Deposition Of Erica Johnson-seck t1c63

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 50 2008 CA 037322XXXX MB AW INDYMAC FEDERAL BANK, FSB, Plaintiff, vs. ; ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES, OR OTHER CLAIMANTS; TENANT #1, TENANT #2, TENANT #3, and TENANT # 4, the names being fictitious to for parties in possession, Defendants. ___________________________________________/ THE DEPOSITION OF ERICA A. JOHNSON-SECK VOLUME I Pages 1 - 84 ______________________________________ July 9, 2009 1655 Palm Beach Lakes Boulevard West Palm Beach, Florida 12:54 p.m. - 2:59 p.m. REPORTED BY: Deborah H. Rodgers, CSR Consor & Associates Reporting & Transcription 1655 Palm Beach Lakes Boulevard, Suite 500 West Palm Beach, Florida 33401 Phone: 561.682.0905 Ph. 561.682.0905 - Fax. 561.682.1771 1655 Palm Beach Lakes Blvd., Suite 500 - West Palm Beach, FL 33401

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APPEARANCES: On behalf of the Plaintiff:

3

JOSEPH MANCILLA, JR., ESQ.

4

9119 Corporate Lake Drive

5

Tampa, Florida 33634

6

Florida Default Law Group, P.L. Suite 300 On behalf of the Defendants:

7

THOMAS E. ICE, ESQ.

8

Ice legal, P.A.

9

West Palm Beach, Florida 33411

DUSTIN A. ZACKS, ESQ. 1975 Sansburys Way, Suite 104

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Ph. 561.682.0905 - Fax. 561.682.1771 1655 Palm Beach Lakes Blvd., Suite 500 - West Palm Beach, FL 33401

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I N D E X

PAGE

3

TESTIMONY OF ERICA A. JOHNSON-SECK

5

CERTIFICATE OF OATH

215

7

ERRATA SHEET

217

4 6 8 9

10 11 12 13 14 15 16 17 18

Direct Examination by Mr. Ice

CERTIFICATE OF REPORTER ERRATA CERTIFICATE

READ AND SIGN NOTIFICATION

NUMBER

E X H I B I T S

Defendants' Exhibits A - Q Defendants' Exhibit R

4

216 218 219

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88

Defendants' Exhibit S

113

Defendants' Exhibit U

162

Defendants' Exhibit T Defendants' Exhibit V Defendants' Exhibit W Defendants' Exhibit X Defendants' Exhibit Y Defendants' Exhibit Z

114 167 174 179 181 204

19 20 21 22 23 24 25 Ph. 561.682.0905 - Fax. 561.682.1771 1655 Palm Beach Lakes Blvd., Suite 500 - West Palm Beach, FL 33401

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1

THEREUPON,

2

(Thereupon, Defendants' Exhibits No. A

3 4

through Q were marked for identification.) THEREUPON,

5

ERICA A. JOHNSON-SECK,

6

was called as a witness herein, and after being first

7

duly sworn, testified as follows:

8

THE WITNESS:

9

DIRECT EXAMINATION

10

BY MR. ICE:

11

Q.

12

Yes.

Could you state your full name for the

record, please.

13

A.

Erica Antoinette Johnson-Seck.

14

Q.

And what is your business address?

15

A.

7700 West Parmer Lane, P-A-R-M-E-R, Building

16

D, Austin, Texas, 78729.

17

Q.

And who is your employer?

18

A.

OneWest Bank.

19

Q.

How long have you been employed by OneWest

20

Bank?

21

A.

Since March 19th, 2009.

22

Q.

Prior to that you were employed by IndyMac

23

Federal Bank, FSB?

24

A.

Yes.

25

Q.

And prior to that you were employed by


Page 5

1

IndyMac Bank, FSB?

2

A.

Yes.

3

Q.

Your title with OneWest Bank is what?

4

A.

Vice president, bankruptcy and foreclosure.

5

Q.

That hasn't changed in all the various

6

IndyMac carnantions -- incarnations, I should say?

7

A.

No.

8

Q.

Now, the IndyMac Bank, FSB ceased to exist

9

July 11th of last year, correct?

10

A.

Yes.

11

Q.

That was taken over by the FDIC, correct?

12

A.

Yes.

13

Q.

And that's when IndyMac Federal Bank, Federal

14

Bank, FSB took over?

15

A.

Yes.

16

Q.

And then as of March 19th of this year,

17

OneWest came in and purchased the assets of IndyMac

18

Federal Bank?

19

A.

Yes.

20

Q.

Now, the plaintiff in this case is IndyMac

21

Federal Bank, FSB, correct?

22

A.

Yes.

23

Q.

When I say this case, I know we're scheduled

24

for two depositions.

25

starting with the

I don't know if you know we're case.


Page 6

1

A.

Okay.

2

Q.

Would you agree with me that the plaintiff in

3

this case, the

case, no longer exists?

4

A.

Yes.

5

Q.

Are you also an officer of Mortgage

6

Electronic Registration Systems?

7

A.

No.

8

Q.

You have g authority to sign on behalf

9 10

of Mortgage Electronic Registration Systems as a vice president, correct?

11

A.

Yes.

12

Q.

Are you an officer of any other corporation?

13

A.

No.

14

Q.

Do you have g authority for any other

15

corporation?

16

A.

Yes.

17

Q.

What corporations are those?

18

A.

IndyMac Federal Bank, IndyMac Bank, FSB, FDIC

19

as receiver for IndyMac Bank, FDIC as conservator for

20

IndyMac, Deutsche Bank, Bank of New York, U.S. Bank.

21

And that's all I can think of off the top of my head.

22 23

Q.

What was the one before U.S. Bank of New

York?

24

A.

Bank of New York.

25

Q.

Bank of New York.

Is that Bank of New York


Page 7

1

Mellon?

2

A.

I don't know.

3

Q.

When you say you have g authority, is

4

your authority to sign as an officer of those

5

corporations?

6

A.

Some.

Deutsche Bank I have a POA to sign as

7

attorney-in-fact.

8

FDIC I sign as attorney-in-fact.

9

IndyMac Federal Bank I now sign as attorney-in-fact.

10

And now I only sign as a vice president for OneWest.

Others I sign as an officer.

The

IndyMac Bank and

11

Q.

12

depositions?

13

A.

Twice a month.

14

Q.

So you're familiar with the deposition

As part of your job, how often do you give

15

process and what the rules are and what the court

16

reporter is doing and that you're under oath?

17

A.

Yes.

18

Q.

Okay.

19

I don't need to explain all of those

things to you?

20

A.

No.

21

Q.

Your job duties include supervision of three

22

direct reports and 52 employees?

23

A.

It did.

24

Q.

Okay.

25

A.

Let's see.

How's that changed? Now I have two direct reports and


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1

47 people with 17 openings.

2 3

Q.

Openings meaning you're looking for someone

to fill those positions?

4

A.

Yes.

5

Q.

Are you in charge of the loss mit department?

6

A.

No.

7

Q.

Who is?

8

A.

Karen Mastro is the senior vice president of

9

loss mit.

10

Q.

Can you spell the last name, please?

11

A.

M-A-S-T-R-O.

12

Oh, I'm sorry.

She is the

first vice president.

13

Q.

14

department?

15

A.

Yes.

16

Q.

Do you have the authority to settle any

17

Is she nevertheless in charge of the loss mit

foreclosure case?

18

A.

Up to a certain dollar amount of loss, yes.

19

Q.

How is that dollar amount of loss determined?

20

A.

It depends on what the settlement offer looks

21

like.

Are you asking me how -- I mean, it depends.

22

Q.

Who sets the dollar amount?

23

A.

The senior executive committee.

24

Q.

Of IndyMac?

25

A.

Of IndyMac, but it was adopted by IndyMac


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1

Federal and has been adopted by OneWest, yes.

2

Q.

I'll probably be doing that all afternoon.

3

So thank you for correcting me.

4

correct answer to that, please feel free to let me

5

know.

6 7

If OneWest is the

As part of your job duties, you personally manage the attorney network?

8

A.

Yes.

9

Q.

What other job duties do you have?

10

A.

I manage the bankruptcy and the foreclosure

11

process.

12

compliance of the breach letters as changes are made by

13

different states and jurisdictions.

14

default, a forensic default group, research group that

15

handles everything that's high loss related, compliance

16

related, high level research.

17 18 19

Q.

I also manage the breach process, the And I manage a

Can you give me an example of what this

forensic group default would be researching? A.

We foreclose on a property where the investor

20

won't cover the advances we've made.

21

auditors would look to see if we got approval to make

22

that advance, if there's some reason we wouldn't be

23

getting approval for it, work with the investor to try

24

to get approval or work to bill it back to our

25

outsource vendor or one of the firms -- now, this is

So one of the


Page 10

1

one of very many things that they do -- were at fault

2

for a reason why we can't claim for the advances;

3

taxes, let's say.

4

Q.

So when you say high loss, you're referring

5

to the losses that OneWest is experiencing versus the

6

investor that you're doing the work for?

7

A.

8

that group.

9

a high-loss example.

That's another facet of what's managed in That example I gave you is not necessarily High loss is anything with a loss

10

between the total debt and the current value of 250 or

11

more.

12

or owned by an investor, are scrutinized because the

13

losses are large.

14 15

So those loans, whether it is owned by the bank

Q.

And you said that's losses greater than

250,000?

16

A.

Yes.

17

Q.

If a property goes to foreclosure and the

18

ultimate recovery is more than $250,000 of the debt on

19

that property, is that something that the forensic

20

default group would study?

21

A.

Not from that perspective.

22

Q.

In other words, they're not concerned about

23 24 25

losses due to property values going down? A.

That's economic, so it's baked into the

equation of what they would review, but an economic


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1

reason, like the property values going down in the

2

state of California, if something statistical, it

3

doesn't mean that they don't review it the same way

4

they would review something that was not statistical,

5

but we do -- we are keeping in mind that property

6

values are decreasing everywhere.

7

used to be $100,000 when I first started working at

8

IndyMac Bank and has increased to 250,000 for that

9

reason.

10

Q.

The high-loss value

Would it study a case where a voluntary

11

dismissal was entered and the opposing counsel had to

12

be paid fees?

13

A.

No.

14

Q.

No?

15

A.

No.

16

Q.

Any other job duties that we haven't talked

17

about?

18

A.

No.

19

Q.

One of your job duties is to sign documents?

20

A.

Yes.

21

Q.

Do you still spend an hour a day g

22

documents?

23

A.

No.

24

Q.

Okay.

25

A.

Ten minutes, maybe.

How much time do you spend a day now?


Page 12

1 2 3

Q.

Is that because you're g fewer

documents? A.

Actually, from the last time we spoke, there

4

are more that have to be signed by the bank.

5

did not agree that our outsource vendor, who had power

6

of authority to sign for some docs, that they didn't

7

like that idea so all the docs came in-house.

8

a couple of VPs, which is why I, at that time, was the

9

main signer.

The FDIC

We lost

Now there are four VPs g documents

10

or that can sign foreclosure documents, and most do,

11

and my supervisors are now approved signers.

12

Q.

Those are among the four that you mentioned?

13

A.

In addition to.

14

Q.

Okay.

15 16

So how many total in your department

have authority to sign documents? A.

In my department, just specifically in my

17

department for foreclosure- and bankruptcy-related

18

documents, four of us, but my peers are alternative

19

signers to me, and I have three peers that can sign as

20

an alternative to my signature.

21 22

Q.

And when you say peers, these are

vice-presidents --

23

A.

Yes.

24

Q.

-- of other departments?

25

A.

Yes.


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1 2

Q.

Okay.

How is the decision made as to who

will sign what documents?

3

A.

There really is not a matrix.

Only so many

4

of us can sign Lost Note Affidavits.

5

the only one in my department, besides my boss, that

6

can sign a Lost Note Affidavit, so all those would come

7

to me.

8

just try to make it even.

I happen to be

Other than that, there's not a -- I think they

9

Q.

Just distribute them evenly?

10

A.

Yes.

11

Q.

Okay.

12

How many documents would you say that

you sign on a week on average, in a week on average?

13

A.

I could have given you that number if you had

14

that question in there because I would have brought the

15

report.

16

e-mail that 1,073 docs are in the office for g.

17

So if we just -- and there's about that a day.

18

let's say 6,000 a week and I do probably -- let's see.

19

There's eight of us g documents, so what's the

20

math?

21

However, I'm going to guess, today I saw an So

Q.

Six thousand divided by eight, that gives me

23

A.

That sounds, that sounds about right.

24

Q.

Okay.

22

25

750. That would be a reasonable estimate of

how many you sign, you personally sign per week?


Page 14

1

A.

Yes.

2

Q.

And that would include Lost Note Affidavits,

3

Affidavits of Debt?

4

A.

Yes.

5

Q.

What other kind of documents would be

6 7 8 9 10 11 12 13 14

included in that? A.

Assignments, declarations.

I can sign

anything related to a bankruptcy or a foreclosure. Q.

How long do you spend executing each

document? A.

I have changed my signature considerably.

It's just an E now. Q.

So not more than 30 seconds.

Is it true that you don't read each document

before you sign it?

15

A.

That's true.

16

Q.

The procedure that we talked about last time,

17

and I will go over it again to see if that's still the

18

procedure, before you would sign an Affidavit of

19

Debt --

20

A.

Yes.

21

Q.

-- it goes to your foreclosure specialist who

22

makes sure that the information is correct?

23

A.

The figures are correct, yes.

24

Q.

It is fair to say that you don't personally

25

check the accuracy of anything in the documents that


Page 15

1 2

you're g? A.

Not, it's not clear that I don't check

3

anything.

4

have a QC process around that used to be a 100 percent

5

of the Affidavits of Debts and any figures for loans

6

and bankruptcy, that have now been reduced to 10

7

percent because the errors were relatively low.

8

pay, what I pay most attention to is the jurat and what

9

entity I'm g for, which is why I said 30 seconds

10 11

The figures I don't, I do not check.

We

Now I

instead of two seconds. Q.

Right.

Now, when you say 10 percent, that

12

means that they're spot checking 10 percent of the

13

documents to make sure that they're accurate?

14

A.

The outsource or our outsource vendor checks

15

the document completely.

16

with the 10 percent, yes.

17 18

Q.

I'm QCing my outsource vendor

When you say outsource vendor, you're talking

about LPS?

19

A.

Yes.

20

Q.

Does LPS put the figures in the affidavit?

21

A.

No.

22

Q.

Who puts the figures in the affidavit?

23

A.

It depends on what relationship we have with

24

our firms.

25

process management, the system we use to communicate

Usually we the information through


Page 16

1

with our firms, and they will populate the document.

2

Or sometimes we get it in blank and a foreclosure or a

3

bankruptcy specialist would populate the document.

4 5

Q.

And when you say "they" would populate the

document, you're talking about the attorneys?

6

A.

Someone in the firm, yes.

7

Q.

Might be a paralegal, correct?

8

A.

Maybe.

9

Q.

Then those are sent, after they're populated

10

or filled out by someone at the law firm, those are

11

sent to LPS?

12

A.

They're sent -- they're ed into the

13

system, like an image copy, and then LPS prints it off,

14

and they go through their various checks and balances,

15

and then based on a matrix that we have provided, they

16

will look to see if this is an entity any of us can

17

sign for.

18

Indy -- OneWest Bank can't sign for it, or they will

19

ship the document to our -- because these documents get

20

printed in Minnesota.

21

Austin office.

22

it's something that an officer of OneWest Bank in

23

Austin can sign for it and, I mean, that's basically

24

how we get it.

25

Q.

They may reject it back to the firm and say

The documents get shipped to our

Those folks again look to make sure

When you say "those folks" check again,


Page 17

1

you're talking about your own staff when the documents

2

arrive?

3

A.

No, we have LPS on site.

4

Q.

In Austin?

5

A.

Yes.

6

Q.

Take me through the procedure for getting

7

your actual signature on the documents once they've

8

gone through this quality control process.

9

A.

The documents are delivered to me for

10

signature and I do a quick purview to make sure that

11

I'm not g for an entity that I cannot sign for.

12

And I sign the document and I hand it to the Notary,

13

who notarizes it, who then hands it back to LPS, who

14

s the document so that the firms know it's

15

available and they send an original.

16

Q.

"They" being LPS?

17

A.

LPS, yes.

18

Q.

Are all the documents physically, that you

19

were supposed to sign, are they physically on your

20

desk?

21

A.

Yes.

22

Q.

In your office?

23

A.

Yes.

24

Q.

You don't go somewhere else to sign

25

documents? Ph. 561.682.0905 - Fax. 561.682.1771 1655 Palm Beach Lakes Blvd., Suite 500 - West Palm Beach, FL 33401

Page 18

1

A.

No.

2

Q.

When you sign them, there's no one else in

3

your office?

4

A.

Sometimes.

5

Q.

Well, the Notaries are not in your office,

6

correct?

7

A.

They don't sit in my office, no.

8

Q.

And the witnesses who, if you need witnesses

9

on the document, are not sitting in your office?

10

A.

That's right.

11

Q.

So you take your ten minutes and you sign

12

them and then you give them to the supervisor of the

13

Notaries, correct?

14

A.

15

to a Notary.

16

Q.

17

I supervise the Notaries, so I just give them You give all, you give the whole group that

you just signed to one Notary?

18

A.

Yes.

19

Q.

Last time we talked about that there were a

20

group of Notaries and that you had a supervisor that

21

manages a group of loans and es them out to the

22

different Notaries.

23

A.

Has that changed?

It used to go to -- well, a little bit.

It

24

used to go -- and that's with the shift of people

25

leaving and people coming with everything that's been


Page 19

1

going on with the bank.

2

of my supervisors, who manages the default forensic

3

group, and she would it out.

4

describing to you.

5

All the documents went to one That's what I was

We don't have to have a process like that any more

6

now because everyone's in a groove now with what the

7

process should be.

8

physically making sure everyone's notarizing.

9

just walk out of my office and hand them to one of my

10

folks that can notarize that don't report directly to

11

me.

12

those direct reports report to me.

13

So we don't have to manage someone So now I

They still report up to their supervisor and then Q.

And does that Notary notarize all of those

14

documents, or does she then distribute them to various

15

Notaries?

16

A.

17

handed them.

18

Q.

19 20

He or she would notarize all the documents I Do they still have the requirement of

returning them notarized within 24 hours? A.

That got tough.

That is tough.

That's where

21

we would like to be but we aren't.

22

week for it to go through the process of ing the

23

information, getting it on my desk, me g it,

24

getting it to a Notary, and getting ed.

25

have document delays.

It takes us about a

So we


Page 20

1 2

Q.

for the Notary to notarize your signature.

3 4

I'm mostly interested in how long it takes

A.

I can't say categorically because the Notary,

that's not the only job they do, so.

5

Q.

In any event, it doesn't have to be the same

7

A.

No.

8

Q.

When they notarize it and they put a date

6

9 10

day?

that they're notarizing, is it the date that you signed or is it the date that they're notarizing?

11

A.

I don't know.

12

Q.

When you execute a sworn document, do you

13

make any kind of a verbal acknowledgment or oath to

14

anyone?

15

A.

16

about.

I don't know if I know what you're talking What's a sworn document?

17

Q.

Well, an affidavit.

18

A.

Oh.

19

Q.

In any event, there's no Notary in the room

20

for you to --

21

A.

Right.

22

Q.

-- take an oath with you, correct?

23

A.

No, there is not.

24

Q.

In fact, the Notaries can't see you sign the

25

No.

documents; is that correct?


Page 21

1

A.

Not unless they made it their business to do

3

Q.

To peek into your office?

4

A.

Yes.

5

Q.

At what point does the document get to the

2

6 7

so.

witnesses for signature? A.

The witnesses are, generally, are LPS

8

on-sites, but if it's a witness, like if it has to be

9

an authorized witness, then it would have my name and

10

one of my peer's names or my name and my boss's name.

11

And I would have a cover sheet on top of a stack that

12

would say Erica and Eric.

13

walk them over to my boss for him to sign.

14 15 16

Q.

Okay.

So after I signed, I would

But you're talking about documents

that have dual signatures? A.

Some that require dual signatures.

If it's

17

just a witness, it doesn't have to be an authorized

18

signer, then other LPS on-sites will witness.

19

Q.

20

notarization?

21

A.

And do they do that before or after the I don't know.

22

really don't know.

23

process.

24 25

Q.

I want to say after, but I

I haven't picked apart that

Well, it seems logically, when you get the

document, there's no witness signatures on there, Ph. 561.682.0905 - Fax. 561.682.1771 1655 Palm Beach Lakes Blvd., Suite 500 - West Palm Beach, FL 33401

Page 22

1

correct?

2

A.

No.

3

Q.

And you said that you take them and you give

4

them to the Notary.

5

to sign, correct?

You don't give them to the witness

6

A.

That's right.

7

Q.

So logically it would have to go from the

8

Notary then to the witness?

9 10

A.

Well, yes.

Yes, that's logical.

I just

really don't know.

11

Q.

Let me jump back a moment to our discussion

12

about the quality control that goes on at LPS.

13

have any familiarity with what they do per the quality

14

control in Minnesota?

Do you

15

A.

I've been told what they do, yes.

16

Q.

And what is it that you were told that they

A.

For each of their clients, they have a matrix

17 18

do?

19

of who that client can sign for.

20

that work in Minnesota, when they print the documents

21

off line, they're checking to see if it's a document

22

that their client can sign for.

23

see if that the document is aesthetically correct,

24

looks, you know, looks like it should look.

25

to see that the document includes the number of pages

And the processors

They're checking to They check


Page 23

1

that it's supposed to include.

2

document has the appropriate cover letter with the loan

3

number on it and that document does not have the loan

4

number on it for states that have the privacy act.

5

went through a presentation with what they do, and I

6

want to say there was eight or nine different

7

checkpoints.

8

Q.

9

They check that the

I

Did that presentation, was a report included

with that that you could read what they were saying?

10

A.

Yes, and there actually is a report that the

11

LPS folks use in Minnesota for what they reject back to

12

the firms because the documents aren't accurate.

13

Q.

Do you still have a copy of that report?

14

A.

I can find one.

15

You didn't list that in your

list of things.

16

Q.

Yeah.

I didn't mean do you have it in here,

17

but is it somewhere where you could get it for us if we

18

needed it?

19

A.

Yes.

20

Q.

Okay.

21

numbers that are in the affidavits?

22 23 24 25

Did they say that they check the

A.

There's no way they can check the numbers,

Q.

Do they have access to the computer program

no. that tracks all the debt numbers?


Page 24

1

A.

LPS, in itself, has access to its client's

2

system mainframe because they do screen scrapes from

3

the systems to get data.

4

individual person that does docs has that access.

5 6 7 8 9

Q.

Okay.

I don't know if the

Do you know who over at LPS would know

that information? A.

How high do you want to go?

Do you want the

president of, Scott Barns, president of default? Q.

Okay.

I'd like to talk about the procedure

10

for referring a loan for foreclosure.

11

your department, correct?

That's done in

12

A.

Yes.

13

Q.

It's done by a person with the title of

14

foreclosure specialist?

15

A.

Yes.

16

Q.

And foreclosure specialists are folks that

17 18 19

report to you? A.

They report to one of the supervisors who

reports to me, yes.

20

Q.

To one of your two direct reports?

21

A.

Yes.

22

Q.

The decision is made to send the case to LPS.

23 24 25

That's that first step in the procedure, correct? A.

No.

The first step is to see if the loan is

ripe for referral; and, in conjunction with that, if


Page 25

1

that were following the investor's guidelines for its

2

prescribed plan to refer the loan.

3 4 5

Q.

When you say "ripe for referral," what sort

of things determine whether it's ripe? A.

Is the loan delinquent.

How much

6

have we had with the, have we, at OneWest Bank, had

7

with the borrower.

8

the borrower call in and has been expecting a phone

9

call back, in which case we're not going to refer it

Is there anything unresolved.

Did

10

until the borrower received that phone call.

11

anything unresolved, like a payment plan, some

12

discussion about a payment plan and a payment was to be

13

expected, you know, three days from today, in which

14

case the referral specialist won't refer it because

15

we're expecting a payment.

Is there

16

So they're like, they are really the first

17

gatekeepers to insure that nothing gets referred that

18

shouldn't be, because then we pay attorney fees and we

19

have to take that out, you know, that comes straight

20

from the bottom line.

21

Q.

When you say whether it's delinquent, is

22

there a certain amount of time it has to be delinquent

23

before it qualifies for referral?

24 25

A.

Yes, depending on the investor.

Usually 60

days, but government loans go up to 120 days.


Page 26

1 2

Q.

How much for Deutsche Bank, if Deutsche Bank

is the investor?

3

A.

Deutsche Bank, we -- our PSA for Deutsche

4

Bank is that we service their loans as we would our

5

own.

6

day 60 of delinquency and no later than day 120, unless

7

there is a reason.

8

fallen out.

9

Q.

10 11 12

So we refer it, we try to refer it no sooner than

Okay.

There has to be a reason it's

When the decision is made to refer a

loan to foreclosure -- well, let me strike that. Once the decision is made that it's ripe and all of these conditions are met, then it gets sent to LPS?

13

A.

Yes.

14

Q.

And LPS, in return, refers it to an attorney?

15

A.

An attorney that we have advised them that we

16 17 18

want the file sent to, yes. Q.

You have your own stable of preferred

attorneys?

19

A.

Yes.

20

Q.

In fact, that's part of your job to manage

21

that network?

22

A.

Yes.

23

Q.

At what point in this process does OneWest

24 25

start looking for the original note? A.

For an original note in a state like Florida,


Page 27

1

as soon as the loan is referred to foreclosure because

2

the foreclosure attorney can't do what they need to do

3

without it.

4

Q.

So on the day that it's referred to LPS,

5

OneWest begins the process of getting a hold of the

6

original note?

7

A.

So what happens is it gets referred, and a

8

state like Florida, a loan in Florida goes to a queue.

9

It's also an LPS employee that's on site.

She's on

10

site in Pasadena, Sylvia Carballo.

11

queue and she begins ordering the original documents,

12

wherever they may be.

13

receiving the original documents, preparing the bailee

14

letters, getting then sent to the firms, and sending

15

that all to the firms.

16

Q.

It goes in her

And she manages that process of

At the point that OneWest is referring the

17

loan to LPS for foreclosure, is any kind of

18

representation made to LPS about whether the original

19

note cannot be found?

20

A.

Say that one more time.

21

Q.

Does OneWest tell LPS, when it's referring

22

the case for foreclosure, anything about the status of

23

the original note?

24 25

A.

No, it's the other way around.

So if Sylvia

learns that the original note cannot be found, that the


Page 28

1

doc custodian does not have record of the original

2

note, or it might be that there was a previous

3

foreclosure and the original note never made it back,

4

she is informed and she logs into a database.

5

Q.

Sylvia is that LPS on-site person?

6

A.

Yes.

7

Q.

And it's on site, but not on your site?

8

A.

She's in Pasadena, right.

9

Q.

OneWest has one main custodian, Deutsche

10 11 12

Bank? A.

One bigger -- one of our biggest is Deutsche

Bank, yes.

13

Q.

That's where most of One --

14

A.

Yes.

15

Q.

-- West documents are housed?

16

A.

Yes.

17

Q.

And would that be the custodian for any

18

documents where Deutsche Bank and National Trust

19

Company is the investor?

20

A.

Not necessarily.

21

Q.

Is it the most probable custodian?

22

A.

Yes.

23

Q.

When Wells Fargo is the investor, there might

24 25

be a different custodian? A.

Wells Fargo is a good example.

It could be


Page 29

1

at Wells Fargo or it could be at Deutsche Bank.

2

Q.

But what you're telling me, I just want to

3

make sure I understand, what you're telling me today is

4

that a loan where Deutsche Bank National Trust Company

5

is the investor, the custodian may be Deutsche Bank or

6

it may be Wells Fargo or someone else?

7

A.

Yes.

8

Q.

It's Sylvia with LPS who determines which

9

custodian to ask for the document?

10 11

A.

OneWest Bank's computer system, yes.

12 13

Based on information she receives from

Q.

When we talked last time, you said her name

was Sylvia Carballo?

14

A.

Yes.

15

Q.

Her supervisor was Luis Tena?

16

A.

Yes.

17

Q.

You had not --

18

A.

I'm sorry.

19

Q.

That's all right.

20

with Luis Tena.

21

then?

You hadn't had much

I think he had just started

22

A.

We are close friends now, yes.

23

Q.

He works in the LPS office, but he's employed

24

by OneWest?

25

A.

No, he works in the LPS office employed by


Page 30

1 2 3

LPS, but supervises the on-sites in Pasadena. Q.

And is that in Minnesota or Florida that he

does that?

4

A.

5

Florida, yes.

6

Q.

And Sylvia is in the Pasadena office?

7

A.

Yes.

8

Q.

Okay.

9

He lives in Jacksonville.

Excuse me.

The way that Sylvia would determine

who the custodian was, or what entity is functioning as

10

the custodian, is to look at a computer screen called

11

the MAS1 INV1?

12 13

A.

That's her beginning point, yes.

That

process has actually changed.

14

Q.

Okay.

15

A.

What we discussed last time is still the

What's the process today?

16

underlying, the foundation, but there's a database now

17

that goes out, and based on the loan numbers in her

18

queue, it pulls the original doc, the original document

19

custodian information and the original investor, to try

20

to help her determine faster where the document might

21

be, and it has eliminated some of the errors that we

22

found in the past.

23 24 25

Q.

So is it correct to say that that process has

been automated somewhat? A.

Yes.


Page 31

1 2

Q. it MAS1?

That screen -- and I'm saying it right?

Is

How do you say that?

3

A.

MAS1 INV1.

4

Q.

INV1.

5

A.

Yes.

6

Q.

Sylvia, or whoever the specialist is that's

Okay.

It says who the investor is?

7

doing this job, then e-mails the custodian to ask for

8

the documents, correct?

9

A.

Yes.

10

Q.

And she e-mails you a copy of the list

11

because you have to approve it before the custodian

12

will release the records?

13

A.

That's changed too.

14

Q.

Okay.

15

A.

Now the list has to be approved by treasury.

What happens now?

16

Because of other things outside of the scope of, you

17

know, what's going on here, the doc custodians will now

18

only release them to one person and that person is in

19

treasury.

20 21

Q.

When you say treasury, you're talking about

United States Department of Treasury?

22

A.

No, at OneWest Bank's treasury department.

23

Q.

The what?

24

A.

OneWest Bank's treasury department.

25

Q.

Who is it at the treasury department they


Page 32

1 2

release it to? A.

Sandy Schneider.

3

release it to her.

4

whole approving it.

Well, it's not that they

She has to -- she takes over that

5

Q.

Right.

6

A.

Schneider.

7

Q.

-- approves the release of the original

8

I'm sorry.

So Sandy Schneider --

documents?

9

A.

Yes.

10

Q.

The custodians then will pull it from the

11

fireproof vault that it's required to be kept in?

12

A.

I hope so.

13

Q.

And they package it up and mail it to

14 15

OneWest? A.

They ship it Fed Ex or UPS to Sylvia's

16

attention, and she sits outside of the office of one of

17

the corporate compliance VPs.

18

the side that has a fireproof cabinet where she stores

19

the documents if she can't get them turned around and

20

out with the bailee letter to the firm via UPS or Fed

21

Ex the same day.

22

Q.

There is a room off to

When the custodian ships the original

23

documents, do they ship it in a manner that can be

24

tracked?

25

A.

Yes.


Page 33

1 2

Q.

And do you -- you, OneWest -- keep records of

that tracking?

3

A.

Yes.

4

Q.

Do you keep the records even if it's safely

5

made it from the custodian to OneWest?

6

A.

Yes.

7

Q.

How are those kept?

8

A.

In that database I mentioned.

9

Q.

So it's a computer record of it?

10

A.

Yes.

11

Q.

How does that record get into the database?

12

A.

Sylvia entered -- well, Sylvia or one of the

13

three people that work with her enters the information

14

in the database.

15

Q.

You mentioned that she gets -- wants to turn

16

around and get it out with the bailee letter to the

17

attorneys.

18

A.

Yes.

19

Q.

I imagine she also sends it in a way that it

20

can be tracked?

21

A.

Yes.

22

Q.

Is it UPS?

23

A.

UPS.

24

Q.

Okay.

25

The custodians can choose, use the UPS

or Fed Ex; is that right?


Page 34

1

A.

Yes.

2

Q.

Whatever they feel like using?

3

A.

Yes.

4

Q.

But OneWest uses UPS?

5

A.

Yes.

6

Q.

And you keep the records of that tracking,

7

correct?

8

A.

Yes.

9

Q.

If the note is not received from the

10

custodian in ten days, then you, OneWest, follows up

11

with the custodian?

12

A.

That's been changed.

13

Q.

Okay.

14

A.

Seven days.

There are three checkpoints back

15

to the doc custodian.

So that by day 21, after the doc

16

custodian has not returned it, Sylvia is looking for an

17

e-mail message or something in writing that explains,

18

you know, why can't you find it, where's the note, so

19

that we have better tracking, of not only the follow-up

20

attempts, but what the responses were.

What's the new rule?

21

Q.

Then is there a second follow-up?

22

A.

There's three follow-ups:

23

and 21-day.

24

Q.

What happens after the 21 or 21st day?

25

A.

Then we send a request to the firms to

Seven-day, 14-day,


Page 35

1 2

prepare a Lost Note Affidavit. Q.

Before the first follow-up, or I should say

3

at the time of the first follow-up, does Sylvia notify

4

anyone else that the document hasn't shown up yet?

5

A.

No.

6

Q.

When is the first time that the law firm

7

would know that the original documents hadn't arrived

8

at OneWest?

9

A.

They would receive an issue through process

10

management to prepare a Lost Note Affidavit.

11

would be their indication.

That

12

Q.

So that would be on the 21st day?

13

A.

Or thereabouts, yes.

14

Q.

Is it still true that OneWest isn't satisfied

15

if the custodian just says they couldn't find it; in

16

other words, you want them to come back and tell you

17

why they couldn't find it?

18

A.

That's true, yes.

19

Q.

You would hope that they would tell you that

20

somebody checked it out and didn't return it?

21

A.

Yes.

22

Q.

The custodian is required to keep the

23

original documents in a special fireproof locked vault?

24

A.

Yes.

25

Q.

Is it pretty unusual that the original


Page 36

1 2 3 4 5 6

document doesn't show up? A.

Unusual for whom or what?

I mean, at what

circumstances? Q.

Let me rephrase that.

Is it unusual for the

custodian to report back that they don't have it? A.

It happens.

Does that answer your question?

7

It's not that it's unusual.

8

bells and whistles go off because the doc custodian

9

couldn't find one.

It's not like warning

Because it happens with multiple

10

foreclosure filings, with the bankruptcy filing, where

11

an original document, and with the hand-offs and with a

12

bank like OneWest who has several locations, an

13

attorney might get the original document and send it to

14

Pasadena and it should have come to Austin and it sat

15

on someone's desk and no one opened the mail.

16

just, all the things that, you know, that managing a

17

mail system, that happens with managing a mail system.

18

So we try to make changes in our process to eliminate

19

some of the getting the notes back.

20

have found we have the issue with a lot of our lost

21

notes, is that there was some legal action previous.

22

I mean

That's where we

In some cases we found, after going back two and

23

three times to the doc custodian, that the document was

24

there.

25

reason, whoever they used to pull the document, that

It was the doc custodian who just, for whatever


Page 37

1

person didn't pull the right document and we ended up

2

getting the document.

3

So I don't think it's unusual.

One of the things, though, from the last time we

4

spoke till now, I noticed a gap in our procedure.

5

think we were very aggressive at requesting a Lost Note

6

Affidavit at day ten, seven or ten, and with the

7

volumes happening all over the country, we probably

8

should have taken it out to 21 days a while ago because

9

the notes are there.

It just was they hadn't found it

10

by the time we already shot off the request to the

11

firms.

12 13

Q.

I

Well, when you say found it, it's not that it

was lost, you just hadn't got it transferred from --

14

A.

That's right.

15

Q.

-- the custodian to OneWest, correct?

16

A.

Yes.

17

Q.

I'm still trying to get a sense of how often

18

this happens, though.

19

every day at OneWest or --

20

A.

No.

Is it something that happens

No, but it happened more as we were

21

going through our transition with the feds taking over

22

and losing a significant amount of staff.

23

are OneWest Bank, I can't even the last time I

24

saw a Lost Note Affidavit, honestly.

25

Q.

Now that we

Over the last year, let's say, what


Page 38

1

percentage of the loans that you've been involved in

2

started out with being unable to find the original

3

note?

4

A.

What do you mean by involved in?

5

Q.

In your department.

6

A.

I don't know.

7

Q.

Do you have any sense?

8

Is it 1 percent, 5

percent, 10 percent?

9

A.

I don't know.

There was a time, before we,

10

you know, became less aggressive with our procedure to

11

do the Lost Note Affidavit, assuming that Deutsche Bank

12

couldn't locate it, that I signed Lost Note Affidavits

13

more frequently than I do now.

14

the procedure has made a big difference, because, like

15

I said, I can't even the last time I signed

16

one.

17

it until I see that that custodian really can't find

18

it, which is something that I wasn't necessarily doing

19

before unless prompted to do so.

20

And I think changing

Or it could be now when I get one, I won't sign

So I don't know, out of 77,000 loans in

21

foreclosure, well, then there was probably 60,000 loans

22

in foreclosure, I did several a week, but now I can't

23

even , I can't what that number is,

24

and now I do zero.

25

Q.

Well, you're giving me a total of the loans


Page 39

1

in foreclosure.

2

ones in foreclosure each week?

How many in foreclosure, how many new

3

A.

Today?

4

Q.

Yes.

5

A.

It depends on the time of the month because

6

of the investor guidelines with referrals, but I can

7

tell you that overall, across the nation, we referred

8

12,000 loans into foreclosure for the month of June.

9

California is our largest footprint, so 40 percent of

10 11 12

those were in California. Q.

Now, some of those you wouldn't know whether

they needed a Lost Note Affidavit yet?

13

A.

That's right.

14

Q.

But so far, what your testimony is, is that

15

of the ones that you would know about, none have

16

requested a Lost Note Affidavit?

17

A.

It's been a long while.

18

Q.

More than a month?

19

A.

Yes, more than a month.

20

Q.

And it's certainly safe to say that it would

21

be untrue that a 100 percent of the loans that you have

22

in foreclosure had any lost original note?

23

A.

Right, that would be untrue.

24

Q.

The custodian normally has some sort of

25

checkout procedure that people can't just come in and


Page 40

1

take a note, take out a note without g for it?

2

A.

Yes.

3

Q.

Is there a certain time frame that a

4

foreclosure suit must be filed after the borrower has

5

defaulted?

6 7 8 9 10

A.

Are you talking about the first legal action

in the foreclosure or what -Q.

The filing, the actual filing of the suit, is

there a time frame required? A.

See, okay, I'm dealing with 50 states in my

11

mind, so can you get more specific?

12

about the first legal action or --

Are you talking

13

Q.

Let's stick with Florida for right now.

14

A.

Okay.

15

Q.

But really the question is directed to your

16

investors and what their guidelines are and what you're

17

required to do.

18

by 60 days, 120 days after default --

Are you required to get a case filed

19

A.

I see what you're saying.

20

Q.

-- or you aren't complying with your job?

21

A.

Yes.

22

Q.

And is that governed by the PSA?

23

A.

Usually, but it's Fannie and Freddie

That's true, yes.

24

typically that have very strict guidelines about when a

25

file should be in foreclosure and very specific


Page 41

1 2 3 4 5

guidelines for exceptions to that. Q.

But when you say in foreclosure, that means

the actual filing of the lawsuit? A.

It has to be referred, it just has to be

referred to foreclosure.

6

Q.

7

the lawsuit?

8

A.

No.

9

Q.

Does OneWest instruct its counsel to file a

Are there any that require actual filing of

10

lost note count regardless of whether the note is

11

actually lost?

12

A.

No.

13

Q.

It is true that the promissory note in this

14

case was never lost, correct?

15

A.

What are we doing?

16

Q.

This is

17

A.

No.

18

Q.

No, that's not correct?

19

A.

It was never lost.

20

Q.

Were you aware that on November 21st, 2008,

21

when this case was filed, your attorneys -- by your, I

22

mean, OneWest -- attorneys hired by OneWest --

23

A.

Yes.

24

Q.

-- in the

25

case represented to the

Court that the note had been lost? Ph. 561.682.0905 - Fax. 561.682.1771 1655 Palm Beach Lakes Blvd., Suite 500 - West Palm Beach, FL 33401

Page 42

1

A.

Yes.

2

Q.

Let's put these out here in the middle.

I

3

had marked previous to your deposition some exhibits.

4

I had them premarked so we could hopefully move a

5

little faster.

6

MR. ICE:

7

take a look at Exhibit 1 -- or A, I'm sorry.

8 9 10

Counsel, if you would like to

MR. MANCILLA:

Okay.

BY MR. ICE: Q.

You've been handed what's been marked as

11

Exhibit A to your deposition.

12

the complaint in the

Do you recognize that as case?

13

A.

Yes.

14

Q.

In Count II, in paragraph 16, do you see in

15

the parens there, parentheses --

16

A.

Yes.

17

Q.

-- it says:

Plaintiff does not presently

18

have a copy of the note, but is seeking to obtain a

19

copy, and will file a copy with the Court when

20

obtained?

21

A.

Yes.

22

Q.

That is not an accurate representation,

23

correct?

24

A.

At the time it was.

25

Q.

At the time, on November 21st, 2008, OneWest

At that time it was.


Page 43

1

did not have access to the original note?

2

MR. MANCILLA:

3

If you know.

If you

don't, say you don't.

4

THE WITNESS:

5

cases in my mind.

6

MR. MANCILLA:

I'm trying to separate the Sorry. That's all right.

Is

7

there anything that you have with you that

8

you could look at?

9

THE WITNESS:

10

thinking about.

11

I don't, I don't know.

12

BY MR. ICE:

13

Q.

14

No, that's what I was

Well, you just finished telling me that the

note in this case was never lost at all, correct?

15

MR. MANCILLA:

16

THE WITNESS:

17

MR. MANCILLA:

Right.

18

THE WITNESS:

What I --

19

MR. MANCILLA:

20

THE WITNESS:

She said it wasn't lost. It wasn't lost.

Found ultimately. Yeah, because what I know

21

is the original note is with the firm today,

22

but --

23

BY MR. ICE:

24

Q.

What -- let you finish.

25

A.

But this was back when our procedure was,

I'm sorry.


Page 44

1

when it was different.

2

issue for a lost note at day ten, I believe it was,

3

because we hadn't had a response back from our doc

4

custodian, we were more aggressive then and today we're

5

not.

6

21.

7 8 9

When we would have raised an

We don't raise that issue, that request until day Q.

Okay.

Do you know if November 21st, 2008 was

before or after the response from the custodian? A.

We made -- those changes started -- we didn't

10

have the -- the changes weren't confirmed where they

11

were tested and airtight until this year, February of

12

this year.

13

was the right point.

14

open the issue.

15

happened to be the magic number.

16

tweaking the process.

17

Q.

We were still testing the process:

What

Should it be 14 days and then

Should it be 21 days.

Twenty-one days

So we were still

Let's step back a little bit because I'm

18

definitely confused.

19

was not lost in this case, correct?

You say that ultimately the note

20

A.

Right.

21

Q.

Did anyone at any time ever believe that the

22 23 24 25

note was lost? A.

I don't know. MR. MANCILLA:

How could she testify as

to anyone, what's in anyone's mind?

I mean,


Page 45

1

I don't understand.

2

BY MR. ICE:

3

Q.

4

Well, you're the vice president of the

department of foreclosure at OneWest, correct?

5

A.

Yes.

I didn't check to see if an issue was

6

raised because you didn't write that in your paper.

7

I don't know at this moment if an issue was raised for

8

that.

9 10 11

Q.

So

Are you aware of any communication to the

attorney that the note had been lost? A.

No, but -- well, no, I didn't, I didn't look,

12

I didn't look into the loss note aspect for these two

13

files.

14

Q.

When plaintiff says in this complaint that

15

they didn't have a copy, that's not true because a copy

16

is on the computer that can be printed out and attached

17

to the complaint, correct?

18

A.

Generally, yes.

19

Q.

Take a look at paragraph 18 of the complaint.

Usually, yes.

20

Do you see the last sentence there, it says:

21

and diligent search, plaintiff has been unable to

22

obtain possession of the mortgage note?

After due

23

A.

Yes.

24

Q.

What due and diligent search was performed in

25

this case?


Page 46

1

A.

Excuse me.

At that time the due and diligent

2

search would have consisted of an e-mail request to the

3

doc custodian, a time period for which to expect a

4

response back.

5

period, ten days, I believe -- I'm not sure if it's

6

seven or ten days anymore -- that the assumption was

7

then made that the note could not be found.

8

Q.

Okay.

And at the conclusion of that time

So what this is saying, then, is that

9

because it's after the due and diligent search, that

10

means all of that had been completed by the time the

11

attorney filed this on November 21st, 2008?

12

A.

Yes.

13

Q.

And your testimony is, as of that time, the

14

custodian was reporting that it was lost?

15

A.

Can I just look at the time line?

16

Q.

Sure.

17

A.

I'm sorry.

18

don't know.

19

Q.

Twenty-first.

20

A.

-- 21st.

I want to check before I say I

This complaint was filed on November -Well, they breached this loan on

21

September 30th.

22

30-day breach state, so we wouldn't have had it in

23

foreclosure anytime sooner then October 30th.

24

possible, as we still have 21 days of play, and we were

25

too aggressive before with raising the issue to say

I have to do the math.

Florida is a And it's


Page 47

1

that the note couldn't be found.

2 3

Q.

rules back then, that the note couldn't be found?

4 5

A. Q.

You had mentioned the ten days in the last

A.

Is it ten days?

one.

8 9

Just the initial didn't get a response from

Deutsche Bank within seven or ten days.

6 7

When was it decided back then, under the

Ten days.

Okay.

I couldn't .

And as soon as she didn't get response on

10

that tenth day, Sylvia was to raise the issue with the

11

firm.

12

Sylvia raises the issue at 10:00 o'clock, at

13

11:00 o'clock in Florida -- well, she's in Pasadena at

14

10:00.

15

been able to see that the note couldn't be found.

16

Now, the process management is real time.

So if

So at 12:00 o'clock in Florida they would have

Q.

Is there a field somewhere in the computer

17

screen where she inputs that there's a problem finding

18

the note?

19

A.

The process then -- that process is true

20

today.

21

to the firm.

22

Note Affidavit.

23

prepare this because we can't locate it.

24 25

Q.

The process then was she just raised the issue And what the issue says is prepare a Lost So the assumption is we need to

So if I'm understanding your testimony, for

this count to be in the complaint, someone would have


Page 48

1

asked, Sylvia would have asked for a Lost Note

2

Affidavit?

3

A.

Yes.

4

Q.

Okay.

5 6

Did anyone ask for a Lost Note

Affidavit in this case? A.

I don't know because I didn't look at that.

7

When I was reviewing the file, I was just looking at

8

the Affidavit of Debt.

9

Q.

Where would you go to look for that

10

information?

11

A.

In process management.

12

Q.

That's the computer program?

13

A.

Yes.

14

Q.

What screen would you look at?

15

A.

I would just pull up the loan number.

This

16

is LPS's system.

I would just pull up the by

17

the loan number.

And within it there's different

18

modules.

19

action is broken down by section.

20

original doc process, and that's where I would go to

21

see what happened during that process, if it was open

22

and closed.

23

Q.

There's a foreclosure module.

And then each

So there would be an

I wasn't sure the court reporter got it.

24

What you said was that this program that you're

25

describing is an LPS system?


Page 49

1

A.

Yes.

2

Q.

And is it just a notes field or something in

3

there that someone would type a message, or is it like

4

a yes/no toggle in the computer program?

5

A.

How can I -- I'm not a system person, so you

6

have to excuse the way I'm going to describe this.

7

It's kind of like template-based.

8

the state of Florida you're going to go through these

9

particular steps, and within these steps there might be

So you know that in

10

sub steps.

11

someone has to address the predecessor step.

12

means that your yes/no question is accurate, but

13

there's also the capability to put notes.

14

raise an issue you can put notes.

15

notes screen.

16

which copies back over to the notes, and it's the

17

e-mail between our foreclosure counsel, the client,

18

which would be us, and the LPS reps.

19 20

Q.

So in order to go on to the next step, So that

So if you

There's a whole

You can send an e-mail from the system

back then.

I think you described the system as it was What's the difference with how it is now?

21

A.

Their system?

22

Q.

Well, the reporting that the custodian was

23 24 25

The LPS's system?

not able to find the note to the law firm. A.

The new database, that's ours.

That's

OneWest Bank's system, yes.


Page 50

1

Q.

And what's that system called?

2

A.

It's an access database.

It's not called

3

anything.

4

analysts -- it was created by someone else.

5

analysts tweaked it and -- one of the analysts that

6

report directly to me tweaked it so that it's more

7

meaningful and has the controls in place that we

8

needed.

9

It's just an access database that one of my One of my

So now what it does, like I said, is it takes a

10

lot of the manual-ness out of it.

11

to go TO MAS1 INV1.

12

mainframe -- okay, I'm not a systems person, so, you

13

know -- where all the data is and it's scrubbing, based

14

on the loan number, to pull in who the doc custodian is

15

and then it creates the list.

16

to create a spreadsheet.

17

attached to the e-mail that Sandy approves that then

18

goes to the doc custodian to get the documents back.

19

Sylvia doesn't have

The system looks at our, the

Now, Sylvia doesn't have

It creates a list that is

And when the documents come in, there is a, like a

20

gun thing that they hook up to the computer, and so

21

from the bar codes from the Fed Ex or UPS or however

22

the doc, they can scan it and it puts the tracking

23

number on the system.

24

she gets ready to send the document out.

25

keeping track of, we have much better controls over the

And she does the same thing when So now we are


Page 51

1 2 3 4

process and better follow-up and follow-through. Q.

What does the attorney see of that to know

that there's a lost note? A.

Today, nothing.

What we're working on,

5

however, we're just not quite there yet, is an overlay

6

of the back and forths, or whatever communication

7

Sylvia has to the firms, so that they know how many

8

attempts we made and, you know, ultimately where the

9

document is.

And it would probably -- the idea is to

10

this into process management, this document into

11

process management.

12

Q.

Okay.

What I'm understanding from you, then,

13

correct me if I'm wrong, the only time the attorney

14

would know that there's a lost note, either the way the

15

system was then or even the way it is today, is that

16

someone requests a Lost Note Affidavit?

17

A.

Yes.

18

Q.

Look back at paragraph 4 of the complaint.

19

It says:

20

note and mortgage and/or is entitled to enforce the

21

mortgage note and mortgage.

Plaintiff is now the holder of the mortgage Do you see that?

22

A.

Yes.

23

Q.

Do you know which of those options it is,

24

whether it's they're the holder and entitled to enforce

25

the mortgage note and mortgage, or they're the holder


Page 52

1

or entitled to enforce the mortgage note and mortgage?

2

A.

3

In this case it is, or is entitled to enforce the

4

I'm going to read this.

Okay.

mortgage note and mortgage.

5

Q.

And why do you say that?

6

A.

Because Deutsche is the investor and we're

7

servicing, the servicing agent.

8 9

Q.

Right.

OneWest is not the holder of the

mortgage note and mortgage?

10

A.

Right.

11

Q.

And even if it was, it couldn't be the holder

12

of the mortgage note because the mortgage note was

13

lost?

14

A.

Is that a question?

15

Q.

Would you agree with that?

16

MR. MANCILLA:

17

wasn't ultimately lost.

18

missing or it may not have been found at the

19

time the complaint was filed, but it was

20

ultimately found.

21

BY MR. ICE:

22

Q.

No, the mortgage note It may have been

My question is as of the time that the

23

attorney penned his name onto this complaint and made

24

these allegations to the Court, made factual

25

representations to the Court, as an officer of the


Page 53

1

court, it wasn't holder of the note because it was

2

lost.

3 4

Would you agree with that? A.

Well, I don't understand that No. 4 to be

that, to mean what you are saying.

5

Q.

Okay.

6

A.

I understand No. 4 to be the holder, as in

How do you understand it?

7

who rightfully can enforce the , not so much as

8

who physically had the document.

9

understanding.

10

Q.

That's just my

I would tend to agree with you on that.

11

think your attorneys might differ with you and

12

certainly differ with me.

13

All right.

I

You've kind of anticipated my next

14

series of questions, which was, it's true that OneWest

15

does not own the loan in this case?

16

A.

That's true.

17

Q.

Neither OneWest nor IndyMac Federal Bank, FSB

18

nor IndyMac Bank, FSB, none of those entities own the

19

loan in this case?

20

A.

That's right.

21

Q.

The loan has been securitized?

22

A.

Yes.

23

Q.

The loan is owned by a trust?

24

A.

Yes.

25

Q.

The trust is Deutsche Bank National Trust


Page 54

1

Company?

2

A.

Yes.

3

Q.

I should have said the trustee is Deutsche

4

Bank National Trust Company, correct?

5

A.

Let me just look at that real quick.

6

Q.

In your computer systems, the owner of the

7

Yes.

note is called the investor?

8

A.

Yes.

9

Q.

Your computer systems show that Deutsche Bank

10

National Trust Company is the investor?

11

A.

Yes.

12

Q.

Deutsche Bank National Trust Company is the

13

creditor under the Fair Debt Collection Practices Act?

14

A.

I don't, I don't know.

15

Q.

As your attorney mentioned earlier, I don't

16

want you to guess at anything.

17

please just say you don't know.

18

estimate something for me and that's relevant, we would

19

like for you to do that.

20

The trust in this case, the

If you don't know, However, if you can

case, is the

21

IndyMac INDX Mortgage Trust 2006-AR4, mortgage

22

-through certificates series 2006-AR4.

23

A.

Yes.

24

Q.

The PSA that governs the relationship between

25

OneWest and the trustee is dated March 1st, 2006?


Page 55

1

A.

Yes.

2

Q.

Are there any of that particular PSA --

3

and for the benefit of the judge or a jury, whoever may

4

end up reading this, PSA stands for the Pooling and

5

Servicing Agreement?

6

A.

Yes.

7

Q.

Are there any of the Pooling and

8

Servicing Agreement that restrict the manner or amount

9

that a loan, that this loan may be modified?

10 11

A.

I don't know.

I don't know because I didn't

read the PSA for this loan.

12

Q.

Do you have it with you today?

13

A.

I don't.

14

Did you ask me to bring that?

MR. MANCILLA:

15

BY MR. ICE:

16

Q.

No.

Please, many times I'll ask you if you have

17

something because I see you have things in front of

18

you.

19

supposed to bring anything with you.

20

out of curiosity do you have it?

It's not intended to suggest that you were I'm just, just

21

A.

I don't.

22

Q.

Okay.

23

A.

And -- well --

24

Q.

I'm sorry, do you have something to add to

25

your answer?


Page 56

1

A.

That question is even outside the realm of my

2

responsibility.

3

PSA agreement, what I'm always looking for is how I can

4

vest and how I can do the action, where the loss mit

5

group is more looking at sections of the PSA that

6

govern what you're speaking to.

7 8 9 10

Q.

Okay.

Like so in of like what's in the

When you go to look at the Pooling and

Servicing Agreement -- well, sorry, strike that. Do you sometimes look at the Pooling and Servicing Agreement as part of your job?

11

A.

Yes.

12

Q.

When you do that, do you pull it up on your

13

system or --

14

A.

Yes.

15

Q.

Do you ever look at what's available on the

16

Internet?

17

A.

No.

18

Q.

Are there any contractual restrictions

19

outside the PSA that you're aware of that restrict the

20

way that this loan may be modified?

21

A.

22

say modify?

23

Q.

Yes.

24

A.

Today, yes.

25

Q.

What contractual provisions are those?

You mean from a loss mit perspective when you


Page 57

1

A.

Obama's HAMP program, and also the FDIC loss

2

mit program, but I'm not the subject matter expert on

3

any of those.

4

and how loans can be modified.

I just know that those now govern what

5

Q.

6

programs do?

7

A.

Yes.

8

Q.

Can you take me through the Obama one?

9

A.

This is rough, because I've already itted

Do you have a general idea of what those

10

that's not my area of expertise.

11

that is istered by Fannie and Freddie, and it's on

12

those two investors that we are required to behave a

13

certain way, but for other investors, other investors

14

can opt in.

15

loans to be looked at under his plan.

16

is a -- let me try to get this right.

17

So the HAMP program

Of course, the President wants all the And so if there

The DTI, debt to income, has to be 31 percent.

18

I'm probably about to get into trouble because I'm

19

trying to go somewhere that I don't know categorically.

20

And if it is and the borrower has, you know, the reason

21

for a default is catastrophic, or it doesn't have to be

22

catastrophic, but, you know, loss of income, divorce,

23

those such things, the borrower is put on a three-month

24

payment plan.

25

payment.

The payment may or may not be a full

It might be less than a full payment.

If the


Page 58

1

borrower does that for three months, then their loan is

2

modified to a lower interest rate.

3

for that lower interest rate, and I don't know exactly

4

what that range is.

5

And there's a range

And in some cases some of the principal balance is

6

not forgiven, but a separate loan is made out of it

7

that the borrower doesn't have to pay unless they sell

8

their home.

9

I'm foggy on that.

I'm foggy.

The FDIC modification plan I know less about, but

10

it is what Sheila Bair came out with when the FDIC took

11

over IndyMac Federal Bank.

12

idea.

13

to income, but the outcome is the same, without the

14

principal reduction.

15

It has the same general

The borrower has to meet this criteria of debt

The HAMP program, I'm going back to the other one,

16

also has an area that a borrower doesn't have to be

17

delinquent to qualify for it as long as the borrower

18

can show that they will become delinquent, severely

19

delinquent in the future because they just lost their

20

job yesterday.

21

be approved.

22

Q.

So they don't have to be delinquent to

Did I understand you correctly to say that to

23

your understanding the Obama program can involve

24

principal reductions, but the FDIC program does not?

25

A.

Yes.

And you said can.

You didn't say


Page 59

1

always.

2

Q.

It's possible.

3

A.

Okay.

4

Q.

I think you told me last time Sheila Bair was

5

Possible.

very much against principal reduction?

6

A.

And still is, yes.

7

Q.

But she doesn't call the shots at OneWest

8

anymore?

9

A.

She does not.

10

Q.

When it comes to principal reductions, or a

11

principal reduction in this case, ultimately that would

12

fall to Deutsche Bank to decide whether they want to do

13

that, correct?

14

A.

Well, since Deutsche Bank has, and the PSA

15

told us to service this loan diligently as we would our

16

own loans, then they are delegating that authority to

17

OneWest Bank.

18

through an FDIC model.

19

model because today it's just the Fannies and Freddies

20

that are requiring that it is happening on.

21

change.

22

Q.

Today a Deutsche Bank loan would go It would not go through a HAMP That will

It's just they're not there yet. So it's safe to say that today OneWest is not

23

doing any modifications that involve principal

24

reductions?

25

A.

I didn't say that.


Page 60

1

Q.

Well, that's why I asked.

2

A.

I have seen loans in the HAMP program where

3

borrowers have received -- or they were offered.

4

don't know if one actually accepted, accepts the plan,

5

but they were offered one that had the principal.

6

it's not really a principal forgiveness.

7

It's kind of just the borrower is making a payment, of

8

course, on a less, you know, their payment is much --

9

is greatly reduced because that piece of the principal

10

balance, that's not necessarily forgiven.

11

just moved into the shadows.

I And

It's there.

It's kind of

12

Q.

It's capitalized into the loan?

13

A.

No, it's not even capitalized into the loan.

14

It's like a second loan.

15

their loan off, they have to pay back that money, but

16

if they're just going to live in the house forever,

17

they would always be making that lower payment.

18

my understanding.

19 20 21

Q.

And if the borrower ever pays

That's

That's my loose understanding.

Is that an option for any loan owned by

Deutsche Bank? A.

Today, no, but it could change tomorrow.

I'm

22

going into unchartered waters again.

23

out with this plan, the HAMP plan, it was required that

24

any Fannie and Freddie investor loan, it had to abide

25

by these rules.

When Obama came

It has taken time for the other


Page 61

1 2

investors to be a part of the required. OneWest Bank wants to help the borrowers stay in

3

their home.

4

in the business of taking homes back.

5

some investors, and I can say this because of some of

6

the mediations I've gone where Deutsche Bank has been

7

the investor, where the loan can't go through the HAMP

8

plan, it has to go through the FDIC plan, which still

9

does not approve principal reductions.

10

Obviously, you know, OneWest Bank is not But we do have

The meeting that I was in yesterday morning is

11

that we are close to getting to a point where all the

12

investors will be included in the HAMP plan, but I

13

don't manage that process and I don't have any say-so.

14

I'm just waiting.

15 16

Q.

And the loss mit department is a separate

department from yours?

17

A.

Yes.

18

Q.

However, you would become aware of a

19

successful loss mit program or plan --

20

A.

Yes.

21

Q.

-- because it's no longer in foreclosure; is

22

that right?

23

A.

Yes.

24

Q.

And you have personally attended mediations

25

at which loan modifications were entered into? Ph. 561.682.0905 - Fax. 561.682.1771 1655 Palm Beach Lakes Blvd., Suite 500 - West Palm Beach, FL 33401

Page 62

1

A.

Well, not entered into, but discussed.

You

2

know, when we go to a mediation in Florida, the

3

required mediation, the mediator, of course, wants to

4

know what it is we can do.

5

that it is we can do.

6

because of one of these mediations, those loans are

7

still going through the FDIC model.

8 9 10

Q.

We come with everything

So I know that Deutsche Bank,

And the way you described it before, is that

something that Deutsche Bank can sort of opt into and say, I want to do the Obama program?

11

A.

Deutsche Bank could, yes, Deutsche Bank

12

could, any investor can do that and we would follow

13

suit.

14

we have a group of their loans that they service that

15

they want us to treat their loans through the HAMP

16

program.

17 18

We do have some investors, for example, Lehman,

Q.

Do you know how OneWest gets paid for the

service of servicing the loans for Deutsche Bank?

19

A.

No.

20

Q.

You don't know if it's a percentage of the

21

pool or anything like that?

22

A.

No.

23

Q.

Who would know that at OneWest?

24

A.

Someone in secondary marketing.

25

Q.

Do you have a name?


Page 63

1

A.

I want to say Aaron Wade, but I'm not sure if

2

he's there anymore.

3

with all my foreclosures and bankruptcies.

4

It's in Pasadena.

MR. ICE:

I'm too busy

I don't know if you, I'm about

5

to move to another exhibit, I don't know if

6

anybody wants to take a break?

7

MR. MANCILLA:

8

THE WITNESS:

9

MR. ICE:

I'm all right. I'm okay.

Keep going.

10

BY MR. ICE:

11

Q.

12

deposition.

13

A.

Yes.

14

Q.

What is it?

15

A.

It is the Affidavit of Debt in the

16

loan, on the

17

Q.

Okay.

Take a look at Exhibit B to your

Do you recognize that document?

loan.

Is that your signature on the final page?

18

When I say final, there's a service list that's

19

attached to my copy, but the final page of the

20

affidavit?

21

A.

Yes.

22

Q.

And that's the long form signature?

23

A.

Yes.

24

Q.

The old way you signed your name?

25

A.

Yes.


Page 64

1

Q.

2

for anything?

3

A.

No.

4

Q.

Okay.

5

Do you still use this old form of signature

Do you know who prepared this

affidavit?

6

A.

Someone at the firm.

7

Q.

The law firm?

8

A.

The law firm, yes.

9

Q.

In this case it would be Florida Default?

10

A.

Yes.

11

Q.

How do you know that?

12

A.

Because I'm sitting here with Joe and I know

13

I didn't transfer a file in the middle of a

14

foreclosure.

15

Q.

16

Okay.

And you see down at the bottom the

file number --

17

A.

Yes.

18

Q.

-- and the doc ID number?

19

Are you familiar enough with these documents to

20

recognize that as a Florida Default doc number, a file

21

number?

22

A.

No.

23

Q.

You don't know one way or the other?

24

A.

No.

25

Q.

Do you know why the numbers are treated there


Page 65

1

in big, bold letters with the asterisks?

2

A.

No.

3

Q.

Is that some sort of computer scanning

4

process?

5

A.

I have no idea, because when I get it, it

6

doesn't have that on it.

7

does.

8

I'm sorry. Q.

Oh, yes it does.

Yes, it

Sorry.

In paragraph 1 -- well, before I go into the

9

specifics, again, I know we covered some of this when

10

we were talking about Lost Note Affidavits and things

11

like that, but just to be clear, the process here is

12

the firm, the law firm, perhaps the affidavit, correct?

13 14 15 16 17 18 19 20

A.

Based on data that was provided to them from

our system of record. Q.

Right.

And they have access to the computer

screens to fill in the numbers in the affidavit? A.

Well, we actually give them copies of

computer screens, yes. Q.

So they don't have -- they can't just log on

and see the same computer screens?

21

A.

No, they can't.

22

Q.

The numbers that are on the computer screen

23 24 25

come from where? A.

Okay.

So when the file -- when the attorney

is about to do this part in the process, LPS will


Page 66

1

certain screen prints that we've already --

2

(Thereupon, there was a brief pause in

3

the proceedings, beginning 2:26 p.m, resuming

4

at 2:48 p.m.)

5

(Thereupon, the designated answer was

6

read back by the Reporter.)

7

THE WITNESS:

-- have told them need to

8

go with each packet every time a firm is

9

getting ready to do an Affidavit of Debt.

10

And then it's from those screen prints that

11

the firm can fill in the accurate

12

information, the accurate information.

13

BY MR. ICE:

14

Q.

So the screen prints aren't physically sent

15

to them, they're just on another system that they can

16

pull up the image?

17

A.

Both.

Well, I don't know.

Actually, I don't

18

know.

19

the image, because when I was preparing for the case, I

20

copied the images and -- but I'm -- that makes the most

21

sense.

22

the system and mailing them.

23

You definitely -- they definitely can pull up

Q.

I'm sure they're not printing the things off Okay.

The numbers that are on those screen

24

prints are both calculated numbers and input numbers,

25

correct?


Page 67

1

A.

What are we talking about?

2

Q.

Well, I was trying to talk about all of them.

3

A.

The numbers usually come straight off of the

4

screen print, so they're not -- can we take one for an

5

example?

6

Q.

Yes.

7

A.

Which one do you want to take?

8

Q.

Principal.

9

A.

So that's an easy one.

That's just coming

10

straight off from the system and there's no calculation

11

involved.

12 13

Q.

Well, that's not original principal.

That's

principal still owing, correct?

14

A.

Right.

15

Q.

So at some point the computer has to subtract

16 17

whatever payments have been made? A.

Oh, see, that's what you meant.

Okay.

When

18

you log onto the system and look at this loan, just at

19

a general information screen, what you will see is the

20

unpaid principal balance.

21

calculate anything, it's there.

22

Q.

Okay.

So the doesn't have to

Someone originally had to put in the

23

amount of the original principal balance, the original

24

principal of the loan, correct?

25

A.

When the loan boarded?


Page 68

1

Q.

Yes.

2

A.

Yes.

3

Q.

And by boarded, I assume you meant it was put

4

into the system because it became part of OneWest's

5

servicing responsibility?

6

A.

7

did it.

8

Q.

How does the information get onto the tape?

9

A.

I believe, this isn't my area of expertise, I

Yes.

And I don't know that someone manually

I believe that happens by tape.

10

believe that if we're purchasing a loan, the

11

information is provided to us by tape from the seller

12

and then ed automatically into our computer

13

system.

14

Q.

15 16

Okay.

The original lender in this case was

IndyMac, correct? A.

I think.

17

look at my papers.

18

Aegis.

19 20

Let me just make sure.

Have to

Because one of these we bought from

Yes, the original is IndyMac, yes.

Q.

So in this case, somebody from IndyMac, who's

now OneWest, would have at some point input --

21

A.

Yes.

22

Q.

-- the information physically into the

23

computer?

24

A.

Yes, that's true.

25

Q.

And we don't know who that was now?


Page 69

1

A.

No.

2

Q.

Then the computer is programmed to, as

3

payments are made and logged into the computer, to

4

deduct principal --

5

A.

Yes.

6

Q.

-- from the original principal?

7

A.

Yes.

8

Q.

Which requires someone else to physically

9

type in when a payment is made, correct?

10

A.

Yes.

11

Q.

Are there any, like if it's an electronic

12

payment or something, does it go automatically into the

13

computer from the bank where the borrower is paying

14

from?

15

A.

I believe so.

16

Q.

The interest rate, again the -- or the

17

interest per diem that's calculated, the number here of

18

$16,088.21, is computed from the original of the

19

loan, correct?

20

A.

Well, the interest would be, in that

21

equation, it would be the unpaid principal balance, not

22

the original principal balance.

23 24 25

Q.

Right.

But at some point, someone had to put

in what the rate was going to be? A.

Yes.


Page 70

1

Q.

And then the computer does the rest --

2

A.

Yes.

3

Q.

-- and calculates what that represents?

4

A.

Initially, or are we talking about if we were

5

to look at this today?

6 7

Q.

numbers got onto this affidavit.

8 9

Right now I'm just asking about how these

A.

So we have a workstation within our system of

record that generates payoff statements.

That's the

10

information that we provide to the firms because we can

11

put in an as-of date, and then the system, yes, based

12

on the interest rates that are already cataloged in the

13

system for prior months and future months will do the

14

calculations.

15

Q.

Because there's a time lag to get these into

16

the affidavit and for you to sign it, the computer

17

system is actually projecting ahead a little bit as to

18

how much interest is going to be due and owing on a

19

date in the future?

20

A.

It depends.

Let's see.

On this one, the

21

interest is, as of 2/9, 2009, so, yes, it was projected

22

out.

23

meaning it's not an adjustable, a monthly adjustable

24

interest rate, then it will do that accurately.

25

are times when the system can be off if the interest

And as long as the interest rate is available, There


Page 71

1

rate is not available, depending on when this request

2

is made, and then what the system is going to do is use

3

the interest rate it has available to calculate.

4

Q.

And that's because the adjustables are

5

sometimes tied to rates that you can't possibly project

6

into the future?

7 8

A.

Right.

Right, once the U.S. Treasury

publishes them, then --

9

Q.

Okay.

So based on the screen print, someone

10

at the firm puts these numbers in and then they

11

transfer this to LPS or back to OneWest, or, pardon me,

12

I think you said it's ed to the computer?

13

A.

It's ed back, because the document has

14

to be signed, it now goes through its -- and I don't

15

know what kind of QC process it goes through on the

16

firm side, so just speaking from what I know, the firm

17

would it back through LPS's system for the

18

document to get signed.

19 20

Q.

And it gets printed out in Austin for you to

sign?

21

A.

It gets printed in Minnesota --

22

Q.

Okay.

23

A.

-- and gets shipped to Austin.

24

Q.

And at that point you sign this without any

25

You said that.

kind of your personal verification that any of these


Page 72

1 2

numbers are correct? A.

There will be a sticky on it, on this.

3

what I have is okay to sign by the foreclosure

4

specialist that owns this digit.

5

won't double check the numbers.

And

And based on that, I

6

Q.

Do you ever double check any of the numbers?

7

A.

No, because our QC process that used to be a

8

100 percent that's now 10 percent, it has really zero

9

level of error because the numbers are really coming

10

right off of -- no one's manually doing this.

11

just look for that sticky so that I know that the

12

person I charged with checking it is doing what I'm

13

expecting them to do.

14

Q.

So I

So when the firm prepares this, is this

15

somehow drawing from the bank's computer system to put

16

these numbers in here or is there a paralegal somewhere

17

and typing these in?

18

A.

I don't know.

I don't know, which is why I

19

have a specialist double check to make sure.

20

they're to look at this and say, if I was doing this

21

all from the beginning, would I come up with the same

22

number.

23

I mean,

That's why we have that double check.

But I don't want to represent that errors aren't

24

made and errors aren't caught and we don't take losses

25

because of errors.


Page 73

1 2

Q.

Do you know whether this was prepared during

the 100 percent QC phase or the 10 percent QC phase?

3

A.

This would have -- the 100 percent QC phase.

4

Q.

So someone at OneWest would have checked

5 6

these numbers before giving them to you? A.

Yes.

Let me backtrack, make sure that I was

7

clear.

8

check these numbers before I sign.

A 100 percent of the time someone has to double

9

Q.

Right.

10

A.

We have a QC process on top of that, that

11

they were QCing how many times we had to reject the

12

document because the numbers were incorrect.

13

process has gone from a 100 percent to 10 percent, but

14

a 100 percent of the time a specialist looks at these

15

numbers before I sign.

16

Q.

Okay.

That

But both back then and today, the

17

numbers, OneWest checks every single number every

18

single time?

19

A.

Back then and, yes, today.

20

Q.

However, you're not the one doing that?

21

A.

No.

22

no, I don't.

23

do that.

24 25

Q.

As the vice president of the department, I have employees that report to me that

Right.

And do you have any way of knowing

who did it on this document?


Page 74

1

A.

I don't.

2

Q.

In the first line you say:

This affidavit is

3

submitted in of Plaintiff's Motion for Final

4

Judgment for the purpose of showing:

5

genuine issue as to any material fact, that plaintiff

6

is entitled to enforce the note and mortgage and

7

plaintiff is entitled to a judgment as a matter of law.

8

Do you see that?

That there is no

9

A.

Yes.

10

Q.

Is there anywhere in the affidavit where you

11

actually declare that OneWest -- the basis for OneWest

12

being entitled to enforce the note and mortgage?

13

A.

I'm sorry, what now?

14

Q.

In other words, the way I read it, that's

15

sort of an introductory paragraph as to why this is

16

being filed.

17

A.

Okay.

18

Q.

So my question is, do you say anywhere in

19

here as to what the basis is for plaintiff, which is

20

IndyMac Federal Bank, FSB, being entitled to enforce

21

the note and mortgage?

22

A.

Being entitled to enforce.

I'm looking for

23

the sentence that says -- if you say No. 1 is an

24

introductory paragraph, then I don't see a statement

25

that categorically refers back to the fact that OneWest


Page 75

1

can enforce the note, but I'm not reading it like an

2

introductory paragraph because it's numbered.

3 4

Q.

Okay.

Yeah, you don't have to adopt my

interpretation of it.

5

A.

So, no.

6

Q.

The question is, regardless, viewing the

7

document as a whole, any paragraph, where do you give

8

the basis that the plaintiff is entitled to enforce the

9

note and mortgage?

10

A.

It's not given in this particular affidavit.

11

Q.

Even though it says that that's the reason

12

that this is being given?

13 14 15

A.

It's in of our motion, the motion,

Q.

Right.

yes. At the time this was signed, IndyMac

16

Bank was the servicer -- IndyMac -- strike that.

17

Who -- what company was -- the plaintiff is

18

IndyMac Federal Bank, FSB, correct?

19

A.

Yes.

20

Q.

But your affidavit is talking about IndyMac

21

Bank as servicer of the loan.

22

in paragraph 2?

23

A.

Would that be incorrect,

I don't know that that -- I think that's an

24

interpretation of whether that is necessarily incorrect

25

because it doesn't -- the plaintiff says IndyMac


Page 76

1

Federal Bank.

2

Federal Bank in No. 5, so I think paragraph 2 doesn't

3

go to the validity of the document.

4

error.

5 6

What do you call those?

Q.

Right.

I think it's an

Scribner error.

It should be IndyMac Federal Bank,

correct?

7 8

I signed in the capacity as IndyMac

A.

I would like to have seen it be IndyMac

Federal Bank, yes.

9

Q.

Because when we started this whole

10

deposition, you agreed with me that IndyMac Bank ceased

11

to exist in July of last year.

12 13

A.

Yes, but the plaintiff is IndyMac Federal

Bank on the document.

14

Q.

Right.

So as of December 15th, 2008, when

15

you signed it, IndyMac Bank wasn't the servicer of the

16

loan.

They didn't even exist; is that correct?

17

A.

That's right.

18

Q.

Is that something that your QC people look

A.

It is my understanding that it is a QC point

19 20 21 22

for? for Fidelity -- LPS, yes. Q.

Going on in paragraph 2, it says that you are

23

familiar with the books of .

24

?

25

A.

What are books of

The system records.


Page 77

1 2

Q.

So what you're talking about is the computer

programs that we have been discussing?

3

A.

Yes.

4

Q.

It says that you have examined all the books,

5

records, and documents kept at IndyMac Bank, FSB

6

concerning the transactions alleged in the complaint,

7

correct?

8

A.

Yes.

9

Q.

Again, IndyMac Bank didn't have any books,

10

records, or documents at that time, correct?

11

A.

Correct.

12

Q.

Secondly, you didn't examine anything?

13

It

was somewhere else?

14

A.

Someone that reports to me, yes.

15

Q.

When you say, all the transactions alleged in

16

the complaint, when you signed this, did you know what

17

transactions were alleged in the complaint?

18

A.

I know when I sign an Affidavit to Amounts

19

Due and Owing what I'm g, so.

20

that as of the date that this is referring to, that is

21

what the borrower owed.

22

Q.

And I'm g

Did you have a copy of the complaint there to

23

review to know what transactions were being alleged in

24

the complaint?

25

A.

I don't need to have -- no, I didn't.


Page 78

1 2

Q.

Do you know whether or not it had a lost note

count in it at the time you signed this?

3

A.

No.

4

Q.

Continuing on in paragraph 2:

All of these

5

books, records, and documents are kept by IndyMac Bank,

6

FSB in the regular course of its business as servicer

7

of the loan transaction and are made at or near the

8

time by, and from information transmitted by, persons

9

with personal knowledge of the facts such as your

10 11

affiant. What personal knowledge do you have that the books

12

and records and documents that are kept by, should be

13

IndyMac Federal Bank at that time, are in the regular

14

course of its business?

15

A.

Because as a servicer and as a bank, the

16

records are customary.

17

customary.

18

the question.

The financial records are

Did I get that -- maybe I didn't understand Let me read it.

19

Yes, as a bank and as a servicer, it is customary

20

to keep financial records and customer logs and copies

21

of documents.

22

Q.

How did you confirm that the records that you

23

were looking at were made at or near the time by, and

24

from information transmitted by, persons with personal

25

knowledge?


Page 79

1

A.

My staff, when they check the figures,

2

they're going to do it based on the effective dates

3

shown here as a check and balance that as of that time,

4

as of, in this case, February 9th, 2009, that's what

5

the principal balance was and that's what the interest

6

rate was.

7

Q.

Well, I'm focused on the idea that the

8

entries into this computer system you say are made by,

9

or from information transmitted by, persons with

10

personal knowledge of the facts.

11

already talked about some of the entries, some of the

12

data comes from tape.

13

case, did this come from tape or somebody who typed it

14

into the computer?

You know, we've

Do you know in this particular

15

A.

I don't know.

16

Q.

You don't know -- because you don't know

17

that, you don't know whether it was made at or near the

18

time that the records came to be, right?

19

A.

I do know that working for a bank we are

20

strongly regulated and that this is the normal course

21

of business, and because of reg A and B and other regs,

22

we wouldn't, as a business, OneWest Bank wouldn't

23

represent that we're doing these things if it weren't

24

happening in the normal course of business.

25

Q.

Well, IndyMac was the original lender,


Page 80

1

correct?

2

A.

Yes.

3

Q.

But it was probably done through some sort of

4

a mortgage broker?

5

A.

Yes.

6

Q.

Do you have any way of knowing today who that

8

A.

I looked at that.

9

it with me.

7

was? I don't know if I brought

I can't .

It wasn't a name that's

10

standing out for me, either. I didn't print it.

11

don't know for sure.

12

Q.

I

So sitting here today, you don't know who

13

that was that sat down with my client and signed the

14

loan?

15 16

A.

Well, let me just double check.

I don't

know.

17

Q.

I presume there would have been an

18

underwriter at IndyMac who would have approved what the

19

mortgage broker was doing?

20

A.

That's not my area of expertise.

I'm not

21

sure what the requirements are when they -- I don't

22

know.

23

I don't know. Q.

Okay.

Among the folks I've talked about so

24

far, the mortgage broker, whoever at IndyMac was

25

overseeing that process, did any of them, were any of


Page 81

1

them the people who put the information into the

2

computer?

3

A.

4

broker.

5

Bank employee.

6

Q.

It's possible.

Probably not the mortgage

My best guess is it would have been an IndyMac And would that have been based on the

7

documents that were physically signed and physically

8

delivered to IndyMac?

9 10 11

A.

That would be my understanding, but, again,

that's -- I don't know the front end. Q.

And when that was done, whether it was close

12

to the time of the loan or a long time from the time of

13

the loan, you would have no personal knowledge of,

14

correct?

15 16

A.

No.

I mean, personal knowledge in this case

of when, how, or when the documents were ed?

17

Q.

Right.

18

A.

No, I don't.

19

Q.

You have no personal knowledge of that?

20

A.

I have no personal knowledge.

21

Q.

In paragraph 4 you say:

22

Plaintiff, IndyMac

Federal Bank, FSB, is owed the following sums of money.

23

A.

Um-um.

24

Q.

The truth is, is that that money was owed to

25

Yes.

Deutsche Bank, correct?


Page 82

1

A.

2

word "owed."

3

OneWest Bank would be collecting the funds.

I guess it depends on how you interpret that As the servicing agent for Deutsche Bank,

4

Q.

For Deutsche Bank?

5

A.

To through to Deutsche Bank.

6

Q.

And it's really the same for this foreclosure

7

action, too.

8

this lawsuit, it's Deutsche Bank that collects the

9

proceeds or the house at the end of the day, correct?

IndyMac is the plaintiff, but if you win

10

A.

Yes.

11

Q.

Okay.

Let's just see what's been marked as

12

Exhibit C to your deposition, ask you if you recognize

13

that document?

14

A.

Yes.

15

Q.

What is it?

16

A.

The responses to the interrogatories.

17

Q.

Do you recognize the signature on that

18

document?

19

A.

That's my new signature.

20

Q.

The new and improved?

21

MR. MANCILLA:

22

anyway.

23

BY MR. ICE:

24

Q.

25

The new and shortened,

Are those the only two signatures that you

use?


Page 83

1

A.

Yes.

2

Q.

And this is the one you use from now on on

3

everything?

4

A.

Yes, except for my checkbook.

5

Q.

And on these interrogatories you signed as

6

attorney-in-fact.

Do you see that?

7

A.

Yes.

8

Q.

Who are you the attorney-in-fact for?

9

A.

IndyMac Federal Bank.

10

Q.

Why did you not sign as the vice president of

11 12 13

IndyMac Federal Bank? A.

At the time that I signed this -- does that

say May 29th, 2009?

14

Q.

I think so.

15

A.

As of March 19th, I could only do

16

attorney-in-fact for IndyMac, IndyMac Federal, and FDIC

17

as receiver, and FDIC as conservator.

18 19 20

Q.

But at that time it had already become

OneWest, correct? A.

Yes, but since the action -- yes.

But since

21

the action, the plaintiff in the action was IndyMac

22

Federal, I can still sign for IndyMac Federal as

23

attorney-in-fact until 2010.

24 25

Q.

Who granted you the power of attorney to sign

for a nonexistent entity?


Page 84

1

A.

FDIC.

2

Q.

Do you have that power of attorney with you?

3

A.

I do.

4

Q.

Thank you.

5

A.

Hold on.

6 7 8 9

the right one.

I brought it just for you. I'm trying to make sure I give you

Hold on.

I'm sorry.

THE WITNESS:

Are we going to break

right now? MR. MANCILLA:

Yes.

10

MR. ICE:

11

(Thereupon, there was a brief pause in

Okay.

12

the proceedings, beginning at 2:59 p.m.,

13

resuming at 3:14 p.m.)

14

(Continued at Volume II)

15 16 17 18 19 20 21 22 23 24 25 Ph. 561.682.0905 - Fax. 561.682.1771 1655 Palm Beach Lakes Blvd., Suite 500 - West Palm Beach, FL 33401

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