2

1 APPEARANCES:

2 Appearing on behalf of the Plaintiff:

3 LAW OFFICES OF DANIEL C. CONSUEGRA
9204 King Palm Drive
4 Tampa, Florida 33619
904-404-6632
5 Jacquelyn.beik@consuegralaw.com
BY: JACQUELYN BEIK, ESQUIRE
6

7 Appearing on behalf of the Defendant:

8 LAW OFFICES OF EVAN ROSEN, P.A.
2028 Harrison Street, Suite 204
9 Hollywood, Florida 33020
754-400-5150
10 erosen@evanmrosen.com
BY: EVAN ROSEN, ESQUIRE
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1 THE COURT: Raise your right hand, please?

2 Do you solemnly swear or affirm to tell the truth,

3 the whole truth, and nothing but the truth?

4 THE WITNESS: I do.

5 THE COURT: Have a seat. State your full name,

6 spell your last name, and speak up so I can hear you

7 because you will be projecting that way. I'm over here

8 and there's this big screen in the way. Okay?

9 THE WITNESS: Okay.

10 THE COURT: So talk up. Otherwise, I will remind

11 you.

12 THE WITNESS: My name is Renee Burden. Last name is

13 spelled B. U. R. D. E. N.

14 THE COURT: You may inquire.

15 DIRECT EXAMINATION

16 BY MS. BEIK:

17 Q. Please state your name again for the record.

18 A. It is Renee Burden.

19 Q. Ms. Burden, where are you employed?

20 A. I'm employed with Seterus, Inc.

21 Q. What type of business is Seterus, Inc. engaged in?

22 A. We are the servicer for Fannie Mae.

23 Q. Okay. How long have you been employed by Seterus,

24 Inc.?

25 A. I've been with the company as a whole eight and a half

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1 years.

2 Q. Can you briefly describe the positions that you've

3 held with Seterus, Inc. in your course of your eight to nine

4 year employment?

5 A. We were previously Wilshire Credit Corporation. When

6 I first started, I was in the customer service department.

7 After three months, I became a SME in that department and after

8 a year, I moved over to the pre-foreclosure department.

9 From pre-foreclosure, I moved to compliance, loss

10 mitigation. It was a SME, which is a subject matter expert, in

11 that department, and then moved fully onto the loss mitigation

12 department.

13 From loss mitigation, I moved to legal mediation

14 with assistance in contested litigation and from that

15 department, we then again merged into the loss mitigation

16 department bringing me back to the legal mediation, contested

17 litigation department.

18 Q. So what is your current position for Seterus at this

19 time?

20 A. I am a litigation officer.

21 Q. How long have you been in that position?

22 A. Since 2011.

23 Q. Okay. And what are your specific duties in that

24 current position?

25 A. What we do is we gather information as it pertains to

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1 loans that are in the foreclosure status. We make sure all of

2 the documents are received and we provide those to local

3 counsel. We assign local counsel. We answer questions on

4 behalf of the investor, Fannie Mae, and we move the file along

5 as it pertains to the status.

6 If the customer files bankruptcy, we then will refer

7 to that department or the file is -- if it's in the foreclosure

8 process, but they're looking into doing liquidation and

9 retention options, we will move the file along accordingly.

10 Q. Okay. What type of training do you receive to be in

11 this role? Were you put in this position based on your prior

12 experience with the company for so long?

13 Is there routine training that you were provided or given

14 to your staff? How is that incorporated?

15 MR. ROSEN: Objection. Leading. Compound.

16 THE COURT: Overruled.

17 THE WITNESS: Based on my knowledge and how

18 fast I obtained the knowledge of the company, previously,

19 I worked for -- prior to me coming to the company as a

20 whole, I worked for MCI, which was a long distance

21 company, in the customer service department.

22 Once I fully got trained within that three

23 months, I became a subject matter expert learning

24 different departments and its functions. I was also asked

25 to do some internships within the other departments based

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1 on how fast I was able to learn the different functions.

2 BY MS. BEIK:

3 Q. So now, do you receive routine training in your

4 position at this time?

5 A. We do. We receive routine trainings monthly as a

6 company as a whole. We also receive training from our in-house

7 counsel and also if any questions, our local counsel will --

8 they come out and they speak to us regarding new initiatives,

9 new state guidelines, anything that has been recently mandated.

10 They also offer training to us as well.

11 Q. And do you also offer training to your staff that you

12 were supervising?

13 A. I offer -- there are monthly trainings within the

14 staff since I am the subject matter expert. We do deposition

15 trainings. We also do a lot of role playing and we do mock

16 trials as well.

17 I will offer conference calls with attorneys to go

18 over different strategies or different things that may happen

19 or new things that are within the Court's realm.

20 Q. And who is your current supervisor?

21 A. Her name is Donna Smit (phonetic).

22 Q. And what is her role at Seterus, Inc.?

23 A. She is an assistant vice president. She oversees what

24 we call the servicing fulfillment department, which is the

25 legal mediation, contested litigation, compensatory fees

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1 department within Seterus, Inc.

2 Q. Now, within Seterus, Inc., which department handles

3 the payment processing?

4 A. That would be our transaction processing department.

5 Q. And which department handles the customer service

6 calls, incoming and regulating them?

7 A. We have two different departments within Seterus based

8 on CFPB guidelines, which would be our early stage department,

9 single point of contact, and then we have late stage, which

10 manages what we consider 90 plus. So any customers that are 90

11 plus past due are handled in our late stage department, single

12 point of contact.

13 Q. Okay. Now, is that -- the late stage, is that the

14 same department that handles loss mitigation?

15 A. They are two different departments. Late stage is

16 more of the collections department. They do assist with loss

17 mitigation as it pertains to collecting payments and if the

18 customer was on a trial modification or moving forward to being

19 converted into actual modification, but our retention

20 department handles actual -- excuse me, loss mitigation.

21 Q. And how often does the loss mitigation department

22 reach out to the borrower when they're in default?

23 A. The loss mitigation--

24 MR. ROSEN: Objection. Relevance.

25 THE COURT: Sustained.

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1 BY MS. BEIK:

2 Q. So can you please state again, what is the specific

3 name of the department that handles the payment processing?

4 A. That would be transaction processing.

5 Q. Have you ever worked in that department?

6 A. No.

7 Q. As part of your monthly training that you receive, do

8 you go over the entire different departments or just as it

9 pertains to your specific position?

10 MR. ROSEN: Objection. Leading. Compound.

11 THE COURT: Overruled.

12 THE WITNESS: We go over different departments

13 as things may change. New programs that may arise such as

14 Partisan (phonetic) Funds, if the customer were to

15 actually apply for those particular funds or need to know

16 any type of knowledge as it pertains to their state.

17 If there is any new programs that are being

18 offered in the retention department, any additional

19 programs offered in liquidation or as they were changes

20 with the single point of contact in the early stage and

21 late stage, how the calls will be routed based on the

22 status of the loan.

23 BY MS. BEIK:

24 Q. So in your position and role, are you familiar with

25 Seterus's business records?

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1 A. Yes.

2 Q. Are you familiar with the process for maintaining

3 those business records as it pertains to servicing notes and

4 mortgages?

5 A. Yes.

6 MR. ROSEN: Judge, if I can just voir dire

7 briefly on that?

8 THE COURT: Let her ask the four questions and

9 then ask me again. Okay?

10 MS. BEIK: I wasn't going to ask the question

11 just yet. May I proceed?

12 THE COURT: Please.

13 MS. BEIK: Oh, okay.

14 BY MS. BEIK:

15 Q. Now, as far as the business records, what is the name

16 of the mortgage servicing platform that you use to service the

17 loans, that Seterus uses to service the loans?

18 A. There's a few different programs, but our in-house

19 database we use, it's called Pulse, and that's where a lot of

20 the notes on the account, the status of the account as a whole,

21 the principal balance, any payments that are received, any notes

22 anytime the customer calls in. Any updates to the loan as a

23 whole is updated in Pulse.

24 Q. Okay. That's P. U. L. S. E.?

25 A. Correct.

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1 THE COURT: Can we just ask questions

2 concerning this particular loan as opposed to saying

3 generally what do we have, et cetera, et cetera?

4 MS. BEIK: Do you want me to just go directly

5 to that? Okay.

6 THE COURT: I only have a couple of hours.

7 MS. BEIK: I'm sorry. Okay. My apologies.

8 BY MS. BEIK:

9 Q. Now, based on this mortgage platform servicing system

10 Pulse, is the Defendant's loan in this case maintained in that

11 system?

12 A. Yes.

13 Q. And what types of information regarding this

14 Defendant's loan is kept in the system?

15 A. Any updates to the account, the status, every time

16 someone calls in on the account, whether it's the customer

17 and/or third-party, any updates as it pertains to escrow, any

18 changes to the account, any -- where the loan was transferred

19 from, also, the unpaid principal balance, any payments, the

20 status, the interest rate.

21 Q. Now, do you know how the information regarding this

22 Defendant's loan is inputted into Pulse?

23 A. Yes. It's by anyone -- excuse me. I will retract

24 that. Anytime there is an update to the account, each

25 department has a -- will go in and update the account based on

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1 the status.

2 Q. Now, what is the name of the scanned imaging document

3 system that you use for this Defendant's loan?

4 A. It is called SCI. It's Security Connections, Inc. and

5 it's a third-party Fannie Mae approved agency that scans our

6 documents into our system.

7 Q. Now, is there a records custodian for this specific

8 loan?

9 A. Yes.

10 Q. And what is the name of that records custodian?

11 A. It would be either SCI or LPS.

12 Q. So SCI scans in the documents and then it's maintained

13 in SCI or in LPS?

14 A. It's maintained in both.

15 Q. In both, okay. So it's in both places?

16 A. Correct.

17 Q. So it remains in SCI once it's scanned in?

18 A. Yes.

19 MR. ROSEN: Objection. Leading.

20 THE COURT: Overruled.

21 BY MS. BEIK:

22 Q. And where is the records custodian located?

23 A. The actual custodian where they hold the original

24 document?

25 Q. Where are the documents scanned and then maintained,

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1 the physical document?

2 A. It's scanned. It's a service that we log into. I

3 don't know exactly where they're based out of. It's an

4 internet service that we log into every day that we have

5 securitized passwords that are scanned into the system.

6 Q. So is that where LPS comes into play?

7 A. Yes.

8 Q. Regarding monitoring the Defendant's payments,

9 history, and all the documents related to--

10 A. Well, what happens is if anything were scanned into

11 SCI, depending on the departments and the status of the loan,

12 then that department will pull the documents from SCI and they

13 will upload it into LPS as well.

14 MR. ROSEN: Objection, Judge. Speculation.

15 What matters is what happened in this case.

16 MS. BEIK: Your Honor, that's pertaining to

17 this specific Defendant's loan and how the documents are

18 retrieved and accessed and input into the system.

19 THE COURT: Then you should have phrased the

20 question as to those specific documents, so that we don't

21 have to hear it again.

22 MS. BEIK: I will rephrase.

23 BY MS. BEIK:

24 Q. So regarding this Defendant's loan, the note, the

25 subject note, the mortgage, the notice of default letter, were

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1 those documents scanned into the system using SCI?

2 A. Yes.

3 Q. And that's based on your review of the business

4 records?

5 A. Yes.

6 MR. ROSEN: Objection, Judge. Hearsay. If there's

7 a business record that says something happened, that

8 record should come into evidence before there be

9 testimony about it. Her knowledge is specifically based

10 upon her review of records. Those records should come

11 in before there's testimony. It's also best evidence.

12 THE COURT: Sustained.

13 BY MS. BEIK:

14 Q. Now, regarding this Defendant's loan, is there an

15 auditing function?

16 A. Yes.

17 Q. Now, can you briefly describe what that process is for

18 ensuring when this Defendant's note and mortgage is transferred

19 into the system from a prior servicer?

20 MR. ROSEN: Objection. Relevance.

21 THE COURT: Why?

22 MS. BEIK: For when the note is service

23 transferred. We need to make sure to enter the accuracy

24 of the payment history and our documents.

25 MR. ROSEN: May I just briefly respond?

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1 What's relevant for admitting records is not how they're

2 transferred, but rather how they're made and kept under

3 the four prongs.

4 THE COURT: Sustained.

5 BY MS. BEIK:

6 Q. I'm going to hand you proposed Exhibit 1.

7 THE COURT: Please show it to counsel first.

8 MR. ROSEN: Judge, we have come to an

9 agreement on this exhibit.

10 THE COURT: What is the exhibit?

11 MR. ROSEN: It's a note.

12 MS. BEIK: It's the subject note. I have

13 copies for Your Honor.

14 MR. ROSEN: The original is in the file. I

15 haven't reviewed it. The only stipulation was that we

16 would also agree that the Court would take judicial notice

17 of the fact that it was filed in February of this year.

18 The original note for the first time was filed in February

19 of this year and then the note can come in without

20 objection to evidence.

21 MS. BEIK: I have a copy of the note here.

22 THE COURT: I looked at the note. It's right

23 on top of the file. So we agree to that stipulation that

24 it comes in as Plaintiff's 1; is that correct?

25 MR. ROSEN: Correct, Judge, yes. Thank you.

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1 As long as counsel agrees that the Court can also take

2 judicial notice with -- of course, the Court's approval on

3 that which is required that the note was in fact filed in

4 February, I believe it was the 28th, of this year.

5 THE COURT: The 26th.

6 MR. ROSEN: The 26th, sorry.

7 THE COURT: Plaintiff's 1.

8 (Plaintiff's Exhibit 1 was admitted into

9 evidence.)

10 THE COURT: Next.

11 BY MS. BEIK:

12 Q. I'm handing you Plaintiff's 1. Can you please

13 identify that document for the Court?

14 A. This is a copy of the original note.

15 Q. And who is the original lender?

16 MR. ROSEN: Objection, Judge. We can let the

17 documents speak for themselves.

18 THE COURT: Sustained.

19 BY MS. BEIK:

20 Q. Is this a business record maintained by Seterus, Inc.?

21 MR. ROSEN: Objection. Relevance, Judge.

22 It's in.

23 THE COURT: It's in. It's here.

24 MS. BEIK: Thank you.

25 BY MS. BEIK:

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1 Q. I have proposed Exhibit 2 and it's the subject

2 mortgage to this action.

3 MR. ROSEN: Just let your witness ID them. We

4 have no objection to this coming into evidence, Judge.

5 THE COURT: It will be received as Plaintiff's

6 2.

7 (Plaintiff's Exhibit 2 was admitted into

8 evidence.)

9 BY MS. BEIK:

10 Q. Please identify this document for the Court.

11 A. This is a copy of the mortgage.

12 Q. Who was it executed by?

13 MR. ROSEN: Same objection, Judge. It's

14 already in evidence. We can let the document speak for

15 itself and move on.

16 THE COURT: I will let her ask a couple of

17 questions here.

18 MR. ROSEN: Sure.

19 THE COURT: Whoever reads the transcript, if

20 it goes, they don't have to keep looking back at the

21 document itself. Go ahead.

22 BY MS. BEIK:

23 Q. Was it signed by the Defendant in this action?

24 A. Yes.

25 Q. And what is the date of the subject note or mortgage?

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1 A. December 14th, 2007.

2 Q. Thank you. Now, as you stated previously, you work

3 for Seterus, Inc., correct?

4 A. Yes.

5 Q. Okay. And the Plaintiff in this action is Federal

6 National Mortgage Association, correct?

7 A. Yes.

8 Q. I have Plaintiff's Exhibit 3. It's the limited power

9 of attorney.

10 MR. ROSEN: I would like to just briefly voir

11 dire on this, Judge.

12 THE COURT: You may.

13 MR. ROSEN: Thank you.

14 BY MR. ROSEN:

15 Q. Good morning, Ms. Burden.

16 A. Hi.

17 Q. Again, you're being called here to testify about

18 records and documents with Seterus, correct?

19 A. Correct.

20 Q. And your knowledge of the loan is based upon a review

21 of records, right?

22 A. Yes.

23 Q. When did you first review the documents in this case?

24 A. Three days ago.

25 Q. When did you first see the original note?

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1 A. When I first saw the original?

2 Q. That was today, right?

3 A. Today, yes.

4 Q. And you talked about that you're not the record

5 custodian. You mentioned that it was a company that was the

6 record custodian of the records?

7 A. I guess -- a copy of the documents are held in our

8 SCI. The custodian that holds the original note, in which it

9 will be sent over to, is Bank of Mellon of New York, which is

10 the custodian of Fannie Mae.

11 Q. And that would be a business record that reflects

12 that, correct? And we can talk about that. I just want you to

13 talk about what you actually know.

14 A. That would be SCI.

15 Q. So SCI. You talked a lot about your job

16 responsibilities earlier and you understand what it means to be

17 under oath, of course, correct?

18 A. Correct.

19 Q. And you know all about penalty of perjury, I'm sure?

20 A. Yes.

21 Q. Okay. Regards to this power of attorney that

22 Plaintiff's counsel has identified, it says here, limited power

23 of attorney from Fannie -- Federal National Mortgage Association

24 to Seterus. That's what this document says on the first page,

25 right?

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1 A. Yes.

2 Q. You're not a party personally to this agreement,

3 right?

4 A. Personally? No. It's a company as a whole.

5 Q. And you don't write powers of attorney. You didn't

6 write this power of attorney, correct?

7 A. No.

8 MS. BEIK: Objection. Relevance.

9 THE COURT: Overruled.

10 BY MR. ROSEN:

11 Q. And you didn't sign this document, correct?

12 A. No.

13 Q. And you've never written a power of attorney for

14 Fannie Mae or Seterus; isn't that right?

15 A. Correct.

16 Q. You've never signed one for the company; isn't that

17 right?

18 A. No.

19 Q. And have you ever seen a power of attorney actually

20 signed in person?

21 A. With Seterus, no.

22 Q. And you're not in charge of keeping these on -- I

23 assume this is a copy that was kept on a computer. It looks

24 like this is a copy, correct?

25 A. Correct.

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1 Q. So you're not in charge of maintaining the copies for

2 the company, right?

3 A. No. I don't work in that department.

4 Q. You're not in charge of maintaining the electronic

5 files that are stored; isn't that right?

6 A. No.

7 Q. And you're not -- you don't supervise anyone who makes

8 these documents, correct?

9 A. No.

10 Q. And you're not in charge of making these documents,

11 correct?

12 A. Correct.

13 Q. And you don't supervise others who keep and maintain

14 this document, whether it be the paper copy or the electronic

15 copy; isn't that right?

16 A. That is correct.

17 MR. ROSEN: Judge, our objection is

18 authentication and hearsay. I have -- allow me to say

19 this. "If evidence is to be admitted under one of the

20 exceptions to hearsay, it must be offered in strict

21 compliance with the requirements of that particular

22 exception."

23 That's a quote from the Supreme Court of

24 Florida in the Yisrael v. State case. The language

25 strict, the word strict is actually italicized. If a

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1 record is made for purposes of litigation, which this was

2 printed for today, it should be closely scrutinized.

3 That's from Ray (phonetic) v. State and Yisrael v. State.

4 To admit business records under 90.803, it

5 must be the testimony of a record custodian or other

6 qualified witness. This witness is neither a record

7 custodian -- is not a record custodian. As to whether or

8 not she is other qualified witness, let's talk about that

9 for just a moment.

10 What is required of any witness is that they

11 testify with personal knowledge as to what they said under

12 96.04. The witness doesn't need to know who actually did

13 this, but she needs to know the process for which this is

14 done and kept, made and kept pursuant to the four prongs.

15 Personal knowledge as for Earhart is something

16 that is perceived by the witness, same with the Black's

17 Law Dictionary definition. Things that someone actually

18 did based upon their own senses.

19 In this instance, it would have been made it

20 or saw it. You can't -- I don't mean to inject any

21 comment here, but you can't taste it. You can't smell it.

22 You can't hear it, but you can either only do it or see

23 it done and the witness has clearly not done either of

24 those things.

25 You can't just parrot magic words. There's a

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1 couple of good Fourth District Court of Appeals, namely

2 the Yang case, which says you can't come into court and

3 just repeat magic words.

4 The basis for her to become other qualified

5 witness would be, as for the Specialty Lines case, as for

6 numerous other cases, that she either be in charge of the

7 activity constituting the usual business practice or

8 supervises preparation.

9 I would like to hand the Court that case and

10 just a few others that echo this exact provision. If I

11 may approach?

12 We have also the Alexander case, which says

13 the same thing, Lasong (phonetic), Holt, Brimes

14 (phonetic), numerous cases that I've just handed the

15 Court. Judge, you tell me when you're ready. I don't

16 want to talk while you're reading this.

17 THE COURT: Go ahead.

18 MR. ROSEN: I will just give the Court one

19 other case and that's the Yang case. It stands for the

20 proposition that a witness cannot just parrot magic words

21 when it comes to the business record exception. That's a

22 Fourth DCA case from last year. Thank you, Judge.

23 THE COURT: Go ahead.

24 MR. ROSEN: The only other objection I had to

25 add was the authentication objection. 99.01 simply

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1 requires that a witness offer evidence sufficient to

2 support a finding that the matter in question or in this

3 instance, the exhibit is what she claims it is.

4 If she has never prepared one, never seen one

5 prepared, never kept one, has not been involved in that

6 process in any way, shape, or form whether it's

7 supervising another or in charge of that process, there's

8 no way for her to know that information other than her

9 being told that this is some business record. That's

10 hearsay as at the top.

11 MS. BEIK: Your Honor, the witness was able to

12 testify as to her experience working for Seterus for eight

13 to nine years. She is well acquainted which, according to

14 the case law, it is either be -- the person either be in

15 charge of the activity or is well acquainted with the

16 activity in order to provide the testimony.

17 She has -- Ms. Burden has stated in full -- in

18 depth of her job description, her job function, and how

19 all these processes work together in order to produce

20 these business records. The power of attorney is an

21 establishment between Fannie Mae and Seterus, Inc., which

22 she can identify and attest to.

23 The case law doesn't say that she does not

24 have to actually create the document or be a party to or a

25 signer. She merely needs to be able to testify as to how

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1 the information is maintained by Seterus, which she has

2 done, and be able to recognize all the documents that are

3 inputted into the system in order to testify the

4 relationship between the parties involved.

5 MR. ROSEN: Judge, I don't disagree with

6 anything that opposing counsel just said except that I

7 want to add one more thing. As a prerequisite to a

8 witness testifying under 96.04, she must have personal

9 knowledge as to that which she has said. There's been no

10 argument to that whatsoever. She has not done these

11 activities.

12 What she testified to was about loss

13 mitigation, nothing about powers of attorney, nothing even

14 about how payments are processed. She admits that she's

15 never processed payments. She's never worked in that

16 department.

17 She knows about it through training and

18 training, I suggest to the Court, is hearsay, unless she's

19 done it or seen it done or supervised it, which she has

20 admitted to as to this power of attorney. We'll get

21 into payment processing later on that. Her training m

22 ght have included that for payment history, but it

23 certainly didn't include that for power of attorney, and

24 we covered that on voir dire.

25 MS. BEIK: Your Honor, if we were to have our

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1 subject witness be an expert in every single division,

2 then we would need -- we would probably need 10 witnesses

3 from -- as a corporate representative to testify into each

4 department and that's unreasonable and not aligned with

5 the case law.

6 It just needs to be a corporate representative

7 that is familiar enough with the business records and the

8 evidence coupled with the witness testimony, which is

9 cited in Wamco.

10 I also have another case, Kayav (phonetic) v.

11 City Mortgage, Inc. out of the Fourth DCA. It is coupled

12 with the evidence presented and the witness testimony as

13 to the business records.

14 If we were to go in line with counsel's

15 argument, then we would need a witness to testify from

16 each department, payment processing, executing powers of

17 attorney, and that's just unreasonable.

18 MR. ROSEN: Just a brief response to that,

19 Judge. They don't need a witness for every payment

20 processing -- they don't need a witness from every

21 department rather. Excuse me. 902.11 allows for

22 self-authentication of a business record through an

23 affidavit coupled with 90.8036C. They don't even need a

24 witness.

25 So to come and say that they need a witness

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1 from every department when they don't need a witness at

2 all other than an affidavit, a business record affidavit

3 self-authenticating, it's just not true. It's a higher

4 burden than what I'm arguing.

5 Rather, 96.04 is what controls that the

6 witness has personal knowledge. Is she well enough

7 acquainted? How did she become well enough acquainted?

8 By personal knowledge, not by someone telling her. She

9 has testified that she can't have that personal knowledge.

10 THE COURT: Sustained.

11 MR. ROSEN: Thank you, Judge.

12 MS. BEIK: I'm going to hand the witness

13 another exhibit.

14 MR. ROSEN: If I could just confer with

15 counsel as far as the admissibility of this? We may be

16 able to reach an agreement.

17 (Off the Record.)

18 MR. ROSEN: Judge, we've reached an agreement

19 to allow this document in. It's a letter that reflects a

20 servicing transfer. We're letting it in, in agreement,

21 for the limited purpose solely that the loan servicing was

22 transferred from Virtual Bank to Seterus on September 19th

23 -- excuse me, September 1st, 2011.

24 For that purpose only, this document -- the

25 admission of this document should not be construed in any

28



1 way to attest to the witness's being either a qualified

2 witness or a record custodian or other qualified witness

3 for Seterus.

4 She may or may not be this -- the admission of

5 this should not be construed. That's part of our

6 stipulation if that meets the approval of the Court.

7 THE COURT: Is that agreed, Plaintiff?

8 MS. BEIK: Can I talk to him one more time?

9 THE COURT: Yes.

10 MS. BEIK: All right.

11 (Off the Record.)

12 MS. BEIK: All right. Thank you.

13 THE COURT: Agreed?

14 MS. BEIK: Yes.

15 THE COURT: This will be received as

16 Plaintiff's 3.

17 (Plaintiff's Exhibit 3 was admitted into

18 evidence.)

19 BY MS. BEIK:

20 Q. Just for the record, this is Plaintiff's 3. Can you

21 please identify this document for the Court?

22 A. This is what is called a welcome letter.

23 Q. Is this a document kept by Seterus?

24 MR. ROSEN: Objection, Judge. It should be in

25 pursuant to our agreement that it stands only for the

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1 limited stipulation that it was -- it reflects as to the

2 transfer.

3 MS. BEIK: I just wanted to clarify for the

4 record.

5 THE COURT: What are you trying to clarify?

6 It isn't covered in the stipulation. Otherwise, the

7 document -- it's a document in the stipulation between the

8 parties.

9 MS. BEIK: Okay. Thank you.

10 THE COURT: You can make argument at the end,

11 whatever it is, as long as it's done between the

12 stipulation. You can move on.

13 MS. BEIK: Okay. Thank you. I have

14 Plaintiff's 4.

15 BY MS. BEIK:

16 Q. I'm handing you Plaintiff's 4. Can you please

17 identify this document?

18 A. This is what is called a breach letter.

19 Q. And who is it sent by?

20 MR. ROSEN: Objection. Calls for speculation.

21 Lack of personal knowledge. If I could voir dire just as

22 to that issue as to who it's sent by? If she wants to

23 identify who is on the letterhead, I have no objection to

24 that, but whether or not it's sent would be hearsay.

25 It would need to be a business record. It's

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1 from a company that this witness does not work for. There

2 would need to be a business record. Otherwise, it's pure

3 hearsay.

4 THE COURT: Sustained.

5 BY MS. BEIK:

6 Q. Ms. Burden, please state who the letter was sent to?

7 MR. ROSEN: Objection. Same objection.

8 THE COURT: Sustained. It's not in evidence

9 at this point. So you really don't get to read anything

10 off of it, et cetera, et cetera. Counsel said that he

11 would stipulate to the letterhead itself, but not as to

12 who it was directed to.

13 So until such time that it comes into

14 evidence, via one, two, three, four, next question.

15 MS. BEIK: Okay. I have Plaintiff's 5.

16 THE COURT: Do me a favor only because the

17 record is going to be confusing otherwise.

18 MS. BEIK: Okay.

19 THE COURT: With reference to the breach

20 letter, if you offered it as Plaintiff's -- for

21 identification, it will be A. Okay.

22 (Plaintiff's Exhibit A was marked for

23 identification.)

24 THE COURT: This next one, I don't know where

25 we're going with it either, but at this point, we'll call

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1 it Plaintiff's B for identification.

2 Otherwise, your record is going to say wait a

3 minute, it didn't come into evidence, why are we calling

4 it number 4, so just for clarification.

5 For my record, just tell me what the document

6 is, so I know what I'm thinking about.

7 MS. BEIK: Payment history.

8 THE COURT: Okay. Thank you.

9 MR. ROSEN: This should be split up in my

10 opinion or at least differentiated in some way. A portion

11 of it appears to be from one company. It looks like this

12 is Seterus. Then this looks like this is separate--

13 THE COURT: Are you talking on the record or

14 are you just talking between yourselves as opposed to--

15 MR. ROSEN: No. I'm on the record. Thank you

16 so much, Judge. I'm just trying to differentiate that

17 this is apparently -- it comes from -- these are different

18 documents.

19 This would -- I would ask the Court that this

20 be separated accordingly as different documents and

21 therefore, different exhibits. They can be part of a

22 composite, but they should still have demarcations, A, B,

23 C. Thank you.

24 Let me just say for the record, there's one,

25 two, three, four different sets of transaction histories

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1 apparently in that package.

2 MS. BEIK: For the payment history, we'll do

3 B-1, 2, 3, 4. Will that suffice for the

4 THE COURT: It will be B for identification,

5 okay?

6 MS. BEIK: Okay.

7 THE COURT: But it's a composite of four

8 different sections.

9 MS. BEIK: Okay.

10 THE COURT: We'll mark it B-1, 2, 3, 4. We've

11 identified it on the record. Go ahead.

12 (Plaintiff's Composite Exhibit B was marked

13 for identification.)

14 BY MS. BEIK:

15 Q. Can you please just identify Plaintiff's proposed B

16 with four composites?

17 A. This is the payment history.

18 Q. I have last proposed Exhibit C.

19 (Plaintiff's Exhibit C was marked for

20 identification.)

21 THE COURT: The document is entitled what,

22 please?

23 MR. ROSEN: This says Milestones.

24 THE COURT: Okay.

25 MR. ROSEN: It has then four and a string of

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1 numbers. Judge, I'm going to go ahead and state an

2 objection now to this. This was not provided in pretrial

3 as an exhibit. We requested several times exhibits.

4 We cooperated very nicely with opposing

5 counsel. I'm grateful to say that she did provide us

6 three different sets of exhibits, very extensive, which

7 our office went to great lengths to study.

8 This is the second time this case has come up

9 for trial. This first packet was sent back in April of

10 2009. We then tagged and marked it up. This was sent June

11 14th, exhibit packet number two. There were some

12 duplicates from what was in one.

13 Also, later in the day on the 19th -- rather,

14 excuse me.

15 THE COURT: I was going to say wait a minute.

16 MR. ROSEN: Yeah. This is exhibit -- this was

17 the first one that came and this is the second one that

18 came on the 19th. Extensive with tremendous time that

19 goes into this to mark it up and tab it and make notes, we

20 were not provided that document.

21 Therefore, under Binger, it will be prejudice

22 for us at this late hour to admit this into evidence,

23 especially for what I think the Plaintiff is attempting to

24 do with it.

25 Furthermore, it appears to be from another

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1 company all together which may create authentication and

2 hearsay issues, but we don't even think -- I don't think

3 we should even go there, Judge.

4 THE COURT: Response first -- I guess the

5 first one would be whether or not she supplied it or

6 didn't supply it. Maybe your records show something

7 different, but that's something you would have to show me.

8 Second of all, would be the admissibility

9 after that. So let's address the first part. Okay.

10 MS. BEIK: The first part, I do not have

11 knowledge or record when our office, our paralegal sent

12 the exhibits. I was under the impression that it was

13 submitted. I went over it saying make sure you provide

14 these documents. I do not have the email confirmation and

15 the breakdown on my person this morning. So I apologize.

16 If it will not get in for that reason, I want

17 to be candor with the Court that I have not reviewed. So

18 I cannot verify at this juncture.

19 THE COURT: I appreciate that. Just for my

20 benefit again, what does the document -- assuming it was

21 in, what does it do? So I have an idea anyhow.

22 MS. BEIK: It establishes the transfer of

23 ownership from the beginning of the loan and the process

24 of when Fannie Mae took actual ownership, which goes back

25 to 2008, Your Honor.

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1 THE COURT: The objection is sustained.

2 MR. ROSEN: Thank you, Judge.

3 THE COURT: So Milestones is not in. Next?

4 MS. BEIK: Those are all the documents I have,

5 Your Honor.

6 THE COURT: Okay. Do you have any additional

7 questions?

8 MS. BEIK: Am I allowed to proceed with--

9 THE COURT: You can always try.

10 BY MS. BEIK:

11 Q. Ms. Burden, regarding the note and mortgage that have

12 been admitted into evidence, these are business records

13 maintained by Seterus, correct?

14 MR. ROSEN: Objection. Relevance.

15 THE COURT: Sustained. They're already in.

16 MS. BEIK: Okay.

17 BY MS. BEIK:

18 Q. Based on your review of the business records

19 pertaining to this Defendant's loan, were they made at or near

20 the time of the event?

21 MR. ROSEN: Objection. Lack of personal

22 knowledge. Voir dire subject to the Court's allowance

23 after the -- and it's lack of specificity as to which

24 record.

25 THE COURT: Go through and ask your questions.

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1 Be specific as to the documentation and counsel will have

2 an opportunity to voir dire, and then we'll go from there.

3 Okay?

4 MS. BEIK: Okay.

5 MR. ROSEN: Rather than state my objection and

6 interrupt every time, if it's okay, Judge, all of the four

7 questions that the Court will permit, just to keep a

8 standing objection to those four?

9 THE COURT: You may.

10 MR. ROSEN: Thank you. Any objections to

11 that, opposing counsel? Any objection to that?

12 MS. BEIK: No.

13 MR. ROSEN: Thank you so much.

14 BY MS. BEIK:

15 Q. So regarding the subject note, mortgage, payment

16 history, the notice of default, the welcome letter, those

17 business records, were they made at or near the time -- inputted

18 into the system at or near the time of the event of the

19 transaction?

20 A. At the time of transfer, yes.

21 Q. This is based on your review of these business records

22 prior to trial today, correct?

23 A. Correct.

24 Q. Now, based on your review of the business records,

25 were they inputted into the system by a person with knowledge?

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1 MR. ROSEN: Judge, just in light of that last

2 question, I'm going to say hearsay. The testimony is that

3 there's a business record that says that -- to establish

4 that prior question, there should be a business record

5 that comes before the Court to then establish that. It

6 sounds like it's a foundation on a foundation if I'm

7 hearing this correctly.

8 THE COURT: Sustained. Try again.

9 BY MS. BEIK:

10 Q. Based on your knowledge of Pulse and SCI, as you've

11 testified to today, was the data pertaining to this Defendant's

12 loan reflecting the payment history, was that inputted by a

13 person with knowledge?

14 A. Yes.

15 Q. Now, is the data reflected in this computer system

16 pertaining to this Defendant's loan, is it kept in the regularly

17 course of conducted business activity?

18 A. Yes.

19 Q. Based on your review and personal knowledge of Pulse

20 and SCI, the database used to import this Defendant's loan, was

21 it the regular practice of Seterus to make the loans similar to

22 the loans that were created for this Defendant's loan?

23 A. Yes.

24 MR. ROSEN: Objection. Compound. Confusing.

25 THE COURT: The last one is sustained. Re-ask

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1 your question. You asked two different questions and you

2 put in two different things.

3 MS. BEIK: Okay.

4 BY MS. BEIK:

5 Q. Is it the regular practice of Seterus to make this

6 type of loan that was created for the Defendant's loan?

7 A. Yes.

8 MS. BEIK: No further questions at this time.

9 THE COURT: No further questions?

10 MS. BEIK: At this time.

11 THE COURT: What time would it be?

12 MS. BEIK: Will I have a chance for rebuttal?

13 THE COURT: Okay. Cross.

14 MR. ROSEN: Thank you, Judge.

15 CROSS EXAMINATION

16 BY MR. ROSEN:

17 Q. Good morning, again. One of the documents--

18 MR. ROSEN: Just give me one second, Judge.

19 Judge, I have a stipulation or an offer to

20 make to the Court to speed this along and to the extent

21 that you can rule on this, wonderful. If not, then I will

22 understand as well.

23 I'm tempted to not ask any questions, to leave

24 nothing for a rebuttal because there's been no door opened

25 on cross. Plaintiff -- if the Court would allow that,

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1 Plaintiff would then rest and then I could move

2 appropriately at that time and make an appropriate next

3 step at that time.

4 THE COURT: So what you're saying is no

5 questions for the defense? Is that what you said?

6 MR. ROSEN: I'm asking if the Court will

7 permit that, will there be any further inquiry allowed?

8 If I don't ask any questions, will the Court not allow--

9 THE COURT: There's no rebuttal then because

10 there's not been any additional questions.

11 MR. ROSEN: That's my understanding, correct,

12 Judge. Then I have no questions.

13 THE COURT: Call your next witness.

14 MS. BEIK: There are no witnesses, Your Honor.

15 THE COURT: Motion?

16 MR. ROSEN: Does the Plaintiff rest?

17 THE COURT: They're done.

18 MR. ROSEN: At this time, Judge, the Defendant

19 moves for a Motion for Involuntary Dismissal under 1.420.

20 It's the appropriate mechanism at the end of a non-jury

21 trial when the Plaintiff rests.

22 The Motion for Involuntary Dismissal tests

23 whether or not prima fascia elements of the Plaintiff's

24 case have been met for foreclosure.

25 The prima fascia elements are that there was a

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1 contract or an agreement pursuant to -- this is Ernest v.

2 Carter that lays this out. That there was a breach, that

3 there was a proper acceleration, and that there are

4 damages sufficient enough to satisfy the mind of a prudent

5 and impartial person of a definitive amount.

6 Further, to elaborate on those prongs, the

7 Defendant has a statutory right of redemption.

8 Therefore, a definitive amount would then be

9 required in order to exercise that statutory right. It's

10 our position that a note and mortgage have been admitted

11 into evidence. The pay history was not admitted into

12 evidence to show either damages.

13 The acceleration letter was admitted, but

14 there was no evidence that it was sent, which is required

15 by paragraph 15 and paragraph 22 of the subject mortgage,

16 and that goes to whether or not there was a proper

17 acceleration. Because of those two reasons --

18 furthermore, there is an issue pertaining to standing.

19 There's been no evidence whatsoever. This

20 would go to the contract, the first prong. Pardon me,

21 Judge, for going out of order. I'm working backwards back

22 up through the list and ending up with the contract

23 relationship between the two parties.

24 There's been no testimony today that the

25 Plaintiff held the note or was entitled to enforce it

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1 prior to this suit being filed. There was a note that was

2 filed just a few months ago in this case, an original

3 note.

4 The witness is from Seterus, a different

5 company, other than the Plaintiff, Fannie Mae. I was

6 tempted to move at that point to strike the witness as not

7 being authorized to testify for the Plaintiff in this

8 case.

9 It would have been proper in my opinion to do

10 so at that time, but I wanted to make sure if there was

11 more for the Court to be able to rule substantively rather

12 than just on that issue. I think we have more than enough

13 as to, again, standing, acceleration of damages. There

14 not being any evidence to meet their prima fascia case,

15 Judge.

16 THE COURT: Response.

17 MS. BEIK: No response, Your Honor.

18 THE COURT: The motion is granted.

19 MR. ROSEN: Thank you, Judge.

20 THE COURT: Somebody prepare an order, please.

21 MR. ROSEN: I will do it right now, Judge.

22 Judge, the Plaintiff has asked that the order

23 specify that it be without prejudice. I don't know if

24 that makes a big difference in light of--

25 THE COURT: I will give you my response. So

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1 you can save your breath. Humor them. Give it to them

2 without prejudice. The case law says -- there was one

3 that came down two weeks ago, I think it was, that said--

4 MR. ROSEN: Evergreen.

5 THE COURT: -- all they have to do is start

6 over again saying that they failed to make such and such a

7 payment and then you go forward so.

8 MR. ROSEN: I agree, Judge. At this point, it

9 doesn't matter whether it's adjudication on the merits or

10 not. I have added without prejudice. Thank you, Judge,

11 for helping straighten me out.

12 THE COURT: We're done. We're off the record.

13 (The proceedings were concluded at 11:20 a.m.)

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

2 STATE OF FLORIDA

3 COUNTY OF BROWARD

4 I, Lucianna Coelho, Reporter, certify that I was

5 authorized to and did report the foregoing proceedings,

6 and that the transcript is a true and correct

7 transcription of my notes to the proceedings.

8 I further certify that I am not a relative,

9 employee, attorney, or counsel of any of the parties, nor

10 am I a relative or employee of any of the parties'

11 attorneys or counsel connected with the action, nor am I

12 financially interested in the action.

13

14 Signed this 16th day of July, 2014

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16 _________________________________
Lucianna Coelho, Reporter
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