Ice Legal - Ocwen HSBC_Bank_Trial_Redacted

561-835-0220

WWW.USLEGALSUPPORT.COM

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1 APPEARANCES:

2 On Behalf of PLAINTIFF:

3 MORRIS HARDWICK SCHNEIDER 5110 Eisenhower Boulevard, Suite 120

4 Tampa, Florida 33634 754-201-3550

5 BY: SILVER J. DEUTCH, ESQUIRE [email protected]

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7 On Behalf of DEFENDANTS:

8 ICE LEGAL, P.A. 1015 N. State Road 7, Suite C

9 Royal Palm Beach, Florida 33411 561-729-0530

10 BY: AMANDA LUNDERGAN, ESQUIRE SCOTT HOTLZ, ESQUIRE

11 STEVE BROTHMAN, ESQUIRE ANISHA ATCHANAH, ESQUIRE

12 [email protected]

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1 INDEX OF PROCEEDINGS

2 Witness: Page

3 LOUISE PLASSE

4 Direct Examination by MS. DEUTCH ............24

5 Cross Examination by MS. LUNDERGAN...........60

6 Redirect Examination by MS. DEUTCH...........88

7 Recross Examination by MS. LUNDERGAN.........92

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1 P R O C E E D I N G S

2 - - -

3 THE COURT: I believe this is the matter of HSBC

4 Bank against is that correct?

5 MS. DEUTCH: That is correct, Your Honor.

6 THE COURT: And we are set for trial?

7 MS. LUNDERGAN: Yes, Your Honor.

8 THE COURT: Is the plaintiff prepared?

9 MS. DEUTCH: We are prepared, Your Honor. We

10 actually wanted to discuss a possible settlement

11 before hand, but we were waiting for my witness to

12 get down here before doing so. So we would request a

13 couple of more minutes to do so to do that?

14 THE COURT: That's fine. We will be in recess.

15 Let me know when you're ready.

16 MS. DEUTCH: Okay. Thank you.

17 MS. LUNDERGAN: Thank you, Your Honor.

18 (A recess was taken.)

19 THE COURT: All right folks. Have a seat if you

20 will. I understand we are going to trial; is that

21 correct?

22 MS. DEUTCH: That's correct, Your Honor.

23 THE COURT: The plaintiff is ready?

24 MS. DEUTCH: Yes.

25 THE COURT: Is the defendant ready?

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1 sanctions for failure to comply with the court order

2 or on the alternative motion in lemony. It's a trial

3 motion and I have a copy for, Your Honor. I also

4 have a courtesy copy for counsel. I don't know if

5 you received it. It was filed late yesterday.

6 Essentially, Your Honor, the issue here is we

7 are here because this case -- this trial was reset from

8 June 26th -- it was reset from June 26th because of

9 plaintiff's failure to comply with the pretrial discovery,

10 and failure to provide us with the name of a witness, the

11 opportunity to depose that witness and their trial

12 exhibits.

13 Today, Your Honor, we are in essentially the

14 same position as we were on June 26th. Plaintiff failed

15 to provide us with the name of their witness through

16 formal discovery. They never filed a witness list or

17 exhibit list that had the name or identity of this

18 individual, Louise Plasse. Ms. Plasse was never

19 identified to us. She was identified via an informal

20 conversation via email. And during that same conversation

21 we requested to take the deposition of Ms. Plasse as soon

22 as we learned of her identity. We were only given one

23 opportunity to do so, and that opportunity was to take

24 place yesterday afternoon. The purpose of which really

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

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1 deposition the afternoon before trial would leave us with

2 little to no chance of obtaining a transcript to use at

3 trial.

4 Additionally, Your Honor, if we were to do so we

5 would have to do so at exceedingly great costs. So

6 essentially our ability to depose this witness which we do

7 have the right by rules of civil procedure was foreclosed,

8 and no pun intended, by plaintiff's actions in this case.

9 More over, Your Honor, we are still to this day

10 without any receipt or knowledge of which exhibits the

11 defendant (sic) intends to use at trial. While they did

12 file an exhibit list for this case on August 1st, 6

13 business days before this trial. Despite numerous

14 requests throughout the life of this case we have not yet

15 received from plaintiff any copies from any trial exhibits

16 that they intend to use in this case.

17 Essentially, we are being forced to try this

18 case facing trial by ambush tactics. I have not had an

19 opportunity to review the payment records that plaintiff

20 is going to specifically rely on for purposes of this

21 trial. I have not had the opportunity to review any of

22 the exhibits that plaintiff intends to introduce into

23 evidence before you.

24 The purposes of the trial order, and the trial

25 order is very specific and clear that we are to conduct

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1 to abide by the trial order for the second time when

2 today this case was specially set by Judge Biebel at

3 the last trial setting for the exact same reasons we

4 had to come before you and make this motion today.

5 THE COURT: And when was the trial order

6 entered?

7 MR. BROTHMAN: June 26th.

8 THE COURT: This year?

9 MR. BROTHMAN: Yes.

10 THE COURT: Counsel, how do you respond?

11 MS. DEUTCH: For starters, Your Honor, the last

12 motion in lemony at the previous trial was in fact

13 denied. Since that trial it was reset at that date

14 to today. Forgive me because counsel was jumping a

15 little bit all over the place here, but for starters

16 we filed two witness exhibit lists. I would like you

17 to know that the one filed on August 1st was actually

18 withdrawn yesterday. As I had myself inform counsel

19 previously that we would be going off of our

20 previously filed witness and exhibit list which was

21 filed for the June 26th nonjury trial in here. Where

22 we do attach -- we have numerous exhibits listed and

23 we do attach an Exhibit A where we have various

24 possible witnesses.

25 When I was requested -- when I was contacted by

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1 their office more recently, I believe it was perhaps

2 around the 22nd of July -- well, let me see, it was around

3 the 22nd of July. I had been speaking with a Scott Holtz

4 in their office numerous times ever since mid July where

5 we actually had a conference to confer about this

6 beforehand on June 19th. And after that we had been in

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

8 as promptly as possible telling them the exact name of our

9 witness.

10 Afterwards on last Wednesday after I furnished

11 the name they requested a deposition of our witness. I

12 immediately contacted my witness to ask what her available

13 times may be, and she responded to me over the weekend

14 first thing Monday morning. I let them know that the only

15 day that she had available was yesterday afternoon. I

16 cannot make my witness available.

17 They have had our witness and exhibit list for

18 -- when was this filed, for it looks like well over a

19 month at this point, that they were free to notice her for

20 deposition and every person on that list. They were free

21 to contact us ahead of time if they wanted to.

22 The fact is they asked for a deposition of our

23 actual witness nine days before trial. The fact that my

24 witness doesn't have any available time I can't do

25 anything about that, but I responded in due course to all

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1 of their requests, and in as good fashion as possible.

2 And regarding any filed exhibits, number one;

3 the note and mortgage, the original documents had been

4 filed in the court file since 2009. On top of that I was

5 served with a pretrial request for production asking for

6 my exhibits that I attached the note, mortgage, payment

7 history and demand letter. And that pretrial request for

8 production was done even before last trial. They have

9 known what exhibits I intended to introduce at trial

10 today. To argue that there is any ambush is misguided.

11 THE COURT: Thank you. Counsel, any further

12 comments?

13 MR. BROTHMAN: Yes, Your Honor, I have to

14 disagree respectfully with counsel's framing of the

15 current situation. First of all, we've asked for the

16 deposition in the life of this case, not referring to

17 the specific trial setting, but referring to the

18 overall life of the case. And in the previous trial

19 setting we asked for the deposition of their trial

20 witness three months ago for the first time. That

21 was the first time we asked to take the deposition of

22 their trial witness.

23 We did not get the name Louise Plasse until

24 July 31st, and it was that same day July 31st that we

25 asked to take the deposition once they actually gave us

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1 the name of the witness.

2 So for counsel to argue that we waited until

3 nine days before trial to ask to take the deposition of

4 their witness that's only because it was nine days before

5 trial that they actually gave us the name of that trial

6 witness. And in that correspondence that is when Ms.

7 Deutch referred to the fact that Ms. Plasse is listed on

8 the last witness and exhibit list filed by the plaintiff.

9 But up until that point up until July 31st the

10 defendants had no idea what witness list they were going

11 to be using. They had not filed a new witness list. They

12 had not indicated that they would affirmatively be relying

13 upon their previously filed witness and exhibit list, and

14 frankly I have to disagree with Ms. Deutch's assessment of

15 the situation that somehow it's defendant's burden to

16 inquire who the witness is going to be, what witness and

17 exhibit list plaintiff is going to rely on.

18 The plaintiff -- the parties -- each party has

19 an affirmative duty under the trial order to list and

20 identify the witnesses and exhibits that each party is

21 going to rely on or use at trial. It is not up to me to

22 investigate which witnesses she's going to call, it's up

23 to the plaintiff to list those witnesses, identify those

24 witnesses and then if we would like to take their

25 depositions or if we would like to investigate further

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1 operating under when we wrote this motion and when we

2 finalized this motion in lemony.

3 Exhibit A attached to it is a list that goes

4 down the length of the page, and onto a second page of

5 witnesses. How are we supposed to discern from this list

6 with no help whatsoever that Louise Plasse is the

7 individual who is going to be there, and that's the person

8 whose deposition we have the right to take. I don't see

9 what remedy we have, Your Honor. How could we have

10 conducted ourselves any differently?

11 The fact is we were not provided the exhibits

12 when we requested them. We were not provided the name of

13 the witness until nine days before. As soon as we

14 received that name we asked for a deposition. They failed

15 to provide us with a legitimate opportunity to take that

16 deposition.

17 As such my clients have been prejudiced. We can

18 not in good conscience go forward today when we have not

19 had -- and it's not through any means of our own fault.

20 It's solely based on the plaintiff's inability or

21 unwillingness to comply with this Court's trial order.

22 We are simply asking this Court to stand by it's

23 trial order and enforce the conditions of it.

24 THE COURT: Counsel, anything further?

25 MS. DEUTCH: Yes, Your Honor. Actually drawing

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1 your attention to the actual trial order, and

2 reiterating some of our discussions in this case. On

3 July 16th I was contacted by Scott Holtz's firm, Ice

4 Legal to coordinate a time to confer on the 19th of

5 the above case, pursuant to the trial order I'm

6 assuming, and we did. We did speak on the morning of

7 the 19th and we did discuss settlement options or

8 whatever else might, you know, be -- that we might

9 discuss at that time.

10 I would like to note that the actual order

11 itself is specific that on the last business day no later

12 than 20 days prior to trial the parties shall confer and

13 discuss settlement, simplify the issues and stipulate in

14 writing as many facts and issues as possible and list all

15 objections to trial exhibits. List all objections to

16 trial exhibits.

17 Paragraph E additional exhibits, witnesses or

18 objections states in big bold letters, failure to state

19 objections to previously disclosed exhibits pursuant to

20 this order constitutes a waiver. There were no objections

21 raised at our discussion on the 19th, as such I believe

22 that they have waived any objections to our exhibits or

23 our witness at that time. They had knowledge. We

24 previously filed this witness and exhibit list, and any

25 objections were more than welcome to be raised at that

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1 time.

2 On top of that the trial order discusses motions

3 that must be set in courtroom 4B. This motion was filed

4 yesterday afternoon. This motion is late. And if we are

5 going to discuss ambush we are standing here today where

6 the only reason even that this motion existed was, because

7 I had a feeling they were going to file something. I went

8 into our service inbox and I happened to find it sitting

9 there. We didn't even have enough time to put it in our

10 system for us to find it. If we are going to argue ambush

11 there is a reason why these motions should be filed and

12 heard prior to more than, you know, one day before an

13 office closes a day before trial.

14 THE COURT: Anything further?

15 MS. DEUTCH: That's all for now, Your Honor.

16 THE COURT: Sir, you have the final word.

17 MR. BROTHMAN: I appreciate that, Your Honor. I

18 don't think it's fair to try and hold the trial

19 against us in raising this motion when by her own

20 admission, plaintiff's counsel hadn't even finalized

21 their witness and exhibit list until yesterday.

22 Seeing as how on August 1st they filed a witness list

23 and then yesterday they withdrew. So the point is

24 that this is exactly what goes to the heart of what

25 we have been arguing.

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1 THE COURT: You said they withdrew it?

2 MR. BROTHMAN: I believe plaintiff said that

3 they withdrew it --

4 MS. DEUTCH: There was one filed on August 1st,

5 we withdrew it yesterday. Someone else from my

6 office filed it and we withdrew it. However, I

7 previously mentioned to them that we were going off

8 the previously filed witness and exhibit list and

9 last Wednesday furnished them the name when I

10 received it of the exact witness who would be here

11 today.

12 THE COURT: Go ahead.

13 MR. BROTHMAN: And my problems with that whole

14 scenario, Your Honor, is that for the listed

15 witnesses and exhibits to be fluent up until the day

16 before trial it completely precludes our ability to

17 represent our clients to the best of our abilities

18 and prepare for trial. How are we supposed to

19 prepare adequately when the listed witnesses, the

20 listed exhibits they change and they are filed and

21 they are withdrawn up until they on the eve of trial.

22 It's impossible, Your Honor. We have been holy

23 prejudiced by the plaintiff's inability to abide by

24 the trial order in this case.

25 Additionally, Your Honor, we did preserve our

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1 objections specifically to the exhibits by filing timely

2 as I read the trial order to defendant's objections to

3 plaintiff's exhibit list, and that was filed June 24th,

4 which I believe complies with the trial order.

5 I will agree that Ms. Deutch and I did confer on

6 the phone. We did discuss settlement issues, we did

7 generally discuss issues of the case, but in no way do I

8 construe or should this Court construe the trial orders

9 mandates to confer to limit our ability to raise

10 legitimate grounds for why this case ought to be dismissed

11 as a sanction and as a failure to comply with court order,

12 or in the alternative to dismiss this case because we have

13 not -- because defendants actions have so severely

14 prejudiced us that we cannot possibly adequately prepare

15 for trial. It is a direct violation of the trial order.

16 THE COURT: All done?

17 MS. DEUTCH: Yes, Your Honor. We do have all of

18 the information that we need -- I believe you have

19 all of the information.

20 THE COURT: All right. Let's see apparently,

21 these are separate motions, one is the motion for

22 sanctions and the other one is the motion for other

23 objections to the trial.

24 MR. BROTHMAN: Your Honor, that is something in

25 evidence for us preserving --

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1 THE COURT: So we are not arguing that?

2 MR. BROTHMAN: No, we are not, Your Honor. And

3 in fact if you noticed we couldn't even properly

4 raise objections because as we note we had not

5 actually received any exhibits.

6 THE COURT: I understand. All right. With

7 regards to defendant's motion to sanctions

8 for failure to -- court order or in the alternative

9 motion in lemony that motion will be denied.

10 Are we ready to start the case?

11 MS. DEUTCH: Yes, Your Honor.

12 THE COURT: All right.

13 MS. LUNDERGAN: Your Honor, we have a formal

14 motion for continuance based on that ruling.

15 THE COURT: I beg your pardon?

16 MR. BROTHMAN: We have a formal motion for

17 continuance based on, Your Honor's ruling.

18 THE COURT: Okay. Motion for continuance will

19 be denied.

20 MS. LUNDERGAN: I just want the record to

21 reflect that the Court has denied the motion without

22 reading it.

23 THE COURT: All right. Anything further? All

24 right. Let's have some opening statements. How long

25 do you think you will need?

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1 MS. DEUTCH: Only a minute or two, Your Honor.

2 THE COURT: Okay. Go right ahead.

3 MS. DEUTCH: If you would just allow me to step

4 back and --

5 MS. LUNDERGAN: Your Honor, how long are you

6 going to allow us to stay today? Because we are

7 anticipating three or four hours.

8 THE COURT: I don't know. We will go as long as

9 we can and hopefully we will be out of here before

10 it's dark.

11 MS. LUNDERGAN: Your Honor, we appreciate it.

12 We are going to need a lot of leeway since we didn't

13 have the deposition to ask questions.

14 THE COURT: May I ask this, who is going to try

15 this case? I don't --

16 MS. LUNDERGAN: I am, Your Honor.

17 THE COURT: I don't want to be double teamed.

18 MS. LUNDERGAN: I am, Your Honor.

19 THE COURT: Counsel, go right ahead.

20 MS. DEUTCH: Thank you.

21 MR. BROTHMAN: Can we get orders signed on the

22 motions before we get started?

23 THE COURT: If you have some then by all means.

24 Of course they are right in the record, because we do

25 have a reporter here.

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1 MS. LUNDERGAN: Yes, Your Honor, but you can't

2 appeal them without an order, so we need an order.

3 And just for the record here is our signed

4 motion for continuance that Your Honor, did not review. I

5 just want to make sure it's in the record. It is a

6 formally signed motion for continuance.

7 MR. BROTHMAN: I have shown the proposed orders

8 to opposing counsel.

9 THE COURT: Today is the 9th; is it not?

10 MS. LUNDERGAN: Yes, Your Honor.


12 MS. LUNDERGAN: Thank you.

13 THE COURT: Counsel, go right ahead.

14 MS. DEUTCH: Yes, Your Honor and I'll only need

15 a few minutes. Your Honor, as you will see from the

16 evidence presented and from my witness' testimony

17 this is a very clear-cut case. The borrower signed

18 the note and mortgage, the borrower defaulted on this

19 loan, and as such they haven't curred this default to

20 this date. My witness will also testify to the

21 original note and mortgage which is in the court file

22 which I had brought up here today.

23 And as you will see the notes is endorsed to

24 blank and in such standing is evident and the only issues

25 that really should be looked at today are the fact that

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1 does the plaintiff in this case have standing, and based

2 on the blank endorsement you will see that they clearly do

3 and based on my witness testimony, you will see that they

4 clearly do, and also what did the defendant's -- the

5 borrowers default on the loan and was this default curred?

6 And as you will see the borrowers did in fact

7 default on this loan and to date this default has not been

8 curred since this is a, I believe a 2008 case. We are

9 here several years later where my client, the plaintiff in

10 this case has been severely harmed by not receiving any

11 payments to this date, and I do feel that this is a clear

12 cut case and there are no real issues that would prevent a

13 final judgment being entered for the plaintiff in this

14 action. Thank you.

15 THE COURT: Thank you. Counsel.

16 MR. BROTHMAN: Your Honor, before beginning the

17 opening statement I'd like to just for the record

18 formally object to starting the trial at this hour,

19 it's 2:52 and we don't believe that we will be able

20 to complete this trial on this day at this time.

21 This was set for an all day trial and we are starting

22 this late. We are likely going to have to start this

23 trial and stop it and then continue it at a later

24 time, which we believe prejudices our ability to

25 defend this case.

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1 THE COURT: Your objection is overruled, let's

2 move forward.

3 MR. BROTHMAN: Your Honor, in this case you will

4 find that unlike the picture the plaintiff has

5 painted for you this case is not simple, it is not

6 cut and dry. There are issues with the endorsements

7 or whether -- and the timing of those endorsements.

8 Because as, Your Honor is going to find from the

9 evidence the note that was attached to the complaint

10 in this case did not have any endorsements on it. So

11 there will be questions that the plaintiff will have

12 to answer, and they can't answer as to when those

13 endorsements that they're going to try to use today

14 to establish standing in this case were placed on

15 that note.

16 The evidence will show -- will prove that they

17 do not have the standing to bring this action. Moreover,

18 Your Honor, you will find that through close examination

19 of the other necessary evidence that plaintiff will try to

20 introduced in this case that they do not have the

21 requisite payment records, and do not have the requisite

22 records in general. And they will not be able to meet the

23 evidentiary burdens of even establishing the documents in

24 which they rely are business records, and thus they will

25 not be able to prove their case.

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1 THE COURT: Thank you kindly. All right. Are

2 you ready to call your first witness?

3 MS. DEUTCH: I am, yes, Your Honor. The

4 plaintiff calls Louise Plasse to the stand.

5 THE COURT: Ma'am, will you raise your right

6 hand. Do you swear the testimony you are about to

7 give will be the truth, the whole truth, and nothing

8 but the truth?

9 THE WITNESS: Yes, Your Honor.

10 MS. DEUTCH: Also, Your Honor, before I begin I

11 would also request that if I could have the original

12 note and mortgage from the court file to use as

13 exhibits.


15 MS. DEUTCH: Thank you.

16 THEREUPON,

17 LOUISE PLASSE

18 having been first duly sworn, was examined and testified

19 as follows:

20 DIRECT EXAMINATION

21 BY MS. DEUTCH:

22 Q What is your first and last name?

23 A Louise Plasse, P-L-A-S-S-E.

24 Q And who are you employed by?

25 A Ocwen Financial Services.

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1 Q What is your position?

2 A I'm a loan annalist.

3 Q Do you have authority to testify on behalf of

4 the plaintiff in this action?

5 A Yes.

6 MS. LUNDERGAN: Objection, Your Honor, lack of

7 foundation. There is no documented evidence or that

8 she's proffered, that she would have any authority to

9 testify on behalf of the plaintiff.

10 THE COURT: Rephrase if you will.

11 BY MS. DEUTCH:

12 Q And who is your employer?

13 A Ocwen Financial Services.

14 Q What is their relation to the plaintiff is this

15 action?

16 A We are the current loan servicer for this loan.

17 Q And --

18 THE COURT: Excuse me could you pick up the mic.

19 Thank you so much.

20 THE WITNESS: I'm sorry.

21 BY MS. DEUTCH:

22 Q I'm sorry. Could you repeat that.

23 A We are the loan servicer for this loan.

24 Q And thus do you have authority to testify on

25 behalf of the plaintiff for this action?

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1 MS. LUNDERGAN: Objection, Your Honor. It calls

2 for hearsay. The document that would speak to that

3 is some sort of power of attorney, or authorization

4 on behalf of the plaintiff. It's not here, and it

5 hasn't been introduced into evidence and therefore

6 it's hearsay.

7 THE COURT: Okay. Overruled.

8 MS. DEUTCH: Thank you, Your Honor.

9 BY MS. DEUTCH:

10 Q Do you have personal knowledge of the business

11 practices and procedures of Ocwen?

12 MS. LUNDERGAN: Objection, leading. It calls

13 for hearsay again. She hasn't laid any foundation as

14 to how she would have any knowledge or to speak to as

15 to service record policies.

16 THE COURT: Overruled.

17 BY MS. DEUTCH:

18 Q Are you familiar with the instant loan in this

19 case?

20 A Yes.

21 Q I'm sorry. Can I go back to the previous

22 question?

23 A Yes.

24 Q Since you did not answer. Do you have personal

25 knowledge of the business practices and procedures?

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1 MS. LUNDERGAN: Same objection.

2 THE COURT: Same ruling. Go ahead.

3 THE WITNESS: Do I have personal knowledge, yes.

4 BY MS. DEUTCH:

5 Q And are you familiar with the instant loan in

6 this case?

7 A Yes, I am.

8 Q Have you reviewed the Ocwen records related to

9 this loan?

10 A Yes, I have.

11 MS. LUNDERGAN: Objection, Your Honor. Leading.

12 What records is she referring to? Just saying has

13 she reviewed the records is vague, Your Honor.


15 BY MS. DEUTCH:

16 Q And do you have personal knowledge of these

17 business records with respect to this loan?

18 A Yes, I do.

19 Q Are these business records input

20 contemporaneously when the transaction occurs?

21 MS. LUNDERGAN: Your Honor, objection. We

22 haven't heard anything about what department she

23 works in, how she would have knowledge about the

24 business records of section and these are all leading

25 questions, Your Honor.

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1 THE COURT: Okay. I'm going to let you take

2 care of that in cross-examination.

3 MS. DEUTCH: Your Honor, they are more than

4 welcome to voir dire my witness.

5 MS. LUNDERGAN: I would request to voir dire

6 her, Your Honor, on her relationship with the

7 plaintiff.

8 THE COURT: I'm sorry. What was that?

9 MS. LUNDERGAN: I would request to voir dire the

10 witness on her relationship to the plaintiff. I

11 don't believe she has any authority to testify on

12 behalf of the plaintiff. She does not work for the

13 plaintiff.

14 THE COURT: I don't think that's proper at this

15 time. Your request will be denied. Go ahead.

16 BY MS. DEUTCH:

17 Q So have you reviewed the Ocwen records related

18 to this loan?

19 MS. LUNDERGAN: Same objections, Your Honor,

20 hearsay, lack of authenticity, lack of foundation.


22 THE WITNESS: Yes, I have.

23 BY MS. DEUTCH:

24 Q And do you have personal knowledge of these

25 records with respect to this loan?

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1 MS. LUNDERGAN: Same objections.


3 THE WITNESS: Yes, I do.

4 BY MS. DEUTCH:

5 Q Are these records input contemporaneously when a

6 transaction occurs?

7 MS. LUNDERGAN: Same objections, Your Honor.


9 THE WITNESS: Yes, they are.

10 BY MS. DEUTCH:

11 Q Are these records made by a person with

12 knowledge of such records?




16 BY MS. DEUTCH:

17 Q Are these records kept in the ordinary course of

18 business and regular conducted business activity?




22 BY MS. DEUTCH:

23 Q And is it your regular business practice to keep

24 such records?


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2 THE WITNESS: Yes, it is.

3 MS. DEUTCH: At this time do you need to see --

4 MS. LUNDERGAN: Yes, I do. Several objections,

5 Your Honor. First, if I may show you a case. The

6 complaint in this case has no promissory note

7 attached to the complaint and therefore it's outside

8 of the --

9 THE COURT: Wait, what are you objecting to?

10 MS. LUNDERGAN: I'm objecting to this note as

11 being irrelevant on the grounds that it's not

12 attached to the complaint. There is no --

13 THE COURT: Well, has it been introduce or

14 attempted to be introduced into evidence?

15 MS. LUNDERGAN: I believe she is trying to mark

16 it for identification at this point, Your Honor.

17 MS. DEUTCH: No, I was just showing it to

18 opposing counsel before I questioned my witness.

19 MS. LUNDERGAN: And it's irrelevant, Your Honor

20 to show it to the witness because it's outside of the

21 scope of the pleadings. I have a case that is

22 directly on point.

23 THE COURT: But there is no question that you

24 could object to that I would have to rule on, so wait

25 for the question and I'll be glad to hear your

561-835-0220


31

1 objection and I'll rule on it.

2 MS. LUNDERGAN: That's fine, Your Honor, and I

3 believe they were to be pre-marked as exhibits and

4 they are not marked at all.

5 MS. DEUTCH: Well, they were in the court file

6 prior to me having them here today, Your Honor.

7 THE COURT: Do you want to put that into

8 evidence?

9 MS. DEUTCH: Yes.

10 THE COURT: Let's get it marked for

11 identification.

12 MS. DEUTCH: Okay.

13 (Plaintiff's Exhibits 1 and 2 were marked for

14 identification.)

15 BY MS. DEUTCH:

16 Q All right. Ms. Plasse, I'm now going to show

17 you a document entitled Plaintiff's Exhibit Composite 1

18 for identification purposes. If you can flip to the

19 second page on it. Do you recognize this document?

20 MS. LUNDERGAN: Same objections, Your Honor, and

21 if I may approach with my case law?

22 THE COURT: Yes, ma'am.

23 MS. LUNDERGAN: Your Honor, the complaint in

24 this case has no promissory note at all attached to

25 it. There is a case right on point, Your Honor, out

561-835-0220


32

1 of the 2nd DCA where a Court was reversed for

2 entering a judgment on a case where there was no

3 promissory note attached to the complaint. What it

4 stated was a subsequent filing would not procure the

5 default --

6 THE COURT: What is the objection?

7 MS. LUNDERGAN: It's irrelevant, Your Honor, and

8 it's outside of the scope of the pleadings.

9 THE COURT: Now, I'll be glad to hear what you

10 have to say.

11 MS. LUNDERGAN: Thank you, Your Honor. The

12 Feltis (Phonetic) case what I was stating out of the

13 2nd DCA reversed a Court when they entered a judgment

14 on a complaint when there was no promissory note

15 attached to the complaint. There was a subsequent

16 filing of the note. But what the case says is

17 subsequent filing is a nullity, you have to amend the

18 complaint and attach the operative instrument and in

19 this case the promissory note.

20 So, I'm objecting, Your Honor, that it's one

21 outside of the scope of the pleadings, two; it's

22 irrelevant since it's not part of the pleadings and I'm

23 also reiterating my objections to the authenticity and

24 hearsay.

25 THE COURT: All right. Your objection is

561-835-0220


33

1 overruled. Let's move on.

2 MS. LUNDERGAN: Thank you. And I also wanted to

3 let the record reflect that the Court overruled it

4 without reading the case law.

5 BY MS. DEUTCH:

6 Q Do you recognize this document?

7 A Yes, I do.

8 Q And what is it?

9 A This is the --



12 THE WITNESS: This is the original adjustable

13 rate note dated March 21, 2006 with the address being

14 listed as 2725 Fox Hall Drive East West Palm Beach,

15 Florida 33417. It is made in the amount of $260,000

16 and the lender is listed as Fremont Investment and

17 Loan.

18 MS. LUNDERGAN: Your Honor, I'm moving to strike

19 her testimony. She is reading from a document that

20 is not in evidence. The case of Sas verses Federal

21 National Mortgage Association stands for the

22 proposition that a witness cannot read from documents

23 that have not been introduced into evidence.

24 THE COURT: I tend to agree with you, it's not

25 in evidence and I will grant your motion.

561-835-0220


34


2 THE COURT: Go right ahead.

3 BY MS. DEUTCH:

4 Q So can you please reiterate what this document

5 is?

6 A This is the original adjustable rate note dated

7 March 21, 2006 and --

8 Q I can continue from here. Is this document kept

9 in the ordinary course of business practices of Ocwen?

10 MS. LUNDERGAN: Objection, hearsay, lack of

11 foundation.



14 BY MS. DEUTCH:

15 Q Do you have personal knowledge of this record?




19 BY MS. DEUTCH:

20 Q Is this record input contemporaneously when a





25 BY MS. DEUTCH:

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35

1 Q Is this note related to the loan we are here

2 for?




6 BY MS. DEUTCH:

7 Q And have you reviewed this document prior to

8 coming to court today?

9 A Yes, I have.

10 Q And do you recognize this to be the note related

11 to the loan which you are here today in court for?




15 MS. DEUTCH: Your Honor, I would like to at this

16 time move to admit Exhibit 1 into evidence.

17 THE COURT: All right. This is the note now

18 that we are talking about?

19 MS. DEUTCH: Well, it's a composite document.

20 Would you prefer it to be entire document or the note

21 and mortgage separately?

22 MS. LUNDERGAN: Your Honor, I have to object.

23 She hasn't asked any questions about the mortgage,

24 and to introduce it into evidence as a composite --

25 THE COURT: I will admit it as Plaintiff's

561-835-0220


37

1 THE WITNESS: March 21, 2006.

2 BY MS. DEUTCH:

3 Q What was the original amount of the loan as

4 stated on the note?

5 A $260,000.

6 Q And do you recognize this to be the original

7 note?




11 BY MS. DEUTCH:

12 Q And is there an endorsement on this note?

13 A There is a blank endorsement on the back from

14 Fremont Investment and Loan.

15 Q And is that endorsement endorsed to a particular

16 entity?

17 A No, it's not.

18 Q Was the plaintiff in possession of this original

19 blank endorsed note prior to filing of this suit?

20 MS. LUNDERGAN: Objection, hearsay, calls for

21 speculation, authenticity. There would be a document

22 that speaks to them acquiring it. Her testifying

23 about what their records show there are no records in

24 evidence at that point.

25 MS. DEUTCH: Your Honor, she's testified that

561-835-0220


38

1 she has reviewed the records surrounding this note.

2 MS. LUNDERGAN: But her testimony about records

3 which aren't into evidence are hearsay. So until she

4 gives you those records she can't testify about what

5 her knowledge of those records say.

6 THE COURT: Okay. Objection is overruled. You

7 may answer the question.

8 THE WITNESS: I forgot what the question was.

9 BY MS. DEUTCH:

10 Q Was the plaintiff in possession of this original

11 blank endorsed note prior to the filing of this suit?



14 THE WITNESS: Yes, they were.

15 BY MS. DEUTCH:

16 Q All right. I would now like you to flip to --

17 if I can help you, a document with the word mortgage

18 written at the top.

19 MS. DEUTCH: And I can let the record reflect

20 that this is part of what has previously been marked

21 as Plaintiff's Composite Exhibit 1.

22 THE COURT: For identification purposes.

23 MS. DEUTCH: For identification purposes. Thank

24 you.

25 BY MS. DEUTCH:

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39

1 Q Do you recognize this document?

2 MS. LUNDERGAN: Same objections, Your Honor,

3 authenticity, hearsay, lack of foundation.


5 THE WITNESS: Yes, this is the original mortgage

6 recorded in Palm Beach on 4-24-2006.

7 BY MS. DEUTCH:

8 Q Is this document kept in the ordinary course of

9 business practices of Ocwen?


11 foundation.



14 BY MS. DEUTCH:

15 Q Do you have personal knowledge of this record?




19 BY MS. DEUTCH:


21 transaction occurs.




25 BY MS. DEUTCH:

561-835-0220


41

1 the mortgage?



4 THE WITNESS: The address listed is 2725 Fox

5 Hall Drive East West Palm Beach, Florida 33417.

6 BY MS. DEUTCH:

7 Q And again has this mortgage been recorded?


9 How is she going to know if it's been recorded? She

10 doesn't work in recording department. It's hearsay.

11 THE COURT: Thank you for your comments, it's

12 overruled.

13 THE WITNESS: Yes, this document was recorded on

14 4-24-2006 and the pages are 742 to 765.

15 BY MS. DEUTCH:

16 Q And will you let the Court know where this

17 document has been recorded?



20 THE WITNESS: Palm Beach County.

21 BY MS. DEUTCH:

22 Q Thank you. Ms. Plasse, I'm now going to show

23 you what's been previously marked as Plaintiff's Exhibit 3

24 for identification purposes. Do you recognize this

25 document?

561-835-0220


42

1 MS. LUNDERGAN: Objection, hearsay.


3 THE WITNESS: Yes, I do. This is know as the

4 breach letter or default letter.

5 BY MS. DEUTCH:

6 Q And where do you recognize this document from?


8 foundation.


10 THE WITNESS: This document was part of Mr. and

11 Mrs. loan portfolio in our system.

12 BY MS. DEUTCH:

13 Q And is this document kept in the ordinary course

14 of business practices of Ocwen?


16 foundation.



19 BY MS. DEUTCH:

20 Q And you have personal knowledge of this record?

21 MS. LUNDERGAN: Same objection and leading.



24 BY MS. DEUTCH:


561-835-0220


43





5 BY MS. DEUTCH:

6 Q And you previously reviewed this document prior

7 to coming to court here today?

8 A Yes, I did.

9 MS. DEUTCH: Your Honor, at this time I would

10 like to move to admit Exhibit 3 into evidence?

11 MS. LUNDERGAN: Objection, Your Honor. This is

12 a document from a third party which is neither the

13 plaintiff's document nor the company for which the

14 witness works for. They have laid no foundation as

15 to how she would have any familiarity with a third

16 parties business records. She hasn't laid any

17 foundation. So I'm going to renew my objection to

18 hearsay, authenticity, lack of foundation. And I

19 would request to voir dire the witness.

20 THE COURT: Your objection is overruled and it

21 will be admitted into evidence as Plaintiff's Exhibit

22 3.

23 BY MS. DEUTCH:

24 Q What is the purpose of this letter?

25 MS. LUNDERGAN: Objection, calls for

561-835-0220


45

1 MS. LUNDERGAN: Objection, lack of foundation,

2 and hearsay.


4 THE WITNESS: Popular Mortgage Servicing, Inc.

5 sent this letter.

6 BY MS. DEUTCH:

7 Q And in looking at the document can you please

8 read the first sentence.

9 MS. LUNDERGAN: Objection, Your Honor. The

10 document speaks for itself. We don't need to sit

11 here and have the witness read the document into the

12 record.

13 THE COURT: I agree with you. Sustained.

14 BY MS. DEUTCH:

15 Q Now, in your reviewing of this record have you

16 been able to see is this loan in default according to this

17 record?


19 foundation.

20 THE COURT: I'm sorry. Would you kindly repeat

21 the question, Miss reporter.

22 MS. DEUTCH: That's all right.

23 BY MS. DEUTCH:

24 Q According to this record is this loan in

25 default?

561-835-0220


46



3 THE WITNESS: Yes, they are currently in

4 default.

5 BY MS. DEUTCH:

6 Q And does this letter indicate a timeframe within

7 which the borrowers are to cure this default?

8 MS. LUNDERGAN: Your Honor, objection the

9 document speaks for itself.

10 THE COURT: Sustained.

11 BY MS. DEUTCH:

12 Q And in reviewing this record has the borrower

13 cured the default?


15 foundation, facts are relying on records which are

16 not into evidence.

17 THE COURT: You said in reviewing this letter

18 has the borrower curred the default?

19 MS. DEUTCH: Right.

20 MS. LUNDERGAN: That would be relying on payment

21 records that have not admitted into evidence.

22 MS. DEUTCH: I'll withdraw the question.

23 THE COURT: Repeat the question.

24 MS. DEUTCH: I'll withdraw the question, Your

25 Honor.

561-835-0220


47


2 MS. DEUTCH: All right. Thank you.

3 THE COURT: Counsel, let me interrupted you for

4 a moment at this point I have to take about a five

5 minute break. We will be in recess for five minutes.

6 MS. LUNDERGAN: The witness is still on the

7 stand, Your Honor?

8 THE COURT: I beg your pardon?

9 MS. LUNDERGAN: The witness is still on the

10 stand and still under oath?

11 THE COURT: Yes, ma'am.


13 (A recess was taken.)

14 THE COURT: You may proceed.

15 MS. LUNGERGAN: Are you entering this as a

16 composite exhibit?

17 MS. DEUTCH: Yes.

18 MS. LUNGERGAN: Your Honor, I'm going to renew

19 my objection. These documents were never provided

20 prior to today, besides the last few pages. We

21 specifically requested these in discovery. I'm now having

22 to look at payment records on the spot and figure out if

23 they are accurate. I can't show them to my client and

24 compare them. So this is the first time I've seen part of

25 these records.

561-835-0220


48

1 MS. DEUTCH: Your Honor, actually I believe --

2 I'm going to have to check the pretrial request for

3 production --

4 MS. LUNGERGAN: I withdraw my objection, Your

5 Honor.

6 THE COURT: I'm sorry.

7 MS. LUNGERGAN: My objection is withdrawn.

8 THE COURT: Okay. Counsel, you may proceed.

9 BY MS. DEUTCH:

10 Q I'm showing you what's been previously marked as

11 Exhibit 4 for identification purposes. Do you recognize

12 this document?

13 MS. LUNGERGAN: Objection, lack of foundation,

14 hearsay. She hasn't laid any foundation that she is

15 familiar with the servicing department or servicing

16 the records.


18 THE WITNESS: Yes, I do recognize this. This is

19 a copy of the payment history.

20 BY MS. DEUTCH:

21 Q And is this document kept in the ordinary course

22 of business practices of Ocwen?

23 MS. LUNGERGAN: Objection, hearsay, lack of

24 foundation.


561-835-0220


49


2 BY MS. DEUTCH:

3 Q And do you have personal knowledge of this

4 record?

5 MS. LUNGERGAN: Same objection.



8 BY MS. DEUTCH:

9 Q Are these records input contemporaneously when

10 the transaction occurs?




14 MS. DEUTCH: Your Honor, at this time I would

15 like to move to admit Exhibit 4 into evidence.

16 MS. LUNGERGAN: Objection, Your Honor, hearsay

17 and lack of foundation. We have heard zero testimony

18 from this witness that she has any familiarity with

19 the records servicing department, what those

20 requirements are, that she's familiar with the

21 policies and procedures which is a requirement for

22 business records exception. Furthermore, the

23 majority of these documents are from a servicer that

24 she's never worked for. It's not the current

25 servicer. So she'd have to lay the foundation for

561-835-0220


50

1 that corporations business records exception as well.

2 THE COURT: Thank you. Overruled.

3 Did you offer to admit that into evidence?

4 MS. DEUTCH: Yes, Your Honor.

5 THE COURT: All right. It will be received as

6 Plaintiff's Exhibit 4.

7 MS. LUNGERGAN: I request to voir dire the

8 witness, Your Honor?

9 THE COURT: Save it for cross-examination.

10 BY MS. DEUTCH:

11 Q Did you review this document prior to coming to

12 court today?

13 A Yes, I did.

14 Q And what is this document?

15 A It is a copy of the loan transaction history.

16 Q And what exactly does this document reflect?

17 MS. LUNGERGAN: Your Honor, the document speaks

18 for itself. We don't need to have her read from the

19 document.

20 THE COURT: I agree, sustained.

21 BY MS. DEUTCH:

22 Q According to this record what is the date of

23 default of this loan as indicated in the payment?


25 foundation.

561-835-0220


51


2 THE WITNESS: They are in default as of

3 February 1, 2008.

4 THE COURT: I'm sorry what was the date again?

5 THE WITNESS: February 1, 2008.

6 THE COURT: Thank you.

7 BY MS. DEUTCH:

8 Q And does this payment history accurately reflect

9 all of the payments and disbursements on this loan?


11 foundation.


13 THE WITNESS: Yes, it does.

14 BY MS. DEUTCH:

15 Q According to this document has the borrower

16 reinstated this loan?

17 MS. LUNGERGAN: Same objections.


19 THE WITNESS: No, they have not.

20 BY MS. DEUTCH:

21 Q And according to this document is this loan

22 still in default?

23 MS. LUNGERGAN: Same objections.



561-835-0220


52

1 MS. LUNGERGAN: Your Honor, I object. She's

2 trying to show the witness a proposed final judgment.

3 That is in no way the imagination a business record

4 of any sort. We sent, Your Honor, rules to present

5 at final judgment, but showing the final judgment to

6 the witness is holy improper.

7 THE COURT: Showing the final judgment to --

8 MS. LUNGERGAN: -- to the witness. She wants to

9 show --

10 MS. DEUTCH: I'm not trying to move this into

11 evidence, Your Honor.

12 MS. LUNGERGAN: Then the witness can't testify

13 from it. There is no since in showing it to the

14 witness if she's not trying to move it into evidence.

15 It's completely prejudicial, Your Honor, to have her

16 witness try to testify from the proposed final

17 judgment. Furthermore, there is case law, Your

18 Honor, that the Court is not supposed to take one

19 parties final judgment. They are supposed to be able

20 to submit both parties final judgment. So to be --

21 to the extent that she's trying to let her witness

22 read from the proposed final judgment or testify from

23 it a document that she has said that she is not

24 moving into evidence she can't show it to the

25 witness.

561-835-0220


53

1 It's a document created for litigation. If

2 there is not anything more definitive of a document

3 created for litigation, it's the proposed final judgment.

4 THE COURT: Well, is the witness going to sign

5 the final judgment?

6 MS. LUNGERGAN: She wants the witness to testify

7 as to the veracity of her proposed final judgment

8 which is improper, Your Honor. The witness can put

9 into evidence whatever business records she has, but

10 that is not one of them.

11 THE COURT: Well --

12 MS. DEUTCH: It is --

13 THE COURT: On the assumption -- everybody is

14 jumping ahead in this game. On the assumption she's

15 going to show that to the witness I think the

16 question would be the purpose for which that is

17 shown, and I haven't heard that one yet. So for the

18 moment I'm going to overrule the objection. Let's

19 see what happens.

20 MS. DEUTCH: Would you like to review it?

21 MS. LUNGERGAN: I've never seen this proposed

22 final judgment. So I'd ask for a few minutes since

23 this was not provided to me prior to right now. I'd

24 ask for a few moments to go through the final

25 judgment.

561-835-0220


54

1 THE COURT: By all means.

2 MS. DEUTCH: We have no objection to that, Your

3 Honor.

4 BY MS. DEUTCH:

5 Q I'm now showing you a copy of the proposed final

6 judgment.

7 MS. LUNGERGAN: Objection, Your Honor. She

8 can't show the witness a document prepared for and in

9 anticipation of litigation. It's not any sort of

10 business record or document from her corporation.

11 This is a document prepared for by the attorneys.

12 THE COURT: Let's find out the purpose for which

13 it is presented. For the moment I will overrule the

14 objection. Go ahead.

15 BY MS. DEUTCH:

16 Q Have you reviewed the figures on this proposed

17 final judgment?

18 THE COURT: I'm sorry. Would you repeat that.

19 BY MS. DEUTCH:

20 Q Have you reviewed the figures on this proposed

21 final judgment?

22 MS. LUNGERGAN: Objection, Your Honor, relevance

23 if she's not moving this final judgment into evidence

24 what does it matter if the witness has reviewed the

25 document?

561-835-0220


55


2 THE WITNESS: Yes, I have.

3 BY MS. DEUTCH:

4 Q And are these -- are the figures in the proposed

5 final judgment accurate according to the business records

6 that you have reviewed prior to this trial?

7 MS. LUNGERGAN: Objection Your Honor -- I'm

8 sorry I didn't mean to cut her off.


10 MS. LUNGERGAN: Can I finish my objection for

11 the record? It's improper for the witness to be

12 reading from a document that is not in any since of

13 the word a business records. They are trying to use

14 this to circumvent or her actually getting the

15 numbers in through the payment records that she has

16 not done. This is a document prepared for in

17 anticipation of litigation. It is completely

18 hearsay. It is not a document created by her

19 company, a prior servicer. This is a document

20 created by the law firm for litigation here today.

21 Secondly, the document is not into evidence, so

22 to any imagination she is trying to some how verify the

23 figures that are on that document. They are not in

24 evidence and she shouldn't be reviewing them.

25 THE COURT: I understand. Overruled.

561-835-0220


56

1 THE WITNESS: Your question again, I'm sorry.

2 BY MS. DEUTCH:

3 Q I'm sorry. Are these figures accurate according

4 to the business records you have reviewed prior to today?




8 BY MS. DEUTCH:

9 Q And according to these figures what is the

10 specific amount that is due and owing?

11 MS. LUNGERGAN: Objection, Your Honor. The

12 document is not in evidence. She can't read as to

13 the amounts on that piece of paper when it's not in

14 evidence.

15 THE COURT: My understanding is that counsel is

16 simply asking whether the figures on this proposed

17 judgment comports with the payment history now in

18 evidence.

19 MS. LUNGERGAN: I would like -- can the court

20 reporter --


22 MS. LUNGERGAN: Can the court reporter read back

23 the question, because I believe it was a different

24 question, Your Honor. Can we have the court reporter

25 read it back?

561-835-0220


57

1 THE COURT: Of course.

2 MS. LUNGERGAN: I believe the question was asked

3 to the effect of how much is the principal according

4 to this proposed final judgment?

5 THE COURT: Okay. We've heard the question and

6 the objection is overruled. Let's move on.

7 MS. LUNGERGAN: Your Honor, do you want the

8 court reporter to read back the last question? I'm

9 just recalling what I believe the question to be.

10 THE COURT: By all means go right ahead.

11 (The court reporter read back the last question

12 asked.)

13 MS. LUNGERGAN: Again, objection, Your Honor,

14 that is not -- she is asking her to read from a

15 record that is not a record, and it is not in

16 evidence. She cannot testify as to what that

17 document says.

18 THE COURT: I understand. Overruled.

19 THE WITNESS: Your question again? I'm sorry.

20 BY MS. DEUTCH:

21 Q What is the amount that is due and owing

22 according to this document?



25 THE WITNESS: According to this it's

561-835-0220


58

1 $399,383.49.

2 BY MS. DEUTCH:

3 Q And does this amount comport with the business

4 records that you previously reviewed?

5 MS. LUNGERGAN: Same objection, hearsay, lack of

6 foundation. And furthermore the business records

7 she's reviewed are vague. For the record I don't

8 know which business records she is referring to.


10 THE WITNESS: Yes, it does.

11 BY MS. DEUTCH:

12 Q And did you have to retain the legal services of

13 Morris Hardwick Schneider?

14 MS. LUNGERGAN: Objection. We object to any

15 testimony of attorneys fees. The case law supports

16 that if the parties object the attorneys fees have

17 to be done at a separate evidentiary hearing with

18 expert witnesses as to the reasonableness of those

19 fees. So I do object at this point as to any

20 introduction or testimony regarding attorney's fees

21 as it is going to require a separate evidentiary

22 hearing.

23 THE COURT: All right. Overruled.

24 BY MS. DEUTCH:

25 Q Again, did you have to retain the legal services

561-835-0220


59

1 of Morris Hardwick Schneider?



4 THE WITNESS: Yes, we did.

5 BY MS. DEUTCH:

6 Q And do the figures on this proposed final

7 judgment accurately reflect the amount attorney's fees

8 that were accrued?



11 THE WITNESS: Yes, they did.

12 MS. DEUTCH: Your Honor, at this time I have no

13 further questions.

14 THE COURT: Very good. Are we ready for

15 cross-examination?

16 MS. LUNGERGAN: I just want to be clear for the

17 record, is plaintiff resting its case?

18 THE COURT: Is plaintiff what?

19 MS. LUNGERGAN: Resting?

20 MS. DEUTCH: Yes, I would like the

21 opportunity --

22 THE COURT: Well, you can't rest until you have

23 cross-examination.

24 MS. LUNGERGAN: I didn't know if she had any

25 other witnesses or anything else?

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60

1 THE COURT: You want to know if there are any

2 other further witnesses?

3 MS. LUNGERGAN: Yes, Your Honor.

4 THE COURT: Are there?

5 MS. DEUTCH: The plaintiff has no further

6 witnesses, Your Honor.

7 THE COURT: All right. Then let's proceed.

8 CROSS-EXAMINATION

9 BY MS. LUNGERGAN:

10 Q Is it Plasse? I don't want to mispronounce your

11 name.

12 A It's Plasse.

13 Q Ms. Plasse, I'm now showing you what's been

14 marked as Plaintiff's Exhibit 3, what you referred to, I

15 believe earlier as the default breach letter. Do you

16 recognize that?

17 A Yes, I do.

18 Q This letter was produced by a third party

19 vendor; correct?

20 A Yes, it was.

21 Q You don't work for that company; correct?

22 A No, I do not.

23 Q And this document is actually a recreation of

24 the letter that was sent; correct?

25 A Yes, it is.

561-835-0220


61

1 Q You don't actually have a physical copy of the

2 letter that was sent; correct?

3 A No, I do not.

4 Q You hadn't seen this breach letter prior to

5 being called to testify in this matter; correct?

6 A That is correct.

7 Q And you don't supervise the maintenance of

8 breach letters for that company do you?

9 A No, I do not.

10 Q You don't prepare default letters?

11 A No, I do not.

12 Q You don't know who prepared these default

13 letter?

14 A No, because I do not work for this company.

15 Q You don't have any knowledge as to the policies

16 and procedures of the company that sent that default

17 letter regarding sending default letters; correct?

18 A When we took over the mortgage portfolio for

19 Linton who was the prior servicer after this their records

20 become our records, and at that time our records and their

21 records become one. And it's the business, you know, the

22 business industry dictates that this is the normal

23 procedure to send out these letters.

24 Q But you don't know what their policies and

25 procedures were; correct?

561-835-0220


62

1 A No, I do not.

2 Q And you are not an expert about the policies and

3 procedures in the industry; correct?

4 A No.

5 Q You've never been called to testify as an expert

6 about the policies and procedures?

7 A No.

8 Q Since you didn't work in that office and you

9 didn't work for that corporation you've never supervised

10 anyone in that office; correct?

11 A That is correct.

12 Q You have no knowledge as to whether or not that

13 letter was sent certified mail; correct?

14 A No, I do not.

15 Q You have no knowledge as to whether the

16 defendants received that letter; correct?

17 A No, I do not.

18 Q Earlier you testified that you believe this

19 letter had been sent on April 1, 2008, but you are basing

20 that testimony solely on the fact that the letter says

21 April 1, 2008; correct?

22 A Yes.

23 Q You have never seen any documents or records

24 that show that this letter was actually mailed on April 1,

25 2008; correct?

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63

1 A Yes.

2 Q For all you know it could have been mailed April

3 2, 2008?

4 A Yes.

5 Q Or April 3, 2008?

6 A Yes.

7 Q Or not at all?

8 A It's the business industry that, you know, to

9 mail these letters out. And I believe you know the

10 mortgage also states that, you know, it is our right to

11 mail these letters out. So I know that based on looking

12 at this particular default letter there appears to be a

13 mailing encoding encryption on it. So I can fairly say

14 that I'm fairly confident that, yes this was in fact

15 mailed out.

16 Q So you are assuming because you're supposed to

17 send it out?

18 A I didn't say I'm assuming.

19 Q But you don't have any documents showing that it

20 was actually mailed out?

21 A No, I do not.

22 Q You are basing your belief because that's the

23 way it should have been done?

24 A That's business industry standards.

25 Q But again, you are not an expert on the business

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1 industry standards; correct?

2 A No, I'm not.

3 Q As you previously stated you have no idea of the

4 policies and procedures of the company that actually sent

5 out that default letter; correct?

6 A No.

7 Q And in fact you weren't even working at Ocwen at

8 the time when that default letter was sent out; correct?

9 A Right.

10 MS. LUNGERGAN: Your Honor, at this time I move

11 to strike the default letter from evidence. Clearly

12 this witness has no knowledge about this letter being

13 created or sent. The mortgage requires that this

14 default letter be sent 30 days prior to acceleration.

15 The witness just testified that she has absolutely no

16 idea if and when this letter was sent. She has no

17 business records or documents from the prior

18 servicers showing that it was sent, no certified

19 first class mail receipts or any other evidence

20 stating that this letter was in fact sent. So at

21 this time I would renew my objections and move to

22 strike this document from evidence.

23 THE COURT: You are moving to strike?

24 MS. LUNGERGAN: Yes, Your Honor.

25 THE COURT: Your motion will be denied. Let's

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1 move on.

2 BY MS. LUNGERGAN:

3 Q I didn't catch earlier, what's your job

4 description with Ocwen, your job title?

5 A I'm a loan annalist.

6 Q Did you receive any training as a loan analysis?

7 A Yes, I did.

8 Q Did you receive any training regarding

9 testifying at trials?

10 A Yes, I did.

11 Q What kind of training would that be?

12 A I had a whole -- quite a few lengthy days of

13 training from superior attorneys that work directly in our

14 firm in preparation to prepare us for trials.

15 Q When you say your firm, you mean in-house

16 counsel?

17 A Yes.

18 Q Did that include role playing?

19 A Yes.

20 Q Did you ever receive any written materials or

21 videos, anything other than role playing?

22 A Yes, we did receive some information. It was

23 just basically on different depositions and how to handle,

24 you know, ourselves in different situations whether it's

25 depositions, mediations, or trial.

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1 Q How to answer certain types of questions?

2 A Right.

3 Q What percentage of your job involves testifying,

4 whether it be at trials or depositions?

5 A What percentage? I would say it's the bulk of

6 my job. I travel frequently for trials and mediations,

7 and depositions. So I'd say it's the bulk of it. I mean

8 in preparation -- prep work and traveling it's about

9 90 percent of my job duties.

10 Q And your job -- in your job you don't get

11 involved in foreclosure cases until there is a trial or

12 deposition set; is that correct?

13 A Correct.

14 Q And your knowledge of what you call the industry

15 standards has really come from that training that you've

16 received; correct?

17 A Yes.

18 Q You never worked for any prior servicers?

19 A No, I did not.

20 Q Do you receive compensation related to your

21 performance at trials?

22 A No.

23 Q Do you receive reviews based on your performance

24 at trials?

25 A No, we do not.

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1 Q Forgive me because I can't remember what you

2 said to this one, are there any written documents or

3 manuals regarding your job responsibilities and roles?

4 A Most everything is online within our system, our

5 computer system, most everything is online.

6 Q Because you testify so much you are almost like

7 a professional witness; correct?

8 A More or less.

9 Q I'm now going to show you what was marked as --

10 they are stapled together, but I really only want to focus

11 on Plaintiff's Exhibit 1 which is the original promissory

12 note at this point. They are stapled together so I'm

13 handing you two which is the note and mortgage, but for

14 right now -- Ocwen was not the custodian of the document;

15 correct?

16 A Correct.

17 Q And in fact, at one point this document was

18 lost; correct?

19 A I do not know.

20 Q I'm now going to show you what's been marked for

21 identification and as Exhibit 1, which is a copy of the

22 complaint. I'm going to show it to your attorney. If you

23 could please turn for me -- I don't have page numbers so

24 bear with me. Count two of the complaint, it looks like

25 it's going to be about the fifth page, I believe.

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1 A Okay.

2 Q Do you see there where is says, reestablishment

3 of promissory note?

4 A Yes.

5 Q And it goes on in paragraph 17 to say that the

6 subject promissory note has been lost or destroyed or is

7 not in the custody, control or plaintiff?

8 A Yes.

9 Q So this promissory note at some point was lost;

10 correct?

11 A Yes.

12 Q Earlier you testified that you believe the

13 plaintiff had the promissory note when the complaint was

14 filed, but the complaint says the note was lost. How can

15 you rectify that?

16 A This information that you are providing for me

17 right now is new information to me that I had not been

18 privy to reading.

19 Q So you have no knowledge as to when it was lost?

20 A No, I do not.

21 Q No knowledge as to where it was when it was

22 lost?

23 A No, I do not.

24 Q No knowledge as to who may have found it?

25 A No, I do not.

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1 Q No knowledge as to whether or not it was ever

2 found?

3 MS. DEUTCH: Your Honor, objection. We have the

4 original note and mortgage here today.

5 THE COURT: I'll sustain it.

6 MS. LUNGERGAN: Your Honor, we have affirmative

7 defenses directly on point which goes to plaintiff's

8 unclean hands in alleging that there was a loss of

9 the promissory note. So I would ask for some

10 latitude in asking this witness questions. These are

11 plaintiff's allegations, and I would need a chance to

12 question them about why they made these allegations,

13 because we do have an affirmative defense directly on

14 point.

15 THE COURT: The objection is sustained.

16 MS. LUNGERGAN: Furthermore, Your Honor, there

17 is a case called McClean out of the 4th which does

18 require that the bank prove they had their original

19 note in their possession at the time of the filling

20 of the complaint. T.

21 He complaint in this case, Your Honor alleges

22 that there was no promissory note in their possession at

23 the time of filing. Well, the witness just testified that

24 she believes that there was. There's n

Documents

Ice Legal - Ocwen HSBC_Bank_Trial_Redacted