1

1 IN THE CIRCUIT COURT, SEVENTH

JUDICIAL CIRCUIT, IN AND FOR
2 VOLUSIA COUNTY, FLORIDA

3 CASE NO.: 2009-20298-CINS

DIVISION: 02
4

5 WELLS FARGO BANK, NA,

6 Plaintiff,

7 vs.

8 DONALD W. NEEDHAM, et al,

9 Defendant(s).

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11 ********************************************************

12 TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE ROBERT K. ROUSE, JR.
13 CIRCUIT COURT JUDGE

14 MOTION FOR PROTECTIVE ORDER

15 ********************************************************
DATE TAKEN: MARCH 10, 2010
16
TIME: COMMENCED AT 1:37 P.M.
17 CONCLUDED AT 1:57 P.M.

18 PLACE: VOLUSIA COUNTY COURTHOUSE

DELAND, FLORIDA
19
REPORTED BY: KATHERINE FRIERSON
20 COURT REPORTER AND NOTARY PUBLIC

21 ********************************************************

22

23 VOLUSIA REPORTING COMPANY

432 SOUTH BEACH STREET
24 DAYTONA BEACH, FLORIDA 32114
T. 386.255.2150 F. 386.258.1171
25 www.volusiareporting.com
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1 Appearing for the Plaintiff
2 JOSEPH MANCILLA, JR., ESQUIRE (VIA PHONE)
Of Florida Default Law Group, P.L.
3 P.O. Box 25018
Tampa, Florida 33622-5018
4 813-251-4766, FAX-813-251-1541
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6 Appearing for the Defendant
7 DUSTIN A. ZACKS, ESQUIRE
Of Ice Legal, P.A.
8 1975 Sansburys Way
Suite 104
9 West Palm Beach, Florida 33411
561-793-5658
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1 THEREUPON,

2 THE COURT: Hello?

3 MR. MANCILLA: Hello. Judge Rouse?

4 THE COURT: Yes.

5 MR. MANCILLA: Hello. This is Joe Mancilla.

6 THE COURT: Hello, how are you?

7 MR. MANCILLA: I'm doing fine.

8 THE COURT: All right, this is Joseph Mancilla,

9 M-A-N-C-I-L-L-A, Jr.

10 MR. MANCILLA: Correct.

11 THE COURT: And you are representing Wells

12 Fargo.

13 MR. MANCILLA: That's correct.

14 THE COURT: All right. And in the hearing room

15 we have?

16 MR. ZACKS: Dustin Zacks from Ice Legal on

17 behalf of the homeowners, Dr. Donald Needham and

18 Blair Bergstrom.

19 THE COURT: And how do you spell your first and

20 last name?

21 MR. ZACKS: Dustin, D-U-S-T-I-N, Z-A-C-K-S.

22 THE COURT: Z-A-Z-K-S?

23 MR. ZACKS: I'm sorry, Z-A-C-K-S.

24 THE COURT: I'm sorry, I just wasn't listening

25 carefully.

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1 MR. ZACKS: I've seen it spelled every

2 different way, Judge.

3 THE COURT: I'll bet. Well, it's not really

4 that confusing to me. But we do want to make sure

5 we have it straight since we do have a court

6 reporter here, Mr. Mancilla, so you must mind your

7 tone.

8 MR. MANCILLA: I will, Your Honor.

9 THE COURT: All right. You're appearing by

10 telephone and Mr. Zacks is here.

11 So it is the protective order by Plaintiff, so

12 you may proceed.

13 MR. MANCILLA: Okay, Your Honor. On

14 November 19, 2009, the Defendant sent Plaintiff's

15 counsel copies of Notice of Taking Deposition and a

16 copy of which is attached to our motion. The people

17 that would be deposed were Lisa Cullaro, who was the

18 affiant of the affidavit as to reasonable attorney's

19 fees filed in the above case, and Erin Cullaro, who

20 was the notary on the affidavit.

21 The problem with this affidavit is it was filed

22 when the case was uncontested, and it really had no

23 bearing on the contested case as it is now. It was

24 a flat fee affidavit, so we withdrew it. And

25 although we withdrew it, they still wanted to

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1 proceed with the depositions. So that's the reason

2 we filed the Motion for Protective Order, because

3 it's no longer before the Court and the witnesses

4 have absolutely no knowledge, independent knowledge

5 of this mortgage that they could testify about. So

6 there is really know reason to depose them at all.

7 THE COURT: So you're saying that Cullaro, the

8 proposed deponent, doesn't know anything about this

9 case except the amount of attorney's fees?

10 MR. MANCILLA: Right. And that was even just a

11 flat fee thing that they -- they didn't even look at

12 the mortgage file when they prepared the affidavit,

13 they just --

14 THE COURT: Because you know it's a flat fee.

15 MR. MANCILLA: Yeah.

16 THE COURT: Because she does have personal

17 knowledge that this is a flat-fee arrangement with

18 this particular client.

19 MR. MANCILLA: Right, except for when the case

20 becomes contested, which it is now, and now it's on

21 an hourly basis. So her affidavit has no relevance,

22 no bearing to the case, and that's why we're

23 withdrawing it. Counsel has withdrawn. There is

24 nothing -- there is no further effect to it.

25 THE COURT: Is this the only protective order

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1 that's sought?

2 MR. MANCILLA: Yes. And I also wanted to

3 mention that John Cullaro, who is representing the

4 individuals, and he was unable to attend this

5 hearing because his wife has been recently diagnosed

6 with cancer, so he's relying on papers that we filed

7 and asking that the Court accepts the argument on

8 behalf of his client.

9 THE COURT: Well, who is his client?

10 MR. MANCILLA: His client is the -- are the

11 Cullaros. He's representing them individually

12 because they're nonparties, so I can't represent

13 them.

14 THE COURT: Oh, okay. I gotcha. Okay.

15 All right, Mr. Zacks, why do you need this

16 deposition?

17 MR. ZACKS: Judge -- well, first, if I could

18 address Plaintiff's motion. We don't feel that

19 Plaintiff has any standing to move for a protective

20 order, because, as Mr. Mancilla said, it's not their

21 client anymore, they're not an expert witness. In

22 their own motion they say that it's privileged --

23 MR. MANCILLA: I'm having a problem hearing

24 him, Your Honor.

25 THE COURT: Okay. Well, he's going to speak up

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1 louder.

2 MR. ZACKS: Thank you. Again, we're arguing

3 that they don't have standing because they are no

4 longer Plaintiff's expert witness.

5 Secondly, in Plaintiff's own motion they're

6 arguing that it's privileged, overbroad and

7 burdensome. It can't be privileged, Judge. Again,

8 it's not --

9 THE COURT: Let me try again. Why do you want

10 to depose this person?

11 MR. ZACKS: Sure. We have reason to believe

12 that we can prove up our unclean hands for

13 affirmative defense. The reason that is, as soon as

14 we noticed these folks for deposition, they withdrew

15 them, about 20 cases. We have some compendiums of

16 signatures and we have reason to believe -- again, I

17 don't want to reveal everything we would be asking

18 them under cross-examination at trial, but there is

19 a possibility that the expert witness is actually

20 not signing all the thousands of the Florida Default

21 Affidavits that she has filed around the state.

22 Even the 20 or so that we have, have noticeably

23 different signatures.

24 We also have reason to believe that the notary,

25 which is the second deposition, isn't anywhere near

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1 the affiant when she's executing some of these. We

2 also have reason to believe that after we asked to

3 take these depositions after they became third-party

4 witnesses, they actually pressured the Florida

5 Default Law Group to bring this Motion for

6 Protective Order.

7 The other issue is --

8 THE COURT: Let me get this straight. She

9 signed a -- she signed, this is Lisa Cullaro, the

10 proposed deponent, has purportedly signed an

11 affidavit saying there is a flat fee of $1,500 with

12 this client for this uncontested case, she didn't

13 say all of those words, but that's what she said in

14 effect.

15 MR. ZACKS: Sure.

16 THE COURT: And now they have withdrawn the

17 affidavit and are not claiming that there is a flat

18 fee in this case.

19 MR. ZACKS: Right. But, again, the

20 circumstances surrounding her execution of that and

21 Florida Default's filing of that, we believe we can

22 prove up the unclean hands.

23 THE COURT: Unclean hands about what?

24 MR. ZACKS: Unclean hands in the conduct of the

25 lawsuit, Your Honor. Florida Default Law Group has

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1 previously been sanctioned in a couple of different

2 cases by the Florida Supreme Court for affidavits

3 just like this. Again, not with these particular

4 potential deponents, but in the same kind of

5 fashion. So the old expression "where there's smoke

6 there's fire," we do think there is a reason other

7 than the fact that it's not a flat fee why they

8 immediately withdrew them and immediately sought

9 protective orders.

10 Discovery is liberally granted, Your Honor. If

11 Plaintiff is right and they're not hiding anything,

12 these depositions will be very short. We have not

13 asked Lisa and Erin Cullaro to come here to the

14 forum, we're going to depose them in their resident

15 county.

16 And, again, if they --

17 THE COURT: Again, what you're going to ask

18 them is, you're going to show them the affidavit

19 that was filed, or a copy of it since, I guess, the

20 original would be in the court file.

21 MR. ZACKS: Sure.

22 THE COURT: And you're going to show them a

23 true copy of that affidavit, or at least the one

24 that was mailed to your client, and you're going to

25 say, "Did you sign this?"

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1 MR. ZACKS: Sure. That's --

2 THE COURT: And if they say yes, you're going

3 to say, "Did you sign it before a notary?" And if

4 they say yes, you're gonna say, "Did you sign it

5 before the notary who notarized it?" And if they

6 say yes, then what are you going to do?

7 MR. ZACKS: Well, again, we simultaneously

8 noticed it with 20 other cases that we have where

9 there are different signatures. So, again, if the

10 answer is yes and yes to the questions, it's going

11 to be a very quick deposition. It's not burdensome.

12 And, again, it's not even Plaintiff's client.

13 THE COURT: So I want to make sure, you're not

14 going to go further than what we just talked about.

15 You may ask, now, in connection with the next case,

16 and they're all going to be taken at the same time,

17 is that what I understand?

18 MR. ZACKS: Right.

19 THE COURT: So you're not going to have to ask

20 to reconvene and have them re-sworn 20 times, but

21 you're just going to go through a succession of

22 affidavits and ask, "Did you sign this? Did you

23 sign it before the notary public who's name appears

24 on it?"

25 MR. ZACKS: Sure. And the cases where, within

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1 our 20 cases where there's a difference in the

2 signature, just ask, "Is there a reasonable

3 explanation for why the signature is different?"

4 Some of the other things I spoke about, we may ask

5 about that, but --

6 THE COURT: Well, what are the other things?

7 MR. ZACKS: Well, again, first of all, yes, the

8 signatures, the notarization, but also the fact that

9 the notary, which is Erin, the second potential

10 deponent, wasn't anywhere near Lisa Cullaro when she

11 was signing it.

12 THE COURT: What do you mean she wasn't

13 anywhere near?

14 MR. ZACKS: Well, we have some evidence that on

15 certain dates she might actually have been out of

16 town. So, again, very simple, not over-burdensome

17 and certainly not privileged.

18 THE COURT: Now, let's assume that you can show

19 that, in fact, this was all done inappropriately,

20 I'm going to use the lightest word I know how to

21 use, "inappropriately," in that the notary was not

22 there when she signed it, or, even worse, some of

23 the signatures are not hers, what affect is that

24 going to have on this case?

25 MR. ZACKS: Well, again, first it's going to

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1 prove up our defense of unclean hands.

2 THE COURT: Unclean hands in what respect?

3 MR. ZACKS: In conducting the lawsuit. First

4 of all --

5 THE COURT: And what's the effect of that?

6 MR. ZACKS: Well, the effect of that is, Your

7 Honor certainly has the inherent ability to sanction

8 the Plaintiff for any --

9 THE COURT: Does that mean your client doesn't

10 have to pay for their house?

11 MR. ZACKS: At this point that's not what we're

12 asking for, but that's because we haven't been able

13 to prove it up yet.

14 THE COURT: But assuming you can prove it up?

15 MR. ZACKS: Well, assuming we can prove fraud

16 on the Court, we may ask the Court, indeed, to

17 dismiss the case with prejudice. Again, you have

18 discretion on what exactly you will do, but,

19 certainly, that is the thing. They are across the

20 state attempting to file these and defrauding the

21 Court in all different counties around the state,

22 all of these cases that with have. We think it's

23 very permanent that the Court know that information.

24 And, certainly, unclean hands, Plaintiff's

25 counsel always asks us, "Well, where's the details.

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1 This isn't specifically stated." Well, if we can't

2 get this liberal discovery and ask these very simple

3 questions, we can't prove it. So we have reason to

4 believe that there was some, again, I would say

5 misconduct, lightest word I can think of, in this

6 case. If we prove that up, it is clearly unclean

7 hands and we'll put it in the Court's hands at that

8 point.

9 THE COURT: Okay, Mr. Mancilla, were you able

10 to hear his presentation?

11 MR. MANCILLA: Yes, Your Honor. I just have a

12 problem with this whole thing, though, because,

13 number one, I doesn't understand where he gets the

14 idea that there might have been something wrong with

15 the original signatures.

16 THE COURT: Well, apparently, where he -- let

17 me help you with that. Apparently, where he gets

18 the idea is, he's looking at 20 different affidavits

19 and he sees what appear to him, as a lay person, and

20 maybe has then examined by an expert, to be 15

21 different signatures. So that could give you a

22 reason. And then he says he has other information

23 that the person signing, one of the two, I don't

24 know, wasn't even in the town or the city or the

25 county, or something. I don't know where that

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1 information would come from, but -- I don't know,

2 that's what he said.

3 MR. MANCILLA: Your Honor, my point is that the

4 affidavits, having been withdrawn from this case,

5 are no longer up for consideration by the Court.

6 And, therefore, I don't understand why -- what

7 possible rationale could be used for deposing these

8 two people. You know, they don't have anything to

9 do with the case right now. They're not a party,

10 they're not an employee of our law firm, so our law

11 firm couldn't have anything placed on it in terms of

12 unclean hands, whatever that means. And certainly

13 don't have anything to do with the client who holds

14 the mortgage on this property. And all it's trying

15 to do, all it's doing is delaying the lawsuit and

16 it's trying to create a --

17 THE COURT: Well, now, this Ms. Cullaro is not

18 an employee of the law firm, she was the outside

19 expert who provided an expert affidavit attesting to

20 the reasonableness of the fee?

21 MR. MANCILLA: Right.

22 THE COURT: Is that right?

23 MR. MANCILLA: Now, of course, that's not --

24 that's not at issue because it's no longer --

25 THE COURT: And Ms. Cullaro, not being an

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1 employee of your firm, she did not -- neither one of

2 the Cullaros, there are two of them who are going to

3 be deposed?

4 MR. MANCILLA: Yes.

5 THE COURT: Proposed to be deposed. And

6 neither one of them filed an objection, the

7 objection's been filed by the Plaintiff?

8 MR. MANCILLA: Well, they supposedly did file

9 individual objections. I don't know for sure if

10 that's been done, but it looks like 20 cases they

11 were supposed to -- they supposedly filed, but I

12 don't know if they have gotten in the file or not.

13 MR. ZACKS: Yes, sir. And I have those filed

14 by Mr. --

15 THE COURT: Okay. What are their grounds?

16 MR. ZACKS: The basic -- and if you want me to

17 approach, I can certainly hand it to you.

18 THE COURT: Just tell me.

19 MR. ZACKS: They have testified that, number

20 one, there are no facts about which they can testify

21 because their role was limited to the testimony and

22 the notarization of that testimony about the

23 reasonableness. Again, because it was so limited in

24 scope, I guess their argument is that because those

25 facts are not at issue, there are no more facts

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1 which they can testify. Again, if that's true, Your

2 Honor, it's going to be a very short deposition.

3 And no one will be prejudiced by this, especially

4 considering we've subpoenaed them, again, in the

5 county they reside in. So, again, if there really

6 are no facts about which they can testify, it's

7 going to be a, potentially, a five-minute

8 deposition, Your Honor.

9 THE COURT: Well, it's not just going to be

10 potentially a five-minute deposition, because if I

11 allow it, I am not going to allow you to go beyond

12 the specific matters and questions you have stated

13 today: "Did you sign this?" "Did you sign it in

14 front of the notary who's name appears on it as the

15 notary?" And "Did you do it after reviewing

16 something having to do with this case, either a

17 master contract, or did you sign it in good faith in

18 this case?" And if they say yes to those questions,

19 okay, I don't know why we need to go further.

20 If they say no, if the signature person -- if

21 the person signing it says, "No, I didn't sign

22 that," I suppose that you should certainly be

23 allowed to ask, "Do you know who did and do you know

24 how it got into this file bearing what is

25 purportedly your signature?" And the answer to that

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1 is either, "Yes, I do, and here's how," or "No, I

2 don't." And then I think we should end it and come

3 back to the Court if we want to inquire further.

4 MR. ZACKS: And, also, I just might add again,

5 Your Honor, not just "Did you sign it?" But, also,

6 given that we have 20 different cases, "Why does

7 your signature appear different from this case to

8 the next one? For example, in this one you only had

9 one loop in your initial. Why are there two loops,

10 or three loops, or a completely different looking

11 signature in the next?"

12 THE COURT: Well, you can --

13 MR. MANCILLA: Your Honor, that's what I'm

14 worried about, is they're going to start now asking

15 questions about these other affidavits, which I

16 don't know what that --

17 THE COURT: Well, I don't know if he is or not.

18 But I think you can ask, "Is your signature" -- you

19 know, "Is this your signature? And you're saying it

20 is." And let's say she says yes. And then you say,

21 "Well, let me show you a couple of other

22 signatures." And, you know, I think you can show

23 three or four others, I don't know if you need to go

24 through 20, at least in this case, "Are these your

25 signatures?" I mean, "Do you sign the same way

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1 every time or does your signature wildly fluctuate?

2 Are all of these your signatures?" I don't know why

3 he couldn't ask that. If someone says, "Yes, that's

4 my signature," and you have others --

5 MR. MANCILLA: That's true, people can sign

6 their name --

7 THE COURT: Well, sure --

8 MR. MANCILLA: -- I do it all the time.

9 THE COURT: -- but if you have other exemplars,

10 it seems to me fair to say, "Well, this is strange,

11 because it doesn't look like your signature on this

12 other exemplar. I've got ten checks that you signed

13 and on this eleventh check it looks entirely

14 different. So I want to show you these other ten

15 and make sure. Are all of these your signatures?"

16 And then we get --

17 MR. MANCILLA: Again, Your Honor, where does

18 this get to in terms of ultimate proof?

19 THE COURT: You know, I'm not sure. But what

20 concern --

21 MR. MANCILLA: Even if, assuming that somehow

22 that this person didn't sign the affidavit for some

23 reason, maybe she was busy or something else, what

24 does this mean? It's no longer filed in the case,

25 it's not being relied upon by the Plaintiff, it has

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1 absolutely nothing to do with the fact these people

2 owe several $100,000 on their mortgage.

3 THE COURT: Well, that's a discussion -- that's

4 a discussion for today in the sense that you're

5 saying, in support of your Motion for Protective

6 Order, it doesn't have anything to do with this case

7 anymore, this deposition, and we should grant the

8 protective order.

9 But I am going to allow the deposition to go

10 forward and deny the Motion for Protective Order by

11 all movants on the representation by counsel that it

12 is going to be limited, as he has said right here on

13 the record, and we're not going to abuse the

14 witnesses, we're merely going to get this fairly

15 simple answers to fairly simple questions.

16 Now, if the witnesses choose to assert Fifth

17 Amendment privileges or otherwise, that's for a

18 different day to worry about.

19 But I'll tell you why I'm concerned, Mr.

20 Mancilla. I'm concerned if I have people filing

21 affidavits in my court that aren't signed by the

22 person whose name appears to be on the affidavit, I

23 am very concerned about that. And this seems like a

24 very easy way to allay my concerns and, perhaps,

25 those of Defense Counsel, and I would hope yours and

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1 your law firm's. You don't want -- you don't want

2 to be filing affidavits in support of your motions

3 for attorney's fees thinking that someone has signed

4 them when, in fact, they're not signing them. You

5 wouldn't want to be a party to that.

6 MR. MANCILLA: No, we definitely would not.

7 And I am sure it did not happen, but --

8 THE COURT: Well, then --

9 MR. MANCILLA: -- if we go ahead with it, it

10 will be on the limited basis that we've just

11 discussed.

12 THE COURT: Well, that's what I've tried to

13 make clear. And I, again, expect everyone to act

14 professionally and not be abusive personally. We

15 can competently, professionally and civilly ask

16 these questions, there aren't very many of them, we

17 get our answers and then we assess what's to be

18 done. And I think that Mr. Zacks seems to be fully

19 capable of that.

20 And who's going to take this deposition.

21 MR. ZACKS: It will probably be me, Your Honor.

22 THE COURT: All right. So, then, I am

23 confident, and I am sure I can be confident, can't

24 I, Mr. Zacks?

25 MR. ZACKS: Sure.

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1 THE COURT: That this will be done in that

2 manner. So he's been here and heard what we've all

3 agreed -- well, you haven't agreed, Mr. Mancilla,

4 you've maintained your objection, but the Court --

5 and, you know, I may be on thin ice if you want to

6 appeal this, or the Cullaros do, the Appellate Court

7 may decide, no, it's too remote at this point. But

8 if this were going to be a two-day deposition I

9 might rule differently. But we're talking about a

10 very short, a very to-the-point deposition on an

11 issue that I think should be of concern, not only to

12 the Court -- not only to the Defense, but to the

13 Plaintiff and to the Court. So I think it's -- I

14 don't think I should grant the Motion for Protective

15 Order.

16 But you've made your record. It's a good one,

17 I think, and you, or the Cullaros, or all of you can

18 take your best hold if you wish.

19 MR. MANCILLA: Okay, Your Honor. Thank you.

20 THE COURT: Thank you, Mr. Mancilla. And if

21 you -- did you bring an order, Mr. Zacks?

22 MR. ZACKS: I actually didn't.

23 THE COURT: And that's the only thing pending

24 in this case today, right?

25 MR. ZACKS: No. We actually have -- at 2:15 we

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1 have a scheduled Motion to Dismiss and a Motion to

2 Strike.

3 THE COURT: I reviewed the Motion to Dismiss

4 but I don't see it scheduled now. So that's

5 scheduled at 2:15?

6 MR. ZACKS: Yes, sir.

7 THE COURT: Well, we're running a little behind

8 now, in part because of this and in part because I

9 was just caught up in my office. So we'll see you

10 at 2:15 or close to it. Okay?

11 MR. ZACKS: Thank you.

12 THE COURT: Thank you.

13 MR. MANCILLA: Thank you. Bye-bye.

14 (THEREUPON, the proceedings were concluded at

15 1:57 p.m.)

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1 C E R T I F I C A T E

2
STATE OF FLORIDA )
3 )
COUNTY OF VOLUSIA )
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6 I, Katherine Frierson, Court Reporter, certify

7 that I was authorized to and did stenographically report

8 the foregoing proceedings and that the transcript is a

9 true and complete record of my stenographic notes.

10
11 Dated this 18th day of March, 2010.

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_____________________________
15 Katherine Frierson
Court Reporter
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(This signature is valid only
17 if signed in blue ink.)

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