Post on 03-Jun-2018
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1 APPEARANCES:
2 Appearing on behalf of the Plaintiff:3 LAW OFFICES OF DANIEL C. CONSUEGRA
9204 King Palm Drive4 Tampa, Florida 33619
904-404-66325 Jacquelyn.beik@consuegralaw.com
BY: JACQUELYN BEIK, ESQUIRE6
7 Appearing on behalf of the Defendant:
8 LAW OFFICES OF EVAN ROSEN, P.A.
2028 Harrison Street, Suite 2049 Hollywood, Florida 33020754-400-5150
10 erosen@evanmrosen.comBY: EVAN ROSEN, ESQUIRE
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1 years.
2 Q. Can you briefly describe the positions that you've3 held with Seterus, Inc. in your course of your eight to nine
4 year employment?
5 A. We were previously Wilshire Credit Corporation. When
6 I first started, I was in the customer service department.
7 After three months, I became a SME in that department and after
8 a year, I moved over to the pre-foreclosure department.
9 From pre-foreclosure, I moved to compliance, loss
10 mitigation. It was a SME, which is a subject matter expert, in
11 that department, and then moved fully onto the loss mitigation
12 department.
13 From loss mitigation, I moved to legal mediation
14 with assistance in contested litigation and from that
15 department, we then again merged into the loss mitigation
16 department bringing me back to the legal mediation, contested
17 litigation department.
18 Q. So what is your current position for Seterus at this
19 time?
20 A. I am a litigation officer.
21 Q. How long have you been in that position?
22 A. Since 2011.
23 Q. Okay. And what are your specific duties in that
24 current position?
25 A. What we do is we gather information as it pertains to
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1 loans that are in the foreclosure status. We make sure all of
2 the documents are received and we provide those to local3 counsel. We assign local counsel. We answer questions on
4 behalf of the investor, Fannie Mae, and we move the file along
5 as it pertains to the status.
6 If the customer files bankruptcy, we then will refer
7 to that department or the file is -- if it's in the foreclosure
8 process, but they're looking into doing liquidation and
9 retention options, we will move the file along accordingly.
10 Q. Okay. What type of training do you receive to be in
11 this role? Were you put in this position based on your prior
12 experience with the company for so long?
13 Is there routine training that you were provided or given
14 to your staff? How is that incorporated?
15 MR. ROSEN: Objection. Leading. Compound.
16 THE COURT: Overruled.
17 THE WITNESS: Based on my knowledge and how
18 fast I obtained the knowledge of the company, previously,
19 I worked for -- prior to me coming to the company as a
20 whole, I worked for MCI, which was a long distance
21 company, in the customer service department.
22 Once I fully got trained within that three
23 months, I became a subject matter expert learning
24 different departments and its functions. I was also asked
25 to do some internships within the other departments based
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1 on how fast I was able to learn the different functions.
2 BY MS. BEIK:3 Q. So now, do you receive routine training in your
4 position at this time?
5 A. We do. We receive routine trainings monthly as a
6 company as a whole. We also receive training from our in-house
7 counsel and also if any questions, our local counsel will --
8 they come out and they speak to us regarding new initiatives,
9 new state guidelines, anything that has been recently mandated.
10 They also offer training to us as well.
11 Q. And do you also offer training to your staff that you
12 were supervising?
13 A. I offer -- there are monthly trainings within the
14 staff since I am the subject matter expert. We do deposition
15 trainings. We also do a lot of role playing and we do mock
16 trials as well.
17 I will offer conference calls with attorneys to go
18 over different strategies or different things that may happen
19 or new things that are within the Court's realm.
20 Q. And who is your current supervisor?
21 A. Her name is Donna Smit (phonetic).
22 Q. And what is her role at Seterus, Inc.?
23 A. She is an assistant vice president. She oversees what
24 we call the servicing fulfillment department, which is the
25 legal mediation, contested litigation, compensatory fees
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1 department within Seterus, Inc.
2 Q. Now, within Seterus, Inc., which department handles3 the payment processing?
4 A. That would be our transaction processing department.
5 Q. And which department handles the customer service
6 calls, incoming and regulating them?
7 A. We have two different departments within Seterus based
8 on CFPB guidelines, which would be our early stage department,
9 single point of contact, and then we have late stage, which
10 manages what we consider 90 plus. So any customers that are 90
11 plus past due are handled in our late stage department, single
12 point of contact.
13 Q. Okay. Now, is that -- the late stage, is that the
14 same department that handles loss mitigation?
15 A. They are two different departments. Late stage is
16 more of the collections department. They do assist with loss
17 mitigation as it pertains to collecting payments and if the
18 customer was on a trial modification or moving forward to being
19 converted into actual modification, but our retention
20 department handles actual -- excuse me, loss mitigation.
21 Q. And how often does the loss mitigation department
22 reach out to the borrower when they're in default?
23 A. The loss mitigation--
24 MR. ROSEN: Objection. Relevance.
25 THE COURT: Sustained.
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1 BY MS. BEIK:
2 Q. So can you please state again, what is the specific3 name of the department that handles the payment processing?
4 A. That would be transaction processing.
5 Q. Have you ever worked in that department?
6 A. No.
7 Q. As part of your monthly training that you receive, do
8 you go over the entire different departments or just as it
9 pertains to your specific position?
10 MR. ROSEN: Objection. Leading. Compound.
11 THE COURT: Overruled.
12 THE WITNESS: We go over different departments
13 as things may change. New programs that may arise such as
14 Partisan (phonetic) Funds, if the customer were to
15 actually apply for those particular funds or need to know
16 any type of knowledge as it pertains to their state.
17 If there is any new programs that are being
18 offered in the retention department, any additional
19 programs offered in liquidation or as they were changes
20 with the single point of contact in the early stage and
21 late stage, how the calls will be routed based on the
22 status of the loan.
23 BY MS. BEIK:
24 Q. So in your position and role, are you familiar with
25 Seterus's business records?
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1 A. Yes.
2 Q. Are you familiar with the process for maintaining3 those business records as it pertains to servicing notes and
4 mortgages?
5 A. Yes.
6 MR. ROSEN: Judge, if I can just voir dire
7 briefly on that?
8 THE COURT: Let her ask the four questions and
9 then ask me again. Okay?
10 MS. BEIK: I wasn't going to ask the question
11 just yet. May I proceed?
12 THE COURT: Please.
13 MS. BEIK: Oh, okay.
14 BY MS. BEIK:
15 Q. Now, as far as the business records, what is the name
16 of the mortgage servicing platform that you use to service the
17 loans, that Seterus uses to service the loans?
18 A. There's a few different programs, but our in-house
19 database we use, it's called Pulse, and that's where a lot of
20 the notes on the account, the status of the account as a whole,
21 the principal balance, any payments that are received, any notes
22 anytime the customer calls in. Any updates to the loan as a
23 whole is updated in Pulse.
24 Q. Okay. That's P. U. L. S. E.?
25 A. Correct.
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1 THE COURT: Can we just ask questions
2 concerning this particular loan as opposed to saying3 generally what do we have, et cetera, et cetera?
4 MS. BEIK: Do you want me to just go directly
5 to that? Okay.
6 THE COURT: I only have a couple of hours.
7 MS. BEIK: I'm sorry. Okay. My apologies.
8 BY MS. BEIK:
9 Q. Now, based on this mortgage platform servicing system
10 Pulse, is the Defendant's loan in this case maintained in that
11 system?
12 A. Yes.
13 Q. And what types of information regarding this
14 Defendant's loan is kept in the system?
15 A. Any updates to the account, the status, every time
16 someone calls in on the account, whether it's the customer
17 and/or third-party, any updates as it pertains to escrow, any
18 changes to the account, any -- where the loan was transferred
19 from, also, the unpaid principal balance, any payments, the
20 status, the interest rate.
21 Q. Now, do you know how the information regarding this
22 Defendant's loan is inputted into Pulse?
23 A. Yes. It's by anyone -- excuse me. I will retract
24 that. Anytime there is an update to the account, each
25 department has a -- will go in and update the account based on
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1 the status.
2 Q. Now, what is the name of the scanned imaging document3 system that you use for this Defendant's loan?
4 A. It is called SCI. It's Security Connections, Inc. and
5 it's a third-party Fannie Mae approved agency that scans our
6 documents into our system.
7 Q. Now, is there a records custodian for this specific
8 loan?
9 A. Yes.
10 Q. And what is the name of that records custodian?
11 A. It would be either SCI or LPS.
12 Q. So SCI scans in the documents and then it's maintained
13 in SCI or in LPS?
14 A. It's maintained in both.
15 Q. In both, okay. So it's in both places?
16 A. Correct.
17 Q. So it remains in SCI once it's scanned in?
18 A. Yes.
19 MR. ROSEN: Objection. Leading.
20 THE COURT: Overruled.
21 BY MS. BEIK:
22 Q. And where is the records custodian located?
23 A. The actual custodian where they hold the original
24 document?
25 Q. Where are the documents scanned and then maintained,
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1 the physical document?
2 A. It's scanned. It's a service that we log into. I3 don't know exactly where they're based out of. It's an
4 internet service that we log into every day that we have
5 securitized passwords that are scanned into the system.
6 Q. So is that where LPS comes into play?
7 A. Yes.
8 Q. Regarding monitoring the Defendant's payments,
9 history, and all the documents related to--
10 A. Well, what happens is if anything were scanned into
11 SCI, depending on the departments and the status of the loan,
12 then that department will pull the documents from SCI and they
13 will upload it into LPS as well.
14 MR. ROSEN: Objection, Judge. Speculation.
15 What matters is what happened in this case.
16 MS. BEIK: Your Honor, that's pertaining to
17 this specific Defendant's loan and how the documents are
18 retrieved and accessed and input into the system.
19 THE COURT: Then you should have phrased the
20 question as to those specific documents, so that we don't
21 have to hear it again.
22 MS. BEIK: I will rephrase.
23 BY MS. BEIK:
24 Q. So regarding this Defendant's loan, the note, the
25 subject note, the mortgage, the notice of default letter, were
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1 those documents scanned into the system using SCI?
2 A. Yes.3 Q. And that's based on your review of the business
4 records?
5 A. Yes.
6 MR. ROSEN: Objection, Judge. Hearsay. If there's
7 a business record that says something happened, that
8 record should come into evidence before there be
9 testimony about it. Her knowledge is specifically based
10 upon her review of records. Those records should come
11 in before there's testimony. It's also best evidence.
12 THE COURT: Sustained.
13 BY MS. BEIK:
14 Q. Now, regarding this Defendant's loan, is there an
15 auditing function?
16 A. Yes.
17 Q. Now, can you briefly describe what that process is for
18 ensuring when this Defendant's note and mortgage is transferred
19 into the system from a prior servicer?
20 MR. ROSEN: Objection. Relevance.
21 THE COURT: Why?
22 MS. BEIK: For when the note is service
23 transferred. We need to make sure to enter the accuracy
24 of the payment history and our documents.
25 MR. ROSEN: May I just briefly respond?
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1 What's relevant for admitting records is not how they're
2 transferred, but rather how they're made and kept under3 the four prongs.
4 THE COURT: Sustained.
5 BY MS. BEIK:
6 Q. I'm going to hand you proposed Exhibit 1.
7 THE COURT: Please show it to counsel first.
8 MR. ROSEN: Judge, we have come to an
9 agreement on this exhibit.
10 THE COURT: What is the exhibit?
11 MR. ROSEN: It's a note.
12 MS. BEIK: It's the subject note. I have
13 copies for Your Honor.
14 MR. ROSEN: The original is in the file. I
15 haven't reviewed it. The only stipulation was that we
16 would also agree that the Court would take judicial notice
17 of the fact that it was filed in February of this year.
18 The original note for the first time was filed in February
19 of this year and then the note can come in without
20 objection to evidence.
21 MS. BEIK: I have a copy of the note here.
22 THE COURT: I looked at the note. It's right
23 on top of the file. So we agree to that stipulation that
24 it comes in as Plaintiff's 1; is that correct?
25 MR. ROSEN: Correct, Judge, yes. Thank you.
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1 As long as counsel agrees that the Court can also take
2 judicial notice with -- of course, the Court's approval on3 that which is required that the note was in fact filed in
4 February, I believe it was the 28th, of this year.
5 THE COURT: The 26th.
6 MR. ROSEN: The 26th, sorry.
7 THE COURT: Plaintiff's 1.
8 (Plaintiff's Exhibit 1 was admitted into
9 evidence.)
10 THE COURT: Next.
11 BY MS. BEIK:
12 Q. I'm handing you Plaintiff's 1. Can you please
13 identify that document for the Court?
14 A. This is a copy of the original note.
15 Q. And who is the original lender?
16 MR. ROSEN: Objection, Judge. We can let the
17 documents speak for themselves.
18 THE COURT: Sustained.
19 BY MS. BEIK:
20 Q. Is this a business record maintained by Seterus, Inc.?
21 MR. ROSEN: Objection. Relevance, Judge.
22 It's in.
23 THE COURT: It's in. It's here.
24 MS. BEIK: Thank you.
25 BY MS. BEIK:
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1 Q. I have proposed Exhibit 2 and it's the subject
2 mortgage to this action.3 MR. ROSEN: Just let your witness ID them. We
4 have no objection to this coming into evidence, Judge.
5 THE COURT: It will be received as Plaintiff's
6 2.
7 (Plaintiff's Exhibit 2 was admitted into
8 evidence.)
9 BY MS. BEIK:
10 Q. Please identify this document for the Court.
11 A. This is a copy of the mortgage.
12 Q. Who was it executed by?
13 MR. ROSEN: Same objection, Judge. It's
14 already in evidence. We can let the document speak for
15 itself and move on.
16 THE COURT: I will let her ask a couple of
17 questions here.
18 MR. ROSEN: Sure.
19 THE COURT: Whoever reads the transcript, if
20 it goes, they don't have to keep looking back at the
21 document itself. Go ahead.
22 BY MS. BEIK:
23 Q. Was it signed by the Defendant in this action?
24 A. Yes.
25 Q. And what is the date of the subject note or mortgage?
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1 A. When I first saw the original?
2 Q. That was today, right?3 A. Today, yes.
4 Q. And you talked about that you're not the record
5 custodian. You mentioned that it was a company that was the
6 record custodian of the records?
7 A. I guess -- a copy of the documents are held in our
8 SCI. The custodian that holds the original note, in which it
9 will be sent over to, is Bank of Mellon of New York, which is
10 the custodian of Fannie Mae.
11 Q. And that would be a business record that reflects
12 that, correct? And we can talk about that. I just want you to
13 talk about what you actually know.
14 A. That would be SCI.
15 Q. So SCI. You talked a lot about your job
16 responsibilities earlier and you understand what it means to be
17 under oath, of course, correct?
18 A. Correct.
19 Q. And you know all about penalty of perjury, I'm sure?
20 A. Yes.
21 Q. Okay. Regards to this power of attorney that
22 Plaintiff's counsel has identified, it says here, limited power
23 of attorney from Fannie -- Federal National Mortgage Association
24 to Seterus. That's what this document says on the first page,
25 right?
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1 A. Yes.
2 Q. You're not a party personally to this agreement,3 right?
4 A. Personally? No. It's a company as a whole.
5 Q. And you don't write powers of attorney. You didn't
6 write this power of attorney, correct?
7 A. No.
8 MS. BEIK: Objection. Relevance.
9 THE COURT: Overruled.
10 BY MR. ROSEN:
11 Q. And you didn't sign this document, correct?
12 A. No.
13 Q. And you've never written a power of attorney for
14 Fannie Mae or Seterus; isn't that right?
15 A. Correct.
16 Q. You've never signed one for the company; isn't that
17 right?
18 A. No.
19 Q. And have you ever seen a power of attorney actually
20 signed in person?
21 A. With Seterus, no.
22 Q. And you're not in charge of keeping these on -- I
23 assume this is a copy that was kept on a computer. It looks
24 like this is a copy, correct?
25 A. Correct.
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1 Q. So you're not in charge of maintaining the copies for
2 the company, right?3 A. No. I don't work in that department.
4 Q. You're not in charge of maintaining the electronic
5 files that are stored; isn't that right?
6 A. No.
7 Q. And you're not -- you don't supervise anyone who makes
8 these documents, correct?
9 A. No.
10 Q. And you're not in charge of making these documents,
11 correct?
12 A. Correct.
13 Q. And you don't supervise others who keep and maintain
14 this document, whether it be the paper copy or the electronic
15 copy; isn't that right?
16 A. That is correct.
17 MR. ROSEN: Judge, our objection is
18 authentication and hearsay. I have -- allow me to say
19 this. "If evidence is to be admitted under one of the
20 exceptions to hearsay, it must be offered in strict
21 compliance with the requirements of that particular
22 exception."
23 That's a quote from the Supreme Court of
24 Florida in the Yisrael v. State case. The language
25 strict, the word strict is actually italicized. If a
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1 record is made for purposes of litigation, which this was
2 printed for today, it should be closely scrutinized.3 That's from Ray (phonetic) v. State and Yisrael v. State.
4 To admit business records under 90.803, it
5 must be the testimony of a record custodian or other
6 qualified witness. This witness is neither a record
7 custodian -- is not a record custodian. As to whether or
8 not she is other qualified witness, let's talk about that
9 for just a moment.
10 What is required of any witness is that they
11 testify with personal knowledge as to what they said under
12 96.04. The witness doesn't need to know who actually did
13 this, but she needs to know the process for which this is
14 done and kept, made and kept pursuant to the four prongs.
15 Personal knowledge as for Earhart is something
16 that is perceived by the witness, same with the Black's
17 Law Dictionary definition. Things that someone actually
18 did based upon their own senses.
19 In this instance, it would have been made it
20 or saw it. You can't -- I don't mean to inject any
21 comment here, but you can't taste it. You can't smell it.
22 You can't hear it, but you can either only do it or see
23 it done and the witness has clearly not done either of
24 those things.
25 You can't just parrot magic words. There's a
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1 couple of good Fourth District Court of Appeals, namely
2 the Yang case, which says you can't come into court and3 just repeat magic words.
4 The basis for her to become other qualified
5 witness would be, as for the Specialty Lines case, as for
6 numerous other cases, that she either be in charge of the
7 activity constituting the usual business practice or
8 supervises preparation.
9 I would like to hand the Court that case and
10 just a few others that echo this exact provision. If I
11 may approach?
12 We have also the Alexander case, which says
13 the same thing, Lasong (phonetic), Holt, Brimes
14 (phonetic), numerous cases that I've just handed the
15 Court. Judge, you tell me when you're ready. I don't
16 want to talk while you're reading this.
17 THE COURT: Go ahead.
18 MR. ROSEN: I will just give the Court one
19 other case and that's the Yang case. It stands for the
20 proposition that a witness cannot just parrot magic words
21 when it comes to the business record exception. That's a
22 Fourth DCA case from last year. Thank you, Judge.
23 THE COURT: Go ahead.
24 MR. ROSEN: The only other objection I had to
25 add was the authentication objection. 99.01 simply
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1 requires that a witness offer evidence sufficient to
2 support a finding that the matter in question or in this3 instance, the exhibit is what she claims it is.
4 If she has never prepared one, never seen one
5 prepared, never kept one, has not been involved in that
6 process in any way, shape, or form whether it's
7 supervising another or in charge of that process, there's
8 no way for her to know that information other than her
9 being told that this is some business record. That's
10 hearsay as at the top.
11 MS. BEIK: Your Honor, the witness was able to
12 testify as to her experience working for Seterus for eight
13 to nine years. She is well acquainted which, according to
14 the case law, it is either be -- the person either be in
15 charge of the activity or is well acquainted with the
16 activity in order to provide the testimony.
17 She has -- Ms. Burden has stated in full -- in
18 depth of her job description, her job function, and how
19 all these processes work together in order to produce
20 these business records. The power of attorney is an
21 establishment between Fannie Mae and Seterus, Inc., which
22 she can identify and attest to.
23 The case law doesn't say that she does not
24 have to actually create the document or be a party to or a
25 signer. She merely needs to be able to testify as to how
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1 the information is maintained by Seterus, which she has
2 done, and be able to recognize all the documents that are3 inputted into the system in order to testify the
4 relationship between the parties involved.
5 MR. ROSEN: Judge, I don't disagree with
6 anything that opposing counsel just said except that I
7 want to add one more thing. As a prerequisite to a
8 witness testifying under 96.04, she must have personal
9 knowledge as to that which she has said. There's been no
10 argument to that whatsoever. She has not done these
11 activities.
12 What she testified to was about loss
13 mitigation, nothing about powers of attorney, nothing even
14 about how payments are processed. She admits that she's
15 never processed payments. She's never worked in that
16 department.
17 She knows about it through training and
18 training, I suggest to the Court, is hearsay, unless she's
19 done it or seen it done or supervised it, which she has
20 admitted to as to this power of attorney. We'll get
21 into payment processing later on that. Her training m
22 ght have included that for payment history, but it
23 certainly didn't include that for power of attorney, and
24 we covered that on voir dire.
25 MS. BEIK: Your Honor, if we were to have our
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1 subject witness be an expert in every single division,
2 then we would need -- we would probably need 10 witnesses3 from -- as a corporate representative to testify into each
4 department and that's unreasonable and not aligned with
5 the case law.
6 It just needs to be a corporate representative
7 that is familiar enough with the business records and the
8 evidence coupled with the witness testimony, which is
9 cited in Wamco.
10 I also have another case, Kayav (phonetic) v.
11 City Mortgage, Inc. out of the Fourth DCA. It is coupled
12 with the evidence presented and the witness testimony as
13 to the business records.
14 If we were to go in line with counsel's
15 argument, then we would need a witness to testify from
16 each department, payment processing, executing powers of
17 attorney, and that's just unreasonable.
18 MR. ROSEN: Just a brief response to that,
19 Judge. They don't need a witness for every payment
20 processing -- they don't need a witness from every
21 department rather. Excuse me. 902.11 allows for
22 self-authentication of a business record through an
23 affidavit coupled with 90.8036C. They don't even need a
24 witness.
25 So to come and say that they need a witness
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1 from every department when they don't need a witness at
2 all other than an affidavit, a business record affidavit3 self-authenticating, it's just not true. It's a higher
4 burden than what I'm arguing.
5 Rather, 96.04 is what controls that the
6 witness has personal knowledge. Is she well enough
7 acquainted? How did she become well enough acquainted?
8 By personal knowledge, not by someone telling her. She
9 has testified that she can't have that personal knowledge.
10 THE COURT: Sustained.
11 MR. ROSEN: Thank you, Judge.
12 MS. BEIK: I'm going to hand the witness
13 another exhibit.
14 MR. ROSEN: If I could just confer with
15 counsel as far as the admissibility of this? We may be
16 able to reach an agreement.
17 (Off the Record.)
18 MR. ROSEN: Judge, we've reached an agreement
19 to allow this document in. It's a letter that reflects a
20 servicing transfer. We're letting it in, in agreement,
21 for the limited purpose solely that the loan servicing was
22 transferred from Virtual Bank to Seterus on September 19th
23 -- excuse me, September 1st, 2011.
24 For that purpose only, this document -- the
25 admission of this document should not be construed in any
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1 way to attest to the witness's being either a qualified
2 witness or a record custodian or other qualified witness3 for Seterus.
4 She may or may not be this -- the admission of
5 this should not be construed. That's part of our
6 stipulation if that meets the approval of the Court.
7 THE COURT: Is that agreed, Plaintiff?
8 MS. BEIK: Can I talk to him one more time?
9 THE COURT: Yes.
10 MS. BEIK: All right.
11 (Off the Record.)
12 MS. BEIK: All right. Thank you.
13 THE COURT: Agreed?
14 MS. BEIK: Yes.
15 THE COURT: This will be received as
16 Plaintiff's 3.
17 (Plaintiff's Exhibit 3 was admitted into
18 evidence.)
19 BY MS. BEIK:
20 Q. Just for the record, this is Plaintiff's 3. Can you
21 please identify this document for the Court?
22 A. This is what is called a welcome letter.
23 Q. Is this a document kept by Seterus?
24 MR. ROSEN: Objection, Judge. It should be in
25 pursuant to our agreement that it stands only for the
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1 limited stipulation that it was -- it reflects as to the
2 transfer.3 MS. BEIK: I just wanted to clarify for the
4 record.
5 THE COURT: What are you trying to clarify?
6 It isn't covered in the stipulation. Otherwise, the
7 document -- it's a document in the stipulation between the
8 parties.
9 MS. BEIK: Okay. Thank you.
10 THE COURT: You can make argument at the end,
11 whatever it is, as long as it's done between the
12 stipulation. You can move on.
13 MS. BEIK: Okay. Thank you. I have
14 Plaintiff's 4.
15 BY MS. BEIK:
16 Q. I'm handing you Plaintiff's 4. Can you please
17 identify this document?
18 A. This is what is called a breach letter.
19 Q. And who is it sent by?
20 MR. ROSEN: Objection. Calls for speculation.
21 Lack of personal knowledge. If I could voir dire just as
22 to that issue as to who it's sent by? If she wants to
23 identify who is on the letterhead, I have no objection to
24 that, but whether or not it's sent would be hearsay.
25 It would need to be a business record. It's
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1 from a company that this witness does not work for. There
2 would need to be a business record. Otherwise, it's pure3 hearsay.
4 THE COURT: Sustained.
5 BY MS. BEIK:
6 Q. Ms. Burden, please state who the letter was sent to?
7 MR. ROSEN: Objection. Same objection.
8 THE COURT: Sustained. It's not in evidence
9 at this point. So you really don't get to read anything
10 off of it, et cetera, et cetera. Counsel said that he
11 would stipulate to the letterhead itself, but not as to
12 who it was directed to.
13 So until such time that it comes into
14 evidence, via one, two, three, four, next question.
15 MS. BEIK: Okay. I have Plaintiff's 5.
16 THE COURT: Do me a favor only because the
17 record is going to be confusing otherwise.
18 MS. BEIK: Okay.
19 THE COURT: With reference to the breach
20 letter, if you offered it as Plaintiff's -- for
21 identification, it will be A. Okay.
22 (Plaintiff's Exhibit A was marked for
23 identification.)
24 THE COURT: This next one, I don't know where
25 we're going with it either, but at this point, we'll call
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1 it Plaintiff's B for identification.
2 Otherwise, your record is going to say wait a3 minute, it didn't come into evidence, why are we calling
4 it number 4, so just for clarification.
5 For my record, just tell me what the document
6 is, so I know what I'm thinking about.
7 MS. BEIK: Payment history.
8 THE COURT: Okay. Thank you.
9 MR. ROSEN: This should be split up in my
10 opinion or at least differentiated in some way. A portion
11 of it appears to be from one company. It looks like this
12 is Seterus. Then this looks like this is separate--
13 THE COURT: Are you talking on the record or
14 are you just talking between yourselves as opposed to--
15 MR. ROSEN: No. I'm on the record. Thank you
16 so much, Judge. I'm just trying to differentiate that
17 this is apparently -- it comes from -- these are different
18 documents.
19 This would -- I would ask the Court that this
20 be separated accordingly as different documents and
21 therefore, different exhibits. They can be part of a
22 composite, but they should still have demarcations, A, B,
23 C. Thank you.
24 Let me just say for the record, there's one,
25 two, three, four different sets of transaction histories
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1 numbers. Judge, I'm going to go ahead and state an
2 objection now to this. This was not provided in pretrial3 as an exhibit. We requested several times exhibits.
4 We cooperated very nicely with opposing
5 counsel. I'm grateful to say that she did provide us
6 three different sets of exhibits, very extensive, which
7 our office went to great lengths to study.
8 This is the second time this case has come up
9 for trial. This first packet was sent back in April of
10 2009. We then tagged and marked it up. This was sent June
11 14th, exhibit packet number two. There were some
12 duplicates from what was in one.
13 Also, later in the day on the 19th -- rather,
14 excuse me.
15 THE COURT: I was going to say wait a minute.
16 MR. ROSEN: Yeah. This is exhibit -- this was
17 the first one that came and this is the second one that
18 came on the 19th. Extensive with tremendous time that
19 goes into this to mark it up and tab it and make notes, we
20 were not provided that document.
21 Therefore, under Binger, it will be prejudice
22 for us at this late hour to admit this into evidence,
23 especially for what I think the Plaintiff is attempting to
24 do with it.
25 Furthermore, it appears to be from another
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1 company all together which may create authentication and
2 hearsay issues, but we don't even think -- I don't think3 we should even go there, Judge.
4 THE COURT: Response first -- I guess the
5 first one would be whether or not she supplied it or
6 didn't supply it. Maybe your records show something
7 different, but that's something you would have to show me.
8 Second of all, would be the admissibility
9 after that. So let's address the first part. Okay.
10 MS. BEIK: The first part, I do not have
11 knowledge or record when our office, our paralegal sent
12 the exhibits. I was under the impression that it was
13 submitted. I went over it saying make sure you provide
14 these documents. I do not have the email confirmation and
15 the breakdown on my person this morning. So I apologize.
16 If it will not get in for that reason, I want
17 to be candor with the Court that I have not reviewed. So
18 I cannot verify at this juncture.
19 THE COURT: I appreciate that. Just for my
20 benefit again, what does the document -- assuming it was
21 in, what does it do? So I have an idea anyhow.
22 MS. BEIK: It establishes the transfer of
23 ownership from the beginning of the loan and the process
24 of when Fannie Mae took actual ownership, which goes back
25 to 2008, Your Honor.
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1 THE COURT: The objection is sustained.
2 MR. ROSEN: Thank you, Judge.3 THE COURT: So Milestones is not in. Next?
4 MS. BEIK: Those are all the documents I have,
5 Your Honor.
6 THE COURT: Okay. Do you have any additional
7 questions?
8 MS. BEIK: Am I allowed to proceed with--
9 THE COURT: You can always try.
10 BY MS. BEIK:
11 Q. Ms. Burden, regarding the note and mortgage that have
12 been admitted into evidence, these are business records
13 maintained by Seterus, correct?
14 MR. ROSEN: Objection. Relevance.
15 THE COURT: Sustained. They're already in.
16 MS. BEIK: Okay.
17 BY MS. BEIK:
18 Q. Based on your review of the business records
19 pertaining to this Defendant's loan, were they made at or near
20 the time of the event?
21 MR. ROSEN: Objection. Lack of personal
22 knowledge. Voir dire subject to the Court's allowance
23 after the -- and it's lack of specificity as to which
24 record.
25 THE COURT: Go through and ask your questions.
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1 Be specific as to the documentation and counsel will have
2 an opportunity to voir dire, and then we'll go from there.3 Okay?
4 MS. BEIK: Okay.
5 MR. ROSEN: Rather than state my objection and
6 interrupt every time, if it's okay, Judge, all of the four
7 questions that the Court will permit, just to keep a
8 standing objection to those four?
9 THE COURT: You may.
10 MR. ROSEN: Thank you. Any objections to
11 that, opposing counsel? Any objection to that?
12 MS. BEIK: No.
13 MR. ROSEN: Thank you so much.
14 BY MS. BEIK:
15 Q. So regarding the subject note, mortgage, payment
16 history, the notice of default, the welcome letter, those
17 business records, were they made at or near the time -- inputted
18 into the system at or near the time of the event of the
19 transaction?
20 A. At the time of transfer, yes.
21 Q. This is based on your review of these business records
22 prior to trial today, correct?
23 A. Correct.
24 Q. Now, based on your review of the business records,
25 were they inputted into the system by a person with knowledge?
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1 your question. You asked two different questions and you
2 put in two different things.3 MS. BEIK: Okay.
4 BY MS. BEIK:
5 Q. Is it the regular practice of Seterus to make this
6 type of loan that was created for the Defendant's loan?
7 A. Yes.
8 MS. BEIK: No further questions at this time.
9 THE COURT: No further questions?
10 MS. BEIK: At this time.
11 THE COURT: What time would it be?
12 MS. BEIK: Will I have a chance for rebuttal?
13 THE COURT: Okay. Cross.
14 MR. ROSEN: Thank you, Judge.
15 CROSS EXAMINATION
16 BY MR. ROSEN:
17 Q. Good morning, again. One of the documents--
18 MR. ROSEN: Just give me one second, Judge.
19 Judge, I have a stipulation or an offer to
20 make to the Court to speed this along and to the extent
21 that you can rule on this, wonderful. If not, then I will
22 understand as well.
23 I'm tempted to not ask any questions, to leave
24 nothing for a rebuttal because there's been no door opened
25 on cross. Plaintiff -- if the Court would allow that,
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1 Plaintiff would then rest and then I could move
2 appropriately at that time and make an appropriate next3 step at that time.
4 THE COURT: So what you're saying is no
5 questions for the defense? Is that what you said?
6 MR. ROSEN: I'm asking if the Court will
7 permit that, will there be any further inquiry allowed?
8 If I don't ask any questions, will the Court not allow--
9 THE COURT: There's no rebuttal then because
10 there's not been any additional questions.
11 MR. ROSEN: That's my understanding, correct,
12 Judge. Then I have no questions.
13 THE COURT: Call your next witness.
14 MS. BEIK: There are no witnesses, Your Honor.
15 THE COURT: Motion?
16 MR. ROSEN: Does the Plaintiff rest?
17 THE COURT: They're done.
18 MR. ROSEN: At this time, Judge, the Defendant
19 moves for a Motion for Involuntary Dismissal under 1.420.
20 It's the appropriate mechanism at the end of a non-jury
21 trial when the Plaintiff rests.
22 The Motion for Involuntary Dismissal tests
23 whether or not prima fascia elements of the Plaintiff's
24 case have been met for foreclosure.
25 The prima fascia elements are that there was a
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1 contract or an agreement pursuant to -- this is Ernest v.
2 Carter that lays this out. That there was a breach, that3 there was a proper acceleration, and that there are
4 damages sufficient enough to satisfy the mind of a prudent
5 and impartial person of a definitive amount.
6 Further, to elaborate on those prongs, the
7 Defendant has a statutory right of redemption.
8 Therefore, a definitive amount would then be
9 required in order to exercise that statutory right. It's
10 our position that a note and mortgage have been admitted
11 into evidence. The pay history was not admitted into
12 evidence to show either damages.
13 The acceleration letter was admitted, but
14 there was no evidence that it was sent, which is required
15 by paragraph 15 and paragraph 22 of the subject mortgage,
16 and that goes to whether or not there was a proper
17 acceleration. Because of those two reasons --
18 furthermore, there is an issue pertaining to standing.
19 There's been no evidence whatsoever. This
20 would go to the contract, the first prong. Pardon me,
21 Judge, for going out of order. I'm working backwards back
22 up through the list and ending up with the contract
23 relationship between the two parties.
24 There's been no testimony today that the
25 Plaintiff held the note or was entitled to enforce it
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1 prior to this suit being filed. There was a note that was
2 filed just a few months ago in this case, an original3 note.
4 The witness is from Seterus, a different
5 company, other than the Plaintiff, Fannie Mae. I was
6 tempted to move at that point to strike the witness as not
7 being authorized to testify for the Plaintiff in this
8 case.
9 It would have been proper in my opinion to do
10 so at that time, but I wanted to make sure if there was
11 more for the Court to be able to rule substantively rather
12 than just on that issue. I think we have more than enough
13 as to, again, standing, acceleration of damages. There
14 not being any evidence to meet their prima fascia case,
15 Judge.
16 THE COURT: Response.
17 MS. BEIK: No response, Your Honor.
18 THE COURT: The motion is granted.
19 MR. ROSEN: Thank you, Judge.
20 THE COURT: Somebody prepare an order, please.
21 MR. ROSEN: I will do it right now, Judge.
22 Judge, the Plaintiff has asked that the order
23 specify that it be without prejudice. I don't know if
24 that makes a big difference in light of--
25 THE COURT: I will give you my response. So
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1 C E R T I F I C A T E
2 STATE OF FLORIDA3 COUNTY OF BROWARD
4 I, Lucianna Coelho, Reporter, certify that I was
5 authorized to and did report the foregoing proceedings,
6 and that the transcript is a true and correct
7 transcription of my notes to the proceedings.
8 I further certify that I am not a relative,
9 employee, attorney, or counsel of any of the parties, nor
10 am I a relative or employee of any of the parties'
11 attorneys or counsel connected with the action, nor am I
12 financially interested in the action.
13
14 Signed this 16th day of July, 2014
15
16 _________________________________Lucianna Coelho, Reporter
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