IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO.: CA

Transcription

1 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA DEUTSCHE BANK NATIONAL ) TRUST COMPANY, ) ) Plaintiff, ) ) vs. ) ) RENE CUENCA, ) ) Defendant. ) / CASE NO.: 0- CA 0 TRANSCRIPT OF NON-JURY TRIAL DATE: December, 0 TIME: 0: AM - :0 AM LOCATION: Miami-Dade County Courthouse West Flagler Street, Miami, FL 0 BEFORE: The Honorable Michael Genden 0 This cause came to be heard at the time and place aforesaid, when and where the following proceedings were recorded and transcribed by: Gerardo Quintana Alternative Court Reporting 00 Sheridan Street, Suite J Hollywood, FL 0 P:.. F:..0

2 A P P E A R A N C E S 0 FOR THE PLAINTIFF: HEIDI WEINZETL, ESQ. SHAPIRO, FISHMAN, & GACHE, LLP North Federal Highway, Suite 0 Boca Raton, Florida..00 hweinzetl@logs.com FOR THE DEFENDANT: JOSHUA BLEIL, ESQ. THE TICKTIN LAW GROUP, P.A. 00 West Hillsboro Blvd., Ste. 0 Deerfield Beach, FL.0. jbleil@legalbrains.com ALSO PRESENT: CYNTHIA STEVENS Witness AMERICAN HOME MORTGAGE SERVICING, INC. A Delaware Corporation 0

3 INDEX OF PROCEEDINGS VOLUME I WITNESS FOR THE PLAINTIFF: Page No. CYNTHIA STEVENS Direct Examination by Ms. Weinzetl Cross Examination by Mr. Bleil -- PLAINTIFF RESTS 0 * * * * * 0 INDEX OF PLAINTIFF'S EXHIBITS NO. DESCRIPTION INTRODUCED* ADMITTED Note Mortgage Notice of Intent to Foreclose 0 Loan Payment History *All Plaintiff's Exhibits were introduced as premarked exhibits. INDEX OF DEFENDANT'S EXHIBITS LETTER DESCRIPTION MARKED ADMITTED A Composite Exhibit B Final Forensic Audit 0

4 P R O C E E D I N G And finally, Deutsche versus Rene Antonio Cuenca Ayala. MS. WEINZETL: Good morning, Your Honor. Hi. Joshua Bleil from the Ticktin Law Group on behalf of the Defendant. I suggest maybe taking some of the uncontested ones. 0 Why? Because I would need to set up. I would also like an offer -- We're all -- we're done. Oh, it's the last one? Yeah. Oh perfect, Judge. Can I get a couple minutes to grab one of the tables? 0 Judge. What is it? What are you doing? We're going to try the case, Yeah, I know. But, what -- are you the law firm where this gentlemen told me you have an expert? associate, yes. Oh, Mr. Almaguer. Yeah, he's my Yeah, well tell me what kind of Alternative Court Reporting, LLC..

5 expert we're talking about. Sure, you want me to proffer? No, I want you to tell me -- Sure. -- because I'm the trier of fact and I'm also the judge of what gets heard; what evidence gets heard. So I want to know, how do you -- why do I need an expert in a foreclosure case. 0 Honor's question. I'd be happy to answer Your That's good. But, I think it would be better addressed in the course of the litigation whenever I call my witness. As opposed to me -- I'm just kind of -- Okay. Let me see, let me see, 0 maybe I just started practicing law and I just got on the bench. So let me take a moment. When I was a lawyer, when a judge asked me a question, I answered it. Sure thing, Judge. So tell me, because this came up the other day with this gentleman who was nice enough to admonish me, warn me, alert me, whatever word you want to -- that our cases take a long time Alternative Court Reporting, LLC..

6 because we bring in an expert. So I've been -- I've just been -- I've had two sleepless nights wondering what kind of an expert do I need, or you need, or I want to listen to in a foreclosure. Sure thing, Judge. Thank you. Give me a moment and what I'll do is get my expert report -- 0 Take five moments. -- and I'll proffer for the record out of the report since we got a reporter here now. Where's your expert? Right there, but Judge can I -- can I get the table? Can I -- a lot of tables. I am sorry. I don't have a have 0 I know, but can I -- The way this works -- May I ask Mr. Phillips to -- table? Yeah, of course. -- to provide the defense a (Brief conversation off the record.) Judge, usually it's a table for Alternative Court Reporting, LLC..

7 the Plaintiff and Defendant, I mean -- Well, usually you have one Plaintiff, one Defendant, one trial. I've been in that rut for four years. Correct. But, ever since this mortgage 0 foreclosure bubble busted we have like 0 cases set for trial and unfortunately I can get a court room for every single lawyer and every single claim so you'll have to do the best you can. Oh, we will. I can definitely bear with that Judge. (Brief conversation held off the record with other counsel.) MS. WEINZETL: In the meantime Judge, would you like the file? I'm just dying to know what an expert is going to tell me -- BB: Sure thing, Judge. 0 Alledgedly. (Brief conversation held off the record with other counsel.) Mateo. Okay, I want to hear from Mr. Bleil, Judge. Alternative Court Reporting, LLC..

8 Ticktin Law Firm. Mister, who? Bleil; B-L-E-I-L. I'm sorry. It's okay. I work for the Okay, so tell me Mr. Bleil, this is -- let me tell you my thinking so you can address my concerns. 0 Sure thing, Judge. My feeling about this equitable lawsuit, foreclosure issues, and I want to get this as a jump off. Okay. My concern is, did you sign the note? Did you sign the mortgage? Did you get the loan? Did you default? Did you owe the money? Is it your signature or is it somebody else's signature? Beyond that, tell me why I need an expert. 0 Sure thing, Judge. And what I would do is, I also have a copy of the expert disclosure. Would you like to look at that while -- Yeah. I have another copy. We also Alternative Court Reporting, LLC..

9 have an extra copy of the expert report if Your Honor would like to see that also. question. What -- what report? The expert report. I want you to just answer my Sure thing. Experts are usually important in 0 lawsuits whether they're Jury Trials or not Non-Jury Trials. Uh-huh. To help the trier of fact understand testimony that the normal person, i.e. a juror or a judge, would not ordinarily understand. So what is it that an expert in a foreclosure case is going to help me understand so that I can make a determination as to whether or not a foreclosure judgment should be entered. Sure thing, Judge, and to go back 0 to your first question. Yes, the elements or the issues that you raised regarding: Is there the note? Is there a signature? Those are generally prima facie issues that would need to be shown or proven by the Plaintiff through competent testimony in order to prove their most basic case. Alternative Court Reporting, LLC..

10 0 0 And there are also some other issues there, particularly regarding standing at the time the lawsuit was filed. But, there are other issues that when these cases are litigated because -- I wouldn't say the face of the matter, but these at first appear to be very simple cases as Your Honor indicated. But, when you start to further dig deeper into what actually transpired and what did not transpire, particularly regarding whether the calculations on the Truth in Lending were done appropriately, were there any technical violations or violations of statutes there that would be indicative of unclean hands. Why do I need an expert for that? Well, Judge -- Why isn't that just legal 0 argument that every lawyer argues on Summary Judgments, motions to -- why is that the subject of expert testimony? Am I going to have an expert tell me that a law has been violated? Is that what you're suggesting? No, what an expert -- I don't mind if Your Honor inquires to the herself. I don't want to inquire because I first have to do the determination -- Alternative Court Reporting, LLC..

11 let her testify. Sure. -- whether or not I'm going to Sure, Your Honor. That's a preliminary issue. Right, and it is -- It has to be -- stop talking. I hear you. Well, I hear you too, that's the 0 problem. Now, just give me a moment and you can respond. Before experts testify, and I've been a judge years; in about a week and a half, it will be years. I have been a trial lawyer for before -- altogether. Before, if somebody -- if the Court considers somebody not competent to testify as an expert it's a preliminary matter. That's why I want to know before I start going down this road. What is it that this expert is going testify about? 0 Sure thing, Judge. The expert is going to test -- the expert is going to testify about the process of the origination of this particular loan and the defects in the origination. The expert is also going to opine as set forth in the report that I've provided to you, where the Alternative Court Reporting, LLC..

12 0 problems are in this transaction. Particularly of note in this particular case is like many other cases that are before this Court, and around the country, and around the state, it's a securitized trust. The expert is going to be able to provide testify as to how the assignment which is purportedly executed to transfer this interest, does not comport with that of the Asset Trust and Pooling Agreement, which I have printed out here. There are particular requirements in the Asset Trust and Pooling Agreement and this where the expert assists the trier of fact. Because I understand that Your Honor has been on the bench for a long time, in fact my senior partner has had cases before you many a time. But, what the issue -- 0 Peter -- Would that be Stephen? No, Mr. Peter Ticktin. Yeah, Mr. Okay. Okay, so why do I care? Shouldn't I just be concerned about whether or not they're the holder of the note at the time that I try this case? That is part of it Judge, but -- Do I care -- Alternative Court Reporting, LLC..

13 Yes how somebody got to the intersection on th Avenue and US; and where they started? Or do I just care about what happened at the corner when the accident occurred? Judge, it -- generally we only care about how the accident occurred. But, here it's important how they got here? And here's why? 0 Why? Yeah, tell me why. And this is the proffer. Okay, I'm listening. There are requirements, like any trust, basic trust law. You have to comply with the requirements of the trust. And you know, any other trust you have res, you have trustees, you have assets, this is a trust the purportedly owns and holds this note. Okay. The trust has certain 0 requirements that say, all the loans have to be transferred into this trust by 'X' date. If they're not transferred in the trust by 'X' date the trust doesn't own or hold anything. Oh okay, so what -- let me get to the bottom of this. Alternative Court Reporting, LLC..

14 Yes, Judge. So if I follow your thinking, your client should be able to live in this house forever, free and clear. Is that what you're suggesting? That maybe the ultimate outcome. Ah -- 0 where the -- But, Judge -- but, Judge here's Good luck to you, sir. Thank you, Judge. Good luck to you, sir. Thank you. Do you think that I am going to 0 sit here after somebody has been lent hundreds of thousands of dollars and you have the standing to complain that the trust documents were not properly obtained, so your client who got -- how much was this loan? MS. STEVENS: $,000. $,000, I get to live there forever. You think a court of equity which is what I am sitting as is going to allow that to occur? Judge, that is yet to be determined. I don't know. But, here's where the Alternative Court Reporting, LLC..

15 court of equity happens. The party that seeks equity to be done, needs to come to the court with unclean hands. This isn't even an equitable argument. did they do -- Why is this unclean hands? What Judge unclean hands usually is -- 0 Right. -- the two parties have unclean hands. One person claims that a particular party did something wrong. And the other party in defense says, 'Yes, but you did something wrong as it applies to me.' Not as it applies to somebody else. Correct. But, there's two 0 pillars here that I'm presenting and I -- and while they're related, they're distinct. The unclean hands would go to the act of the party that's bringing the action to determine whether they have come to the court with clean hands. Unclean hands only would apply to those that are seeking equitable relief. I'm seeking no equitable relief on behalf of my Defendant. I'm a Defendant. But, Judge what isn't even unclean hands, if we Alternative Court Reporting, LLC..

16 have a family trust -- and I am using it as an example, because this is an issue that really hasn't been addressed before and I want to lay it out. Well, we'll let the Third District address it. But, Judge here's the issue with 0 the unclean hands it doesn't go to the trust. If there is a family trust that says, 'All of Bob's property for his family trust needs to be assigned into the trust by January st, 00.' Okay, great. If those -- if that res is transferred into Bob's family trust, it's the same trust law basics -- Go ahead, I am listening. If that is transferred prior to that January st, that's fine. We as Bob's family trust own that property. Right. 0 But, if there's a subsequent -- and the trust is very particular saying, 'All of Bob's trust property, all of his res has to be in the trust by January st, 00.' Right. Boom, drop dead. But, now there's a subsequent transfer of 0 and the Alternative Court Reporting, LLC..

17 document comporting a transfer into Bob's family trust in 0 when the trust says, it must be transferred by 00, and the trust is very particular about this. How can the 0 transfer into the 00 trust, you don't have standing? problem. Right, but may -- but here's my Yes, Judge. My problem is it would seem to me 0 0 under your circumstances that somebody whose trust assets have been affected might have the ability to come in and say, this has effect on me. What standing does your client have to come along and say, somebody down the line got screwed over because they didn't do what they were supposed to do? Your client received hundreds of thousands of dollars, has been in this house I assume for three or four years not paying a dime. Have you found one judge in this state that has said, 'You know what? I buy your argument and you client can live there forever rent free, mortgage free; because they violated the Pooling Agreement.' Have you found one judge that has -- I have found no judge based on the Pooling Agreement, but I have had number of Alternative Court Reporting, LLC..

18 judges determine at trials that my -- that either the Plaintiff failed to prove their prima facie case or the testimony proffered by an expert or by the fact witness was indicative of unclean hands which barred the Plaintiff receiving the relief for foreclosure. Yes, that has occurred. So and so, they'll never be able to foreclose on your client? Depending on how the case comes 0 of issue, yes. If it's an issue that would pertain a res judicata and/or collateral estoppel, yes. But, if it's -- Yes, yes -- It would be -- So what you're suggesting eventually is that your client should be able to stay in this house forever? Judge, yes -- That has been the result. And 0 No, no, no, Mr. Ticktin -- Bleil. Mr. Bleil or Bile? Bleil, yes. You -- so is that what you're going to ask this Court to do? To determine that Alternative Court Reporting, LLC..

19 Mr. Ayala; is that correct? MS. WEINZETL: Cuenca, Your Honor. It's Cuenca. I'm sorry, Cuenca. I have Cuenca Ayala -- Cuenca. You're going to eventually stand there and say, 'Judge, my client should be able to live there forever.' Yes, if the Plaintiff cannot 0 prove their prima facie case. If they cannot show that they own and hold the note pursuant to the Trust Agreement, and/or if there are unclean hands indicative of the Plaintiff's wrong doing, which would bar them from receiving their equitable relief for foreclosure, yes Judge. And -- I think this is a very 0 interesting issue. I think the Third District is going to have to tell us that under these circumstances we should listen to this testimony and if this testimony proves what -- what you've purported to prove that a person who borrowed hundreds of thousands of dollars should never have to repay it and should be able to live in the house for free, forever. MS. WEINZETL: Your Honor, may I -- Because I'm not doing it. Alternative Court Reporting, LLC..

20 0 But, Judge -- You getting that down? All my friends in the Third District, you want to reverse this, you go right ahead and do it. MS. WEINZETL: Your Honor, may I be heard on the issue of the expert witness? Yes, go ahead. MS. WEINZETL: Thank you. 0 hear about. Because that's what I want to MS. WEINZETL: I understand. First of Your Honor, he's not offering an expert to testify as to Pooling and Servicing agreement. The expert disclosure does not indicate at all that she's qualified for that. I've deposed her. We've been in trial with her. She's not at all qualified for that. But, the expert disclosure specifically says that she's here to testify that the loan was illegal. 0 I saw that on what Mr. Bleil gave me. MS. WEINZETL: As you know Judge, that's your determination to make and the Florida Supreme Court agreed in Siegel vs. Husak. "The existence of a legal duty and questions as to legal representation Alternative Court Reporting, LLC..

21 -- It's a question for the Court. MS. WEINZETL: -- is for the Court; for the trier of fact." There's not expert witness needed until you decide that you need the assistance of an expert. Yeah, it's like somebody getting on the stand and saying that person was negligent. MS. WEINZETL: That's correct. 0 It's the ultimate question being tried by the trier of fact, go ahead. I agree entirely, Judge. And as a -- and as a -- I've had trials with Ms. Weinzetl -- Do you have another one of these with (indiscernible) by the way? I've had trial with Ms. Weinzetl, Judge. And I understand -- 0 I never have. I understand -- well, I understand fully and clearly. The reason an expert is there is to assist the trier of fact. Okay. That's it. I'm telling you what I am going Alternative Court Reporting, LLC..

22 to do now. Yes, Judge. For your sake. I am going to allow you to proffer on the record what it is that she would testify to -- Okay. -- so you can make a record as to what it is that this judge did not allow you to -- 0 being struck? So in other words, my witness is I'm going to let you -- I have looked at your expert witness list disclosure. Yes, Judge. I do not find that this is a matter of expert testimony. I'm making that finding and that ruling, but in fairness to you so you can preserve it -- Okay. -- I'm going to allow you to put 0 on the record a proffer of what she would testify to. Because that's the way it should be done. record. right back. I agree entirely, Judge. Clean Go ahead, proffer it. I'll be Alternative Court Reporting, LLC..

23 proffer or myself? Would you like the witness to No, I want you to proffer. Sure, sure thing. It's lengthy Judge, but I'm going to make it really quick for you. 0 you're done. Go right ahead. Let me know when Sure thing. Because I've already made a 0 determination. I'm not letting her testify. I'm going to let you make that proffer so that the District Court of Appeal can tell me in the future when this lady is called as a witness, the Court's distinction if it should allow her testimony. I read your disclosure where is says, ". The expert will testify as to the opinion of the loan in question is a illegal in violation of both State and Federal Statutes." That clearly is an issue of -- in any forum, whether it's a criminal case where somebody's been charged with a crime, whether it's negligence case, whether it's product-liability case; that's always something the trier of fact does. This is basically experts review documents, including but Alternative Court Reporting, LLC..

24 0 not limited to the Defendant's closing documents, documents provided by the Plaintiff in discovery process and review of transaction with the Defendant. I am making a legal determination that this is not a matter of expert testimony. But, I am allowing you to proffer on the record what is it she would testify to. So, if the Third District thinks I am wrong, they can write an opinion saying, 'Genden was wrong. Genden should have let her to testify and we're reversing a potential judgment on behalf of the bank.' And then comes back to trial. Right, but that's also presuming that they're able to prove their prima facie case. Judge, I just want to make the record clear. Of course. I mean if they put on 0 evidence of something other than this loan and they don't convince me that they know what the documents are; they know what the loan figures are; they know that there's been a default; they've complied with all conditions precedent, I can't give them a judgment. But, I would be shocked. I'm putting that on the record. Shocked if the people of the Courts of this State, District Court of Appeal Alternative Court Reporting, LLC..

25 would say that in situations like this somebody who has borrowed hundreds of thousands of dollars and has lived mortgage free for years should be able to jump in there and say, 'You guys screwed up and you can never throw me out of that house.' If that's what they want to write, that's their job. They're my judicial superiors. That's the job they have. They can do it, but I'm not doing it. Okay. Judge, I will be happy to proffer 0 -- a lot more time. Go ahead; come on. I don't have This is also -- there's been Motion to Strike the Witness or otherwise exhibits -- I'm telling you it's a question 0 for the Courts of this State to be the gate keeps of what presented in trials. Whenever there is an -- I have the right to say, 'What is the expert going to testify to?' Because I want to preserve Court time and do my job and not sit through hours listening to something that I don't think is a subject for expert testify. You have handed me the disclosure that says, "The expert will testify to the opinion that the Alternative Court Reporting, LLC..

26 0 loan in question was illegal." I am now seeing that saying, "Not in my court." And you can take this record and you can give it to every judge in the State of Florida and they can either agree with me or disagree with me. Okay? Now, I have a fairly recent reputation, but that doesn't mean that every judge in the State of Florida wants to go, 'Oh, I think the Genden is right; or I think the Genden's wrong.' They can do whatever they want. But, that's what this judge is doing because this judge's name is on this bench and this is my courtroom. Put on, whatever you want. I'll be back in five-minutes. MS. WEINZETL: Thank you, Judge. I proffer for the record as to the testimony of Ms. Marla Moreland, was disclosed as an expert witness in the case in chief. I will also mark documents for identification purposes. THE CLERK: For purposes of identification, 0 it's going to be Exhibit A. (Defendant's Exhibit A, marked for identification.) Which is a list of affidavits filed by Marla Moreland as of //00. That carries on to the second page and the third page. Alternative Court Reporting, LLC..

27 0 The fourth page is a list of depositions where Ms. Marla was presented as an expert and had her deposition taken, that carries on to page number five. Actually, page five lists trials in which Marla Moreland was listed as an expert witness, which she was generally, if I am not mistaken, all the cases was determined to be an expert. I won't recant those case numbers through the record right now. But, I will mark this document as identification. Also, page seven of Exhibit A, marked for identification, is a list of law firms with which Florida Mortgage audits and conducts business and provides expert witness services. Mr. Bleil -- Yes, Judge? -- I want to in fairness to you, I have lack of foreclosure at o'clock. 0 All right. What we call FWOPs. Also being marked for identification purposes is Exhibit B would be the Final Forensic Audit dated //0 which was prepared by the witness, as an expert in this case. (Defendant's Exhibit B, marked for Alternative Court Reporting, LLC..

28 identification.) Among the information that the 0 0 witness would be proffering would be that there's a violation in the Truth in Lending. And that the Lender's Truth in Lending is calculated out at 0.0% and the correct calculation is.% which yield a difference of $,.. The witness would also testify to the -- would also provide expert testimony regarding the timing of the Assignment of Mortgage which I believe my memory serve me pre-dated this action by three days. My expert would also proffer based upon her review as an expert in the field, after reviewing the Pooling and Servicing Agreement that the cutoff date and closing date provided for the Pool and Servicing Agreement which is the trust controls this potential transaction has cutoff dates that are -- that are years before the supposed assignment of the mortgage to the trust occur. As far as Ms. Moreland's background, and I'm going from memory here, Ms. Marla Moreland was a mortgage broker. She underwrote loans, commercials loans for a number of years working with Kauti Mortgage Company. And then also doing, I think it was her own warehouse line of funding where she Alternative Court Reporting, LLC..

29 originated and underwrote loans. Ms. Marla Moreland is also -- also holds -- you know what if I may I ask -- Supplement that. Yeah, can I supplement with her CD. Sure, put the CD in. Put the CD in there too, Judge. And maybe the Third District will 0 tell me I'm wrong. Have you tried cases like this before? MS. WEINZETL: Your Honor, we've had one contested trial between the two of us in Palm Beach County. How did that result? 0 MS. WEINZETL: Well, it was Judge Janis Keyser. It was her first foreclosure trial so it took a little bit longer, but she permitted Ms. Moreland to testify, and then ruled in favor of Plaintiff. Yeah, Ms. Moreland -- well, I -- I'm just curious. It has nothing to do with. All right, are we ready to go? MS. WEINZETL: Yes, Your Honor, we are. Would you prefer that take the original note and mortgage out of the court file or use copies when speaking Alternative Court Reporting, LLC..

30 0 with my witness? Well, but I just want to get some 0 0 very particular because I mentioned the testimony. The cutoff Ms. Marla Moreland would be able to provide expert testimony based upon review of her documents would be her documents that were generally relied upon by experts in her field of expertise regarding the Pooling and Servicing Agreement, the closing documents, the Assignment, all the documents which are attached to her report. A particular note is noted that the cutoff -- the testimony would be that the cutoff date of the particular Pooling and Servicing Agreement which controls this transaction was January st, 00, with a closing date of February th, 00. The expert would also be able to opine and provide expert testimony as to what a cut off date is, as to what a closing date is, and how they relate in the mortgage-backed security, origination, and servicing. The witness would also be providing expert testimony that the assignment of mortgage that was purportedly executed on /0/00. My mathematical calculation is about three years beyond the cutoff date. Therefore her opinion would be that -- that Alternative Court Reporting, LLC..

31 either the Assignment is fraudulent and that it didn't reflect what actually occurred. Or moreover, that if the assignment is actually true as it to be taken that the terms of the trust prohibited this transaction from being substituted into the Pooling and Servicing Agreement with a closing date and cutoff date as reflected. Which gets back to a point that I 0 0 raised before. What standing does she have to complain about that? What standing does she have to complain about the interworking of the trust? Somebody who might have been affected by that might have. But, at some point in time your client walked into a bank and said, 'I need money to buy a house.' And they said, 'Here let me get my checkbook out. Here sir, good luck to you. I hope you enjoy your home. I hope you have a nice life.' He defaults on his loan, probably relatively early and then he's been living there three or four years. So my question is, what standing does he have to complain about something that maybe somebody else might have complained about? They're the holder of the note or not, and if they're the holder of the note or not, and they're entitled to Alternative Court Reporting, LLC..

32 0 show me the loan is in default, it hasn't been paid, and he owes the money. Unless somebody put a gun to his head or they forged his signature, that's what I'm concerned about. If the Appellate Courts of this State want to tell us Trial Judges that we're supposed to have one day jury trials on the thousands and thousands of foreclosure, as a court of equity for these kind of defenses, that's fine. They can do that. And if they do that, they do that. Then we'll get bogged down with these things, and that's it. But, I can tell you right now I want to move on. Sure Judge, but -- I have minutes and then -- This doesn't go to the unclean 0 hands. This goes to the Plaintiff's standing. How can the trust, if the trust doesn't properly own and hold it, then they don't have the standing to bring the suit. That's where the trust argument goes to. The mortgage follows the note. If they are the holder of this negotiable instrument, they have a right to enforce it. If there's a check that is negotiated and negotiated Alternative Court Reporting, LLC..

33 0 and negotiated, and one day I walk into the bank and I go to the bank and they look at my signature and they go, okay it was endorsed over to Michael Genden. That's your signature. Can I see your ID? They pay me the money. It's a negotiable instrument. Can we move on? I mean, do what you need to do. But, let's move on. (Off the record.) (On the record.) MS. WEINZETL: Your Honor, if I may we call our first witness so that we can actually finish the trial today? Ms. Weinzetl, I will represent that after the dialogue with the Judge, at this point I will conclude the proffer and rely on the expert report and the CD. Good, it's in there and if I'm 0 wrong -- if I'm wrong, they can tell me I'm wrong. In fact, I relish this case going up on appeal because I think you have a very interesting argument, which I don't agree with. But, we'll see what the Third District has to say about it. Go ahead, call your first witness. MS. WEINZETL: I call Cynthia Stevens, Your Honor. Alternative Court Reporting, LLC..

34 CYNTHIA STEVENS, called as a witness by the Plaintiff was duly sworn by the clerk and in answer to questions propounded, testified as follows: THE CLERK: Raise your right-hand. Do you solemnly swear the testimony is the truth, the whole truth, and nothing but the truth? MS. STEVENS: Yes, sir. 0 DIRECT EXAMINATION BY MS. WEINZETL: Q. Please state your full name for -- Judge, may I ask that the witness be asked to sit in the witness stand? I mean I really don't want to try the case on my feet. I mean, can the witness be in the stand? If she wants to stand, she 0 can stand. If you want to sit down, sit down. That's okay, I'll stand to observe what the witness is looking at. Go ahead, sit in the witness chair. Make yourself comfortable, ma'am. MS. STEVENS: Okay. Alternative Court Reporting, LLC..

35 I guess it's hard to hoover when the witness is standing. You there? MS. STEVENS: I'm there. Go ahead. MS. WEINZETL:I am sorry, Judge I'll have to move over so that I can see her. I'll be happy to stand. You want to second? No, no, Judge -- 0 standing -- Or maybe she doesn't want you MS. WEINZETL:Maybe I'd rather not have you looking over my shoulder. You asked my witness to sit here. I need to be able see her and talk to her. Counsel, I'd ask you to present from the table. Judge, I mean -- MS. WEINZETL: This is a circus. I've never seen anything like 0 this. Why don't you do me a favor? Why don't stand a little bit farther away from her so she can -- MS. WEINZETL: Thank you. Sure, Judge. I can do this. Alternative Court Reporting, LLC..

36 0 0 BY MS. WEINZETL: Q. Please state your full name and spell your last name for the record. A. Cynthia Stevens; S-T-E-V-E-N-S. Q. Who is your current employer? A. American Home Mortgage Servicing Incorporated, a Delaware Corporation. Q. And what are you duties with American Home Mortgage Servicing? A. I am Specialist Senior in the Foreclosure Special Assets Area. I maintain and handle a loan of -- a portfolio of loans that are in active foreclosure that have litigation filed on them in the form of answers with affirmative defenses or answers with counterclaims; things of that nature. Q. When I refer to your employer American Home Mortgage Servicing Incorporated, is it appropriate to use the acronym AHMSI? A. Yes. Q. And do you know what AHMSI relationship with the Plaintiff, Deutsche Bank, is in this case? A. We are their servicing agent. Q. Are you testifying on behalf of Deutsche Bank? A. Yes, ma'am. We have a Power of Attorney Alternative Court Reporting, LLC..

37 from Deutsche Bank. MS. WEINZETL:Your Honor, I'd like to show the witness -- you want. Go right ahead. Do whatever MS. WEINZETL:-- what I will -- would you like me to just pre-mark right on here? Do whatever you want. MS. WEINZETL: Okay. 0 try the case. Just, you know, let's just MS. WEINZETL:I'd like to show the witness what's pre-marked as Plaintiff's. (Plaintiff's Exhibit No., premarked for identification.) Your Honor, can I have a copy 0 of the exhibit the witness is being shown. MS. WEINZETL:Yes, I have one right here for you. Judge, I'm sorry I had a folder it was sitting right here and now it's -- oh there it's buried. Here you go, here's a copy. (Plaintiff counsel hands Defense counsel documents.) MS. WEINZETL:And for the record Your Alternative Court Reporting, LLC..

38 Honor, I'm using a copy because you have the original. BY MS. WEINZETL: Okay. 0 Q. Ms. Stevens can you identify that document for the Court? A. It's a certified copy of the adjustable rate loan -- note on the loan that we're here about today. Objection Your Honor, move to strike that testimony as far as it's "certified". And also I'd request that the original note be produced. I'm talking about error, if the original note is not introduced into evidence, it's automatically reversible error. MS. WEINZETL: Thank you, Your Honor. Well, you know what? When 0 did you become a member of the Third District? Judge, I'm simply not one to invite error into the case. You're telling me that showing this woman a copy of a document that's in the court file in a trial is reversible Alternative Court Reporting, LLC..

39 error if she doesn't look at the original; is that what you're telling me? No Judge, what I'm indicating to the Court is that it would be reversible error for a Final Judgment to entered in this case, if the original note is not introduced into evidence. All they're doing is -- She says, it's in the court file. 0 MS. WEINZETL:Your Honor, I haven't asked for anything to be introduced into evidence yet. I was just asking her to identify it. identify. She's just asking her to I should probably refrain from assisting the Plaintiff. Why don't you listen to the 0 question. She's asked her to identify it. Do you know how many trials I've tried as a judge? Thousands. The only times I've had people say, 'Your Honor, we're going to use a copy.' I tell them, 'Go ahead no problem.' You look at it and you go, 'Yeah, that's the one I have.' I mean, come on. MS. WEINZETL: May I proceed? Alternative Court Reporting, LLC..

40 0 Yes. MS. WEINZETL: Thank you. BY MS. WEINZETL: Q. Ms. Stevens, please take a look at this document. Can you identify that for the Court? Your Honor, can I have copy 0 of what the witness is looking at? MS. WEINZETL:I just handed you a copy. A. This is the original of the note; the copy that you handed to me previously. Q. And -- Objection, Your Honor; move -- objection, Your Honor; foundation, hearsay, and also authenticity as to the statement that it's an original. There's been no basis established for the testimony "original". You know what? I'm the trier 0 of fact I'll make that determination. Overruled. Thank you, Judge. Q. Can you identify who the borrower is on the note? Objection, Your Honor; foundation, hearsay, and authenticity. Alternative Court Reporting, LLC..

41 Go ahead, answer the question. Overruled. A. There's a blue ink signature over the name of Rene Cuenca. Q. And does AHMSI service the loan of Rene Cuenca? 0 hearsay. A. Yes, ma'am. Objection, Your Honor; Wait a minute. How can that be hearsay? Hearsay is an out of court statement sought to be introduced with the truth of the matter asserted. If she said -- gave her these things, 'Can you please identify those?' And then she said, 'Well, it looks like prescription glasses.' You're going to be objecting because it's hearsay? 0 No Judge, it was regarding the testimony specifically that they are the servicer of Cuenca loan. And unless there's -- unless this witness has personal knowledge of that she's got to be relying upon some kind of a document. That's why I am objecting as to Alternative Court Reporting, LLC..

42 the foundation and hearsay. Can you repeat the question? MS. WEINZETL:I believe that the question was, does AHMSI service this loan; the loan for Mr. Cuenca? BY MS. WEINZETL: Same objection, Your Honor. Overruled. 0 Q. I am sorry, could you answer that questions again? A. Yes, this loan is part of the servicing platform at American Home Mortgage Servicing. Objection, Your Honor; foundation, hearsay. There's been no testimony there's a servicing platform or documents to support a servicing platform. Unless this witness has personal knowledge, it's hearsay. (Brief conversation held off the record.) 0 Overruled. Q. Do you know how the original note came to the court? Objection, Your Honor -- I reserve the objection based upon the answer. Well, you don't reserve an Alternative Court Reporting, LLC..

43 objection. You either object to the question because of whatever grounds you have, or you don't. Sure, I object to foundation -- It's like saying, Well, you might be a little pregnant. 0 hearsay, Judge. Objection, foundation. You either are or you're not. Objection, foundation and MS. STEVENS: I'm sorry. MS. WEINZETL:That's okay. Take a minute. Take a deep breathe please. BY MS. WEINZETL: court? Q. Do you know how that document came to the 0 Same objection, Judge. Same ruling. A. According to the servicing records, the prior servicer, Citi Residential Lending, forwarded the original documents to the prior foreclosure attorney on July th, 00. Now, I move to strike the Alternative Court Reporting, LLC..

44 testimony as foundation and hearsay. Judge, the witness has -- Is it coming in for the truth of the matter asserted? Or is it coming in to show why -- how the document came -- got to be here? hearsay. I think regardless, it's You know what? I'm going to 0 0 tell you something. If you think that you're doing your client a favor when this goes up on appeal and the judge is up there saying, 'He objected to ever single question.' You'll have a lot of credibility. Overruled. See I don't care what they do. But, you're objecting to everything and it's like -- it's like throwing tacks in front of the bicycle tire. Let's see, one of these tacks will the bicycle tire explode. Keep going, keep going. We'll just do this little exercise. BY MS. WEINZETL: Q. Was Citi Residential the prior servicer on the loan? Alternative Court Reporting, LLC..

45 Objection, Your Honor; foundation and hearsay. There's been no sustentative testimony regarding this witnesses knowledge to testify anything about Citi. She hasn't testified -- Right. She hasn't testified, yet. But, the foundation hasn't 0 been laid for her testimony regarding anything with Citi. What foundation would like? She is the Senior Servicing Agent for the company that is the servicer of this loan. I think she has certain knowledge. Judge, I agree potentially 0 certain knowledge. But, not knowledge pertaining to a company she never worked for. She's testifying about what Citi Mortgage did. There's been no foundation as to her ability to testify on anything for Citi Mortgage. Overruled. A. Yes, Citi Residential Lending was the prior servicer to American Home. How do you know that? MS. STEVENS: The documents in our servicing Alternative Court Reporting, LLC..

46 platform, in our imaging system were conveyed to AHMSI from Citi Residential. BY MS. WEINZETL: Q. And when did that -- Move to strike. Objection, Your Honor; foundation and hearsay. Overruled, go ahead. 0 Q. When did the transfer to AHMSI occur? A. February 00. Q. And with that transfer did you take over any records or documents from Citi Residential? A. All of their records pertaining to the loans transfers, were transferred with the servicing. Q. Are you able to tell from looking at the note whether it's ever been transferred? Objection, Your Honor; 0 foundation and hearsay. The document has not been admitted into evidence. This witnesses has essentially testified for the truth of the matter asserted of a document that has not been introduced into evidence. Oh, my God. MS. WEINZETL:Your Honor, I'll be happy to Alternative Court Reporting, LLC..

47 offer it into evidence on behalf of the Plaintiff. Yeah, let's offer it into evidence. Admitted. THE CLERK: Plaintiff's. (Plaintiff's Exhibit No., the note, admitted into evidence.) Judge -- Judge, I -- I -- I'd 0 like an opportunity to voir dire the witness as to the admissibility of that document. You can cross examine her. I'm admitting the document, which is what judges do. I'm admitting it. Can I proffer my voir dire? No, you can cross examine her when you get a change to cross examine her and hopefully it will be before the end of the year. So, let's go. I object to the introduction 0 of the document based upon foundation, hearsay, and authenticity, Judge. BY MS. WEINZETL: Okay, okay. Q. Are you able to tell by looking at the Alternative Court Reporting, LLC..

48 document whether it's ever been transferred? A. Yes, it does contain an endorsement in blank. Q. And do you know whether the Plaintiff has this note in its possession prior to the complaint being filed in this case? Objection, Your Honor; foundation and hearsay. The witness -- well, foundation and hearsay. 0 Sustained. How does she know that? question. MS. WEINZETL:Your Honor, that was my next Go ahead. MS. WEINZETL:I was just asking if she has personal knowledge? Oh okay, so you asked the question is, do you have personal knowledge? MS. WEINZETL: Right. 0 You asked her, do you know if it had been transferred? Not, do you have personal knowledge? MS. WEINZETL: Okay. Correct, Judge. Alternative Court Reporting, LLC..

49 BY MS. WEINZETL: Q. Do you have personal knowledge as whether or not the Plaintiff held the original note prior to the complaint being filed? A. Yes, ma'am. Q. And can you explain for the -- Objection, Your Honor; foundation and hearsay. 0 "Yes, ma'am." Is hearsay? No, no. Move to strike the witness's prior testimony's foundation -- Oh the prior testimony? -- and hearsay. Yes, Judge. Sorry, I'm trying to keep up. questions. Well, I made her ask a new 0 Q. Can you explain for the Court on what basis you found that personal knowledge? A. After review of the business records, there is a bailee letter, which is a letter that is used as a cover letter when original documents are transferred from a servicer to a foreclosure counsel in original docs states, that shows what documents were transferred and the dates that they were transferred. The date of that letter is Alternative Court Reporting, LLC..

50 0 January th, 00. The complaint was filed a few days later. Your Honor, objection as to 0 foundation and hearsay. The witness is testifying about a document that has not been admitted into evidence. Her testimony was that she reviewed a document. You don't gain personal knowledge by reviewing of a document. Therefore, she has not personal knowledge, Judge. I move to strike the testimony as hearsay and lack of a foundation. MS. WEINZETL:Your Honor, I haven't been able to finish asking the witness how she know. Overruled. Q. Have you had a chance to review the complaint that was filed in this case? A. Yes. Q. Did the complaint contain a copy of the original note? 0 Objection, Your Honor; foundation, hearsay. Also, she asked for her opinion. the complaint. She asked her if she reviewed She said, "Yes." Alternative Court Reporting, LLC..

51 0 0 She's asking her, Did it contain something? She said, 'I just reviewed it.' So isn't she in position to know? Did you go see the movie, Hugo, yesterday? Yes, I did. And was Ben Kingsley in it? Yes, he was. Objection, foundation and hearsay. Is that going to be -- you know what? I'm going to give you standing objection to every question they ask; foundation, hearsay. Just put on the record what you want to object to. This Court is going to give you a standing objection to every single question. Think of every objection you could ever make and I'll allow you to have a standing objection, because I am not going to sit here and go into my next hearing because every single -- let the record reflect that every single question has been objected to. Judge, I request a standing objection to this line of questioning. You got it. Judge, but I -- is Your Honor Alternative Court Reporting, LLC..

52 giving every objection? Or would you like me to narrow what objections I think would applicable? I am going to give you every objection known to man. I will actually give you my copy of Ehrhardt. So that if you're lacking some of them, you can find as many as you want. 0 Thank you, Judge. Thank you. Standing objection to everyone of your questions. MS. WEINZETL: Okay. Thank you, Your Honor. BY MS. WEINZETL: And they're all overruled. 0 Q. Did you have an opportunity to review the copy of the note attached to the complaint? A. Yes. Q. Does it appear to be a copy of the original note? A. Yes. Q. And did the copy attached to the complaint also contain that blank endorsement that you testified to? A. Yes. Alternative Court Reporting, LLC..

53 MS. WEINZETL:Thank you. Your Honor, if I may? I'd like to show the witness Plaintiff's Exhibit, which will be offered. I don't have a copy for you. (Plaintiff's Exhibit No., premarked for identification.) Judge, is this for the entire witness or do I need to re-raise my objections for this document? 0 Just object and I'll -- just go ahead and object. Object to them all; object. What was the last question? No, no, Judge, I just want to -- Honor. MS. WEINZETL:There was no question, Your I'm trying to narrow it down, Judge 'cause I have an idea where it's going. Do I have the standing objection? 0 Whatever you'd like. I'm going to make it your play. What would you like? I'd prefer to have the standing objection remaining, but -- That's fine. Alternative Court Reporting, LLC..

54 Thanks, Judge. MS. WEINZETL:Your Honor, let the record reflect I'm going to give opposing counsel a photocopy. I didn't have the original prior to day, so it's a photocopy of the certified copy. 0 0 BY MS. WEINZETL: Q. Ms. Stevens, can you identify that document? A. It is a -- the original recorded mortgage. Q. How are you able to identify it as an original? A. The recording information is blue ink. The signature is blue ink. Q. And is this also part the loan that's serviced by AHMSI? A. Yes, the borrower is Rene Cuenca. Q. Do you have any personal knowledge as to whether the Plaintiff also had the note -- the mortgage along with the note prior to filing the complaint? A. It was also an item on the letter dated January -- July prior to the complaint being filed. So it was in possession prior to the complaint. Q. And was there a copy of this also attached Alternative Court Reporting, LLC..

55 to the complaint? A. Yes, ma'am. MS. WEINZETL:Plaintiff offers the mortgage into evidence as Exhibit. Admitted. 0 0 (Plaintiff's Exhibit No., the mortgage, admitted into evidence.) MS. WEINZETL: Thank you. Q. Ms. Stevens, do you know the current status of the loan? A. It's in default from the March 00 payment. Q. And if AHMSI were -- I'm sorry was AHMSI servicing the loan at the time that it went into default? A. No. Q. Do you know who was? A. Citi Residential. Q. All right. Let's say, for example, if AHMSI has been servicing the loan at that time; what would AHMSI's procedures have been once the loan went into default? I think I need to make another objection. I'm sure if speculation is an objection or what it is. But, I say it Alternative Court Reporting, LLC..

56 calls for speculation. No, it's an objection so -- sorry, Judge. And it's preserved. I'm Overruled, so overruled. 0 But, she can answer, go ahead. Q. What would AHMSI have done if the loan went into default while it was servicing? A. The borrower would have received a Notice of Intent to Foreclose letter, which included the amount that was due and owing and the -- provided information on how to cure the default. Q. Have you ever worked for any servicer -- in this case? Hold on a second. Was that done MS. STEVENS: Yes sir, it was. Okay, so in other words the prior servicer actually did that? MS. STEVENS: Yes, sir. 0 And you saw that? MS. STEVENS: Yes, sir. Ah -- What? I won't the legal argument, Judge. You've made your position clear of my Alternative Court Reporting, LLC..

57 preservation of objections. You think so? No, no, no, I was just preserving my objection so I'm not going to -- I'm not going to muddy this up now. BY MS. WEINZETL: Go ahead. 0 0 Q. Do you have person knowledge as to whether Citi Residential followed the same procedure that AHMSI follows when a loan goes into default? A. After review of the loans that I've worked for the past almost three years that are -- that were transferred from Citi, it has always been that Citi Residential followed industry standards in regards to noticing borrowers of default. MS. WEINZETL:I'd like to show the witness, Plaintiff's Exhibit. I have a copy for you. (Plaintiff's Exhibit No., premarked for identification.) Q. Can you identify that document that document, Ms. Stevens? A. It's a copy of the Notice of Intent to Foreclose letter sent by Citi Residential. It's dated March st, 00. Alternative Court Reporting, LLC..