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BY: JOHN B. ENNIS, ESQUIRE Counsel for the Plaintiff

BY: MICHAEL ROBmSON, ESQUIRE Counsel for the Defendant


I, Angela San Souci, hereby certify that the

succeeding pages, 1 through 34, inclusive, are a true and accurate







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THE CLERK: PC/2010-5902,page 4, Rafael Genao vs. Litton Loan Servicing. Please identifyyourselvesfor the record. MR. ENNIS: Good morning, your Honor. John Ennis for the plaintiff. MR. ROBINSON: Michael Robinson, counsel for the defendants. THE COURT: Mr. Robinson, this protectiveorder? MR. ROBINSON: It is, your Honor. Your Honor, this
lS lS

your motion for

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MERS' motion for a protectiveorder pursuant to

Rule 26(c), Superior Court Rules of Civil Procedure,with respect to a Rule 30(b)6 depositionnotice issued by the plaintiffon March 9, 2012. On February 17th, MERS filed this motion, along with a detailedmemorandum of law, with a courtesy copy for your Honor, outlining In detail, its position with respect to this matter. I trust the Court has received that memorandum? THE COURT: I believe we have that memorandum. MR. ROBINSON: The depositionnotice, your Honor, identifies30 depositiontopics and requests 22 separate categoriesof documents. Each of the topic designations and document requests relate solely to the plaintiff's


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efforts to challenge validity of an assignment from MERS to Deutsche Bank as trustee. MERS seeks this protective

order because the discovery sought is for material that is neither relevant, nor reasonably calculated to lead to the discovery of admissible evidence. And because it

will therefore be unduly burdensome and oppressive for MERS to be required to produce a witness here in Rhode Island to testify as to these myriad depositions. THE COURT: Is it your position, Mr. Robinson, that

each of the 30 topics designated under 30(b)6, ask for a person to testify on issues irrelevant to these lawsuits? MR. ROBINSON: THE COURT: It is, Judge.

All 30? All 30. There are many pending


lawsuits, as you know, your Honor, in the State of Rhode Island, involving MERS and a defendant. And MERS is

justifiably concerned that if this deposition is allowed to proceed, it will be hailed into court in Rhode Island or into Rhode Island, to defend depositions in numerous cases. THE COURT: You've been hailed into Rhode Island to

defend this case. MR. ROBINSON: That's correct, Judge. The

allegations that are directed to MERS, however, are based upon allegations that this plaintiff has no standing to


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raise. THE COURT: What if Ms. Aubey is correct that the

burden on the homeowner would be to establish the validity of the authority of persons purporting to act on behalf of MERS, and this deposition notice is designed to get to that issue, isn't that a material issue? MR. ROBINSON: not. No, Judge, I would suggest that it's

And I would suggest that she's not correct with The borrower has

respect to that position she's taking.

no standing to challenge the issues related to the validity of the assignment. I'm happy to go through briefly, your Honor, the factual issues In this case, if you would like. Otherwise, I'm happy to refer to my papers in that regard. THE COURT: I believe most of the 30 topics, if not

all of them, go to this question of Mr. Ennis of the assignments. MR. ROBINSON: Judge. That's correct, exactly correct,

And MERS takes the position quite firmly that the

Payette decision and the Kriegel decision are dispositive of the issue, that the borrowers have absolutely no standing to challenge issues that are related to validity of the assignment. To the extent that MERS is a

defendant in this case, an issue that is not before the

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court today, but that is improperly a defendant in this case, because the only allegations related to MERS affect go to the plaintiff's allegations that the assignment is invalid. To the extent that the deposition topics and

document requests relate to that issue or those issues alone, they're oppressive and unduly burdensome for MERS to have to defend these depositions here in Rhode Island in many cases related to issues with borrowers which have no standing to raise against this particular defendant. THE COURT: Would a borrower have standing to ralse

a question of fraudulent execution of a document? MR. ROBINSON: No. And quite frankly, a judge of

this court has already indicated that, I believe in the Kriegel decision, in citing affirmatively to the Livonia decision, where it indicated that the borrower does not have the ability to assert any grounds which may render an assignment void. For example, the borrower cannot

raise alleged acts of fraud or question the motive or purpose underlying the assignment.

That, quite frankly,

not the borrower's fight. THE COURT: I'm wondering whether or not -- if the

rule didn't require that the deposition lead to relevant evidence, but only that the deposition is designed to lead to the discovery of well, it doesn't have to be

admissible evidence, but it's got to be relevant


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evidence. MR. ROBINSON: Your Honor, the assignment, the

validity of assignment, as you know, does not affect whether the borrower owes the obligation, but only to whom the borrower may be obligated. To the extent that

the borrower in this case, Mr. Genao, has asserted allegations against MERS, they're solely based on the validity of the assignment. If the borrower has no

standing to challenge the validity of that assignment, then the deposition topics and the discovery that he is seeking from this foreign corporation that relates solely to the validity of the assignment, have no bearing on the issues at hand. THE COURT: Mr. Robinson, the previous cases that

raise the issue of challenging validity of the assignment and that I mentioned in my earlier decisions, were not made in the context of facts which evidence fraud, and
I'm not sure if, in light of the facts such as that, I

would say the same thing.

And so I can't, in the course

of a discovery motion, determine a substantive issue such as that. MR. ROBINSON: Two responses to that, Judge. One lS

that the lssue of fraud is a latecomer to this game in this case. THE COURT: Well, I don't know what Mr. Ennis is


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going to ask your witness.

MR. ROBINSON: Well again, Judge, well, we know what
he's going to ask, based on the deposition topics that have been identified. I received Mr. Ennis opposition papers to my motion for protective order, yesterday afternoon. And in those

opposition papers, for the first time, he raises issues of fraud with respect to the execution of assignment. That issue is not in the complaint and to the extent that the complaint could possibly be read to address that issue, is certainly not pled with specificity as required under Rhode Island law. THE COURT: But it may go to the lssue for -- not

for cause of action for fraud, but of the standing of a borrower to challenge a document that was fraudulently executed.


I believe that issue was spoken to

directly by this Court in the Kriegel decision, the Livonia decision, which indicated that the borrower cannot raise alleged acts of fraud or whoever THE COURT: Was Livonia a fraud case? That language was directly quoted

from Livonia.

This Court quoted directly from Livonia Standing is not

when it held that in the Kriegel case.

based upon the nature of the underlying conduct that's


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being challenged; it's related to the legal authority to the borrower to make the case. In this case, it's quite

clear, Judge, that the borrower has no standing, he's not even a stranger to the contract between MERS and Deutsche Bank. He is not intended third-party beneficiary, he

does not stand to benefit from that contract, he has absolutely no ability to corneinto this court and ask for relief based upon the validity of that assignment to which he is not a party. THE COURT: So, Mr. Ennis, through this 30(b)6

deposition, brings to the table lssues concerning the authority of persons purporting to act on behalf of the assignors. That is not something that is important for

the Court to know?

his fight to raise.

I believe it's not, Judge; it's not
As a stranger to that contract, that

not his fight to ralse. THE COURT:

A 30(b)6 deposition -Why did Congress Not Congress, but

Tell Congress that.

just bring this national settlement?

the administration and the State Attorneys General.


Judge, I can't speak to what Congress

has done, nor a national settlement, but I can tell you


The national settlement obviously

contemplated relevancy of people not authorized to sign


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documents, signing documents. MR. ROBINSON: Judge, I don't know how I could

possibly comment on a national settlement and the relevance of that matter, and the facts which were introduced in that matter, to this case. possibly comment on the relevance of that. THE COURT: Livonia case. MR. ROBINSON: Which this Court cited with approval. Well, you're commenting on law on the I can't

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And I would suggest, Judge, quite frankly, that if MERS is required to come to this State to defend depositions in the State of Rhode Island, related to topics that the borrower is not entitled to raise, that would be oppressive to this corporation. There are approximately

a hundred cases pending in the State of Rhode Island involving MERS. And if this deposition's allowed to go

forward, I can assure you that there will be many, many others. THE COURT: Let me ask you this, Mr. Robinson, let's I know, or

take it out of the context of Rhode Island.

we know that nationally there's been challenges to the MERS procedures. And with respect to those challenges,

have depositions ever been taken of officials of MERS? MR. ROBINSON: THE COURT: They have.

And did protective orders deny In those

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 instances? MR. ROBINSON: know. I can't comment, Judge. I don't

I certainly know that I didn't represent MERS in I don't know

seeking a protective order in those cases. whether the protective orders were sought. THE COURT:

Why do I have a vague recollection that

we had this discussion in chambers maybe a month ago? MR. ROBINSON: You didn't have it with me, Judge,

but you did have it in another case involving a plaintiff by the name of Cruz. I've read the transcript and I've

read the decision, and respectfully, I disagree with the Court's conclusion in that case and I believe it is directly at odds with the Court's conclusion in Kriegel, dismissing an action for the same allegations. And I would suggest, Judge, that in the context of discovery, we all understand that discovery has a broader standard, has a very broad standard. And the Court

correctly points out that it's information that may lead to the discovery of admissible evidence. But it doesn't

glve a plaintiff a license to go on a fishing expedition because he believes there may have been some fraud, somewhere, that he has no ability to challenge, no legal authority to challenge THE COURT: Let's assume it's not a fishing

expedition, but he's fishing for a specific kind of fish,


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what he's fishing for is to consider the authority of those purporting to act on behalf of a particular entity. MR. ROBINSON: I think that's exactly right, I think To the extent that he's looking

you're directly on it.

for that information, it's information that supports an allegation that has no standing to bring. simple. It's just that

If he has no standing to raise that challenge,

then why is it important for him to get that information. It's not his fight. It's very simple, Judge, this Court

has ruled repeatedly, twice, that the borrower has no standing to challenge the validity of an assignment. That should be the end of the discussion with respect to MERS. To the extent that this borrower lS now seeking to probe 30 topics related just to that narrow issue, that the borrower himself cannot raise, has no legal standing to challenge, then it is unduly oppressive and burdensome to this defendant to have to come in and answer questions regarding allegations that the borrower can't even bring. We have a motion for summary judgment that's pending, it's scheduled to be heard before this Court on April 24th.

None of the information that Mr. Ennis seeks

relevant to MERS' legal position in this litigation. THE COURT: So, you're saying if these depositions

would result in a statement by an official of MERS, that


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certain individuals had no authority to act on behalf of the corporation in executing certain documents; that information would not -- should not be considered by the Court in connection with an objection to your motion for summary judgment?


Absolutely not.

The only entity that

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would have the ability to make hay with that would be the assignor or the assignee or some intended third-party beneficiary thereof. Neither Deutsche Bank, nor MERS lS The

laying claim to the validity of the assignment.

borrower is a stranger to that contract and he is clearly not an intended third-party beneficiary of that contract. So whatever he finds regarding the validity of the assignment, has nothing to do with his legal standing to challenge that before this Court. THE COURT: What is the nature of the complaint in

this action, is it a quiet title action?


It was an action brought for

declaratory injunctive relief to prevent a foreclosure by Deutsche Bank. THE COURT: Because the foreclosure was invalid? Correct. My brother ralses numerous


issues regarding the note, the endorsement of the note. These were all entirely secondary to the issues that are before the Court today. They have absolutely nothing to


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do with the validity of the assignment itself. THE COURT: What about if Ms. Aubey convinces me

that "duly execute" means it has to be executed by someone who can prove that they have authority to sign on behalf, would that change the -- I haven't resolved that issue yet. know. And that may be a relevant issue, I don't

I'm not going to resolve it without a protective

order motion. MR. ROBINSON: Honor. I have two responses to that, your

One is that it has nothing to do with whether or

not the borrower has standing to bring those challenges. If the issue of whether or not the assignment itself is executed properly or not executed properly, agaln, with respect to the standing issue, the borrower has no standing to challenge that. Secondarily, I would suggest, Judge, that there is, in fact, a title standard that addresses the presumption In favor of the document when it's properly executed. It's Title Standard 5.3. It indicates that where an

instrument of a private corporation appears in the chain of title and the instrument is executed and acknowledged in proper form, it may be assumed that the persons executing the instrument were the officers they purported to be and that such officers were authorized to execute the instrument on behalf of the corporation.


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THE COURT: What finding does that title standard have on the Court? MR. ROBINSON: It doesn't. I think it's frankly academic and draconian,Judge, because with respect to my position in this case, the borrower has no standing to challengethose issues regardingassignments,and therefore,MERS ought not be before this Court and certainlyought not be required to give a lengthy depositioninvolvingnumerous topics solely related to that issue. THE COURT: So, even if I were to respond to the question of the location of the depositionor the length of the deposition,that wouldn't satisfy the protective order motion? MR. ROBINSON: If this Court orders MERS to be deposed, it will, of course, comply. If the Court is inclinedto order MERS to be deposed, I would request it be conductedoutside of the State of Rhode Island, at MERS' principalplace of business, in accordancewith settled Rhode Island law. THE COURT: Tell me what settled Rhode Island law is, Mr. Robinson. MR. ROBINSON: Rhode Island has adopted Federal rules, your Honor, which is that barring extraordinary circumstances,a depositionshould take -- a deposition

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of a foreign corporation should take place in the location of the defendant's principal place of business. To the extent that this Court is inclined to order MERS to be deposed, we would therefore ask that that deposition take place in Virginia. We of course take the

position, your Honor, that the deposition should not take place at all for the reasons I've already outlined. THE COURT: from Mr. Ennis. MR. ENNIS: Good morning, your Honor. First of all, Thank you, Mr. Robinson. Let me hear

I'll address Mr. Robinson's last point in terms of settled Rhode Island law, that the deposition of a foreign corporation must be taken at the location where the foreigner corporation has its principal place of business. I would suggest, your Honor, that suggests a

situation where there is some tangible jurisdiction, but the entity in question really has nothing to do with Rhode Island. In this case, MERS, in other words, an

out-of-state corporation that somehow got hooked up with a particular plaintiff or defendant -THE COURT: MR. ENNIS: THE COURT: MR. ENNIS: You mean like a third-party witness? Well, no, they're a defendant -Non party witness. Well, they're a defendant, your Honor.

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In the cases that he cites, the Rhode Island law deals


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with cases in which there is a defendant called in to do a deposition here in Rhode Island, and because of their limited contact with Rhode Island, it's not considered appropriate just because they had one contact with one plaintiff, to come here for a deposition. understand that point of view. And I can

But here, MERS holds

two-thirds of the mortgages in the State of Rhode Island and hence, they have a very exacting presence in this state, where if there's 100,000 mortgages in the state, MERS holds approximately 60,000 of them, and therefore,

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they are an integral part of the Rhode Island economy in terms of their constant application their name as the And as

mortgage holder, as the nominee for the whomever.

a result, MERS is a different situation, I would suggest, from all the Rhode Island cases that you can cite regarding out-of-state depositions, which MERS has more than a passing interest in Rhode Island. distinguish that in that regard. Although, I did speak to Mr. Robinson, I suppose if I had to, Mr. Robinson could get on a plane, fly into Baltimore, it's an hour drive to Virginia. But I'm not So I would

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necessarily going to say that I'm not totally opposed to that idea, your Honor. But, I would suggest one thing Mr. Robinson said, that MERS will comply. Well, they won't, because you've



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already ordered MERS in the Cruz case, to appear. They've filed for a protective order, which Ms. Whitmarsh and I were in your chambers in November. continue it a couple of times. protective order. I agreed to

Now they're filing a new

They will not appear, they do not

care, they want to frustrate discovery. And that is one of the problems in this case, your Honor, that first of all, I would suggest they're precluded from raising these arguments, because in the Cruz case, they have already been -- they've already been ordered to appear for a deposition in Rhode Island, essentially, the same topics. I changed the topics a Originally, I

little bit to make them more specific.

asked for any, quote, ratification of the MERS board of any actions of its officers. In the subsequent

deposition notice, I specifically referenced two supposed meetings of the board in which they allegedly ratified an action retroactively. So all the topics, your Honor, to

get into this briefly, you have an assignment signed by a person named, what purports to be an assignment signed by a person by the name of Denise Bailey. employee of Litton Loan Servicing. Now, she is an

I've alleged in my

pleadings, that she is not an officer of MERS, has never been appointed an officer of MERS, has never been designated an officer of MERS, and basically, just signs


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the documentswilly-nilly. One day she's an officer of MERS, the next day she's an officer of somebody else. She's a robo-signer,but more importantly,she is a robo-perjurer. She holds herself out to be an officer, when she is not. That is a violation of Rhode Island General Laws. THE COURT: Let's talk about that. MR. ENNIS: I believe it's 11-33-4, states that any document THE COURT: 11-33? MR. ENNIS: Let me just get that, your Honor. 11-33, false swearingpertainingto sale or conveyanceof property. Every person over the age of 18 years, who shall willfully swear or affirm falsely before any notary public, justice of the peace, or other officer who lS authorizedto administeroaths concerningany material fact relating to contract, lease or other document pertainingto the sale or conveyanceof real or personal property, shall be deemed guilty of a misdemeanorand shall be fined not less than $50.00, nor more than $100.00. Now, the allegation THE COURT: Are you gOlng to travel to Virginia and this deponent is going to assert his Fifth Amendment rights?


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Oh no, I'm not seeking this person, This

because this person has nothing to do with MERS.

person lS an employee of Litton, the former loan servicer in this case. I'm seeking to discover, through the

30(b)6 deposition at MERS, whether or not Denise Bailey has ever been appointed a MERS officer; if so, when did the board meet, and numerous topics all related to whether or not she has ever been appointed by anybody. It is my allegation in my complaint, your Honor, and In my response here, that how somebody becomes a MERS officer is basically, you go to the computer, you have the code, you fill it In, you plug in who you want to be the officer that day, you e-mail it to a database not controlled by MERS but a third-party database provider, and 10 and behold, you're the officer. You could be an

officer, I could be an officer, the stenographer could be an officer, anybody could be an officer. If you have the

code, if Mr. Robinson would provide -- his client would provide the code, he could get on the computer right now and anyone bye-mail of us In this courtroom would get back to us

a MERS officer. THE COURT: to pass -MR. ENNIS: But it's not a resolution, your Honor, If it's a valid resolution, how it came


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because the board never meets.

It lS a document that -It is -- the system

MERS has no employees, your Honor.

is a database operated by a third-party vendor. THE COURT: MR. ENNIS: So who are you going to depose? Well, whoever MERS chooses to select.

They have officers, they have a president, both their past president and their past secretaries have been deposed. And when Mr. Holtman (phonetic) was deposed In

April of 2010, he could not point out any board meeting of MERS that had over occurred. THE COURT: Let me ask you this, Mr. Ennis, let's

get back to the 11-33-4 that deals with false swearing. I believe Mr. Robinson's position is that your client would not have standing to raise that as a defense to the foreclosure, because you're not a party to the assignment. MR. ENNIS: Well, I'm suggesting there is no For an assignment to be an If it's not

assignment, your Honor.

assignment, it has to be duly executed. THE COURT:

For you to challenge the assignment,

according to Mr. Robinson, you would have to be the asslgnor or the assignee. MR. ENNIS: I would suggest, your Honor, there is

neither in this case, because MERS is not the assignor to begin with and MERS has to act on behalf of a party. We


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don't know who they acted on behalf of. authority to do this?

Did MERS have

Because as a nominee, it's an In

agency status, they have to act on somebody's behalf. the so-called assignment, it didn't indicate on whose behalf they were acting; it indicated that they were assigning the note, which MERS never has; it indicated they were assigning money due to be paid, which MERS never has. One of the questions that always comes up that is

always raised here, is the party objecting, just looking at the internet doesn't have actual documents, here I'm seeking to find out once and for all, has MERS ever appointed a certified officer. If MERS never has, then

that document could be signed by Donald Duck, it could be signed by a prisoner in the ACI who used to Slgn mortgages on behalf of Judge Krause. THE COURT: I'm aware of that. The guy used to

place phoney mortgages on every judge's home. MR. ENNIS: Right. Under their theory, we could You

never look at that, because we can't look beyond.

have to have a common sense approach and recognize what's going on here, your Honor, is that MERS is a system designed to hide the true nature of transactions and to hide who has authority. To duly execute, if it means

anything, it means -- it has to mean that the person has


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authority to do so.

You're a homeowner, you write a

mortgage, you give power of sale in the mortgage to the lender and presumably to its asslgnee. Now, a

precondition to the exerClse of the power of sale lS that you have to have an assignment; not that you have to have an assignment that is not valid; not that you have an assignment that is signed by John Doe or nobody; merely that it has to pass properly with a duly executed assignment. And the statute says the assignment will be What else

effective so long as it is duly executed. could that mean? sign it that day? assignment. authority. THE COURT:

Could that mean that somebody didn't Obviously, you wouldn't have an

I'm suggesting that Denise Bailey has no

Let me say this, Mr. Ennis, I think I

might have mentioned this in Cruz when I denied the protective order in Cruz, that this Court may view the situation differently in terms of relevancy of a piece of information gathered at a deposition such as this. If

the Court is being made aware of a crime, standing is interesting, but if the homeowner who Mr. Robinson argues has no standing to raise the invalidity of the assignment, brings to the Court's attention evidence of the commission of a crime, I may feel differently about the standing question, because I think any citizen in the


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State of Rhode Island is allowed to bring to the attention of the authorities, including this Court, the commission or the fact that it might lead to the prosecution of someone who has willfully committed a crime in the State of Rhode Island. So, that's why I

said before that it may lead to the discovery of admissible evidence. It's a broad standard that may lead Mr. Robinson

to discovery of admissible evidence.

basically takes the position that there is absolutely no information that you could glean from this discovery, that would be of any relevancy to this lawsuit. his position. What do you say about that? I'm suggesting, your Honor, that the That's


information that I expect to gather from MERS, is the MERS board has never appointed Denise Bailey or anybody else. THE COURT: Let's assume that you establish that, do

you say that your client has standing to assert that as a basis for the Court declaring that mortgage invalid or the foreclosure invalid? MR. ENNIS: Well, foreclosure did not occur In this I'm suggesting that in this case,

case yet, your Honor.

if I show that, and as you indicated in Cruz, that could very well -- and I believe you indicated -- it could very well have bearing on whether or not the party could


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enforce the mortgage.

Obviously, if there is no duly

executed assignment, then the property has not transferred to the party seeking to foreclose. If the

party seeking to foreclose does not have the property but by way of a duly executed assignment, they cannot foreclose. And what I'm seeking is information as to

whether or not the assignment was duly executed, specifically relating to the MERS -- whether or not there were any resolutions by MERS, how these people came to get their so-called authority. merely came from themselves. I'm suggesting authority

They created their own

authority by computer-generated documents that had nothing to do with MERS, MERS directors, MERS bylaws or the MERS -- any resolutions, that they've never had any resolution. And if that's the case, Denise Bailey

committed a crime and perhaps MERS itself is in the midst of fostering the creation of fraudulent documents, namely documents that purport to be assignments, but, in fact, come right off the press, and that they're generated and that there's no authority to do so, and they just give them to what lS called robo-signers, which are being questioned by these banks. THE COURT: Is the recordation of a document

containing false information, actionable In any way In Rhode Island?


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Civilly or criminally, your Honor?


you speaking criminally or civilly? THE COURT: MR. ENNIS: Either. Well, criminally, under 11-33-4, Also, there is a

criminally under 11-33-4, your Honor.

question as to whether or not, besides the false swearing as a misdemeanor, whether or not some of these assertions in these notarized, quote, assignments, could involve some type of perjury as well, because you are taking an oath swearing that such-and-such actually is the case. And many times, these types of documents are filed in Bankruptcy Court. In the 27 states that involve judicial

foreclosure, these documents THE COURT: MR. ENNIS: THE COURT: MR. ENNIS: THE COURT: I don't care about the 27 states. Okay. I only care about Rhode Island. All right. In fact, my understanding of

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robo-signing has been an issue primarily in those judicial foreclosure sales, where the documents are filed with the Court in order to authorize a foreclosure sale. And you know, filing false documents with the Court is a little bit different than recording it in the town hall in West Warwick. MR. ENNIS: But In these kind of cases, when the


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summary judgment motion is filed, they have referenced the, quote, assignment. So, essentially, those documents

are filed with court in a summary judgment motion to essentially try to establish what they claim was the ownership interests of the party foreclosing. So hence,

they are, they effectively are filed and made part of the court record in these cases, as an assertion by the loan servicer and/or alleged owner of the note and mortgage, to convince the Court that we own the note and mortgage because of this. I'm not stating anything about my They were

brother or any attorneys in this court at all.

given the documents from their clients, so there lS no assertion whatsoever to them. clear. Also, your Honor, just to note, once the discovery's MERS holds itself out that any note, how it transferred the note in the mortgage interest of beneficial interest, whatever they call it, from person to person to person without assignments. case THE COURT: Mr. Ennis. MR. ENNIS: Well, no. In this case, we have three Well, this isn't the case in this case, Well, in this I want that to be made

different versions of the note that have been filed in the Bankruptcy Court, one without endorsement, one with


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endorsement No.1, No.1.

and one with endorsement No. 2 and

Hence, there are three different versions that

have been filed as parts of proof of claim and/or motions for relief from stay, each note is different. One has no

endorsement, one does but only one way, and then finally they got it right by manufacturing an allonge at the end. MERS claims to know who had the beneficial interest or the actual interest of the note and mortgages, and has no more inquiries about that. MERS purports to be an

electronic database that doesn't require assignments. Hence, we'd like to find out where the note went, from the beginning to the end, and what the MERS, the former MERS rnin(sic)report, it's a printed out report of what supposedly consists of the record and travel of the note and mortgages, what they have. THE COURT: Mr. Ennis, I'm ready to rule. The

discovery standard is a pretty broad standard under Rule 26. And I remember Magistrate Judge Hagopian over

in the Federal Court, always cites to the case Hickman vs. Taylor, as to the original Supreme Court case which discussed the breadth of the discovery and the standard "calculated to lead to the discovery of admissible evidence." I can't say that Mr. Ennis' 30(b)6 deposition notice is not calculated to lead to the discovery of admissible


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evidence, whether it, in fact, is admissible at the time of trial or in connection with any motion practice, will be for the Court to decide at that time. And I must say,

Mr. Robinson, the Court would feel it's inappropriate to revisit the issue of standing if information is brought to its attention that someone swore falsely and therefore, committed a misdemeanor in this state. Also, it seems to me, I haven't yet ruled on the issue that was raised in the last case and has been raised in many cases, and that is, what does the assignment statute in Rhode Island mean when it uses the words "duly executed and recorded." Depending on how I

resolve that issue may determine the potential relevancy of information that Mr. Ennis might gather in this deposition. So, I'm not prepared to rule that the notice

of deposition under 30(b)6, is not calculated to lead to discovery of admissible evidence. I don't have to rule

as to whether the evidence would be admissible until I'm confronted with the question at trial or motion as to whether a particular item of proof is admissible or not, or relevant or not. And I shouldn't be deciding those

issues in the context of a protective order motion. It seems to the Court that if Mr. Ennis and his client are willing to travel to the principal place of business of this deponent, which is somewhere in


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Virginia, where in Virginia?


Ralston, Judge.

Ralston? Actually, it's Reston, Judge,


R-E-S-T-O-N, Virginia. THE COURT: Where in Virginia lS Reston? Is that a

flight to Washington, or?


A flight to Baltimore, your Honor, then

about an hour drive.


It's a small state, I'm sure we'll

figure out where it is exactly. THE COURT: It seems to me, Mr. Ennis, that the cost

of taking this deposition should be borne by the party seeking the deposition and so that portion of the motion for protective order, I deem to be valid. And I will

deny the motion for protective order as to the taking of the depositions, but not as to the location of the depositions. I will grant it as to the location of the

depositions, meaning that they would have to be taken at the principal place of business of the deponent.


One other issue, Judge.

In our

papers, we requested relief with respect to two specific topics that we believe are also offensive to work product doctrine and attorney-client privilege. Topic No. 3

indicates the plaintiff seeks to depose someone with


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knowledgeof the name and address of each witness that MERS plans to call at the time of trial. And Topic No. 4 seeks to depose the MERS designeeswith respect to each and every document that MERS plans to introduceas an exhibit at the time of trial. I believe that both of those categoriesrequests indicateinformationthat is within the -THE COURT: And those are numbered designationsin the notice? MR. ROBINSON: They are; No.3 and No.4. THE COURT: Mr. Ennis, why are those questionsnot objectionable because of the attorney-client privilege? MR. ENNIS: Well, for example, your Honor, you can do it by way of interrogatory-THE COURT: No, you can't. You can't ask a party to name every witness you intend to call at trial, name every document that you intend to introduceat trial. You can ask the question that says: State everyonewho has personal knowledgeof the transactionthat


subjectmatter of this litigation. But to ask to identifywitnesses and documentsthat are to be introducedat trial, transcendsinto the area of work product and I would agree with counsel on that. So, as to No. 3 and 4, the protective order will be granted to prohibit inquiry into the questionsthat are


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designatedin those two designations. MR. ENNIS: Yes, your Honor. THE COURT: Does counsel have enough informationnow to prepare an order for me to decision? MR. ROBINSON: We do, Judge. MR. ENNIS: Yes, your Honor. THE COURT: Why don't you agree on the form of that order and subrni tit to me. MR. ROBINSON: We shall. Thank you, your Honor. MR. ENNIS: Your Honor, we have two others of these same MERS. I'll speak to Ms. Whitmarshbecause they're identicalissues. Cruz and Dilibero. THE COURT: Is there some way, Mr. Ennis, that you can consolidatethe depositionsin such a way that the depositions,these deponents don't have to be deposed twice on the same issues? MR. ENNIS: Yes, your Honor, because quite readily, I think I'm going to do three cases on the same day, fly out once and just basically change -- the only difference will be the name of the MERS, quote, certifyingofficer. So, I suppose we could do one first in general or perhaps consolidatethem. THE COURT: Is there any objection,Mr. Robinson, if as part of this order, I would indicate that discovery

that reflectsmy

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obtained in one of these three cases, even though they're not consolidated but they deal with similar issues, can be used in the other cases? MR. ROBINSON: You mean as a matter of evidence? I

don't know that I'd be prepared to make that stipulation at this point, Judge. THE COURT: discovery. No, I'm talking as a matter of

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I mean, evidence means, I mean if it's a

deposition and it's to be used at trial, I suppose. MR. ROBINSON: I have no problem, Judge. I'm sure

my client would have no problem with cooperating with

Mr. Ennis to find the path of least resistance in terms
of making the deposition happen in a reasonably practical time, but I can't -- I could make the stipulation that information obtained in another deposition, in another case, would be somehow admissible to mine. THE COURT: Let's not go that far then. But as far

as the discovery issue, Mr. Ennis should, as a courtesy to the deponents, ask all the questions that he has in the three cases where he's designated deposition notices at the same time, so that we don't have to repeat this 300 times. MR. ROBINSON: Judge. THE COURT: If you could indicate that by way of an We may be able to work something out,

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order in the other cases as well. Are you involved in those cases, Mr. Robinson? MS. WHITMARSH: I'm the counsel on behalf of the If you don't mind, I'd like

defendants in those cases.

to discuss this with Mr. Ennis during the break and then we can come back and put something on the record. MR. ROBINSON: I think the parties should be left to

their own to resolve those cases, Judge.


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