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UNITED STATES BANKRUPTCY COURT DISTRICT OF MASSACHUSETTS - WORCESTER

================================ IN THE MATTER OF: . Case #10-43081 . PETER MURPHY RIBAUDO . Worcester, Massachusetts . October 11, 2011 Debtor. . 11:11:01 a.m. O’clock ================================

TRANSCRIPT OF HEARING ON: (#162) DEBTOR’S MOTION FOR ORDER TO SHOW CAUSE AGAINST DEUTSCHE BANK NATIONAL TRUST COMPANY BEFORE THE HONORABLE HENRY J. BOROFF, J.U.S.B.C.

APPEARANCES: For the Debtor: L. JED BERLINER, ESQ. 95 State Street Suite 1010 Springfield, MA 01103-2081 ANA M. FIDALGO, ESQ. Bendett & McHugh, P.C. 270 Farmington Ave. Suite 151 Farmington, CT 06032

For Deutsche Bank, NTC:

Electronic Sound Recording Operator: Laura L. Chambers
Proceedings Recorded by FTR Gold Digital Recording Transcript Produced by Certified Transcription Service

GCI TRANSCRIPTION SERVICES
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1 (At 11:11:01 a.m.) 2 3 Ribaudo. MR. REYNOLDS: Case #10-43081. Peter Murphy

A hearing on the motion of the debtor for an order

4 to show cause against Deutsche Bank National Trust Company. 5 MR. BERLINER: May it please the Court, Your Honor,

6 I am Jed Berliner, moving party. 7 MS. FIDALGO: Good morning. Ana Fidalgo on behalf

8 of Deutsche Bank as Trustee. 9 MR. BERLINER: An altered document was filed with

10 this Court.

I reviewed the proof of claim filed by Deutsche.

11 I noticed there was no assignment of mortgage from the 12 original lender to Deutsche. 13 I contacted Deutsche’s lawyer.

We went through three different lawyers in the same I finally got 600 pages. I went

14 firm representing Deutsche. 15 through 600 pages.

I discovered that the endorsed note

16 represented to me as being the original was different from the 17 one that was attached to the proof of claim. 18 An altered document was filed with this Court. 19 Deutsche says “No harm, no foul. We have the And so I repeat:

20 endorsed note, even though the endorsements were different.” 21 Perhaps there’s no actual damage to the debtor, but the insult 22 to the dignity of the Court stands. An altered document was

23 filed with the Court under penalties: $500,000 fine, five 24 years’ imprisonment. 25 I ask for redress. I’ve asked for the order to show

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1 cause.

I attached what happened in California in a similar

2 situation -- identical situation except the party was OneWest 3 instead of Deutsche. By the end of the day, Your Honor, I

4 can have an affidavit of my fees seeking reimbursement from 5 the debtor, for the debtor. 6 7 THE COURT: MS. FIDALGO: Thank you.

Thank you. Your Honor, if you look at the facts

8 of this case, it’s obvious that what took place here was a 9 mistake. 10 debtor. 11 12 THE COURT: MS. FIDALGO: So what exactly was the mistake? Your Honor, attached to the proof of It was a mistake that didn’t cause any harm to the

13 claim was a copy of the note that contained two endorsements. 14 The first was an endorsement from the original lender, 15 Peoples, and there was a specific endorsement to Indy; and 16 then the subsequent endorsement was an endorsement in blank 17 from Indy. The endorsement in blank was signed by I believe

18 it was Melody Spotts, (phonetic) Assistant Vice-President. 19 Later in -- I believe it was late May or early June

20 during informal discovery I was, and still am in current 21 possession of the original endorsed note. 22 it, and I sent a copy to Mr. Berliner. I made a copy of The original note

23 that I have available for inspection, it contains an 24 endorsement from the original lender with a specific 25 endorsement to Indy, just like the copy that was attached to

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1 the proof of claim. 2 from Indy.

And then it also contains an endorsement

It’s an endorsement in blank, and this one is

3 signed by a Renea (phonetic) Crosby, Vice-President. 4 So essentially the documents are identical. The

5 endorsements are the same.

They’re two endorsements in blank.

6 The only difference is that they were executed -7 THE COURT: But one of the people didn’t -- but one

8 of the people didn’t actually sign on the original. 9 MS. FIDALGO: Correct, Your Honor. Would Your

10 Honor like to inspect? 11 12 13 THE COURT: MS. FIDALGO: THE COURT: No. Do you want an evidentiary hearing? Yes, Your Honor. How long do you need for -- well, yes.

14 How long do you need for discovery? 15 16 17 have any. 18 MS. FIDALGO: Maybe thirty days (unclear mumbling, (Pause) MR. BERLINER: You have all the documents. I don’t

19 turned away from microphone). 20 MR. BERLINER: I think it’ll have to be sixty days,

21 Your Honor.

I’ll be doing a document request and taking a

22 deposition, and a document request itself will take up thirty 23 days, plus some time to get it together. 24 25 THE COURT: (Pause) Okay.

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1

MS. FIDALGO:

And, Your Honor, if I may, what I

2 would like to point out to this Court is that on June 7th I 3 received a correspondence where the debtor initially alleged 4 that there was fraud on this Court and recommended that a 5 motion for order to show cause was the appropriate remedy. 6 I just want to point out that the debtor waited

7 months and waited until the case was dismissed to file this 8 motion with the Court after alleging it for several months. 9 10 THE COURT: MS. FIDALGO: This is a dismissed Chapter 13 case? Yes, Your Honor. There was an order

11 entered on September 8th after the debtor’s request. 12 13 first? 14 15 16 MS. FIDALGO: THE COURT: MS. FIDALGO: Correct, Your Honor. And then the case was dismissed. Correct, Your Honor. It says, There is an THE COURT: I’m sorry. The debtor made the request

17 order dated September 8th. 18

“Case dismissed at the request of the debtor.”

19 And then on September 12, after the request to dismiss the 20 case, the order to show cause was filed. 21 MR. BERLINER: Your Honor, there was a hearing About

22 scheduled on my objection to Deutsche’s proof of claim.

23 a week before that hearing, the debtor -- whose mother had 24 been funding the plan and the litigation for the first 25 mortgage -- was diagnosed with a severe medical condition.

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1 The debtor decided to dismiss the case.

We had a hearing in

2 open court, and I had asked for about a week to decide what to 3 do about this particular issue. The Court -- respectfully

4 the Court forced the issue to get an involuntary dismissal 5 that day, and that’s what the client wanted, so that’s what we 6 did. 7 And I quoted in my motion that the dismissal of the

8 petition doesn’t close the case, and the case has not been 9 closed, and I quote some case law that says -- from the First 10 Circuit, I believe -- that a dismissed petition does not take 11 away jurisdiction from this Court for an adversary proceeding 12 in that instance, and here it would be this motion for order 13 to show cause. 14 Thank you. And if I can also point out to the

MS. FIDALGO:

15 Court that during a telephone conversation on August 24th the 16 debtor had indicated that he was inclined to dismiss the case 17 then. 18 The objection to the proof of claim was scheduled The parties were ready to

19 for a hearing on September 15.

20 proceed, but the debtor dismissed it the week before. 21 22 (Pause to 11:21:52 a.m.) THE COURT: Mr. Meunier. If I could just have the

23 attention of the United States Trustee. 24 25 MR. MEUNIER: THE COURT: Yes, Your Honor. Ms. Fidalgo, this is a very big deal.

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1 2

MS. FIDALGO: THE COURT:

Yes, Your Honor. I’m going to continue this for an

3 evidentiary hearing to January 12 at ten a.m. in Springfield. 4 The discovery deadline is set for December 16, 2011. The

5 Court will also consider at that time and place whether the 6 respondent should be sanctioned under Federal Rule of 7 Bankruptcy Procedure 9011(c)(1)(B). 8 Mr. Meunier, I know that this case hadn’t drawn the

9 United States Trustee’s attention beforehand, but it seems to 10 me that in light of the fact that a note was filed with an 11 endorsement which turns out not to have been the -- turns out 12 to have been a -- not a true copy of the endorsement, that the 13 United States Trustee ought to wonder whether this is 14 indicative of a practice in other cases. 15 much. 16 17 18 MS. FIDALGO: MR. MEUNIER: MR. BERLINER: Thank you. Thank you, Your Honor. Thank you, Your Honor. Okay? Thanks very

19 (End at 11:24:10 a.m.) 20 21 22 23 24 25 * * * * * * * * * * * *

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1

I certify that the foregoing is a true and accurate

2 transcript from the digitally sound recorded record of the 3 proceedings.

/s/

Glor ia C. Irwin

10/14/2011
Date

GLORIA C. IRWIN Certified Transcriber NJ AOC200 Federal CERT #122 GCI TRANSCRIPTION SERVICES 210 Bayberry Avenue Egg Harbor Township, NJ 08234-5901 609-927-0299 1-800-471-0299 FAX 609-927-9768 e-mail irwingloria@comcast.net

U

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