IN THE CIRCUIT COURT FOR THE 11TH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA INDYMAC

FEDERAL BANK FSB, Plaintiff, vs. ENRIQUE FABRE; THE UNKNOWN SPOUSE OF ENRIQUE FABRE; 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; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORPORATED, AS NOMINEE FOR CITIMORTGAGE, INC.; EL PRADO XVI CONDOMINIUM ASSOCIATION, INC.; TENANT #1, TENANT #2, TENANT #3, and TENANT #4 the names being fictitious to account for parties in possession, Defendants. ___________________________________/ Defendant, ENRIQUE FABRE, (“FABRE”), hereby moves to compel compliance with this Court’s Order dated February 3, 2011, ordering Defendant, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., (“MERS”) to produce its Vice President, William Hultman, for deposition. FABRE moves for said relief on an emergency basis due to his suspicion that MERS is attempting to stall its required compliance with this Court’s Order until such time as Mr. Hultman no longer works for MERS. FABRE further moves for sanctions as deemed appropriate by the Court, including but not limited to a fine of $10,000 a day until Mr. Hultman CASE NO. 2008 057087 CA 02 GENERAL JURISDICTION DIVISION

DEFENDANT, ENRIQUE FABRE’S, EMERGENCY MOTION TO COMPEL COMPLIANCE WITH COURT ORDER DATED FEBRUARY 3, 2011, AND MOTION FOR SANCTIONS

ICE LEGAL, P.A. 1015 N. STATE RD. 7, SUITE D, ROYAL PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888

www.4closureFraud.org

CASE NO. 2008 057087 CA 02 is produced for deposition in compliance with the Court’s Order. In support thereof, FABRE states as follows: Despite this Court’s Order, MERS’ Counsel Refuses to Produce HULTMAN for Deposition FABRE has been seeking the deposition of William Hultman (“HULTMAN”) since March 2010. HULTMAN was formerly corporate secretary of MERS, the original mortgagee on the subject mortgage and the assignor of the rights to the mortgage to Plaintiff. This Court ordered the deposition of HULTMAN on December 6, 2010, when MERS failed to appear at a status conference to argue its Motion to Quash Subpoena and Motion for Protective Order. Despite MERS’ failure to appear to argue its motion, the Court allowed MERS to argue its subsequent Motion to Vacate Order Denying Motion to Quash Subpoena for Deposition and For Protective Order. The Court denied MERS’ Motion for Protective Order on February 3, 2011, explicitly ordering that: “Defendant MERS will produce Bill Hultman for deposition in Virginia within 30 days.” Order on Def. MERS’ Mot. to Vacate Order Denying Mot. to Quash and Mot. for Protective Order, Feb. 3, 2011 (Judge Rosinek). The deposition was then scheduled to be held March 2, 2011. Despite having proper notice of this date and despite the Court order compelling

HULTMAN to appear for Deposition, MERS’ counsel informed FABRE’s counsel a mere two days before the scheduled deposition that HULTMAN would not be produced for deposition. FABRE submits that MERS may be attempting to delay the deposition until such time as HULTMAN is no longer employed by MERS. In the span of time that FABRE has been seeking the deposition of HULTMAN, HULTMAN has already been removed from his position as

2
ICE LEGAL, P.A. 1015 N. STATE RD. 7, SUITE D, ROYAL PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888

www.4closureFraud.org

CASE NO. 2008 057087 CA 02 Corporate Secretary. 1 Accordingly, given that MERS’ counsel has refused to state a reason for refusing to produce HULTMAN for deposition, 2 FABRE can only conjecture that MERS desires to delay the deposition until HULTMAN is no longer employed by MERS. This purposeful evasion of the Court’s Order dated February 3, 2011 must not stand. MERS fines its member organizations $10,000 when they break the MERS rules of membership. 3 Accordingly, this Court must fine MERS $10,000 for each day that MERS continues to disobey the Court’s rules and Orders. Accordingly, it is undisputed that: (1) MERS was ordered to produce William Hultman for Deposition at hearing on February 3, 2011; (2) MERS has informed FABRE’s Counsel that Hultman will not be produced; (3) MERS has refused to explain why it will not comply with the Order of this Court, WHEREFOR, FABRE asks the Court to again order that William Hultman be produced for deposition immediately, to order that such deposition be taken in Miami-Dade County, to order sanctions in the amount of $10,000 a day until MERS decides to comply with the Court’s Order compelling production of Hultman for deposition, and including any other such sanctions as the Court deems appropriate, including but not limited to FABRE’s attorney’s fees for having to move for the above relief.

1

See Prashant Gopal, “Merscorp Replaces Corporate Secretary a Month After CEO Departs,” Bloomberg News, Exhibit A. 2 MERS’ Counsel, after informing FABRE’s counsel that MERS would not be producing HULTMAN for deposition, has refused to return FABRE’s Counsel’s phone calls or e-mails. 3 See e.g. MERS Rule 8, Section 1 (c), attached as Exhibit B, available at http://www.mersinc.org/files/filedownload.aspx?id=172&table=ProductFile. 3
ICE LEGAL, P.A. 1015 N. STATE RD. 7, SUITE D, ROYAL PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888

www.4closureFraud.org

CASE NO. 2008 057087 CA 02 Dated: February 28, 2011. ICE LEGAL, P.A. Counsel for Defendant 1015 N. State Rd. 7, Suite D Royal Palm Beach, FL 33411 Telephone: (561) 729-0530 Facsimile: (866) 507-9888

By: _______________________ DUSTIN A. ZACKS Florida Bar No. 48604

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by mail this February 28, 2011 to all parties on the attached service list.

ICE LEGAL, P.A. Counsel for Defendant 1015 N. State Rd. 7, Suite D Royal Palm Beach, FL 33411 Telephone: (561) 729-0530 Facsimile: (866) 507-9888

By: _______________________ DUSTIN A. ZACKS Florida Bar No. 48604

4
ICE LEGAL, P.A. 1015 N. STATE RD. 7, SUITE D, ROYAL PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888

www.4closureFraud.org

CASE NO. 2008 057087 CA 02 SERVICE LIST Daniel C. Consuegra, Esq. LAW OFFICES OF DANIEL C. CONSUEGRA 9204 King Palm Drive Tampa, FL 33619-1328 (813) 915-8660 Plaintiff’s counsel Robert Brochin, Esq. MORGAN, LEWIS & BOCKIUS 5300 Wachovia Financial Center 200 South Biscayne Blvd. Miami, FL 33131 Counsel for Defendant MERS

5
ICE LEGAL, P.A. 1015 N. STATE RD. 7, SUITE D, ROYAL PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888

www.4closureFraud.org

Exhibit A
www.4closureFraud.org

www.4closureFraud.org

Exhibit B
www.4closureFraud.org

Sign up to vote on this title
UsefulNot useful