IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA

Transcription

1 IN THE CIRCUIT COURT OF THE 0TH JUDICIL CIRCUIT IN ND FOR LEE COUNTY, FLORID CSE NO. -C-0 BNK OF MERIC, N.., sbm BC Home Loans Servicing LP, Plaintiff, vs. SSET CUISITIONS & HOLDINGS TRUST DTED MY 0, d/b/a sset cquisitions & Holdings, et al., Defendant. / TRNSCRIPT OF PROCEEDINGS Before the Honorable Thomas Reese, Judge of Said Court, at a trial of the above-styled action held at the Lee County Justice Center, 00 Monroe Street, Fort Myers, Florida, at 0: a.m. on September, 0. Presidential Court, Suite 00, Fort Myers, FL (Main Office) 0 Hendry Street, Suite 0, Fort Myers, FL 0 (Downtown) Panther Lane, Naples, FL FX..

2 P P E R N C E S On Behalf of Plaintiff: TORREY C. TYLOR, ES. ldridge Pite, LLP S. Congress venue, Suite 00 Delray Beach, Florida - On Behalf of Defendant: MICHELE S. BELMONT, ES. Law Offices of Michele S. Belmont, P.. 0 College Parkway, Suite 0 Fort Myers, Florida - 0 I N D E X WITNESS: Cliff Dunnan DE CE RD RC

3 ssets cquisitions, -C-0. That brings us to U.S. Bank vs. MR. TYLOR: Good morning, Your Honor. Torrey Taylor on behalf of plaintiff. (Proceedings interrupted off the record.) MR. TYLOR: nd good morning, once again, Your Honor, Torrey Taylor on behalf of plaintiff. 0 That brings us to U.S. Trust versus sset cquisitions, -C-0. Okay. Good morning, Your Honor. Michele Belmont for ssets cquisitions & Holdings Trust. MR. TYLOR: ll right. Let's go ahead. Thank you, Your Honor. I don't believe we need any opening statements from either side, unless Ms. Belmont wants to make one. No, I'm fine without them. Thank you. MR. TYLOR: Thank you. nd, Your Honor, I believe we stipulated to 0 several of the documents being entered into evidence. Documents stipulated to are the original note, original mortgage, original loan modification or note modification, the payment history, demand letter, and escrow balance. objecting to a couple of the other documents, nd I believe Ms. Belmont is

4 assignment of mortgage and the power of attorney. MR. TYLOR: nd as plaintiff's first witness, we'll be calling Cliff Dunnan. That's correct. Go ahead, please. Thereupon: CLIFF DUNNN, having been first duly sworn, upon his oath testifies and says as follows: 0 DIRECT EXMINTION BY MR. TYLOR: Could you please state your name. Cliff Dunnan. With whom are you employed? Caliber Home Loans. nd how is Caliber Home Loans related to the plaintiff in this matter? Caliber is the servicer. nd is there a document that reflects Caliber's 0 relationship with the plaintiff in this matter? Yes, and that would be the power of attorney. Does Caliber maintain records regarding mortgage notes and other related loan items? Do they keep these records within their

5 ordinary, normal course of business? Yes, they do. Is it part of their regularly conducted business to keep such records? Do they maintain a system of records to input this information into? Is the information transmitted into that system 0 of record created at or near the time each event of record occurs? Is the information input into that system of record by a person who has knowledge of that event of record? Have you had a chance to review the loan -- the subject loan that we're here on today prior to trial? Yes, I have. 0 nd is the testimony you're giving and about to give based on your own personal knowledge of that review? You previously stated that there was a power of attorney that authorized Caliber to service this loan on behalf of the plaintiff; is that correct?

6 That is correct. I'm handing you a document. Do you recognize this document? Yes, this is the power of attorney. nd is this document part of Caliber's business records? Yes, it is. Does the testimony that you previously gave 0 regarding Caliber's business records also apply to this document? MR. TYLOR: Your Honor, plaintiff would move to have Exhibit entered into evidence, the power of attorney. I would object to this document, Your Honor. recorded, was not an original. power of attorney, and also the witness hasn't testified that it's true and accurate based on his 0 review of the original. The document that I was shown was not It's a photocopy of a I would like an opportunity to voir dire the witness. Go ahead, please. Thank you, Your Honor.

7 VOIR DIRE EXMINTION BY Good morning, Mr. Dunnan. Can you tell me have you had the opportunity to review the original power of attorney? Yes, I have. Where is that document kept? That is kept at Caliber, at our headquarters with the custodian. 0 Which is where? Our custodiam is in Missouri. In Missouri. When did you review the documents, the original power of attorney? I'm sorry, the copy of the original, not the original-original. I have not reviewed it. Okay. Yes, ma'am. Have you ever seen the original power of Let me try again. attorney that that is a photocopy of? 0 No. Okay. So I'm sorry. Is this the most current power of attorney, the one that you have sitting before you? What is the date on that power of attorney, please?

8 This one is dated ugust th, 0. Okay. Not that I have reviewed, no. If I were to review the court records for powers nd so there's not one for 0 or 0? of attorney between U.S. Bank & Trust and your servicing company, might I find one from 0? Possibly. Okay. So there might be a more current version than the one that you're holding; is that right? 0 Possibly, yes. Okay. If you haven't seen the original of that document, then can you be certain that that is a true and accurate copy of it? It's within Caliber's business records and we rely upon them. It is part of Caliber's business records. How did you review the photocopy that you're holding in your hand today? from? Where did that photocopy come It came from our internal imaging system. 0 Your computer system? Okay. nd so you looked it up and saw on the your computer screen and hit print and out it came? that where the copy came from? No. Is It's within the loan, a copy is within the

9 loan when they -- well, when a document is created, it's imaged within that particular loan. There's other ways I can obtain this document as well. That's not the only other way. But when you say "this document," you're referring to a photocopy of the original, not the original itself? Correct. I have not seen the original. Your Honor, I would move to 0 exclude the power of attorney based upon the fact that the witness is unable to testify that it is a true and accurate copy of the original because he's never seen the original. MR. TYLOR: Counsel? Your Honor, this is a -- the witness has already testified this is a business record of Caliber Home Loans, and within the business record exception, it's a document relied upon to conduct the servicing business of Caliber, and, 0 therefore, it should be admissible into evidence based on that. If the court would like further testimony, there's additional evidence within this document that shows that it is part of Caliber's business records as well.

10 0 In addition to that, while this is not a recorded copy or a copy of a recorded power of attorney, the powers of attorney are recorded within the -- within the official records of the various counties. The reason we don't have that today is because it's obviously a burden for a large servicer that services loans, you know, thousands of loans. would create quite a burden for the servicer to It 0 provide a certified copy or the original for each one of these loans and, therefore, should be admissible in evidence. Objection sustained. Thank you, Your Honor. BY MR. TYLOR: Regarding this document you have identified as a power of attorney, is this a document that was prepared by Caliber? 0 nd as you previously stated regarding records being input into Caliber's system of records, does it also apply to this document that the person that would have input this document into Caliber's records reviewed the original?

11 nd would they have reviewed the original versus the copy for accuracy? MR. TYLOR: Your Honor, plaintiff would move to have Exhibit entered in evidence, the limited power of attorney. Ms. Belmont? I would have further questions for the witness then, Your Honor. 0 Go ahead. Thank you. VOIR DIRE EXMINTION BY Who is the person that put that document into the business records of Caliber, please? That is not listed here. Okay. Then how would you know that that person reviewed the original if you don't even know who the person is? 0 MR. TYLOR: Object, Your Honor. The witness has already testified that it's Caliber's policy to review. Objection is overruled. Go ahead with your question. Thank you, Your Honor.

12 BY How would you know for certain as you sit here today that the person who put that document into the system for Caliber reviewed the original if you don't know who the person who did it is? I don't. questions, Your Honor. this. 0 Thank you. I have no other I continue my objection to Objection sustained. BY MR. TYLOR: Is it part of Caliber's policies to train each individual within Caliber regarding their duties at Caliber? s part of the duties of the persons required to image documents into Caliber's system, do they also receive training upon their duties as far as imaging documents goes? 0 Objection as to form. Sustained. BY MR. TYLOR: What is the imaging platform that Caliber uses? Carbon Copy. nd which person or persons are responsible for

13 inputting or for imaging documents into Carbon Copy? Various departments. Is each department that has the authority to image documents into Carbon Copy -- does each person within each of those departments receive training on how to use Carbon Copy? 0 Objection as to form. Sustained. BY MR. TYLOR: What is the training involved regarding imaging documents into Carbon Copy? instructor. systems on a projector, and we follow along, and there's also reading material that goes along with it. It's a classroom setting training. They go through it. There's an It's their web-based nd is it a requirement of Caliber that each person employed by Caliber that has access to the imaging system to receive that training? 0 Would the person that imaged this document into Caliber's system also have received that same training? Objection, Your Honor. The witness has already testified that he doesn't know who imaged it in, so how would he know what kind of

14 training? Objection sustained. MR. TYLOR: Well, Your Honor -- Power of attorney isn't coming in, Counsel. have anything further, let's move on. I've sustained the objection now. MR. TYLOR: 0 I agree. further. If you I'm sorry? Let's move on if you have anything Power of attorney is not coming in evidence based on what you've presented today. MR. TYLOR: Your Honor, my witness has testified that it was a document prepared -- made my ruling. dismissed. Counsel, don't argue with me. I Now move on; otherwise, your case is MR. TYLOR: Yes, Your Honor. May we take a brief recess, Your Honor? ( short recess was taken.) 0 Sure. I'm sorry for the interruption, but would it be all right if I ask to have opposing counsel brought in to finish the rest of the trial? Is he on the phone? Do you know? He was when I went out about ten minutes ago, yeah.

15 Well, let's see if he's ready to go forward. Thank you, Your Honor. (Proceedings interrupted off the record.) MR. TYLOR: Yes, sir. Yes, Your Honor. Your Honor, I believe where we left off, the witness was testifying as to what has been identified as the power of attorney. We have moved for it to be entered into 0 evidence. The court has sustained objections thus far regarding the admissibility of the document. just wanted to clarify where we were. I BY MR. TYLOR: Mr. -- as far as the power of attorney that you previously identified as power of attorney -- Objection, Your Honor. Now he's going to have him testify as to a document that's not allowed in evidence. 0 It's not in evidence. BY MR. TYLOR: Regarding the document in front of you that you have identified as the power of attorney, Mr. Dutton -- or Dunnan, excuse me, you previously stated that this was a document prepared by Caliber. preparing this document by Caliber? What was the purpose of

16 It's to -- well, to allow Caliber to service the loan from U.S. Bank. Is this a contract produced by Caliber? Objection, Your Honor. I'm going to object to the whole line of questioning. court has already stated that the power of attorney is not coming in as evidence. 0 MR. TYLOR: The Your Honor, I believe the court has stated that based on the testimony thus far for the power of attorney. Well, how much farther do you think you can go to try to resurrect this thing? some basic flaws at the outset, they're not going to get better if he continues to talk about a document that's not in evidence. MR. TYLOR: You know, Yes, I understand that, Your Honor, but I'm not asking him to testify as to anything actually within the document yet. him what the purpose of the document is. 0 not in evidence. MR. TYLOR: I'm just asking What's the relevance of that? It's Relevance of that, Your Honor, is because I believe the testimony will show that this is a contract between two parties. client is not a party to this contract, but there is Ms. Belmont's

17 case law showing that a document can be entered into evidence regardless of whether it meets the business records exception or not if it's a contract between the two parties. nd I apologize, I don't have the case law yet, but it's being sent to me as we speak. The problem I have, Your Honor, is this is a photocopy of perhaps a contract that the witness has never seen an original of, so he can't 0 sit here today and tell us that this is a true and accurate copy of the contract. He said so himself. Here we are. Without the power of attorney, Your Honor, I would ask that the court grant an involuntary dismissal. only reason that the witness is permitted to testify, and he hasn't yet shown that he has that authority. 0 MR. TYLOR: The power of attorney is the nd, Your Honor, plaintiff would obviously object to that. Regardless of whether or not the power of attorney is deemed admissible by the court into evidence today, the witness has previously testified during preliminary questioning that Caliber Home Loans is the servicer for the plaintiff for this particular loan, and that was testified to without

18 objection by opposing counsel. So the court already has evidence through the testimony that Caliber is the servicer for this loan, Your Honor. But the witness is relying on the document that he can't get in as evidence to show that he has the authority to testify and, therefore, I would move to strike the witness's testimony completely because he has no authority to testify on 0 behalf of the plaintiff, who was substituted in by counsel. as trustee of the LSF Master Participation Trust. The new plaintiff is U.S. Bank and Trust, The witness works for Caliber, not the plaintiff; therefore, the witness shouldn't be testifying today. It's a defect that easily could have been remedied had a different approach to trial preparation been taken, perhaps, but your motion is granted. 0 MR. TYLOR: Thank you, Your Honor. Your Honor, I apologize, but I haven't finished making my responses to Ms. Belmont's motion. MR. TYLOR: ll right. Go ahead. If I may at least get them on the

19 record, if nothing else, Your Honor. That's fine. Go ahead, put them on the record. MR. TYLOR: Your Honor, the other evidence that's already been stipulated to, for one, Your Honor, was the payment history, as well as the escrow breakdowns. document that there have been -- that there has been activity on behalf of Caliber Home Loans in servicing 0 The payment history shows within the this loan. Under the Paquero (phonetic) case, and I can get the reference for that if the court would like. Under the Paquero case, it shows that there's additional evidence that can be shown regarding entities and their involvement regarding a case, such as having standing or whether or not they're the servicer of a particular loan based on their other activity. nd the court in that case determined that, as a 0 basis for that reasoning and for that ruling was because banks and servicers don't typically make payments on behalf of a property that they have no interest in. join into. That's an assumption that I cannot I'm sorry, that -- I wish that were true,

20 0 but we know facts to be contrary to that, not in this particular case, but... Ms. Belmont? I'm renewing my motion for involuntary dismissal, Your Honor. MR. TYLOR: nd, Your Honor, regardless of the power of attorney for the witness to testify here today, the evidence that's already been admitted into the record and stipulated to shows thus far that the 0 original plaintiff in this matter has standing based on the original note and the loan modification that has been stipulated to into evidence. Then we also have the demand letter and the payment histories, which show the damages for this matter, Your Honor. Oh, I agree. I agree. It's just you missed that one first step to show how Caliber can be here pursuing this case on behalf of U.S. Bank. 0 MR. TYLOR: Your Honor, based on the court's ruling today, that limits the witness's testimony here; however, based on the evidence already in, we're here showing that the plaintiff, U.S. Bank Trust, N.., does have standing to pursue this action based on the evidence already here today and the

21 payment history already reflects the amounts due and owing within our proposed final judgment. already met those -- those requirements. So we've If you have a witness from U.S. Bank Trust, bring him in. MR. TYLOR: Well, Your Honor -That's the problem, you don't, because you have not proven up your power of attorney giving Caliber the authority to be in court today on 0 behalf of U.S. Bank. Motion is granted. MR. TYLOR: motion. Your Honor, may -Counsel, I have just granted the Thank you. MR. TYLOR: Have a good day. Thank you, Your Honor. May I please just make -- for the record, may I make my statements regarding the cases that were being cited? They have just been sent to me. Do you need more time to do your 0 research to be prepared? give you an unlimited amount of time just to try to come up with case citations that you say. Counsel, I'm not going to You don't have any cases here for the court, case citations that you say support your position. I'm sorry, you're not ready today, and as such I'm

22 granting the motion for dismissal. MR. TYLOR: nd, Your Honor, as a last request then, I would just request that plaintiff be given five days to file a written response to the motion for involuntarily dismissal. No, no, I'm not -- no, not going to do that. You come to trial. You have got to be prepared. problem is you're missing one step here in going If you're not prepared -- and the only 0 forward, and without that step, it's not going anywhere, not that it couldn't had that step been accomplished in a timely manner. MR. TYLOR: the -- MR. TYLOR: nd, Your Honor, may I ask what No. I certainly don't mean disrespect to the court. No, no, no, no, you're not going to get me into a discussion so that you can pick it 0 apart later on and take it to the Court of ppeals and say, "Look, see, he made the decision for the wrong reason." No. I have dismissed the case. Have a good day, sir. MR. TYLOR: It is over. Thank you, Your Honor.

23 THE CLERK: for the record. MR. TYLOR: MR. TYLOR: Thank you, Your Honor. Mr. Taylor, I need those exhibits Yeah, exactly. They're not admitted. Then, Your Honor, may I also, as a proposed exhibit, submit the copy of the recorded assignment of mortgage? 0 MR. TYLOR: It's not admitted. Yeah, sure. nd I just want the record to reflect that the case was dismissed prior to plaintiff being able to -- No, Counsel, you cannot. You cannot build an issue for appeal that would be meritorious on something you have not presented up to this point. Now, please, pick your stuff up and withdraw from the court, sir. MR. TYLOR: Yes, sir. Thank you. 0 (Whereupon, the proceedings concluded at Have a good day. 0: p.m.)

24 CERTIFICTE STTE OF FLORID ) COUNTY OF LEE ) I, SUSN J. SIMONETTI, FPR, do hereby certify that the foregoing proceedings were taken by me at the time and place as stated in the caption hereto at Page hereof; that the foregoing computer-aided transcription, consisting of pages numbered through, inclusive, is a 0 true record of my stenographic notes taken at said proceedings. I further certify that I am neither of counsel nor solicitor to any of the parties involved nor interested in the event of the cause. Dated this rd day of September, 0, in the City of Fort Myers, County of Lee, State of Florida. Susan J. Simonetti, FPR 0 Court Reporter

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27 0:0, 0: MY [] - : mean [] - : meets [] - : MERIT [] - :0 meritorious [] : met [] - : MICHELE [] - : Michele [] - :, :0 might [] - :, : minutes [] - : missed [] - 0: missing [] - : Missouri [] - :, : modification [] :, :, 0: Monroe [] - : morning [] - :, :, :0, : mortgage [] - :, :, :, : most [] - : motion [] - :, :, 0:, :, :, :, : move [] - :, :, :, :, :, :, : moved [] - : MR [] - :, :, :, :, :, :, :, :, 0:, :, :0, :, :, :0, :, :, :, :, :, :, :0, :, :, :, :, :, :, :, 0:, 0:0, :, :, :, :, :, :, :, :, :, :0, : MS [] - :0, :, :, :, :, :, :, 0:, :, :, :, :, :, :, :0, :, :, :0, :, :, :, :, :, :, :, :0, 0:, : Myers [] - :, :, :, :0, : N N. [] - :, 0: name [] - : Naples [] - : near [] - :0 need [] - :, :, : never [] - :, : new [] - : NO [] - : normal [] - : note [] - :, :, 0: notes [] - :, :0 nothing [] - : numbered [] - : O oath [] - : object [] - :, :0, :, : objecting [] - : objection [] - 0:, :, :, :0, :0, :, :, :, :, :, :, : objections [] - :0 obtain [] - : obviously [] - 0:, : occurs [] - : OF [] - :, :, :, :, : Office [] - : Offices [] - : official [] - 0: once [] - : one [0] - :, :, :, :, :, :, 0:0, :, 0:, : opening [] - : opportunity [] - :, : opposing [] - :, : ordinary [] - : original [] - :, :, :, :0, :, :, :, :, :, :, :, :, :, :, 0:0, 0:, :, :, :, :, 0:0, 0: original-original [] : otherwise [] - : outset [] - : overruled [] - : owing [] - : own [] - : P P. [] - : p.m [] - : Page [] - : pages [] - : Panther [] - : Paquero [] - :, : Parkway [] - : part [] - :, :, :, :, :, : Participation [] : particular [] - :, :, :, 0: parties [] - :, :, : party [] - : payment [] - :, :, :, 0:, : payments [] - : perhaps [] - :, : permitted [] - : person [] - :, 0:, :, :, :, :, :, :, :, :, : personal [] - : persons [] - :, : phone [] - : phonetic [] - : photocopy [] - :, :, :, :, :, : pick [] - :, : Pite [] - : place [] - : Plaintiff [] - :, : plaintiff [] - :, :, :, :0, :, :, :, :, :, :0, :, :, 0:0, 0:, :, : plaintiff's [] - : platform [] - : point [] - : policies [] - : policy [] - : position [] - : possibly [] - :, :0 Power [] - : power [] - :, :, :, :, :, :, :, :, :, :, :, :0, 0:, 0:, :, :, :, :, :, :, :, :0, :, :, :0, 0:, : powers [] - :, 0: preliminary [] - : preparation [] : prepared [] - 0:, :, :, :0, : preparing [] - : presented [] - :0, : Presidential [] - : previously [] - :, :, 0:0, :, :, : print [] - : problem [] - :, :, : proceedings [] - :, :, :0, :, : PROCEEDINGS [] : produced [] - : projector [] - : property [] - : proposed [] - :, : proven [] - : provide [] - 0:0 purpose [] - :, : pursue [] - 0: pursuing [] - 0: put [] - :, :, : questioning [] - :, : questions [] - :, : quite [] - 0: R RC [] - : RD [] - : reading [] - : ready [] - :, : reason [] - 0:, :, : reasoning [] - :0 receive [] - :, :, : received [] - : recess [] - :, : recognize [] - : record [] - :, :0, :, :, :, :, :, :, :, 0:, :, :, :0, :0 recorded [] - :, 0:, 0:, : records [] - :, :, :, :, :, :, :, :, :, :, 0:, 0:0, 0:, 0:, :, : Reese [] - : reference [] - : referring [] - : reflect [] - : reflects [] - :, : regarding [] - :, :, 0:, 0:0, :, :, :, :, :, :, : regardless [] - :, :0, 0: regularly [] - : related [] - :, : relationship [] - :0 relevance [] - :0, : relied [] - : rely [] - : relying [] - : remedied [] - : renewing [] - 0: Reporter [] - :0 REPORTING [] - :0 request [] - :, : required [] - : requirement [] -

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