q Ms. Thompson -MR. HAIDERMOTA: THE COURT: Yes. Your Honor, may I --

BY MR. HAIDERMOTA: Q Ms. Thompson, let's go back a little bit to You were trained on this Fidelity

your training.

system when you first -- when were you trained on this Fidelity system? A in 2007. Q In 2007, okay. Tell us a little bit about When I initially started with the company

that training. A Q Specifically, what would you like to know? About the Fidelity system; how documents

are produced and entered into the system. A Specifically, in Collections, payments are Any notations are made We

entered when we receive them.

to the account when we speak to the customer. were taught ... Q

So are you taught that information is

entered into this Fidelity system, at or near the time that an event would take place; such as a payment made, or a document received?

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A Q

Yes.

Yes.

So your regular business practice is to

make sure that this information is entered into the system, the Fidelity system, at or near that time? MR. ROCK: Objection, leading. That is correct. Okay. Don't lead.

THE WITNESS: THE COURT: BY MR. HAIDERMOTA: Q

Now, Ms. Thompson, with that training, does

that also include the other areas of the Fidelity system? Explain that. Not only in Collections, but

is that the same procedure for -MR. ROCK: Objection. Your Honor, it's

not been shown that she's had any training, or that she's competent to testify to what he's asking. THE COURT: Okay. I'll sustain the She's specified,

objection, at this point.

as I understand it, I'm not trying to put words in her mouth, that that's what they did in Collections. MR. HAIDERMOTA: THE COURT: Right.

But she has no knowledge as

to what they did with mortgage activity. MR. HAIDERMOTA: Okay. Your Honor, may

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I inquire? THE COURT: If she -- I don't know

whether she has had it or not. MR. HAIDERMOTA: BY MR. HAIDERMOTA: Q Ms. Thompson, as to servicing mortgages, Okay. I understand.

what is your training as to the document procedures for servicing mortgages? A Q Specifically? How things are kept in the Fidelity

system; how documents are kept, or information entered in. A Q As far as other departments go? As long as you've been with -- in your

current position. A Q A Q A Q A I guess I don't understand your question. Your current position is -The system -- go ahead. Your current position is? I'm Vice president of loan documentation. Okay. And what does that entail?

We work with local counsel in different

state on contested and non-contested foreclosures. Q A Do you review documents? We do.

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Okay.

Are you familiar with the business

records of how these records are kept, in regards to mortgage servicing? A Q procedure. A Q A As far as mortgage servicing? Yes. We send out correspondence to the Yes. Okay. Are you -- and tell us about that

customer -MR. ROCK: Objection, your Honor. And this account

We're going back to 2007.

was supposedly acquired, theoretically put into some computer, in 2006, that she doesn't have any knowledge of. know what the system was. MR. HAIDERMOTA: Well, your Honor, she She didn't

did indicate that the system was the Fidelity system. THE COURT: Okay. What she, I think,

testi -- what I understand her testimony to be so far, is that she understands the Fidelity system, as it relates to, I guess, mortgage foreclosures and mortgage information, as of a date after 2006. But

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not before 2006. MR. HAIDERMOTA: correct, your Honor. THE COURT: That's correct. All right. That is -- that is

MR. HAIDERMOTA: THE COURT:

But, your Honor --

So what we need -- if she's

not -- if she can't testify to it, she can't testify to it. She doesn't know -- is there

any way for her to say how she would know what the system -- how they were operating it, at the time that this loan was acquired? MR. HAIDERMOTA: Your Honor, if I could Just to clarify,

ask some more questions.

your Honor, I don't believe the rule or the case law requires that the individual who's testifying as to the business records had to have been working for the company at the time that the record was produced, or entered into the system. The case law indicates that they have to -- that the witness should be able to testify as to whether or not this event -- I mean, the event was recorded at or near the time that -- for instance, in this case, they acquired the loan. Also --

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THE COURT: I'm just curious.

How would she know that?

MR. HAIDERMOTA:

Your Honor, that's

what I was trying to go into; into her training in her current position. THE COURT: BY MR. HAIDERMOTA: Q Ma'am, your training in your current All right.

position, on the Fidelity system, were you trained on the use of this system? A Q Yes, I was. Okay. Explain your training as to the

Fidelity system, in your current role with Wells Fargo. A In my current role, we do review loan We also review payment

documents in Fidelity. histories. Q Right.

Are you trained, though, on how

information is entered into the system? A Q A Yes, we are. Okay. Tell us about that training.

We are trained that all departments do work

under the same -- excuse me, all departments do enter information into the system when the occurrence takes place.

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Okay.

And is this -- all this information

that's kept in the Fidelity system, is it kept in the ordinary course of Wells Fargo's business? A Q A Q It is. Is it routine for them to do this -Yes. -- on all their mortgages serviced -- on

all their mortgage loans? A Q It is. Was the Fidelity system -- was the Fidelity

system used in 2006? A Yes. MR. ROCK: Objection, predicate, How would she know

competency, capacity. that? THE WITNESS: knowledge, yes. THE COURT:

To the best of my

Based on what?

Based on?

How do you know that that's the way it operated in 2006? THE WITNESS: That's my understanding.

I mean, I'm not sure exactly how long the program has been around. But I'm not

familiar with any other programs that have been used.

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MR. ROCK: competent -THE COURT: MR. ROCK: THE COURT:

Your Honor, she's not

All right. I'm sorry. She was.

I --

Is there anything

else you can think of that you want to ask her, sir? MR. HAIDERMOTA: THE COURT: Your Honor.

It's not argument now. No, I understand. I

MR. HAIDERMOTA: understand. THE COURT:

If you don't have any more

questions in mind. MR. HAIDERMOTA: Your Honor, at this

time we seek to introduce into evidence -do you have ... THE COURT: Exhibit Number 4? Number 4, yes, your

MR. HAIDERMOTA:

Honor, which I think Defense counsel has. We seek to introduce into evidence Plaintiff's 4. MR. ROCK: Your Honor, lack of If I

foundation, lack of proper predicate.

may read briefly from the Glarum case that I quoted earlier to your Honor, which is July

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of 2011. minute.

I'll give you the cite in just a Reading from Page 2 of the opinion. Do I have a copy of it? Yes, your Honor. I've got a

THE COURT: MR. ROCK: copy. THE COURT: if I have a copy. MR. ROCK: THE COURT:

You don't have to read it,

I'm sorry. Have you furnished me with

a copy of it already? MR. ROCK: I don't know that it's in That's just the Circuit

there, your Honor. Court cases.

But you can have that one. And, your Honor, for the

MR. CONKLIN:

record, it's 83 So.3d 780, Fourth District Court Case, 2011. THE COURT: right? MR. ROCK: Yes, your Honor. And if But this is the case here,

you'd just look at the portion that I've marked on the side. It says, however,

Orsini did not know who entered the data into the computer. And he could not verify

that the entries were correct at the time they were made. To calculate Appellant's

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payments, Orsini relied in part on data retrieved from Litton Loan Servicing, the prior loan servicer. She's relying upon information -- she has no information as to the accuracy of the information, or how it got in there, was it contemporaneously entered. And she is

not -- she hasn't met the Glarum requirements. I'm not suggesting that

somebody who comes to work can't testify. But she doesn't have the information. She

hasn't been -- she's just assuming that it was there in 2006. Why not assume that it We're just

was there in 2001, or 1998.

making assumptions, that this witness is not qualified to testify to. MR. HAIDERMOTA: reply? THE COURT: Sure. Your Honor, the Glarum Your Honor, may I

MR. HAIDERMOTA:

case is a situation where the servicer was transferred to another servicer -- the servicing loan was transferred to another servicer. And the second servicer was not

familiar with the prior servicer's business

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records. This is a very different situation here. We have an employee at Wells Fargo

who's been servicing the loan since 2006, once they acquired the loan. employee of that servicer. She is an However, she

testified today that she is familiar with the Fidelity system. She is familiar

that -- based on her training, that information is entered into the system, at or near the time of the event. And that

it's the regularly -- it is the ordinary course of Wells Fargo's business to conduct such an activity. Your Honor, it would -- I don't believe it's the intent of the rule to have somebody here that was a member or employee of the servicer at the time an event actually happened. With the turnover rate, your We have an

Honor, that would be impossible.

individual here that has been trained on the Fidelity system, who understands the system, and is able to testify today that the document that we're trying to introduce into evidence is accurate. It was from a system

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that she was trained on. THE COURT: All right. Is that it?

MR. HAIDERMOTA: THE COURT: MR. ROCK:

Yes, sir.

Anything else? Your Honor, Courts don't We don't like to

like to assume things. assume that.

And she's never been -- she

didn't even testify that she was told that, which would be hearsay on hearsay. And I

think that it would be inappropriate for this Court to assume that the entries in 2006 were competently made. Or assume that

somebody put in the correct information. Without that information or that testimony from this witness, it makes the business records hearsay and inadmissible, because they're not adequately proffered before this Court. MR. HAIDERMOTA: And, your Honor, I

don't believe she was -- again, she was assuming that it was done correctly. She

was telling the Court that based on the Fidelity system that she was trained on, information that's entered into the system is accurate. And it's done by -- at or near

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the time of the event.

And it's in the

regular course of Wells Fargo's business to create such a document. MR. ROCK: It makes her a pretty good But

witness, your Honor, I've got to admit.

I would respectfully suggest that's not what she testified to. it is. MR. HAIDERMOTA: Your Honor, also, all You We She just said, I assume

of this goes to the weight of evidence. are both the trier of fact and of law.

have laid the predicate to introduce this evidence into -- introduce this document into evidence. foundation. evidence. And at the end of this case, your Honor, you can determine whether or not it's something that should be determined -whether or not the Plaintiff was in possession of the note, prior to the complaint being filed; the acquisition date. However, we have laid the predicate to have this entered into evidence. MR. ROCK: Your Honor, may I respond? She has testified, laid the

This should be admitted into

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THE COURT:

Let me just look at this.

I'm looking at a footnote on Page 3. MR. ROCK: Yes, your Honor. Your That's a

Honor, that case is different. summary judgment case.

That's not trial.

If they have somebody here that wants to testify, that's here today, to supplement her testimony to lay the predicate backward, I can't stop them, even though they're not listed on the witness list. objection. witness. That's another

They chose to produce this

And we can't -- this Court cannot

go by assumptions. THE COURT: Okay. Do you have any Do

other witnesses you intend to rely on?

you have any other witnesses here that you intend to rely on, other than Ms. Thompson? MR. McDONALD: Well, we have other

testimony that we intend to offer, your Honor, on the issue of standing. But I

would simply say that -- I'm not supposed to be ... THE COURT: Well, go ahead. I'm not supposed to be I'll just repeat, your

MR. McDONALD:

second gunning this.

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Honor.

It's my opinion, from everything

I've heard -- you'll make the ultimate decision, though. But, really, what we're

arguing over is the weight of this. The witness has testified to the foundational questions. Is it a business

record, is it -- does this business regularly produce this record, does this business -- does Wells Fargo engage in this business, the servicing of the loans. And

in engaging in the servicing of the loans, does it acquire this data. And in acquiring

this data, then is it entered into its system. And then, does it regularly produce the record. And is it a regular business That gets

operation to produce the record. you around the hearsay.

Those elements have

been -- the facts for each of those foundational elements have been produced. So the Court takes the document into evidence. Now, at the end of the case, we all argue to you over the weight of that evidence and what it means. And you have

46

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the right to accept it or reject it.

But

it's not the weight of the evidence that goes to the admissibility. It's whether the

document has been authenticated and whether the document is relevant. And if it meets those two requirements, it goes into evidence. And then we take it

up at the end of the case. MR. ROCK: Your Honor, this isn't being

introduced as opinion testimony, where we weigh the expert's opinion. This is a

factual, live witness, that has basic requirements to say, I am testifying that on this particular day I knew that it was accurate when it was put in, it was put in at or near the time that it was put into the computer. She hasn't even testified that she's familiar with who puts in, or who did put it in way back then. THE COURT: That's all. All right. Your Honor, all I have

MR. McDONALD:

to say is, the case law -- I'm sorry, I don't have it in front of me. is absolutely clear. The case law

You don't need to know

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who put it in, and you don't need to know exactly how it was put in. They just need

to know the procedure; that it goes in -THE COURT: But she can't testify as to

what the procedure was in 2006, can she? MR. McDONALD: What she's testified to,

your Honor, for the foundational aspect of it, is that she's trained on this system, that this system maintains the data. THE COURT: She can't -- she can't

testify that this is the same -- I mean, can she testify that this is the same system, that the same process was being used in 2006? MR. McDONALD: THE COURT: question. MR. McDONALD: Your Honor, if I might, When she --

I'm asking you that

I would submit to you, the system, the computer system, itself, the software is irrelevant. Software changes. We're And

talking about the business procedure.

what she testified to, is, as far back as when she started her employment in 2007, is, they were using this Fidelity software and

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that the way that information was entered into it was the same across the company. And she's testified that for her training for her position now, that she was trained that they use the Fidelity software and that the entries into it were the same. Now, the issue is -- and it's her understanding from her employment, that these procedures that were used at the time when she went to work there, are the same procedures that had been used prior to her working there. So the issue is, simply,

were those the proced -- were there procedures in place for the entry of the data. It doesn't matter whether it was

Fidelity, or A, B, C software, or X, Y, Z software. out. The procedure was, that she's been trained now. The procedure was, our data is That's what's pulling the data

entered on or about the time of the occurrence. And that's what the statute The witness

requires the foundation to be.

simply has to testify that the procedure was -- that was the procedure. And that's

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what she was trained on. to be there.

She doesn't have

And when Mr. Rock says, well, she doesn't know the person, or she doesn't know that that's exactly how it was done on that day. That's not the requirement of the case He can argue that to

law or the statute.

the weight of the evidence. The Glarum case says, your Honor, that the requirement to be met under 90.803 is a very low threshold. THE COURT: side? MR. ROCK: Your Honor, other than the Anything else from your

fact that if she was able to identify from the document who put it in, what date it actually went in, which she can't do. It's

just -- the foundation has not been properly met. And I submit it's not a question of She didn't even -- I I'll be

expert or opinion.

don't want to argue any longer.

suggesting an answer that I think would be wrong for me to do. THE COURT: I'm going to sustain the

objection to the admissibility of this

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document at this time. MR. HAIDERMOTA: Your Honor, I'm

showing Defense counsel what has been premarked as Plaintiff's 6. Your Honor, I'm

actually going to show Defense counsel what's been previously marked as Plaintiff's 7. This is a copy of the note. MR. ROCK: Your Honor, the objection

that I have to Plaintiff's 7, is that it is different from the exhibit attached to the complaint. And if I agree to allow that

copy in evidence, this one is different. This one has a blank endorsement on it. When the case was filed, if you look -MR. HAIDERMOTA: Your Honor, I would And

ask to be able to lay the foundation. then he can object at that time. MR. ROCK:

I'm sorry, I thought you

were trying to introduce it into evidence. Or are you just going to show it to her? MR. HAIDERMOTA: it into evidence. MR. ROCK: to object to. THE COURT: Well, what is it? Well, that's what I'm trying I'm going to introduce

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MR. HAIDERMOTA: copy of the note. MR. CONKLIN: MR. ROCK:

Your Honor, it's a

We entered the original.

I think we entered the

original copy, subject to the objection that that's not what it looked like when the case was filed. The original note and mortgage, is that different from the original note and mortgage? MR. McDONALD: No. We didn't. I

specifically said we didn't agree on that point. MR. ROCK: Well -We agreed that the

MR. McDONALD:

endorsement was not on the note, on the date of the closing. THE COURT: Right. But we didn't agree that

MR. McDONALD:

the endorsement wasn't on the note at the time of the filing. said no. You asked for that. I

And then you said fine.

And then

we put it in evidence, with the endorsement on it. MR. ROCK: Then what's the purpose of

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the copy? MR. HAIDERMOTA: would allow -MR. McDONALD: THE COURT: May I -Go ahead. Your Honor, if you

Sure.

MR. McDONALD: Honor? BY MR. HAIDERMOTA: Q

-- have a moment, your

Ms. Thompson, I'm showing your what's been Do you recognize that

marked as Plaintiff's 7. document? A Yes.

It is a copy of the original note. Objection, your Honor. The

MR. ROCK:

question was, do you recognize the document, not what is it. THE COURT: question is ... BY MR. HAIDERMOTA: Q A Q What is it? It is a copy of the note. Thank you. You prepared for this trial Okay. But the next

before coming to court today, is that correct? A Q Yes, I did. And you -- in going through your system,

the Fidelity system, correct?

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A Q

Correct. Okay. In preparation for this trial, did

you look at your business records, as to -MR. ROCK: THE COURT: It's hearsay. What is the question? Well, I haven't asked

MR. HAIDERMOTA: it yet. THE COURT: MR. ROCK: Yeah.

I know.

That's why we're waiting. I'll give you a chance

MR. HAIDERMOTA: to object. BY MR. HAIDERMOTA: Q

Did you check the Fidelity system, prior to

this trial? A Q system? A We reviewed -- I reviewed the note, the Yes, I did. And what documents did you look at in your

mortgage, the Demand Letter, payment history. MR. HAIDERMOTA: a second? THE COURT: BY MR. HAIDERMOTA: Q Ms. Thompson, when a note is received, is Sure. Your Honor, may I have

it the business practice to scan the note --

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THE COURT: practice? BY MR. HAIDERMOTA: Q

What is the business

What is the business practice, once a note

is received by Wells Fargo? A It is uploading -- it is, excuse me,

uploaded to our imaging index system. Q A Okay. Well, explain that.

Essentially, it's a system that houses

all -- any correspondence that's sent in, either to the customer, the note, the mortgage, the origination file, et cetera. Q system? A Q A Q Yes. Okay. Yes. And was it entered into the system, prior Did you review that note? Okay. Was that note scanned into the

to July 16, 2008? A Q Yes. And that's based on your reviewing the -MR. ROCK: Objection, hearsay. Those

records which he -- he's asking her to testify to the business records. The

business records are not in evidence.

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MR. CONKLIN: MR. ROCK:

Best Evidence Rule.

The Best Evidence Rule says

the records have to come in. Marks v. Marks, 576 -THE COURT: Evidence Rule. I understand the Best You -The Best Evidence Rule

MR. McDONALD:

applies to contracts, your Honor. MR. CONKLIN: on this one. No. Your Honor, if I may

It applies to whatever the She's now testifying as

best evidence is.

to her recollection in reviewing the business records, unless she's also going to admit that business record into evidence. We've now eliminated the whole reason for the business records exceptions to hearsay. And that is, it's reliability. She's now reviewing documents which we can't Cross-Examine from, because she's now testifying from her recollection. That's That's

why you have the Best Evidence Rule. why you have the business exception to hearsay. hearsay.

Now, she is just testifying to She's testifying, I saw the note And now she's testifying

in the record.

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when it was entered into the records. That's hearsay. Best evidence is, the record, itself. Thank you, your Honor. THE COURT: Well -Your Honor, she was

MR. HAIDERMOTA:

testifying to her personal knowledge as to reviewing that record, prior to trial today. MR. CONKLIN: Your Honor, then that

brings us up to the case of Walters vs. State Road Department. And the point is on

that, it's secretive testimony, not impervious to Cross-Examination. Because

she now gives her opinion as to what she recalls, without us being able to look at the documents for Cross-Examination purposes. As I say, this eliminates the reason for the Best Evidence Rule. This eliminates

the reason for the business records exception, when she reviews all of her business records, doesn't bring them then to trial, or they're not admitted into evidence. And now she would like to testify

as to her recollection as to those records.

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THE COURT:

All right.

Hang on.

MR. HAIDERMOTA: proceed? THE COURT: Sure.

Your Honor, may I

MR. McDONALD:

We're going to hold, on

offering that into evidence at this moment, your Honor. THE COURT: for the 3:00? THE BAILIFF: No, sir. No one has Sure. Do we have anybody

checked in with me yet. observing. THE CLERK:

Everyone here is

Well, there's going to be a

Plaintiff's attorney calling in for the motion. THE COURT: Let's take a five minute

break, because we have some other matters set. MR. ROCK: I step outside? THE COURT: recess. to. Yes. Court stands in Thank you, your Honor. May

You may step outside if you need

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(At this time a short recess was held and resumed after completion of other matters set on the Court's docket) THE BAILIFF: in session. THE COURT: All right. You may proceed, All rise. Court is back

BY MR. HAIDERMOTA: Q Ms. Thompson, I'm going to show you what

has previously been marked as Plaintiff's Exhibit 8. Do you recognize that document? A Q A Q A Yes. What is that document? It is a copy of our Imaging Index. Okay. What is an Imaging Index?

Any time correspondence is sent in, it is

placed into an Imaging Index, which is -- I see before me. Q Index? A Q Yes. Okay. Information that is sent to this Okay. Were you trained on this Imaging

Imaging Index, how are you trained that it's entered into the system? A When individuals receive it, they do input

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it when they receive it.

So at the time that it

takes place, they just scan it into the system. Q Okay. Now, is this a regular practice of

Wells Fargo to keep such an index? A Q A years ago. Q Okay. Now, are you trained that that's how Yes, it is. When were you trained on this? Specifically, roughly, maybe two or three

all information is indexed into the system? A Q Yes. And this index is kept in the ordinary

course of Wells Fargo's business? A Yes, it is. MR. HAIDERMOTA: Your Honor, at this

time, I seek to introduce into evidence Plaintiff's 8. Defense. MR. ROCK: Thank you. I'm not sure I will show it to the

which one of these -- is this all supposed to -- I'm sorry, Your Honor. related to this loan? THE WITNESS: MR. ROCK: Yes. Is this just

Or is this others?

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BY MR. HAIDERMOTA: Q A Q Is this related just to this loan? Yes, it is. Okay. So this is all the inform -- all the

documents that are imaged into this loan -- to this foreclosure action? A Correct. That is the -- that's not --

that's for that year in question. Q A It is? Uh-huh. MR. ROCK: So this is being, I'm

assuming, tendered for purpose of indicating when a Demand Letter or Default Letter went out? THE WITNESS: No. That shows when the

note was first received on the account, when it was imaged into our Imaging Index. MR. ROCK: Same objection, your Honor, This person has now

that we had previously.

testified that she had maybe two or three years training on this. And all she can

testify to is, according to a computer; that she doesn't know when it went there, or how it got in there, or who put it in there. That's when maybe they started managing or

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servicing the account. MR. HAIDERMOTA:

I don't ... Your Honor, I would

have to argue the Glarum case for you. THE COURT: Sure. Go ahead. For Defense counsel.

MR. HAIDERMOTA:

Because it makes it very clear that we don't have to tell them the exact person that entered in this information into the system. THE COURT: Right. She needs to be able

MR. HAIDERMOTA:

to testify if this information was entered in, near or at the time of the occurrence. In this case, when they received the note. And she testified as to the fact, is this kept in the ordinary course of Wells Fargo's regularly conducted business. And is it the

regular practice of Wells Fargo to make such a -- to make such a record. She testified that she -- I'm sorry, Ms. Thompson, what is the name of the system? THE WITNESS: Loan Image Viewer. MR. HAIDERMOTA: Loan Image Viewer. The name of the system is

She testified that she was trained on this

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system.

She was trained that information

put into this system, is done at or near the time of the event. In this case, when Wells And it's done in

Fargo obtained the note.

the ordinary course of Wells Fargo. Based on the law and based on the Rules of Evidence, we have laid the foundation to have this piece of evidence entered -- I'm sorry. This document entered into evidence. Is this a summary? Is it a summary? A summary of

MR. ROCK:

THE WITNESS: MR. ROCK: the entries. THE WITNESS:

Yes, ma'am.

Those are the exact

entries that were put into Loan Image Viewer. MR. HAIDERMOTA: Your Honor, opposing

counsel was arguing about how they didn't know where the copy of the note came from. We are providing evidence as to -MR. ROCK: Your Honor, this talks about That

a system, an accounting system.

doesn't tell us where the original note was. It just says, according to our business records that I know, have some knowledge

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about, 2010 or 2011, as the case may be. we assume back again, one could make that leap of faith.

If

However, the copy of the attachment to the original complaint had no endorsement. So they've entered -- I'd ask the Court -I'll wait for my time. But to take judicial

notice of the copy of the note that did not have an endorsement. MR. HAIDERMOTA: Your Honor, the

purpose of this being entered in, is to show when the note was imaged into the system. MR. CONKLIN: THE COURT: the file? MR. HAIDERMOTA: Your Honor, the note Which note? The one that's attached to

that is in reference to this foreclosure. MR. McDONALD: know I'm not ... THE COURT: You're up. Go ahead. Go ahead. He can become Let's do this. Again, I

You may as well.

second chair.

64

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 note? BY MR. McDONALD: Q marked --

DIRECT EXAMINATION

Ma'am, you have been shown what was

MR. McDONALD:

Where is the copy of the

Do you have the copy? THE WITNESS: THE COURT: I gave it back to you. I think this is the

original. MR. McDONALD: BY MR. McDONALD: Q Ma'am, the original promissory note that's I was looking for that.

been received in evidence. A Q imaged? A Q Yes, it is. And it's imaged into the system that you've Yes. When that is received by Wells Fargo, is it

given us the name of? A Q Correct. And then that -- so you then have in the

system a copy of the note, as it -- of the original note, as it was received by Wells Fargo? A Q Correct. And that image of the original note that's

65

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imaged into the system, then when this report is run, which is the Loan Image Viewer Report. A Q Correct. When this report is run, it shows the date

that the original was imaged into the system? A Q That is correct. Okay. Now, you were shown a copy of You were shown a copy

Exhibit 7 for identification. of a note.

Is that a copy of the note, as it's

contained in the imaging system -A Q A Q Yes, it is. -- of Wells Fargo? Yes, it is. Okay. So that would be a copy of the

original that was imaged into the system? A That is correct. MR. McDONALD: All right. Now, on that

basis, your Honor, we would offer Plaintiff's Exhibit 7, which is a copy of the original note that was imaged into the system. And then Plaintiff's Exhibit 8,

which is a report. BY MR. McDONALD: Q This is a report that is generated by your

computer system?

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It is a screen shot, an actual screen shot

of the system, the Imaging Index, itself. MR. McDONALD: Okay. We would then

offer Plaintiff's Exhibit 8 as a business record, relating to the imaging of the original promissory note, your Honor. Now, have I made it a little clearer? I hope. MR. ROCK: THE COURT: Some Voir Dire. Okay.

VOIR DIRE EXAMINATION BY MR. ROCK: Q When did you secure this; Number 8?

This -- I'll call it a summary, an index, whatever you call it. A Q When did we secure it? When did you -- this was printed out on

6/4/12, is that accurate, ma'am? A Q This is when it was printed, yes. All right. Today is the 14th. Today is

the first day that I'm being shown it.

That's not

within 10 days prior to trial, is it, ma'am? A No. MR. ROCK: I'd move to not have it It hasn't been

admitted, your Honor.

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provided -THE COURT: objection? MR. ROCK: Well, your Honor -- I have Is that your only

another question. BY MR. ROCK: Q How do you -- how does this -- whatever Is there a

your testimony is, link into that copy?

transactional, corresponding number; Image 2000-99, Image 2000-99? Or are you just, again, telling me

what you think it is, based on your training? A No. I know what copy of the note is, and I highlighted

which line item it is listed as. those. Q A

Well, where is it highlighted? The copy of the note was first received

October the 27th. Q A According to this report? Correct. That copy, upon my review, in

preparation for this trial, that line item was shown as well. Q Where is the number or corresponding thing

would connect this to that, other than you? A There is no corresponding number. MR. ROCK: Your Honor, I ask that it

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not be admitted, because it wasn't provided to counsel prior to. Your Honor said 10

days prior to trial, and ... THE COURT: Well, I'm going to -- if

that's the only reason, I'm going to overrule the objection on that. to -MR. McDONALD: Well, I've offered into If you want

evidence, your Honor. THE COURT: is overruled. MR. ROCK: Thank you, your Honor. So that's 7 and 8 are All right. The objection

MR. McDONALD:

received in evidence, your Honor? THE COURT: Yes. MR. McDONALD: Thank you, your Honor. Seven and eight, I believe.

Now, I'm not going to conduct the rest of the trial. But since I dealt with these two

exhibits, I'll just finish that up, your Honor, if you don't mind. BY MR. McDONALD: Q All right. Now, going to Plaintiff's Maybe you've already This

Exhibit Number 8, ma'am. testified to this.

I'm going to be very quick.

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shows that the original -- does this show when the original promissory note was imaged in to Wells Fargo's system? A Yes. It was imaged into our system on

October the 27th, 2006. Q Okay. And would that date be when Wells

Fargo took possession of the original promissory note? A We have been in possession of the note, at

least since that date, yes. MR. McDONALD: Okay. On that line of

questioning, I have nothing further, your Honor. I'll let Mr. Haidermota complete the

examination. EXAMINATION BY MR. HAIDERMOTA: Q Ms. Thompson, I'm going to show you what's Do you recognize that

been marked as Plaintiff's 5. document? A Q A Q Letters? A Yes.

What is that document? Demand Letters. Ms. Thompson, who creates the Demand

These letters are generated by Wells Fargo

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Bank, N.A., doing business -THE COURT: I can't -- I can't hear

you-all -- I can't hear her, if you-all are going to talk. MR. McDONALD: just -THE COURT: Okay. We're going to offer the I'm simply I'm sorry. I was

MR. McDONALD:

Demand Letter, your Honor.

asking counsel whether he just wanted to bypass the preliminaries, stipulate that it was the Demand Letter that was sent. But

preserve all of his arguments as to whether it meets the requirements of the mortgage. I was just trying to speed things up, since it's getting late in the afternoon. MR. ROCK: I think that's a great idea.

The only thing that -- because I was also going to be willing to offer copies, or the originals that my clients received. The

only question that I have of this witness is, does that list, Exhibit 8, link up these Demand Letters? THE COURT: Do you know if that,

Exhibit 8, link up the Demand Letters?

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THE WITNESS: MR. ROCK: THE COURT:

Define link up.

Well, does it show them -Is there a number, a

connection number between that? THE WITNESS: Letters, no. Between these Demand

The Demand Letters are not

shown on this, no. MR. ROCK: complete list? THE WITNESS: MR. ROCK: to ... THE COURT: Okay. What ... No, it's not. It's ... So that's not even a

All right.

I'll agree

FURTHER VOIR DIRE EXAMINATION BY MR. ROCK: Q Company? A I'm an employee of Wells Fargo Bank, N.A., Are you an employee of America's Servicing

doing business as America's Servicing Company. Q Are you the custodian of records for

America's Servicing Company? A Q Are we the custodian, yes. Are you familiar with the procedures on

sending out notices? A Yes.

72

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 no.

Q A Q A Q

The file -Yes. -- notice. Yes, I know. Did they come from the building where you

are working? A The specific building that I'm working in,

Was any of this information, these Demand

Letters, outsourced? A Was any of the information outsourced? THE COURT: BY MR. ROCK: Q A The Demand Letters. The letters are generated by Wells Fargo. No. The letters.

They are sent to a third-party for mailing. Q A Okay. Those third-parties are under contract with Wells Fargo does oversee those

Wells Fargo.

practices for the third-party, to ensure that they are mailed -Q A Q Okay. -- to the customers. And are you a representative of that

third-party that was supposed to be sending these

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letters out on a specific date? A No. However, we are -- they are under

contract, monitored by Wells Fargo. Q I understand that they are under contract.

But you don't know whether they went out on the date that they're dated, correct? A It is Wells Fargo's practice to send out

letters on or at the time that they're generated. And that third-party abides by those practices. Q A Theoretically? They abide by those contracts. And we do

have -- like I said, we do have a vendor management area, a corporate vendor management area that ensures that that takes place. Q Well, isn't that because they've had some

problems in the past with -MR. HAIDERMOTA: MR. McDONALD: THE COURT: minute. Objection.

Objection, your Honor. Wait just a

All right.

I asked you-all for opening

arguments and your positions. MR. HAIDERMOTA: THE COURT: I'm sorry.

I asked you-all for opening

arguments and the positions that you were going to taken --

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MR. ROCK: THE COURT:

Your Honor, I'm -And you said that -- I But you

mean, I know it's not evidence.

said that -- you didn't say the letter was not sent out. comply with -MR. ROCK: THE COURT: MR. ROCK: THE COURT: That's right --- Chapter 20 --- your Honor. Not Chapter 20. Paragraph You simply said it didn't

MR. ROCK: THE COURT:

Correct. Okay. So that having been

said, whatever objections -- well, you haven't waived. But I'm going to overrule

any objections you have to that letter. MR. HAIDERMOTA: THE COURT: Thank you.

The Demand Letter. The Demand Letter.

MR. HAIDERMOTA: MR. McDONALD: THE COURT:

Let's mark that as 9.

Do I have a copy of the

Demand Letter, or not? MR. ROCK: Honor. There should be two, your

Your Honor, we're, at this point -One is Exhibit 5. And

THE COURT:

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then I'm not sure, is this -- Exhibit 5 was a composite exhibit or is it -MR. HAIDERMOTA: each. There's one sent to

It should be Composites 5A and B. One is to

One is to Sergey Mischenko. Galina Mischenko. MR. ROCK:

They should be dated March

31st and May 18th. MR. HAIDERMOTA: Well, at this time,

your Honor, in our case, we are working off of the May 18th Demand Letter. MR. ROCK: Okay. I just want to see

that it's the same as my copy. MR. HAIDERMOTA: MR. ROCK: This is May 18th.

This one here? Yes. So, your Honor,

MR. HAIDERMOTA:

has Plaintiff's 5 been admitted into evidence? THE COURT: Yes. EXAMINATION BY MR. HAIDERMOTA: Q Ms. Thompson, what's the purpose of the

Demand Letter? A The Demand Letter is sent out to customers It advises the

advising that the loan is in default.

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amount that needs to be paid in order to cure the default. Q Okay. Now, Exhibit 5 has been

introduced -- Exhibit -- sorry, Composite Exhibits A B have been entered into evidence as what has been sent out to Sergey Mischenko, and the other one was to Galina Mischenko. Please tell the Court, does it indicate whether or not there's a default on those two letters? A Yes. MR. ROCK: Your Honor, objection. The

letters speak for themselves. THE COURT: Well -She's testifying as to

MR. HAIDERMOTA: them. THE COURT: read it out loud? loud? you -MR. ROCK: it, your Honor.

I mean, is she going to Do you want it read out How do

Do you want me to look at it?

I don't need you to look at It's been -- I agree. The

letter comes into evidence. THE COURT: Okay.

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BY MR. HAIDERMOTA: Q Ms. Thompson, was the loan in default when

that letter was sent out? A Q A Q Yes. Is the loan still in default? Yes. I'll show you what's been premarked as Do you recognize that document? It is the payment history.

Plaintiff's 6. A Q A Yes.

How is the payment history produced? How is it -- I'm sorry, I couldn't hear

your question. Q produced? A It's -- again, it's produced and generated When payments come in to the I'm sorry. How is the payment history

by individuals.

account, they're posted to the account when the payments are received. At the time of any escrow

disbursements or advances, that does take place and input in the system of record when that takes place. Q Is it the regular practice for Wells Fargo

to keep this kind of record -A Q A Yes. -- payment histories? It is.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this.

Q business? A

And is it kept in the ordinary course of

Yes, it is. MR. HAIDERMOTA: Your Honor, at this

time we seek to introduce into evidence Plaintiff's Number 6. MR. ROCK: briefly? THE COURT: Yes. May I Voir Dire, your Honor,

VOIR DIRE EXAMINATION BY MR. ROCK: Q A Q What kind of system is this part of? It's generated -- it's our Fidelity system. And, again, you were trained on this system

some two or three years ago -A Q A I --- as part of what you do today? I was trained on Fidelity when I started

with the company. Q But as far as pulling up a summary like

I have been trained on that since the

beginning -- since the beginning of my employment. MR. ROCK: Honor. Okay. No objection, your

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THE COURT:

They'll be admitted. Your Honor, I've got a

MR. HAIDERMOTA: composite. THE COURT:

Show it to them, and let me

MR. HAIDERMOTA: should be 6A. MR. ROCK:

Madam Clerk, that

No objection, your Honor. Your Honor, I would

MR. HAIDERMOTA:

seek to introduce into evidence 6A. MR. ROCK: Other than that it's a

summary that wasn't provided 10 days prior to trial, but ... THE COURT: MR. ROCK: Objection is overruled. Thank you. Do you have the ...

MR. HAIDERMOTA: Madam Clerk, 6B.

Thank you.

EXAMINATION BY MR. HAIDERMOTA: Q Ms. Thompson, I'm showing you Plaintiff's Please tell the Court,

6A, the payment history.

based on the payment history, what is the principle amount due in this case? A Two hundred and eighteen thousand, two

hundred and twenty-two dollars and sixty-two cent.

80

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case? pen?

Okay.

And based on Plaintiff's B, 6B, what

is the total interest due? A Seventy thousand, eight hundred and three

dollars and ten cents. Q Okay. Off of Plaintiff's 6A, what are the

property taxes due? A Off of 6A, actually, the property taxes and They're lumped

the insurance are both together. together. Q A Q A Q Okay.

And the total amount is $19,269.71. And that is for? Property taxes and insurance. Off of 6B, is there a total as to the

inspections? A They're separate items. Do you mind if I

have just a minute to -Q A Yes. -- add them together? Can I have use a

Do you mind?

The total amount of inspection

fees are $625.00. Q A Q Six twenty-five? Yes. Did you have to retain counsel in this

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2008. fees?

A Q

Yes. And are you seeking reasonable attorney's

Yes. MR. HAIDERMOTA: Your Honor, I believe

the affidavit, with its reasonable attorney's fees, was filed with the Court. THE COURT: MR. ROCK: Have you-all seen it? No, your Honor, we haven't.

But I think I'd ask the Court to reserve on attorney's fees in this case. THE COURT: All right. Go ahead.

MR. HAIDERMOTA:

Your Honor, if I may

have one second to confer with co-counsel. THE COURT: Yes. Your Honor, may I see

MR. HAIDERMOTA: that payment history? THE COURT:

Which one? The payment history;

MR. HAIDERMOTA: Exhibit 6.

That one right there.

BY MR. HAIDERMOTA: Q A Ms. Thompson, what is the default date? Currently, the loan is due for June of

Have any payments been made since then?

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A Q

No. Or applied to the loan. Have any payments

been applied to the loan, since June of 2008? A There have been HAMP payments that have

been applied to the account. Q A Well -- but -Outside of that, no, sir. MR. HAIDERMOTA: have, your Honor. MR. McDONALD: No. That's all I

No further questions -Well -Just a moment.

MR. HAIDERMOTA: BY MR. HAIDERMOTA: Q

You had mentioned that there were payments However, based on the complaint -- based on

the default letter that was entered into evidence, sent out on May 18th, what was the default date? A The default date was -- the account was

currently due for March of 2008. Q A March of 2008? May I see the Demand Letter. THE COURT: Letter? THE WITNESS: Yes. So the account was Do you have the Demand

currently due for March of 2008, when the Demand Letter was sent out.

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BY MR. HAIDERMOTA: Q And were payments made, after the filing of

this complaint? A were not. Q A Q A Q A Q A Q A history. THE COURT: THE WITNESS: The loan history amendment? Yes. Those payments were The HAMP -- there were HAMP payments made? Correct. Right. And that was applied back? Outside of the HAMP payments, no, there

And they were applied to the account. Applied to the account. Uh-huh. Back to 2008. Yes. When were those HAMP payments made? They were made -- can I see the payment

made September, October, November and December of 2009. BY MR. HAIDERMOTA: Q A Q A They were made in 2009? Correct. But they were applied to -- back into 2008? That's correct.

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Okay.

So before those payments were made,

the default date was March of 2008, correct? A Correct. MR. HAIDERMOTA: questions. MR. ROCK: Thank you, your Honor. I Your Honor, no further

promise I'll be briefer. than ...

I'll be more brief

Your Honor, I would like the

witness to look at the May 18th letter. CROSS-EXAMINATION BY MR. ROCK: Q A Q Do you have that there? I do. All right. Do you know the difference Here's a copy.

between a non-judicial sale state and a judicial sale state, as far as -MR. HAIDERMOTA: BY MR. ROCK: Q A Q A -- notices are concerned? As far as notices? Yes, ma'am. Not specifically. MR. HAIDERMOTA: She's a fact witness. THE COURT: Well, he can ask. She can Your Honor, object. Excuse me.

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say whether she does or she does not know. THE WITNESS: BY MR. ROCK: Q Okay. Would you look at the notice that Not specifically, no.

you have, that you admitted into evidence as part of your case. A Q notice? A Q Yes. Okay. Does it comply with the mortgage And you suggest -- the first page. I'm looking at the first page. And you suggest that that is a valid

loan document? A Q Yes. To the best of my knowledge, yes.

Well, could you show me where, in the

mortgage loan document, original or a copy, it says that, quote, you will have the right to bring a court action to refute the existence of a default, or offer any other defense to acceleration you may deem appropriate? Do you recall if that language is

included in the Mischenkos' mortgage? A mortgage. MR. ROCK: All right. Well, your I would have to have a copy of the

Honor, I could make it little easier, if I blew up Paragraph 22 of the Fannie/Freddie

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mortgage. THE COURT: with her, or -MR. ROCK: BY MR. ROCK: Q I want you to assume, for the purposes of And Yes, sir. You want to talk about it

discussion, that that is a copy of Paragraph 22.

I would like to look at your notice -- I would like you to look at your notice and see if -- where it says the notice shall further inform the Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of the Borrower to acceleration of foreclosure. Do you see that language in your notice? A Q A We did advise them that -That they had the right to bring a lawsuit? We did advise them they had the right

reinstate the mortgage. Q Did your -- didn't your notice tell them

that they had a right to file a lawsuit? A It does say you have the right to bring a

court action to refute the existence of a default. Q Okay. Can you find that language in

Paragraph 22?

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It just says notice shall further inform

Borrower of the right to reinstate after acceleration. And the right to assert in the

foreclosure proceeding, the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. Q So the two -- Paragraph 22 in your notice

really don't link up do they, ma'am? A Well, one, I mean, we did, of course, tell

them that they had the right to reinstate the mortgage. MR. ROCK: point. later. BY MR. ROCK: Q Ma'am, you had indicated on Direct All right. I've made my

I'll let the Court decide that

testimony that the default letter was outsourced to a third-party contractor, correct? A Q They are mailed by a vendor, yes. Okay. And you don't know, as you sit here

today, what date that notice was mailed; whether it was mailed that day, the following day, or even two days later? A It was mailed on or -- the 18th or the So it's Wells Fargo's practice to mail all

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correspondence out, at or near the time they're generated. Q correct? Well, that may be what they shoot for, That's what they hope to get done. But

you've indicated that they have overseers to make sure that it doesn't get done late. A They are under contract, yes, to ensure That's

that they do abide by Wells Fargo's policies. our policy. Q letter? A Q This --

But you don't know about this specific

Or these -- you don't know about the March

31st letter, or the May 18th letter, correct? MR. HAIDERMOTA: MR. ROCK: Well --

I'll give -- I'll talk about

the March 31st letter, and then I'll show it to her. MR. HAIDERMOTA: MR. ROCK: That's fine.

Your Honor, if I may, it

will save a little bit of time and I won't have to recall her. A letter was sent out

on March 13th, 2008, also to the Mischenkos, with a reinstatement amount, different numbers, same similar notice as I'm showing

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you on Answer A, on the bottom. BY MR. ROCK: Q Do you see that document? Do you see that

Answer A, Exhibit A? A Q Okay. And it's the same form letter, is it not, This one was sent

as the one that went out in May?

to Sergey in March, and this one was sent to Sergey in May, correct? A Q Correct. And they both have the language that

doesn't track Paragraph 22, correct? A Q They both have the language that ... That do not contain the same information

about -- tells them, basically, that they have the right to sue? A Q Correct. Okay. Thank you. Now, I'll ask you again,

since -- you are involved in collections across the United States, correct? A Q We are. Yeah. And you have some states that

require a judicial sales, and some don't, correct? A Q Yes. Yes.

And this is the kind of notice that you

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send out on non-judicial sale states, isn't it? A This is the letter -- the type of letters

that are sent out in the state of Florida, yes. Q That wasn't my question. My question is,

isn't that the type of letter that is sent out on non-judicial sale states, because the language is different than Paragraph 22? A Q I don't know. So is it fair to say that you don't know Or you don't know?

whether your notice complies with Paragraph 22 of the mortgage? A In Florida, we do have procedures in place

that ensure that the Demand Letters we send out comply with the mortgage in question. Q A And that's your opinion? That's what I know. That's what I've been

trained on. Q Your opinion is, that this notice complies

with this mortgage; yes or no? A That's what I've been trained on, yes. MR. ROCK: No further questions.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that.

REDIRECT EXAMINATION BY MR. HAIDERMOTA: Q Ms. Thompson, is it Wells Fargo's practice

to make sure that these letters are sent out on the day or the day after? A Q It is. Okay. And you conduct audits on these

third-party vendors? A Q Correct. And what is the procedure for these

third-party vendors? A Q A Q A In reference to letters that -Yes. -- are sent out? Yes. Sending out the letters. And it is their

We send them over to them.

responsibility to -MR. ROCK: Hearsay. THE COURT: Okay. She can -- I think Objection, your Honor.

she can testify as to what they normally do. That's the business practice. MR. HAIDERMOTA: THE COURT: Yes, your Honor.

So she can testify as to

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MR. ROCK: objection. THE COURT: MR. ROCK:

And, again, that's a hearsay

Well -She's never done it. She's

just relying upon what somebody told her. Unless she says she's done it. MR. HAIDERMOTA: Have you --

Your Honor, she's

testifying as to the routine practice of Wells Fargo. THE COURT: All right. What is the

routine practices of -- is it of your employer, as far as these letters, in verifying trying to determine when and if they're sent out on or about the time that they're generated? THE WITNESS: do so. Well, it's out policy to

We have a contract with a

third-party to ensure that they do that. THE COURT: Okay. All right. No further questions.

MR. HAIDERMOTA: THE COURT: witness?

Anything else from this

93

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. ROCK: Q

RECROSS-EXAMINATION

You haven't done any investigations or

follow-up to check these third-party vendors, have you? A Q A Me, personally? Yes, ma'am. No, I have not. MR. ROCK: THE COURT: witness? MR. ROCK: THE COURT: you very much. table. MR. HAIDERMOTA: approach? THE COURT: already seen? MR. HAIDERMOTA: been admitted. THE COURT: Okay. I don't believe this No, this has already Is it something they've Your Honor, may I No, your Honor. All right, ma'am. Thank Okay. No further questions.

Anything else of this

You may have a seat at the

MR. HAIDERMOTA:

has been entered into evidence. THE COURT: This is, I guess,

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demonstrative, right? MR. ROCK: demonstrative. for reading. We may -- yes, your Honor, We may -- it was for ease

That's all. Do you have any others? At this time the

THE COURT:

MR. HAIDERMOTA: Plaintiff rests. MR. CONKLIN:

Your Honor, the

Defendants move for involuntary dismissal. And, your Honor, the basis of that, is the notice. The notice that's admitted into

evidence does not complied with the Paragraph 22 requirement. Your Honor, Mr. Rock has submitted a Memorandum of Law as to this item. Your

Honor, the first case, is the case of Countrywide Home Loans, Inc. vs. Wehnes. THE COURT: Excuse me. Wait a minute. I

Let me catch up with you.

All right.

have the Memorandum of Law. MR. CONKLIN: I believe Wehnes is But

attached to the memorandum, your Honor. I have a copy for you.

Wehnes is reported,

your Honor, in the Florida Law Weekly. MR. ROCK: Supplement.

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MR. CONKLIN: And the citation -THE COURT: MR. CONKLIN: THE COURT:

Florida Law Supplement.

That's Timothy W. Wehnes? Correct. Is that how you pronounce

MR. CONKLIN:

Your Honor, this is a

case before Judge Tepper in Dade City, in the Sixth Judicial Circuit. And in this

case, your Honor, she cites the fact that Frost vs. Regions Bank, Lazuran vs. CitiMortgage, and Konsulian vs. Busey Bank, a Second District Court case. The word,

shall, in the mortgage created conditions precedent to foreclosure, which were not satisfied. Specifically, Judge Tepper in this case said the parties do not dispute the contents of the letters or that the letter was sent. The sole question before the Court, is whether the undisputed contents of the letter is a question of law for this Court to determine. The language in the mortgage

contract required Countrywide to notify the Borrower of the right to raise defenses.

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And she quotes, in a separate court action, in order to raise the defenses. The Court finds that this is distinction that makes a difference. Countrywide -THE COURT: That makes a difference That it That

or is -- is a difference -- okay. makes a difference, right. MR. CONKLIN: difference. That it makes a

And that Countrywide has failed The

to perform the conditions precedent.

Plaintiff's Motion for Summary Judgment and Partial Summary Judgment was granted in that case. Your Honor, I submit to you also the opinion by Judge Amy Williams, as to the case of PHH vs. John Wink. This is a case

that I argued, your Honor, before Judge Williams. Judge Williams, likewise, ruled

that where the notice states inside of it that the Borrower has the right to bring a court action. This is not what Paragraph 22

of the Florida-Single-Family, Fannie Mae, Freddie Mac uniform instrument provides. The mortgage which was entered into

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evidence in this case at Paragraph 22, states that the Lender shall notify the Borrower, quote, of the right to assert in the foreclosure proceedings, the non-existence of any default, or any other defense of Borrower, to acceleration and foreclosure. Judge Williams in that case also found that there was no material issue of fact, that this was a matter to be decided as a matter of law. I quote from her decision.

The Court finds that the Notice of Intention to Foreclose sent by Plaintiff to Defendant on January 11th, did not comport with the notice language specified in Paragraph 22 of the mortgage. And, therefore, Plaintiff

failed to perform the conditions precedent to acceleration and the filing of this foreclosure action, because compliance with Paragraph 22 was a condition precedent to filing this foreclosure action. The Court holds that Defendant was not required to demonstrate prejudice. The

Court dismissed the complaint, without leave to amend. Your Honor, in that case, this

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decision -- opposing counsel was Shapiro & Fishman. They filed a Motion for Rehiring.

That has been denied by Judge Williams. Your Honor, I also cite to the Court -THE COURT: MR. CONKLIN: Did they appeal it? No. The time period

hasn't run yet, your Honor. THE COURT: MR. CONKLIN: It has not. It has not. I meant,

though, it's final as far as -- in the lower court, it's final. THE COURT: MR. CONKLIN: Yes. Okay.

Your Honor, I submit to

the Court in the case of HSBC Bank vs. Jason Colby. This one was decided by Judge Walter

Schafer in New Port Richey, also in the Sixth Judicial Circuit, your Honor. And in this case, your Honor, Judge Schafer even notes that the evidence concludes that this mandatory direction and language is unambiguous. However, the

August 18, 2008 Demand Letter, again, in relevant part provided, this letter shall also serve as your notice of your right to bring a court action to assert the

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non-existence of a Breach of Contract or any other defense to acceleration and foreclosure. Although rulings of fellow Trial Judges are not controlling on the other Trial Judges, the undersigned has agreed that there is a distinction between, in the foreclosure proceeding and to bring a court action, which does make a difference. that Plaintiff herein has failed to performed a condition precedent to filing this foreclosure action. Judge Schafer cites Konsulian vs. Busey Bank, 61 So.3d 1283. Court case. It's a Second District And

The language in the mortgage is The word, shall, in

clear and unambiguous.

the mortgage, created conditions precedent to foreclosure. The Court in that case,

your Honor, dismissed without leave to amend or dismissed with prejudice. Your Honor, also, I've argued on Monday, before Judge Barton, a similar, almost precisely similar to this notice letter, in a case called -- I think it's HSBC Bank vs. Papakdakis. It's was heard on

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Monday.

Judge Barton also -Objection. Your Honor,

MR. McDONALD:

if he wants to bring us the order, he can bring us the order. THE COURT: You don't have any order?

You don't have an order? MR. CONKLIN: I prepared the order.

Opposing counsel has not approved the order. MR. McDONALD: Counsel, I -- with all

due respect to you, we don't have the written order of the Court. THE COURT: MR. CONKLIN: Barton -THE COURT: I know. But I don't know All right. I represent that Judge

how -- we have no way of reading it. MR. CONKLIN: THE COURT: as submitted. That is correct. He may or may not sign it So if you have other cases

you can rely on, then that's what we're going to do. MR. CONKLIN: Honor. Those are the three, your

I submit to your Honor that there

are no appellate cases on this issue at this time. But I have not heard from any

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counsel, in opposition, when I have argued this before, including before Judge Williams. The Wink case was my case. There

are no other Circuit Judges who have ruled to the contrary. Your Honor, I think you can take judicial notice. And you've heard the

Defendants in this case, from the gallery, English is not their first language. is a very -MR. HAIDERMOTA: relevance. THE COURT: Well, beyond -- I don't Your Honor, objection, This

know whether that's their first language or not. MR. CONKLIN: THE COURT: them. All right. I never heard one word from

I recognize it's an unusual name.

But I can't assume that they don't understand English, or they're not proficient at English, or reading, or whatever. But that's outside of the

evidence, as far as I'm concerned. MR. CONKLIN: Very good, your Honor.

The point being, nonetheless, that is

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confusing people.

And you have heard during

Opening Argument that Mr. Rock took this case over from a legal clinic. The point

is, the notice that they sent said, the Defendants in this case had a right to bring a court action in order to assert any defense they had. That is not what

Paragraph 22 of our mortgage says. Thank you, your Honor. THE COURT: Yes, sir. As co-counsel

MR. HAIDERMOTA:

mentioned, your Honor, he did not mention one Appellate Court Judge or Appellate Court decision. So everything that opposing

counsel had discussed earlier, your Honor, has no bearing on this Court. Your Honor, this case has been going on for four years. Since 2008, my client has

been paying the taxes, paying the insurance. They haven't -- the Defendants in this case have not made a mortgage payment. They

filed an Answer, your Honor, when this first was initiated. When they filed an Answer in

this case, they did not make this argument. MR. ROCK: Objection, your Honor. This

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is irrelevant to -THE COURT: MR. ROCK: THE COURT: Okay. -- the motion. You know, it doesn't comply I mean, that's the real

with Paragraph 22.

issue at this point. MR. HAIDERMOTA: is a Court of Equity. And, your Honor, this On the eve of trial, It's

Defense counsel brings up this issue. disingenuous. technicality -THE COURT: I mean, there is a

Well, they have a right

to -- I mean, they have a right to -- I can't tell them how to represent their client. They chose to do that. Now,

whether or not you agree with that, that's another matter. But I don't think that they

chose this vehicle as something that would prevent them from arguing whether that was or was not; all conditions precedent were met. MR. HAIDERMOTA: Your Honor, again, we

would state for the record, we would argue that they are just bringing this argument now, on the eve of trial. When they

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initially answered this case, they did not make this argument. Also, I would argue

under Rule 1.21 -- 1.120 -MR. ROCK: Objection, your Honor. -- C. Go ahead. Let me

MR. HAIDERMOTA: THE COURT:

Hold a second. Excuse me.

MR. HAIDERMOTA: finish.

A denial of the performance -- of

an occurrence should be made specifically and with particularity. In the affirmative

defenses filed by co-counsel -- or by opposing counsel in this case, he did not do so. All he's said -- I'll take it straight Plaintiff

from his affirmative defenses.

failed to provide Defendants with a Notice of Default and Intent to Accelerate that meets the requirements of Paragraph 22 of the subject mortgage. MR. McDONALD: Subject mortgage. Was not in detail --

MR. HAIDERMOTA: THE COURT: to say?

So what else did you want

Did you -- did you raise that as an

appropriate affirmative defense? MR. HAIDERMOTA: objected to it. Your Honor, we

We objected to --

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MR. ROCK:

They filed -- they filed a

reply denying it. MR. HAIDERMOTA: Your Honor, but we

objected to the fact that he was going to file an affirmative defense at this late in the game. We -Go ahead. Your Honor, in this

THE COURT:

MR. HAIDERMOTA:

Court of Equity, though, we would argue that a client -- or Defendants have been default for four years. letter. We have sent them a default

We told them what the default was, And

how to cure it, what needs to be done.

it was done within the time frame allowed by the mortgage. We would seek, your Honor, that judgment be entered in this case. And that

now, a month or a couple of days -- couple of weeks before trial, they come up with this argument to have judgment denied. Which, again, your Honor, we think is disingenuous. THE COURT: MR. ROCK: Okay. I'll be brief, your Honor.

Certainly, other Circuit Court decisions are

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proper before this Court, for this Court to consider, whether you want to go on-line with the other Circuit Judges who have reviewed this exact same issue. even a two to one situation. zero. It's not

It's three to Not

I couldn't be more specific.

only did I talk about Paragraph 22 in my Answer and Affirmative Defenses, I attached as Exhibits A and B, the letters that my clients got, showing that it didn't meet the requirement. Now, if they say, well, gee, we've tried this case. They had the option to

dismiss it and start over, when your Honor granted the Motion to Amend. filed an answer, themselves. The Mischenkos I was the

first attorney, other than Bay Area, asking for a HAMP Modification Mediation. And I

would suggest that there are a lot of other attorneys raising this, both disingenuous argument before courts to say, now we want to say, gee, we're in a Court of Equity, let's somehow amend our notice. And then we

have argue-free (Phonetic) that says you can't change your theory on the day of

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trial. It doesn't matter. It's a bad notice.

And you can't fix a bad notice when you talk about conditions precedent. There's nothing

that they can do to fix it, except start over with a good notice. MR. McDONALD: Since we switched on

that side, your Honor. THE COURT: All right. What we're talking about

MR. McDONALD:

here, your Honor, in my opinion, in arguing over this notice, is really an issue of responsibility. What the Defendant is

saying is, Plaintiff, you've got to cross every T, dot every I, be 100 percent perfect. And to prevail in this case,

you've got to do everything as responsible as can be done. The reason that Mr. Haidermota brought up that this is a Court of Equity and that this mortgage has been in default and nothing has been paid on it, and the bank has been supporting the property for the last four years, is because what the Defendant is arguing is, we have no

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responsibility.

But bank, we're going to And

hold you to the highest responsibility. we're going to interpret things as technically as possible as we can against you. THE COURT: Do you -MR. McDONALD: THE COURT: What I'm -- go ahead.

Let me ask you a question.

Let me ask you a question.

This Paragraph 22, it's been represented to me that it is the only paragraph that's in bold type or print. MR. McDONALD: THE COURT: Is that -It is in bold.

Out of a 20-page document. That's correct.

MR. McDONALD: THE COURT:

So would I be incorrect in

drawing an inference that maybe that is enough to put you on notice that they expect strict compliance with that particular paragraph, or not? MR. McDONALD: Your Honor, I'm not

going to argue that my client doesn't have to comply with the paragraph. What I'm

going to say to you is, look at the letter that was sent that we're arguing over. And

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what we're arguing over is three words.

If

we can -- if we can go -- maybe I've got it. I don't think this is the one. THE COURT: exhibit what? MR. McDONALD: 5, your Honor. it right here. I've got it as Exhibit Yeah, this is Now, Three words. That would be

Here it is.

That's it right there.

if we go to this paragraph, your Honor. THE COURT: large paragraph? MR. McDONALD: paragraph. Yeah, the largest This is the biggest -- the

And we're going to where it If

says, if foreclosure is initiated.

foreclosure is initiated, you have the right to bring a court action to refute the existence of a default. What their argument

is, is that Paragraph 22 says that if a foreclosure action is brought, they have the right to raise in the foreclosure action the existence -- a dispute as to the existence of a default. What we're arguing over, your Honor, is simply a court action. Now, if we want to

get hypertechnical, as the Defense is doing,

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then all this notice would have to be changed to read is, you have the right to bring in the court action. and we put in, in the. THE COURT: do? MR. McDONALD: THE COURT: I'm not -- what I'm -Okay. We take out, a,

That's it. Isn't that easy to

You're saying they

shouldn't have to do that? MR. McDONALD: What I'm saying is, they When I read

shouldn't have to do that.

this -- when I read -- I've read it 100 times. THE COURT: I bet you have. Or 300 times.

MR. McDONALD: THE COURT: some more. MR. McDONALD:

And you're going to read it

When I first read it, I

didn't interpret it the way that it's being interpreted. All I'm saying to you, your

Honor, is, we're getting so hyper-technical. Where is there any showing -- this is a Motion for Involuntary Dismissal. Where is

there any showing that, in fact, this wasn't interpreted in accordance with Paragraph 22.

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They're saying that the Court can read this, and as a matter of law, say that it does not comport with Paragraph 22. And And I

what I'm saying to you is, I read it.

say, you have the right to bring a court action to refute the existence of a default. Well, you're in court. Why can't you bring Why can't it mean

your affirmative defense. that.

Under the Florida Rules of Civil You

Procedure, that's what you have to do.

have to bring action in court to assert the non-default. So all I'm saying, your Honor, on a Motion for Involuntary Dismissal, they're asking for a hyper-technical and a legal conclusion as to what one or two words mean. And that's it. to fail. And the whole case is going

And their clients are going to

walk away, and spend another two or three years in the property. testimony, your Honor. Let's hear the Let's hear the

Defendants get up and say they didn't understand that they could raise a default. MR. ROCK: Your Honor -I request that the

MR. McDONALD:

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motion be denied, your Honor. MR. ROCK: One more statement, your If you look on Page 4 of

Honor, if I could.

the -- if this was a vague or ambiguous clause that he's now saying -THE COURT: now? MR. ROCK: On Page 4 of my memo. I'll You said look on page what

just -- just one sentence. black letter law -THE COURT: MR. ROCK: THE COURT: MR. ROCK:

Moreover, it is

Wait a minute. I'm sorry. Okay.

Page 4.

On the bottom.

I believe it says, moreover,

it is black letter law that if the provision of a contract -- the provisions of a contract are unambiguous, the Court may not violate the clear meaning of the words in order to create an ambiguity. And,

certainly, the Court may not rewrite the contract. If he's saying it's vague or ambiguous, because he said it wasn't vague or ambiguous to him, he just misinterpreted it. Then

it's vague or ambiguous and it has to be

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construed against the drafter, or the Assignee of the drafter. So I submit, your Honor, that to two other very well educated trial -- three other well educated Trial Judges, they said that this bold paragraph, it was important. And to take language that doesn't comply, and to put on them a burden to sue, that's what their notice says. with Paragraph 22. And they can't fix it. All they have It doesn't comply

to do, is maybe fix the notice and start over. They're not getting a free house.

Thank you. MR. CONKLIN: Konsulian says it's

unambiguous; Paragraph 22. MR. ROCK: On the Konsulian case, your It

Honor, which I don't have the cite for.

says Paragraph 22 has already been construed in the Konsulian case as unambiguous. MR. CONKLIN: It's cited in the And it is at

memorandum, your Honor. 61 So.3d 1283.

In Konsulian, the Second

District said the language in the mortgage -- and they were talking about

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Paragraph 22 -- was clear and unambiguous. And the word, shall, created conditions precedent to foreclosure, which were not satisfied. MR. HAIDERMOTA: Your Honor, I think We're not

that case had to do with 30 days.

dealing with the 30-day issue for this motion. THE COURT: a long time. All right. We've been here

But it's -- it's -- in my

opinion, this acceleration notice does not comply with the clear language of Paragraph 22 of the mortgage. And I don't think I

have the authority, nor the desire to try to rewrite that particular provision. You-all

noticed that they were challenging it, apparently, a long time ago. I'm not sure. But And,

Two, three years ago, whenever it was. you've been on notice for some time.

apparently, you chose not to do anything about it, other than to come to court for trial. So -I'm sorry, your Honor,

MR. McDONALD:

are you speaking about the Plaintiff? THE COURT: Yes, they filed -- they

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filed -MR. McDONALD: Your Honor, I'm sorry.

The Defendants' pro se filed an Answer in 2008. THE COURT: their Answer. Right. When -But the Answer was But they amended

MR. McDONALD: amended in April -THE COURT:

Okay.

Fine.

MR. McDONALD: our objection. THE COURT: corrected. MR. McDONALD:

-- of this year, over

Fine.

Okay.

I stand

Up to that point in

time, conditions precedent -THE COURT: I stand corrected --- been met.

MR. McDONALD: THE COURT:

-- in terms of when it

was -- when you were put on notice that that was being raised as a condition not having been met. So strike that. It's April,

right, of 2000 -MR. McDONALD: THE COURT: Twelve.

-- 12? Yes, your Honor. April

MR. McDONALD:

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or May.

I'm sorry. April of this -- 2012,

THE COURT:

versus 2008, whatever. MR. McDONALD: THE COURT: Right.

But it doesn't -- if it's

raised, I think that's the critical part. It has been raised, whether it was April or -- whenever it was raised. that is sufficient. And I think

And, again, the Court

finds that that is, as I noted, that is the only paragraph in the mortgage that is in bold print, highlighted, which tells me that that was meant to be specifically complied with. And you-all did not. And so, for that reason, I'm going to grant their Motion for Involuntary Dismissal. Okay. Thank you, your Honor.

MR. McDONALD: THE COURT: MR. ROCK:

Sure. Thank you, your Honor.

Request; retain jurisdiction for fees and costs. THE COURT: MR. ROCK: I will. Thank you.

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(At this time the Non-Jury Trial in the above-captioned matter concluded at 4:31 P.M.).

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CERTIFICATE OF REPORTER STATE OF FLORIDA COUNTY OF HILLSBOROUGH ) )

I, VANESSA DURHAM-ANDREW, Court Reporter, certify that I was authorized to and did stenographically report the foregoing deposition; and that the transcript is a true record of the testimony given by the witness. I further certify that I am not a relative, employee, attorney or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorneys or counsel connected with the action, nor am I financially interested in the action. WITNESS my hand and official seal this 3RD day of JULY, 2012.

----------------------VANESSA DURHAM-ANDREW COURT REPORTER