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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY FLORIDA CASE NO. 11 000971 CI 11 U.S. BANK, NATIONAL ASSOCIATION, Plaintiff, vs. LEROY MARION, et al., Defendants. ------------------------------------/ HEARING HELD BEFORE THE HONORABLE PAMELA A.M. CAMPBELL DATE: Monday, December 13, 2011 Commencing at 2:00-2:30 p.m. Circuit Court of the Sixth Judicial Circuit Pinellas County, Florida 545 First Avenue North Room 300 St. Petersburg, Florida 33701 Hearing taken before:

11 TIME: 12 PLACE: 13 14 15 16 17 18 19 20 21 22 23 24 25 Sarah J. Murrow Executive Reporting Service Ulmerton Business Center 13555 Automobile Boulevard, Suite 100 Clearwater, Florida 33762

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APPEARANCES: Nicole R. Ramirez, Esq. Douglas C. Zahm, P.A. 12425 28th Street North St. Petersburg, Florida 33716 (727) 536-4911 Attorney for the Plaintiff Rand Peacock, Esq. Law Office of Rand Peacock, P.A. 5716 5th Avenue North St. Petersburg, Florida 33710 (727) 490-5719 Attorney for the Defendants

10 11 I N D E X 12 PAGE 13 Reporter's Certificate 14 15 16 17 18 19 20 21 22 23 24 25 E X H I B I T S (None) 20

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March 11 CL P R O C E E D I N G S THE COURT: We are here on case

No. 11 000971 CI 11, U.S. Bank, here represented by Nicole Ramirez vs. Leroy Marion represented by Rand Peacock. We are here as a follow-up to a

hearing that occurred on November 3rd, 2011. I reset this as a case management conference so that we could continue some of the -- the parties could continue some of the discovery issues and see if there are any further objections after Mr. Peacock had an opportunity to review the responses, and I think there was also going to be the coordination of a time and place in Florida for a deposition. Mr. Peacock, could you tell us the status of that? MR. PEACOCK: apologize. Well, your Honor, I guess -- I

There is a slight lack of recollection

in this Court's statements in terms of the -- who the plaintiff has called as their corporate rep, but they are in good status. those depositions. The plaintiff also plans to depose my client at the same time, which we understand that's a reasonable request, so we are going to make that We are scheduling

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happen.

We have just resolved that issue prior to

walking in here as far as what person they are Page 3

March 11 CL 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going to have show up. THE COURT: They were going to choose a

corporate representative for the deposition. MR. PEACOCK: have, your Honor. Which my is understanding they We just have to set up the time

and place for everybody to show up at. THE COURT: So are there any outstanding

issues that we need to discuss for today or any preemptive ones that may be coming up at some of the depositions? MR. PEACOCK: Well, your Honor, we still have

an issue that -- privilege has still been raised in several of the plaintiff's objections, and subsequent objections and there has been no privilege log filed. I'm of the position that if there is a specific document which the plaintiff is a requesting privilege over, it needs to identified in the privilege log and duly file it; and, if not, then they need to -- if there are no other documents, then there is no reason to document it in the privilege -THE COURT: Well, at the last hearing on

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November 3rd, Ms. Ramirez, you had produced over 300 pages of documents; however, they were on the eve of the hearing. Page 4 So Mr. Peacock had not had an

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March 11 CL opportunity to review those; therefore, he didn't know about any remaining objections. At this point in time we will then -- for this case management conference, which I believe is a follow-up of the November 3rd hearing, do we need to have argument on what those objections are and go through one by one? MR. PEACOCK: Well, I mean, there are basic

issues here in terms of me trying to establish what might be discoverable to set up affirmative defenses and/or defenses that are not otherwise really apparent at this time and to prove the body of the plaintiff's full case. The only thing I

don't think I have gotten at this point -plaintiff's counsel has asserted they have given me all of their title documents to the note that there are. So as long as other documents are

permitted at a later time, I have no problem with it. There is an issue that -- apparently, there is a servicer on the business and the servicing contract has not been provided to my client.

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That's a document that we requested.

There are

objections to it, so I would like to have that heard. MR. RAMIREZ: I'm sorry. That's this huge --

that is the servicing agreement. Page 5

March 11 CL 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ago. MR. PEACOCK: Web site. MR. RAMIREZ: I also sent it by e-mail, and I I did e-mail By reference to the link on the MR. PEACOCK: So you're saying that is the

servicing agreement because there is an objection on that privilege, so I want to make sure that is the full document and there are no other parts to it. MS. RAMIREZ: This is from the Web site. I

printed out two copies today. a printed copy.

We did not provide

It's 350 pages or something, but

yes, that is a servicing agreement. THE COURT: So you are giving him the

servicing agreement today? MS. RAMIREZ: No. He got that a long time

did not put this in the mail to him. it, that is true.

And, certainly, we -- you know,

the plaintiff doesn't -- it's not our practice to charge for these things, but --

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MR. PEACOCK:

As long as we can be specific

that the link you gave me is the true and correct copy for purposes for showing it to the Court, I'm fine on that. MS. RAMIREZ: available. Page 6 Yes. That's publically

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March 11 CL THE COURT: Thank you.

And you're saying

that, yes, that is the servicing agreement? MS. RAMIREZ: MR. PEACOCK: Yes. I guess then we are on to the

interrogatory objections and some of them, such as No. 11 where I say: State -- please state the

note whether -- as of what date you secured the original there and from whom? And they have I think

objected as irrelevant and immaterial.

that's an easy one to answer, as far as what date did you actually get it, because I'm not sure of the date they gave me. They may say effective as of this date, but my question is: original note. When did they physically get the And I don't see how that could be

irrelevant or otherwise not discoverable and certainly would, again, speed up the -- because it's also a potential issue at the deposition where if I ask that same question and they say we

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are not real sure; well, we thought that was irrelevant -- so then we are right back here after the deposition. I'm trying to avoid those issues. Your Honor, I have some

MS. RAMIREZ:

objections to relevance with regard to the answer filed, but to address just that specific answer to an interrogatory, we are scheduling the depositions so further information can be obtained Page 7

March 11 CL 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 regarding that. We have the original -- all of

the original documents which will be filed in the court. So the objection of the question being

irrelevant and immaterial, we do have the original. If there is any question of when the trust received the documents or that type of thing, those might be proof issues. It requires a legal

conclusion; it requires looking at the documents that say when the originals were received and -MR. PEACOCK: documents say. I'm not asking what the

I'm asking for someone testifying

when they were received; and, again, that's the purpose of interrogatories. there hasn't been -THE COURT: complaint. Because there is no amended More importantly,

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MR. PEACOCK:

There is an amended complaint,

but they filed a motion to dismiss because it didn't comply with this Court's order. issue for another hearing, the notice requirements, but the point is it's not our fault. THE COURT: When was the amended complaint That's an

filed because it's not in the court file? MR. PEACOCK: Honor. It was filed December 7th, your

There was a November 15th motion for Page 8

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March 11 CL enlargement of time and a motion to modify your order, which has not been heard. MS. RAMIREZ: Which I was waiting for the

appropriate time to bring up, so that is an issue for discussion. MR. PEACOCK: I'm not saying it's tardy based

on the original motion for enlargement of time, but I am stating that we have issues. That is not

our own as to why an answer has not been filed in this complaint. THE COURT: the objections. MR. PEACOCK: The objection is, I think we When did All right. So let's stick with

asked a legitimate question, which is: you get the note and from whom?

And I don't see It

how that can be irrelevant or otherwise.

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doesn't require any logical -- we got it in May or whatever date or whatever year they got. I hate

to have to go on an assumption based on an assignment and then we find out later, oh, actually there is a different date. So, again, the purpose of the interrogatory was to speed up and reduce unnecessary time in depositions; also to avoid having us come back and hear if there is an objection raised, which then leads to, again, another case management conference and wasting resources of my client. Page 9

March 11 CL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It's not a hard question. I don't think that the objection is valid, and it could easily lead to an otherwise admissible or relative information even if itself is not relevant. THE COURT: Anything else, Ms. Ramirez? Not regarding that particular

MS. RAMIREZ: question. THE COURT:

I think it is relevant.

It's

certainly going to become relevant later on down the road as I review the motion to alter my order. MS. RAMIREZ: THE COURT: So we will answer No. 11?

Yes.

What else, Mr. Peacock?

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MR. PEACOCK:

Well, obviously the motion --

we asked if it was subject to -- No. 7, a mortgage/loan purchase agreement. I think it's

kind of apparent from the statement of the style of the case, but they have objected again that it's irrelevant, immaterial, and vague, overly broad and unduly burdensome, confidential, privileged, and proprietary information. Again, we have an issue as to whether there are privileged logs to back this up on. could get to the deposition and again be stone-walled on this, particularly, if there is Page 10 Again, we

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March 11 CL not an answer in place. THE COURT: this is. You know -- you know, here is what I have a

This is a-15 minute hearing.

bunch of others at 2:15.

I am not going to go What I am going to

through all of the objections.

do, though, is, Mr. Peacock, later on down the road as this case grows along and there is irrelevant -- there was a privilege that was asserted and you didn't get the answer at that point in time, how about a motion to compel and then we will go from there? MR. PEACOCK: will be done. I have just one more and then I

We asked them to state all of the

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known servicers involved. THE COURT: That would certainly be relevant. Which number is that? It's 13.

MS. RAMIREZ: MR. PEACOCK: THE COURT:

So No. 13 needs to be answered. We answered by providing the

MS. RAMIREZ:

default letter, which lists the servicers, so we'll write out the answer instead of complying through production. MR. PEACOCK: I would disagree, your Honor.

The rules require a written response. THE COURT: response. The rules require a written

You have to give some kind of written

response; otherwise, you'll have to come back to Page 11

March 11 CL 15 16 17 18 19 20 21 22 23 24 25 court. It just cleans up the record. We will be happy to answer that

MS. RAMIREZ: question.

Just for the record, pursuant to Rule 1.340C of the Rules of Civil Procedure, it allows production of documents to answer the question and that was the intent there, but certainly we will answer in writing. THE COURT: response. Let's go on to the plaintiff's motion to You need to have some kind of

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modify the prior order and on enlargement of time to comply with order. So you are saying the

amended complaint -- it looks like the amended complaint was filed you are telling me -- and it's not in the court file -- but the amended complaint was filed December 7th? MR. PEACOCK: THE COURT: 7th, I believe, your Honor.

So the hearing that we had -I have a copy of the hearing,

MS. RAMIREZ: your Honor. THE COURT: extra copy.

That's okay.

I don't want an

The hearing that we had where I said

the motion to dismiss is granted and the plaintiff had 90 days to get a new one done, instead -- and whoever the plaintiff was had to verify the Page 12

March 11 CL 16 17 18 19 20 21 22 23 24 25 amended. I didn't care who the plaintiff was as long as if was there was an amended -- that the verification was amended by the plaintiff. So now

there is a motion to modify, so that was -- let's see. MS. RAMIREZ: nutshell? THE COURT: Please don't interrupt me. All right. If I could put it in a

August, September, October, November.

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So that would have been barely within the 90 days when the motion was filed on November 16th. MS. RAMIREZ: The motion is styled a motion Really, I think it

to modify the prior order.

should probably be a motion to clarify the prior order. The reason there was a delay -- and even

by your comments here today I'm confused about what the order was. We thought -- or I think

there is some confusion that the -- you don't have the amended complaint in front of you, but the amended complaint -- the verification was an issue in that other hearing and I was not at that hearing, but I do have the transcript of it to try to clarify what was supposed to happen. In the amended verification, they then added Wells Fargo Bank as servicer for U.S. Bank as trustee with the whole long plaintiff litany, but Page 13

March 11 CL 18 19 20 21 22 23 24 25 the reason this was delayed -- and I'm not sure whether -- is this okay? That's kind of why we

are here, to make sure is this verification okay? Does that comply with what you ruled? Because

there was some discussion in the office and based on the order that, no, it was U.S. Bank then as the trustee who was going to have to sign the verification.

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THE COURT:

Whoever's the plaintiff is is the That's

person that has to sign the verification.

what all the judges in this courthouse believe, and I appreciate the fact that -- it's somewhere in the plaintiff's motion. I will try not to take

offense, but somewhere in plaintiff's motion to modify in paragraph 4, it would be helpful to consider how other circuit judges address verification issues, blah, blah, blah, about Judge Cox and Judge Shacks, so this court should adopt the same view. Well, that's all really helpful and, perhaps, there is something going on with the Second DCA which will address that issue, but so far all of the judges in this courthouse believe, to my knowledge -- the last I checked last week with all of the judges in this courthouse, we all were of the same belief that it's the plaintiff -- whoever Page 14

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March 11 CL the plaintiff is, the plaintiff is the one that is to verify the complaint because actually that is what we believe the Supreme Court intended when they made the change that complaints had to be verified. It allows the plaintiff to determine are you truly the owner and holder of the note? So that's

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why we think it should be the plaintiff. care if it's the servicer. the bank.

I don't

I don't care if it's The

It just has to be the plaintiff.

plaintiff has to be the one to verify it. So let's see on the order on defendants' motion to dismiss, which was signed September 23rd, 2011, plaintiff shall have 90 days from the date of the hearing to file an amended complaint and that shall clearly state the legal theory on reasons to foreclose on the defendants' property -- clearly allege the fact according to theory and the plaintiff specific. Plaintiff's

amended complaint shall be verified pursuant to the Rules of Civil Procedure by an employee. think that's pretty clear. MS. RAMIREZ: So the reason there was I

confusion, though -- if I can approach and show you the amended verification? THE COURT: You may.

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March 11 CL 21 22 23 24 25 about the plaintiff, and I still don't know if this is the -- what you had in mind and if it's not -THE COURT: So I'm being handed a copy of a

verified amended complaint; apparently, filed by a

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legal assistant with the clerk, which we can't -the courts can't hold legal assistants responsible for anything. responsible. So the amended verification under penalty of perjury: I declare that I have read the foregoing I have to hold the attorney

and the facts alleged therein are true and correct to the best of my knowledge and belief. page 4 of the complaint it says: So on

Wells Fargo

Bank, as contractual servicer for U.S. Bank National Association as trustee for CitiGroup Mortgage Loan & Trust, Incorporated, 2007-AHL1, certificate 2007 AHL1 signed by David E. Franklin, Jr., vice president loan documentation. So it appears to me that as a contractual servicer, they are not an employee of the bank, so it would seem to me that that would not be as intended or as discussed at the hearing that was on August 18th, 2011. MS. RAMIREZ: So that's why, your Honor, we There was

had the motion to modify that order. Page 16

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March 11 CL first initially confusion; so, yes, it was supposed to be U.S. Bank would sign it -- an employee of U.S. Bank would sign it; however, U.S. Bank is not our client. We have no communication

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with them on this loan. servicing agreement.

I had provided a

There is no case on point

that says the servicer can or cannot sign the verification, but there are lots of case law that says the servicer can bring the complaint -THE COURT: Can you tell me this: This

motion that was filed on November 16th, did you make any attempts to schedule that for hearing or did you notice it for today? MS. RAMIREZ: Well, we knew the case

management was set for today. THE COURT: Did you notice it for today? I did not notice it for today,

MS. RAMIREZ: no. THE COURT:

So here's what I would suggest:

Why don't you file that motion or -- I mean you clearly you filed the motion, so you need to schedule that for a hearing at another time. Coordinate the hearing with Mr. Peacock. Mr. Peacock, you filed a motion to dismiss you said? MR. PEACOCK: Yes, your Honor.

THE COURT: So how about at that same time we Page 17

March 11 CL 24 25 will hear all of those motions, but they should all be noticed and set. Even though sometimes we

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schedule case management and under the rules case management you can consider whatever pending motions there are, I think that's the type of motion that everyone should be noticed for so that there would be accurate preparation for that motion. MR. PEACOCK: Your Honor, I'm a little bit

troubled because plaintiff's counsel just said that the plaintiff -- she is not their client or vice versa. issue. That makes a real representation

If they are not represented by her firm,

she cannot advocate on their behalf, and they can't continue this lawsuit. THE COURT: You can continue that or can

conclude that in any of your future motions. MR. PEACOCK: THE COURT: in the future. I would be happy to your Honor. We will see you again

Thank you.

Good luck with setting those

depositions and getting all of those responses. MS. RAMIREZ: Thank you.

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CERTIFICATE OF COURT REPORTER

STATE OF FLORIDA

) : ss.

COUNTY OF HILLSBOROUGH

I, Sarah J. Murrow, certify that I was authorized to and did stenographically report the hearing held before the Honorable Pamela Campbell; and that transcript of proceedings, pages 1 through 19, is a true and correct record of my stenographic notes. I FURTHER CERTIFY that I am not a relative, employee, attorney or counsel of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in the action. DATED this 10th day of January, 2012.

_____________________________ Sarah J. Murrow

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