Foreclosure Trial Transcript

Green Tree Servicing vs Ernset Aulls, et al
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 REPORTER: DATE: TIME: LOCATION: vs.
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, IN AND FOR LAKE COUNTY, FLORIDA CASE NO.: 08-CA-3581
GREEN TREE SERVICING, LLC, Plaintiff,
ERNEST C. AULLS, III A/K/A ERNEST C. AULLS; UNKNOWN TENANT NO. 1; UNKNOWN TENANT NO. 2; AND ALL UNKNOWN PARTIES CLAIMING INTERESTS BY, THROUGH, UNDER OR AGAINST A NAMED DEFENDANT TO THIS ACTION, OR HAVING OR CLAIMING TO HAVE ANY RIGHT, TITLE OR INTEREST IN THE PROPERTY HEREIN DESCRIBED, Defendants.
PROCEEDINGS BEFORE THE HONORABLE MARK J. HILL Tuesday, February 7, 2012 8:56 a.m. - 10:36 a.m. Lake County Courthouse 550 West Main Street Tavares, Florida 32779 Jennifer Little, FPR Court Reporter
CAB REPORTING, INC. Post Office Box 1684 Ocala, Florida 34478 (352) 401-0080
CAB Reporting, Inc. (352) 401-0080
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A P P E A R A N C E S TANYA D. SIMPSON, Esquire Smith, Hiatt & Diaz, P.A. 2691 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 (954)564-0071 TSimpson@smith-hiatt.com On behalf of the Plaintiff DONALD W. BRADSHAW, Esquire Law Office of Donald W. Bradshaw 108 North Magnolia Avenue, Suite 1038 Ocala, Florida 34475 (352)484-1145 dwbradshaw@gmail.com On behalf of the Defendant ALSO PRESENT: Ernest C. Aulls, III
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I N D E X TESTIMONY OF GARY BARNES PAGE
Direct Examination by Ms. Simpson..................4 Voir Dire Examination by Mr. Bradshaw.............15 Direct Examination (cont'd) by Ms. Simpson........25 Direct Examination (cont'd) by Ms. Simpson........45 Plaintiff Rested..................................40 Direct Examination by Mr. Bradshaw................66 Certificate of Oath...............................75
7 8 9 10 11 * 12 E X H I B I T S 13 PLAINTIFF'S EXHIBITS 14 15 16 17 18 19 20 21 22 23 24 25
PAGE
No. 1 ............................................13 No. 2 ............................................27 No. 3 ............................................39
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 BY MS. SIMPSON: Whereupon,
P R O C E E D I N G S THE COURT: MS. SIMPSON: Ready to go? Yes, sir. Attorney Tanya
Simpson on behalf of the plaintiff. THE COURT: MS. SIMPSON: What's your last name again? Simpson, S-I-M-P-S-O-N. And
this is the case of Green Tree Loan Servicing versus Ernest C. Aulls. I'd like to call our first I'm going to waive
witness if I may, Gary Barnes. opening statement, Your Honor. THE BAILIFF: right hand please. THE COURT:
Have a seat and raise your
Sir, do you solemnly swear to
tell the truth, the whole truth, and nothing but the truth? THE WITNESS: THE COURT: THE WITNESS: THE COURT: Yes, sir. Please state your name. Gary Barnes. You're up.
GARY BARNES, a witness herein having been first duly sworn, was examined and testified as follows: DIRECT EXAMINATION
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Q. A. Q.
Mr. Barnes, who is your employer? Green Tree Loan Servicing. That would be the plaintiff in this case; is
that correct? A. Q. A. Q. A. Yes. What is your position with your Green Tree? I'm a field representative. What does a field representative do? I -- anything that is required of the company
outside of the office. Q. Okay. Does it have to do with servicing
mortgage home loans? A. Q. Yes. Are you actively involved in servicing
mortgage home loans yourself? A. Q. Yes, I am. Are you familiar with the process that Green
Tree goes through to service home loans? A. Q. Yes, I am. Is your company Green Tree servicing this
loan for the investor who owns this loan? A. Q. Yes. And as a servicing agent, is your company in
control of the note and entitled to enforce the note in this matter?
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A. Q.
Yes. Did the servicer deliver the note to
plaintiff's counsel? A. Q. A. Yes. How do you know this? Through loan documentation in the system and
from standard practices. Q. Okay. By loan documentation in the system,
are you referring to the plaintiff's business records? A. Yes. MR. BRADSHAW: Objection, Your Honor.
Counsel has not established that the witness is a records custodian or is qualified to testify about loan documentation. THE COURT: MS. SIMPSON: Foundation, I guess.
Go ahead. Your Honor, I'm not putting him
out here as a records custodian, so that would be wrong. I believe I did just lay the foundation
that he's qualified to testify to the business records that he's been involved actively with the servicing of the loan. THE COURT: business records? THE WITNESS: I documentate [sic] every loan Sir, do you regularly keep
that I come in contact with.

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THE COURT: documentations? THE WITNESS:
Are you in charge of making those
Anytime anyone in our company
accesses an account, that person is responsible for documenting that loan for what's transpired. THE COURT: MS. SIMPSON: Your Honor? THE COURT: BY MS. SIMPSON: Q. A. Q. A. Q. Do you recognize this document, Mr. Barnes? (Perused documents.) What is that document? This is the note on the loan. How do you know that that particular note, or Yes. Sure. Okay. Overruled.
May I approach the witness,
the copy of the note that's in your hand, is the same note that goes with the loan we're here on today? A. Several points, with the address on the
document, as well as the previous servicer information is correct with what we have. Q. A. The loan amount also match what you have? Yes, it is. MR. BRADSHAW: Objection, Your Honor. Object
to the foundation and testifying about any information contained in any previous servicer's
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records.
He's not be qualified as a witness with
any kind of foundation for testifying about business records for a separate entity. MS. SIMPSON: previous servicer. THE COURT: I don't think so. He's I don't think I asked about a
testifying about what the loan says, or the note says. MR. BRADSHAW: If I'm not mistaken, Your
Honor, he testified that his knowledge was from the records of a previous servicer. of my objection. MS. SIMPSON: BY MS. SIMPSON: Q. Does the principal amount on the note match I can rephrase the question. That was the basis
the principal amount indicated in your company's business records? A. Q. (Perused documents.) Yes.
Does the borrower on the note match the
borrower on the note that we're here on for this case today? A. Q. A. Q. Yes, it does. Do you see any endorsement on that note? (Perused documents.) I'll direct your attention to Page 3 of the
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note. A. Q.
Do you see anything on Page 3 of the note? Yes. Who is that endorsement from and who is it
to, according to what it says on the note you have in your hand? Just read that for the Court. Which
company is it from? A. Oh. Without recourse paid to the order of
SunTrust Mortgage. Q. If I might direct your attention a little
closer to the endorsement. Paid to the order of, is there a blank? A. Q. the note? A. SunTrust Mortgage, Incorporated. MS. SIMPSON: I'd like to mark that as Yes. And underneath that, what company endorsed
Plaintiff's 1 and into evidence. THE COURT: Would you like to let Mr.
Bradshaw take a look at it? MS. SIMPSON: up, Your Honor. MR. BRADSHAW: Your Honor, I'd like to make I did that before I brought it
sure it's the same as the one I have in my file, if that's all right. that's all right.
May I?
I just want compare, if
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THE COURT: MS. SIMPSON:
That's quite all right. While he's looking through
that, Your Honor, I'd like to direct the Court's attention to the docket. The original note has
been in the file with the Court, and it's been there for a while, since March 5th, 2009. THE COURT: I'm looking at the note right
Notice of filing document is No. 27, for the The original note and
record, in the court file.
mortgage are under Document 27. MR. BRADSHAW: What time was that filed, Your
I'm sorry, the date. THE COURT: March 5th, 2009. Was that part of notice of
MR. BRADSHAW:
filing, or is that attached to another document? THE COURT: Document 27. MS. SIMPSON: Your Honor, if it would Yes, notice of filing documents,
expedite matters, we could show the original note and mortgage to the witness and admit that as Plaintiff's 1. MR. BRADSHAW: Excuse me, Your Honor. I
think I'm finally getting to that part in my file. THE COURT: For the record, if this
introduced into evidence, we'll be introducing the

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original note and original mortgage, which are under Filing 27. MR. BRADSHAW: Your Honor, in my record, I
have the notice of filing; however, it does not have attached to it the note. THE COURT: Well, I don't know what happened
there, but I'm looking at the note. MS. SIMPSON: We also provided a copy on at
least two occasions in response to request for production of documents. MR. BRADSHAW: Just looking through to make
sure it wasn't misfiled. Your Honor, if I may look at the court file? THE COURT: Sure. If it please the Court, Your
MR. BRADSHAW:
Honor, the reasoning is that no copy of the note was attached to the original complaint. No
certificate of service is attached to the notice of filing either, Your Honor, I might add. Thank you, Your Honor. THE COURT: MS. SIMPSON: THE COURT: evidence? MS. SIMPSON: If I may show that to the Okay. May I continue? Do you want to introduce it into
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witness, I'll go ahead and introduce the original note as Exhibit 1. That will probably be the
easiest way to do this. THE COURT: MS. SIMPSON: BY MS. SIMPSON: Q. there. A. Q. (Perused documents.) Do those appear to be the same note and Take a quick look at the note and mortgage Note and mortgage are attached. Thank you, Your Honor.
mortgage that go with the loan that we're here on today? MR. BRADSHAW: I'm sorry, Your Honor, I
didn't catch the question. MS. SIMPSON: That note and mortgage, do they
appear to be the note and mortgage that go with this loan. A. Yes, it does. MR. BRADSHAW: Foundation. Objection, Your Honor.
The witness may be able to testify
about what was in the court records, but he's already testified that he's just a field representative for Green Tree. So I'm not sure
what that means as far as his qualifications to testify about the originality of a document.
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MS. SIMPSON:
I didn't ask whether that was I asked whether that
the original document.
appeared to him to be the note and mortgage that went with the loan that we're here on today, not as to the authenticity or originality. THE COURT: MS. SIMPSON: Overruled. I'd like to move to admit those
into evidence as Plaintiff's 1. THE COURT: Let me see those, please.
Any objections for the record? MR. BRADSHAW: being entered? THE COURT: No. As to the purported original As to the copy of the note
note and mortgage being offered into evidence. MR. BRADSHAW: THE COURT: No, Your Honor.
Ma'am, please mark this as
Composite Exhibit No. 27, the original note and mortgage, as Plaintiff's No. 1 in evidence. (Whereupon Plaintiff's Exhibit No. 1 was admitted into evidence.) BY MS. SIMPSON: Q. Mr. Barnes, is it your company's regular
practice to keep and maintain records regarding transactions related to loans that your company is servicing, such as this loan?
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A. Q.
Yes. Are these business records compiled as a
normal part of the business practice at your company? A. Q. Yes. Are you personally aware of how information
reflected in the business records that you've reviewed regarding this loan is compiled by your company? A. Q. Yes. Do these procedures require a person to input
the data when a transaction -- at or near the time a transaction concerning the loan occurs? A. Q. Yes. Do those procedures require that person input
the data truthfully and accurately? A. Q. Yes. Would the person who inputs the data do so at
or near the time the transaction occurs? A. Q. Yes. Would the person have knowledge of the
transaction at the time they're inputting the data? A. Yes. MR. BRADSHAW: Your Honor, I object to the
witness being qualified under the business records exception to the hearsay rule to admit business records for the company. If I might be allowed a
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short voir dire, I think my objection would become more clarified. THE COURT: Okay. You're up.
VOIR DIRE BY MR. BRADSHAW: Q. Mr. Barnes, you testified that you are a
field representative for Green Tree Loans; is that correct? A. Q. A. years. Q. And during your three years with Green Tree, Yes, sir. How long have you held that position? I've been with Green Tree currently for three
how long have you held the position of field representative? A. Q. A. Loan. All three years. And prior to that, by whom were you employed? I've been employed by Vanderbilt Mortgage and I've been employed by Associates Housing and
Finance, Green Point Credit, and previously by Green Tree from '94 to '98. Q. Mr. Barnes, were you ever employed by Litton
Loan Servicing? A. Q. No, sir. And, Mr. Barnes, were you ever employed by
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SunTrust Bank? A. Q. No, sir. And as a field representative, I believe you
testified earlier -- and please correct me if I'm wrong, I wrote this down -- that you're duties involved anything out of the office? A. Q. Correct. Do you have an office in or -- hold on. Let
me rephrase the question, please. Where is Green Tree Loans located? A. Florida. Q. When you say the office you work out of, The office I work out of is in Tampa,
where is the company located? A. Q. Headquarters are in Minnesota. Okay. Now, Mr. Barnes, have you ever worked
out of the office in Minnesota? A. Q. Minnesota? A. Q. Never visited it. So you were hired in Tampa and have been in No, sir. How often do you visit the office in
Tampa during the three years of your employment; is that correct? A. Correct.
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Q.
Out of -- let me start this another way. How many hours a week do you put in with
Green Tree? A. Q. Tampa? A. Q. A. Q. Approximately five to six hours a week. Per week? Correct. And of the other approximately 45 hours, what Between 40 to 50 hours. How many of those hours are in the office in
would those duties entail? A. Myriad of going into repossessed and
foreclosed homes, inspecting those, contacting current for -- to generate contact about the servicing of the loan. Q. And so when you say field representative,
you're actually going out into the field and reviewing -- or should I say, contacting customers, looking at homes -MS. SIMPSON: MR. BRADSHAW: Honor. THE COURT: A. Yes, sir. Answer the question, sir. Objection. Asked and answered.
Clarifying his duties, Your
BY MR. BRADSHAW:
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Q.
In the five to six hours per week that you
spend in the office, what would your duties entail? A. Preparing an itinerary, gathering loan
documentation required to perform my duties. Q. When you say gathering loan documentation,
does that mean gathering loan documentation as it relates to your field services? A. In gathering to the loans that I'm going to
be covering that week. Q. Okay. When you say covering that week, you
mean as a field representative? A. Q. Correct. And, Mr. Barnes, how often have you been
asked to testify on behalf of Green Tree? A. Q. Twice before. Twice before. Okay.
And when were those times? A. It would be August of last year and then
again January of this year. Q. And is there a particular -- well, let me put
it to you a different way here. Is there a particular activity that you do to prepare for testifying at a trial such as this? A. Other than -- just review all the
documentation to verify loan amounts, to verify all the

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documents that would be normally presented in a matter as this, to review those and become more familiar with them. Q. So your entire knowledge of this loan comes
from your review of these documentations; is that correct? A. Q. Yes, sir. And you were not involved with the preparing
of any of these documents; is that correct? A. Q. That is correct. Okay. And you were not involved with the
input of any of the data that's represented by any of these documents; is that correct? A. Q. That is correct. And have you met any of the folks whose job
it is to input that data? A. Q. A. As obtaining to the actual notes? The records that you reviewed. Yes, because any of the records would be --
there's a myriad of people that access each account. Q. Okay. Are the documents that you reviewed in
preparation for your testimony today, are those documents from the office in Minnesota? A. (Perused documents.) No, because these are
the notes that were generated not by our company.

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Q.
So none of the company documents that you
have with you today are documents that were generated by Green Tree; is that correct? A. Well, I've got a lot of documents here; and
some documents were generated by our company, some were not. Q. Okay. Let me limit this then. The documents
that were generated by Green Tree that you reviewed for your testimony today, were those documents generated, meaning created, in Minnesota? A. Q. They would... In other words, did somebody in Tampa type
those up and input the data, or somebody in Minnesota do that? A. It could have been very possible that both
locations... Q. So we're not really sure where exactly that
data was inputted? A. It was inputted through the Green Tree
computer system, and access to those accounts are throughout the corporation. So they could be entered
anywhere from any of our regional offices. Q. And any employee of Green Tree has access to
these accounts? A. Only certain employees, depending on their

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job functions, are guaranteed access to the accounts. Q. Okay. And at what level would you say that
that is, from where to where, in, I guess, the hierarchy of employment there? A. I'm not familiar with every employee's status
and access to our system. Q. Let me clarify: Would the president of the
company be able to get in there and access the data and input data? A. Q. A. Q. Yes, he would. The vice president of the company? Yes. Would a field representative be able to get
in there and input data? A. I would be able to input notes into the
system concerning the loans or anything that I did with the loan. Q. Okay. And what employee would it be that
would have input the data that you reviewed for today's trial? What type of employee? A secretary, a vice
president? A. Account reps, clerks out of the local
offices, any of our legal counsel. Q. So as far as legal counsel, you mean people
other than employees of Green Tree?

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A.
Yes. MR. BRADSHAW: Your Honor, I object to
Mr. Barnes' testimony concerning any of the documents that he's here for today. Obviously,
he's not qualified under the business records exception to the hearsay rule, 90.8036. He's not
been able to testify, with any degree of certainty, as to the records, as to whether or not the records were made at the time by a person with knowledge. He's not been able to testify where these records were created nor by whom, or even within or without this company, has there been any change to these records. They certainly do not qualify as
exceptions to the hearsay rule under 90.8036. THE COURT: How could any records custodian,
for instance AT&T, show or ever testify to that? Because that would be impossible. Because if
they're a records custodian for a large corporation that employs many people, all they have to testify to is that these are the type of records made at or near the time of their formation, which he's testified to; the recorded information is of the type that would be recorded by a person with knowledge, he's testified to that; the type of document recorded is in the regular course of
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business, the type of document would be in regular practice to record such record. MR. BRADSHAW: But, Your Honor, he's
testified he's a field representative, that making or creating this document is not part of his job, which I understand that's not one of the requirements; however, in order for the records to be entered, the person who's testifying to get past that hearsay rule has to be familiar -- and I quote here -- has to be familiar with the records. They have to testify about the processes involved. Mr. Barnes has testified that he, using your records custodian for AT&T, I hope that a records custodian for AT&T would know who had access to the information that is input into the business records. to that. THE COURT: MS. SIMPSON: Any response? Yes, Your Honor. Mr. Barnes has not been able to testify
The witness did testify that he himself has personally input system notes when he has performed actions, and he's input them at or near the time he's performed those actions. And so he's now
testified as to his familiarity with that, how that process works. He's also testified that he's
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familiar with the procedures of Green Tree Home Loan Servicing and all of the things that are mentioned that are required to get through the business records exception. He's familiar with all
of those and testified that's the regular practice and procedure of the company. There's no requirement that each and every person and where they were sitting and in what state they were sitting in of the country while they were inputting the records, there's no requirement that he know exactly the name of every single person that needs to be able to access the record. He's testified, with sufficient
familiarity, what the business procedures of Green Tree Home Loan Servicing is to overcome the business records exception. MR. BRADSHAW: Your Honor? THE COURT: Continue, ma'am. MS. SIMPSON: No, sir. Objection's overruled. May I continue my voir dire,
What's next, ma'am? I need to show this to the
witness, but I'm letting opposing counsel take a peak first. MR. BRADSHAW: I got a packet of stuff from I just want to make
them yesterday, Your Honor.
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sure that the records she's showing to the witness are the same as the records that were provided to me yesterday. THE COURT: All right. (Perused documents.) These
MR. BRADSHAW:
were not part of the records you sent me. MS. SIMPSON: one I'm looking for. wrong one. right here. MR. BRADSHAW: MS. SIMPSON: MR. BRADSHAW: Pages 1 through 4? Yes, sir. Okay. Yeah. I sent you the -- this is the I might have grabbed the Sorry. This one
Here it is.
DIRECT EXAMINATION (CONT'D) BY MS. SIMPSON: Q. A. Q. Mr. Barnes, do you recognize that document? (Perused documents.) Yes.
And what is the document I've just handed
A. Q.
The payment history report. Is that payment history report part of the
business records that are kept by Green Tree Home Loan Servicing? A. Q. Yes, it is. Have you reviewed those records that are in
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your hands now? A. Q. Yes. Do those records reflect that the borrower is
in default on the mortgage? A. Q. Yes. Do the records indicate the amounts that are
due and the amounts of the payments that were made? A. Q. Yes, it does. Have you reviewed the final judgment that was
prepared by plaintiff's counsel to be presented to this Court today? A. Q. Yes. And do the records that you have reviewed
match the numbers on the final judgment that we're going to presenting to this Court today? A. Yes. MR. BRADSHAW: Your Honor, I object to the
documentation and witness's testimony based upon foundation. The witness -Ma'am, you wish to respond? Your Honor, I can rephrase the
THE COURT: MS. SIMPSON: question. THE COURT: BY MS. SIMPSON: Q.
Please.
Do the records in your hand reflect the

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amounts that are owed by the borrower? A. Yes. MR. BRADSHAW: THE COURT: MS. SIMPSON: MR. BRADSHAW: MS. SIMPSON: Objection, foundation.
Overruled. Thank you. Is it three pages? Uh-huh.
Oh, before we do, I'd like to mark and admit the document you were just looking at as Plaintiff's 2. THE COURT: Has Mr. Bradshaw had an
opportunity to look at it? MS. SIMPSON: THE COURT: objection? MR. BRADSHAW: THE COURT: Yes, Your Honor. He has. Have you already stated your
Objection's overruled, and these
will be admitted into evidence and this is payment history report. Ma'am, please staple those. into evidence. Please mark them
What number, for the record? No. 2, Your Honor. Thank you.
MS. SIMPSON: THE COURT:
(Whereupon Plaintiff's Exhibit No. 2 was admitted into evidence.)

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BY MS. SIMPSON: Q. document. Do you recognize that document? A. Q. A. (Perused documents.) What's that document? It's the notice of default and intent to Yes, I do. Mr. Barnes, I've just handed you another
accelerate. Q. How do you know that notice goes with the
loan that we're here about today? A. With the property address, customer
information, and the -- after reviewing the loan documents, that this was a system-generated letter. MR. BRADSHAW: to foundation. Objection, Your Honor. Object
The witness had testify he didn't
work for Litton, and this letter is from Litton Loan Servicing. MS. SIMPSON: Your Honor, if I'm allowed to
continue, we can clean that up. THE COURT: MS. SIMPSON: THE COURT: MS. SIMPSON: BY MS. SIMPSON: Q. Is Green Tree the only company that's
We're getting there, right? Uh-huh. Okay. Thank you.
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serviced this loan? A. Q. No. Who was the company who serviced this loan
prior to Green Tree Home Loan Servicing? A. I do not know all the different companies
that may or may not. Q. A. Immediately prior. I'm sorry.
I'm not aware of the company who immediately
serviced this loan prior to Litton. Q. A. Q. A. Q. Prior to Green Tree. Prior to Green Tree, it was Litton. Litton Home Loan Servicing? Litton Loan Servicing. And the document you have in your hand -MR. BRADSHAW: leading. THE COURT: I think we're trying to get to Objection, Your Honor,
qualifications, and I'm going to allow this. Go ahead, ma'am. BY MS. SIMPSON: Q. The document that you have in your hand, who
does that appear to be generated by based on what it says on the letter? A. LLP.
(Perused documents.)
Litton Loan Servicing,
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Q.
Have you reviewed Litton Loan Servicing,
LLP's system notes as to this loan? A. Q. Yes, I have. How is it that Litton Loan Servicing, LLC's
[sic] system notes happen to be with Green Tree? A. They are forwarded -- when we take over
servicing of the loan, we're forwarded all their notes, and those are included into our system. Q. Are you familiar with how loans are boarded
when loans are transferred from one servicer to another servicer, for example, from Litton to Green Tree? Just
generally, within the industry, are you familiar with how that works? A. Q. Yes. And when you examine the records from Litton
Home Loan Servicing that are now part af Green Tree's records, did that appear to purport with your familiarity of the industry standards of how records are transferred? MR. BRADSHAW: THE COURT: BY MS. SIMPSON: Q. A. What was your answer? Yes. Everything they had performed is a Objection, foundation.
Overruled.
standard industry practice that we follow ourselves.

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Q.
Is there a date on that letter that's in
front of you? A. Q. A. Q. (Perused documents.) Yes.
What does that date say? June 9th, 2008. When you reviewed Litton Home Loan
Servicing's loan records, did you come across any system notes in those servicing records that indicate what date that letter was generated? A. Yes. On the notes, it stated that, On this
date, this letter was generated by Litton Loan Servicing. MR. BRADSHAW: Objection, Your Honor. He's
testifying about the records of another company. When we get to 90.8036, how can he testify about whether or not Litton Loan Servicing met the qualifications for their records to be admitted under the exception to the hearsay rule? admitted he's never worked for Litton Loan Servicing. MS. SIMPSON: Your Honor, he's testifying as He
to records that now belong to Green Tree Home Loan Servicing. Green Tree, as the witness testified,
this loan used to be serviced by Litton and is now serviced by Green Tree. He's testified as to what
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the industry standard is as to transferring loans. He's testified what the industry standard is for keeping system notes, and he's testified as to multiple, different types of documentation that he's reviewed to confirm that these have gone out. We're at a hearing, at a civil trial, not a criminal trial; so we're looking at the preponderance of the evidence. We're introducing
multiple forms of evidence that indicate that this demand letter did go out. MR. BRADSHAW: Your Honor, if I may, the He
witness did not testify to those things.
testified vaguely how he's familiar with how loans are forwarded, I believe was the phrase that counsel used. He did not testify about his
familiarity with the various functions of the industry in that detail or what those functions were. So I'm at a bit of a loss here as far as
where my objection was or as to what specifically the witness testified to. MS. SIMPSON: to clean it up. BY MS. SIMPSON: Q. Are you familiar with the industry standard I can ask a few more questions
as to how loans are serviced by various different

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servicers, or are you only familiar with Green Tree? A. Q. I'm familiar with several different entities. How would you have become familiar with how
various different entities work? A. The fact that I've worked at four separate
entities and participated also in the review of due diligence in transferring the loans from one company to another. Q. In your review of the system notes that have
come from Litton Home Loan Servicing, do you have any reason to believe, based on your review of those notes from Litton for this loan, that there was anything that did not go like industry standard? MR. BRADSHAW: Objection, Your Honor. The
witness did not testify he was familiar with industry standard. He testified he was familiar
with the standards at, quote, several entities. THE COURT: MS. SIMPSON: Overruled. Madam Court Reporter, could you
read the last question. THE COURT REPORTER: Sure.
(Whereupon the record was read back.) THE COURT: THE WITNESS: A. Do you understand the question? Yes.
Everything appears as would be expected to be

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found. BY MS. SIMPSON: Q. Back earlier when I asked you if you were
familiar with how loans are forwarded, I wanted to ask a couple more questions about that. Are you familiar with when loans are forwarded into Green Tree whether or not there's any kind of review that's conducted to ascertain that servicing that Green Tree is now hiring was done according to industry standards? A. Yes. As they import all the information from
the previous servicer to us, all the notes are brought over, and they're reviewed, at that time, by different of our, like, collection representatives, or account managers, that take over the actual day-to-day servicing of the loan. Q. Okay. So I'm going to go back to the
questioning with the documents that you have in front of you -MS. SIMPSON: Unless there are additional
objections that need to be addressed regarding that. MR. BRADSHAW: regarding that. I have a myriad of objections
Primarily, my objections have to
do with the fact that the witness has not stated

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that he -- he stated he did not work for Litton. He stated that these records came from Litton and that they were reviewed by somebody when they were brought over, but he's not testified about any of the criteria necessary for Litton's records to be admissible under the hearsay exception to the -under the business records exception to the hearsay rule. THE COURT: He's not testifying about Litton.
He's testifying about his company and the company's records, which are now this company's records, because they've been transferred into this company, how they're received. MR. BRADSHAW: But the records were generated
by Litton, Your Honor; and the hearsay exception says that it's required that there be testimony confirming when they were made, how they were made, whether they were made by a person of knowledge. There's a whole litany of things that would be required for Litton to do so. Your Honor, I have a case. THE COURT: I think what it says is that
records custodians really don't have to testify that these are the types of records made at or near the time of their formation, which he's testified
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to, whether it's Litton or another company; recorded information is the type to be recorded by a person with knowledge. He's testified to that.
These are the type of documents recorded in the regular course of business, whether it's his business or Litton; and it's regular practice to make these type of records. He's testified to
that, because he's familiar with at least four of the different types of company in this industry. He meets the criteria. MR. BRADSHAW: Being familiar with four And if
companies, Your Honor, is not the same.
you'll humor me for just a second, I have a case on point. The case is -- may I approach, Your Honor? THE COURT: Do you have a copy for counsel? I do indeed. The case is I
MR. BRADSHAW:
Thompson v. Citizens National Bank of Leesburg.
would like to direct the Court, in this case, there was testimony involving a transfer of records from a failed bank that went through the FDIC to a new bank. The Court, in reviewing the testimony from
the FDIC representative who had taken those records, said here -- and I quote -- The affiant did not, nor could he state, that he had personal knowledge of the matters contained in the metro
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business records nor that the records were complete or correct or kept under supervision or control. Meaning, he could not testify about the records of another business or entity if he did not have personal knowledge as to how the records were created, whether or not they failed in those exception -- that exception to the hearsay rule. THE COURT: I don't believe any --
practically, in a large corporation, I don't believe that any records custodian could actually testify he has personal knowledge of matters contained in the business records. custodian has to say that. MR. BRADSHAW: No, Your Honor, but they have No records
to say that they have personal knowledge of how the records were created, that they were created by a person with knowledge at the certain time. And in
order to do that, you have to at least be a member of that organization, whether it's a records custodian or somebody with knowledge of that organization, to testify to those things. THE COURT: BY MS. SIMPSON: Q. Going back to the document that you have in Overruled.
front of you, Mr. Barnes, again, what is the date on

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that document? A. Q. (Perused documents.) June 9th, 2008.
Does that document reflect that the loan is Does it inform the borrower that it's in
in default? default? A. Q.
Yes, it does. Does it inform the borrower what's needed to
cure the default? A. Q. Yes, it does. Does it give the borrower a period of time of
30 days or more to cure? A. Q. Yes, it does. Does it advise the borrower that a court
action may be filed if he does not cure the default? A. Q. Yes, it does. Does it instruct the borrower how he can cure
the default? A. Q. Yes, it does. From your review of the records, has the
default been cured, or is the loan still in default? A. The loan is still in default. MS. SIMPSON: At this time, Your Honor, I
would like to admit those documents as Plaintiff's Exhibit 3. THE COURT: Over counsel's objection. Go
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ahead.
I'm sorry. MR. BRADSHAW: Just so I'm clear, the
objection had to do with whether or not those records were -- or documents were found within the business records of Litton; is that correct? that what my objection was overruled as to? THE COURT: frankly. MR. BRADSHAW: I'm pretty sure that's all I honestly don't remember, Is
I've objected to concerning this one, Your Honor. THE COURT: All right. That's fine.
MR. BRADSHAW: MS. SIMPSON:
And that was marked as? Three.
(Whereupon Plaintiff's Exhibit No. 3 was admitted into evidence.) BY MS. SIMPSON: Q. Mr. Barnes, just a couple more questions. Did your company hire the law firm of Smith, Hiatt & Diaz to represent the plaintiff in this action? A. Q. Yes. And has the plaintiff, by way of your
company, agreed to pay Smith, Hiatt & Diaz reasonable attorney fees for its services in this case? A. Q. Yes. And has plaintiff, by way of your company,
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agreed to reimburse Smith, Hiatt & Diaz for its expenses and costs incurred in this case? A. Yes. MS. SIMPSON: Honor. No further questions, Your
I do observe the right to redirect. THE COURT: Okay. You're up, sir.
MR. BRADSHAW:
Your Honor, at this time, I
would like to move for a, I guess, directed verdict. I feel that the defense feels that the
plaintiff has not met their burden on a number of different issues. THE COURT: I don't think she's finished. I
think she's just finished with this witness. MS. SIMPSON: sorry. Oh, no further witnesses. No further witnesses. I'm
Plaintiff rests.
(Whereupon Plaintiff rested at 9:43 a.m.) MR. BRADSHAW: THE COURT: If I may?
Go ahead. First of all, Your Honor, the
MR. BRADSHAW:
witness has not testified as to date of default. The witness' testimony was that there was a default. The witness has not testified as to any
specific amount of money that was due, other than testifying that the witness had reviewed documents that were prepared by counsel.
Documents prepared
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by counsel definitely are not an exception to the hearsay rule as far as the amounts due and owing and so on. With that in mind, Your Honor, it's felt that the plaintiff has not met their burden, and the verdict should be entered for the defendant. THE COURT: MS. SIMPSON: Any response, ma'am? Yes, Your Honor.
I did ask the witness whether he had reviewed the payments on this loan and whether he had reviewed the amounts that were owed and whether or not the loan was in default. He said, Yes. I did I'm not
ask a question -- there was an objection.
sure whether it was ruled upon or not, as to whether he had compared what Green Tree's notes say are due against the order that we're going to present today. I can go through those one by one,
but he did answer in the affirmative that he had compared them, and they do match. MR. BRADSHAW: THE COURT: MS. SIMPSON: Your Honor. MR. BRADSHAW: Your Honor, if I may, the Your Honor, I object --
What about the amounts owed? That's what I was referring to,
document that counsel has referred to, I believe

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the witness testified is a compilation of the business records, as such -- may I approach, Your Honor? THE COURT: Sure. As such, under Rule 90.956, in
MR. BRADSHAW:
order to use a summary of business records, or a compilation of business records, a party's required to provide notice and shall make all originals or duplicates of that data by or from which the summary was compiled available for examination or copying or both. case, Your Honor. THE COURT: that? MS. SIMPSON: Your Honor, first of all, what Ma'am, you want to take a look at They failed to do so in this
was introduced into evidence was not a compilation of data -- or not a compilation of the records; it was the records for this loan. appear in one place. They all happen to
That doesn't necessarily mean
they're a compilation from various different things. Secondly, those documents were provided by way of copy to opposing counsel. So making
available for copying, he's got copies. THE COURT: Okay.
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MR. BRADSHAW: THE COURT:
And --
Overruled. I just want to be clear, Your
MR. BRADSHAW:
Honor, that it's the position of the plaintiff that for page record that's Exhibit No. 2 contains all the data necessary for the entry of an order against the defendant? THE COURT: That's what she's arguing.
Ma'am, you understand that Mr. Bradshaw's argument is that you're arguing that this document in evidence, No. 2, explains what the amount owed is -MS. SIMPSON: Your Honor, I can certainly ask
the witness additional questions as to the specific amounts owed. I thought I covered that when I
asked if his review of his records matched what was on the order that we're presenting to Your Honor. He's obviously reviewed many more records than what are here today. We didn't introduce them all into
evidence as evidentiary documents because I introduced testimony. THE COURT: I understand you asked a question
about whether or not you've reviewed the proposed final judgment; and as I recall, he said, Yes. And
I think you asked if the amounts contained in that

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final judgment -- I don't know the exact words, but paraphrasing -- are the amounts that are due and owing. He said, Yes. MS. SIMPSON: I can certainly ask him the
amounts one by one, because I know he's familiar with those as well. THE COURT: record's clear? MR. BRADSHAW: Your Honor, I would object to Any objection, sir, so the
the witness testifying to any records that are not in evidence before this Court. It is clear from
cases such as Bifulco v. State Farm -- I have a copy here -- that the hearsay exception -- should I say, the business record exception to the hearsay rule is just that, an exception for the business records, not for testimony concerning business records. In other words, if he were to testify
about records that were not in evidence, it would be, in essence, double hearsay. In other words, if they need the records to prove their case, then the records need to be here, and the records need to be here in a form other than some sort of compilation, Your Honor, without the proper notice under 9.956. THE COURT: I guess you're going to go
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through each one of those. reopen your case? MS. SIMPSON: THE COURT:
Are you asking to
Yes, Your Honor. You may reopen.
DIRECT EXAMINATION (CONT'D) BY MS. SIMPSON: Q. Mr. Barnes, you've reviewed the amounts that
are owed on this case, correct? A. Q. (Perused documents.) Yes.
Can you tell me what the principal balance is
that's owed on this case? A. $57,171.23. MR. BRADSHAW: THE COURT: Objection, foundation. What's the foundation
Sustained.
for him to know this? BY MS. SIMPSON: Q. From the business records that you've
reviewed that have been admitted into evidence, the payment history, does that indicate what the principal balance is on this loan? A. Yes. MS. SIMPSON: Can we hand Exhibit 2, I
believe, back to the witness? THE COURT: A. Sure. Yes.
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BY MS. SIMPSON: Q. What does that document that's already been
admitted into evidence indicate? A. $57,171.23. MS. SIMPSON: the witness? BY MS. SIMPSON: Q. Between Exhibit 1 and Exhibit 2, are you able Can we hand Exhibit 1 back to
to identify the interest rate on this loan? A. Q. (Perused documents.) Yes.
And is that interest rate -- what is that
interest rate? A. 6.75 percent. MR. BRADSHAW: Honor. THE COURT: Ma'am, you wish to respond? I mean, where is that stated, Objection. Foundation, Your
MR. BRADSHAW: I guess? BY MR. SIMPSON: Q. 2? A. 1. Q. A. Which is the?
Which record are you looking at, Exhibit 1 or
I'm looking at Exhibit
Note, the original note.

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MR. BRADSHAW: THE COURT: BY MS. SIMPSON: Q.
Okay.
Okay.
From your review of Exhibit 2, are you able
to tell how much the plaintiff has advanced for the purposes of paying property taxes? A. (Perused documents.) I'd need a calculator
to add them up, because there's several entries from... MS. SIMPSON: Does counsel want me to have
him calculate all this? MR. BRADSHAW: If he could show me which
entries he's referring to. BY MS. SIMPSON: Q. Can you point out which entries you're
referring to Mr. Barnes? A. Yes. (Perused documents.). I have a calculator. On a
MR. BRADSHAW:
housekeeping note, counsel keeps referring to the proposed judgment that the witness has testified to. That's never been provided to me, Your Honor. MS. SIMPSON: I could give you a copy right
now, but I've been referring to Exhibit 2. MR. BRADSHAW: I understand that, but earlier
you were asking the witness whether or not these numbers reflected the numbers in the judgment.
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want to make sure we're comparing apples with apples. MS. SIMPSON: hand a minute ago. MR. BRADSHAW: Of course. I had them in my
Oh, here they are. Thank you. And I'm not trying
to be obstinate, Your Honor.
I'm not asking the
witness to show some sort of math wizardry for which I certainly don't exhibit. When I get past
ten, I have to take my shoes off when it comes to counting. But if you could just point out to me in
Exhibit 2 where these numbers are coming from. THE COURT: MS. SIMPSON: That's fine. May it please the Court? I may
be able to make this process a little bit faster. The Exhibit 2 that he's looking at is not the composite exhibit, which is why he's having to do all this math. I do have a composite exhibit
available if counsel would like to see it, and we could go that route if you prefer, which has all the totals already done so he doesn't have to calculate them. right now.. MR. BRADSHAW: Just so we're clear, I haven't Just point out the He's looking at individual entry
asked him to calculate it.
entries that are part of the evidence that has been

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propounded as the records, which of them show the taxes, which of them show -- I'm not asking him to add them up. that myself. is which. BY MS. SIMPSON: Q. Can you point out on that exhibit where the Lord knows I wouldn't be able to do I'm just trying to figure out which
taxes are, which pages. A. This page refers to the escrow adjustments,
so I would have -- to be 100 percent accurate, I'd have to compare them to the actual notes. Q. A. That are in the system? That are in our system. MS. SIMPSON: opposing counsel. I would like to show this to I know he's going to object, but
I'll show it to him anyway, and then he can object. MR. BRADSHAW: MS. SIMPSON: THE COURT: Fannie Mae? Yeah. What's wrong with that?
I think it's a bad word. Well, the only problem I have
MR. BRADSHAW:
with that is that previous counsel testified that Litton Loan Servicing was the owner of this note. MS. SIMPSON: I don't know what previous Litton Loan
counsel did, but not the owner. SErvicing was the servicer.
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MR. BRADSHAW: and they testified -MS. SIMPSON: MR. BRADSHAW:
I moved to dismiss earlier on,
Counsel testified? Counsel propounded that Litton
Loan Servicing was the owner of the note. MS. SIMPSON: I don't know at what point Plaintiff has since
that testimony was taken.
amended its complaint, but our amended complaint lists Green Tree Home Loan Servicing as plaintiff and servicer of the loan. THE COURT: MS. SIMPSON: MR. BRADSHAW: That's in your amended complaint? Yes. Your Honor, previously what
they said was that Litton Loan Servicing was the servicer; and when I moved to ask who the owner of the note was -- and this was at a hearing before Your Honor on my motion to dismiss that was dated March 5, 2009 -MS. SIMPSON: THE COURT: Prior to the amended complaint. The motion to dismiss I think
you're referring to was filed October 14th, 2008, heard in March, I think. MR. BRADSHAW: He goes on to say that, If a
third party were to come in and challenge that, whoever the actual note holder, or the owner of the
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note, didn't have the note, a copy of the note would be required. It does not state that the copy
must be attached to the complaint. It further goes on to say that, Where a complaint filed is brought against the original mortgager by the original mortgagee it is not necessary to allege the plaintiff is the owner. The actual case law that counsel was referring to -- I guess, there's no need to attach the note to the complaint. And, again, Your Honor, I would say that this is nothing facially deficient about our complaint. Our complaint merely pleads in the alternative. MS. SIMPSON: Your Honor, I have a copy of
the original complaint here, which pleads that plaintiff is servicer. It's possible that counsel
misspoke in a hearing that's been heard and ruled upon, but even the original complaint states that plaintiff is servicer. Would you like to see a copy of that? bring it up. THE COURT: the paragraph. MS. SIMPSON: Your Honor.
I can
I've got a copy.
Just show me
I can identify the paragraph,
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MR. BRADSHAW:
Your Honor, they originally
filed a complaint without even so much as a copy of the note. And when I moved to dismiss it, they
said they only need to have a copy of the note, because they're the owner of the note; and you denied my motion to dismiss based upon that. THE COURT: Well, you need to be specific. There's a
Are they the owner or the holder? difference. MS. SIMPSON:
Paragraph 15 of the complaint,
Your Honor, Plaintiff, as servicer for the owner and acting on behalf of the owner with authority to do so, is the present designated holder. MR. BRADSHAW: THE COURT: MS. SIMPSON: Which complaint is that?
The original complaint, Page 4. The original complaint from
2008; Paragraph 15, Page 4. MR. BRADSHAW: And Page 6 of the transcript,
Plaintiff in this complaint is Litton Loan Servicing acting as a servicer for the owner and the holder of the note; however, we don't have to have the note. And we feel this complaint fails to
properly state a cause of action -- wait a minute. That's my argument. I'm sorry.
One is that we don't have standing, which if

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Your Honor would look at the original note and mortgage -MS. SIMPSON: Your Honor, I'm going to object
as to him continuing to argue a motion that's already been decided. If he wants to argue a new
motion, that's great; but he's reading the old motion again. That's already been determined. Your Honor, this was clearly
MR. BRADSHAW:
fraud on the court when he says, Litton Loan Servicing is the owner and holder of the note, as well as the servicer of their own note. sure where the confusion is. There's no They do own the I'd So I'm not
contradictory statements at all.
note, and they have submitted it to the Court. be happy to show you the certified transcript.
Part of the problem here is the obfuscation, Your Honor, from the very beginning. They now,
here at trial, have showed a document that, I guess, they're trying to get in, which is actually counsel's. records. MS. SIMPSON: the servicer. MR. BRADSHAW: Composite records of the It's the composite records of It appears to be some sort of billing
servicer that shows drive-by inspection, attorney

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fees, attorney fees, title costs.
They're not the
records of the servicer, Your Honor; these are the records of the attorney. MS. SIMPSON: servicer. MR. BRADSHAW: This is the first time, after Those are the records of the
four years, that they say they want to introduce records, that Fannie Mae is the owner, after they've lied to this Court, for lack of a better phrase. Honor. Not they, not her in particular, Your I'm not directing anything at counsel here,
however -THE COURT: allege that. Let me see the note. They don't
They don't allege that Fannie Mae's
the owner of the note in the complaint. MS. SIMPSON: What I believe he's addressing
is we're foreclosing in the plaintiff's capacity as servicer. This document happens to show who the We're
owner is, but that's not relevant. foreclosing as owner and servicer. MR. BRADSHAW:
And their standing to bring
this was the part of the grounds of the motion to dismiss and was also raised as an affirmative defense, Your Honor. THE COURT: It says, Plaintiff, as servicer
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for the owner and acting on behalf of the owner with the authority to do so, is the present designated holder of the note and mortgage with the authority to pursue the action. Tell me how that's not the case. they're not -- that that's not true. MR. BRADSHAW: They've introduced no evidence As a Tell me how
that they have the authority from anybody. matter of fact -THE COURT:
The note is endorsed in blank.
Whoever holds this note has the authority to move forward, because it's the bearer of the note. MR. BRADSHAW: THE COURT: Your Honor, if I may --
I could be wrong, but I think the If the note's endorsed
note's endorsed in blank.
in blank, whoever the holder is, is the one who has the power to move forward. MR. BRADSHAW: Your Honor, at the onset of
this litigation, which was filed on behalf of Litton, they did have a note. As a matter of fact, It wasn't
they filed a claim for a lost note.
until a year or so later that they showed up in court on my motion to dismiss -- matter of fact, they didn't even have a copy of the note. They
showed up a year later with a note endorsed in

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blank, conveniently, and represented to the Court -- and I quote -- I'm sure where the confusion is. note. So their standing was an issue at the beginning, and their standing is also an affirmative defense that's been raised. THE COURT: Maybe the word "owner" might be There's no confusion. We own the
inappropriate, but they're certainly the holder. If they hold this note -- it's in their hands -they're the holder of the note. They have a right
to enforce the note if they're the holder. MR. BRADSHAW: Your Honor, I know we're
getting a bit off topic here, but I do object to the records that plaintiff is seeking to admit on a number of reasons. First of all, they were made
for the purpose of litigation, so they were not -under the business records exception to the rule, they must be made at or near the time and in the regular course and scope of business. And matter
of fact, the rule itself says that records that are made for the purposes of litigation are suspect and shouldn't be admitted. MS. SIMPSON: Your Honor, I withdraw. I
don't need to admit these.

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THE COURT: finished?
Don't interrupt.
Are you
MR. BRADSHAW:
I can give you some case
citations, Your Honor, but that's... THE COURT: MS. SIMPSON: So you're withdrawing those? I don't need to admit these. I
was just trying to speed up the process. THE COURT: through them. MR. BRADSHAW: All I asked him to do was We need to move on, so let her go
direct me to the notes that they say are the, I guess, Composite 2 -MS. SIMPSON: MR. BRADSHAW: Two is not a composite. Well, it's four pages. That's
why I referred to it as a composite. I just meant more than one page.
I apologize.
My objection on
that was overruled earlier, but which of these entries show what these amounts are that are supposedly contained in this judgment? If you recall, Your Honor, all this goes back to my asking for verdict on behalf of the defendant, because the plaintiff hasn't proven their case yet with the evidence they put on. MS. SIMPSON: I think that I pointed out with
one of the questions -CAB Reporting, Inc. (352) 401-0080
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THE COURT:
For the record, I allowed the
counsel to reopen her case; and all we're doing so far is going through this documentation, and he's trying to calculate how he reaches certain numbers. MR. BRADSHAW: Your Honor, all I asked is I
that he point out to me which of these is which. have a calculator here. feat of mathematic -THE COURT: Repeat the question. Maybe he I'm not asking for some
didn't understand the question. BY MS. SIMPSON: Q. question. here. Does Exhibit 2 that you have in front of you indicate amounts that were paid out by Green Tree, escrowed amounts, such as taxes and insurance? A. Q. (Perused documents.) Yes. Mr. Barnes, I'm going to rephrase the It might make things go a little quicker
Does that particular document that you have
break down which are for taxes and which are for insurance? A. It does not discuss exactly. It just refers
to an escrow amount. Q. From your knowledge of Green Tree's
servicing, would anything else be included in escrow,

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other than taxes and insurance? A. Q. No. So when you see amounts that are paid out for
escrowed amounts, what would you conclude those amounts are for? A. Q. Taxes and insurance. Can you point to the places on Exhibit 2
where the escrowed amounts are paid out for taxes and insurance? A. Q. A. Yes. Please do. (Perused documents.) That would be the line
item showing the 210 disbursement to escrow only. Several cases of the -- it appears, based on how our taxes are paid, would be the November entries, in particular to the taxes. Q. A. Anything else on there? There are the other July entries, which would It's -- the line item is the
be for the insurance.
same, the 210 disbursement, for escrow only. Q. So those are the things that went out for
escrow for taxes and insurance; is that what you're saying? A. Q. Correct. Does Exhibit 2 that you have in front of you
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indicate late charges? A. Q. (Perused documents.) Yes.
Can you point out where on Exhibit 2 the late
charges appear. A. That would be the QFA, the fee assessed with
late charges. Q. A. Q. A. Q. What page are you on? Actually, those are tabulated on each page. Okay. The fee of the 2973 is the recurring. Does Exhibit 2 that you have in front of you
show amounts that were paid out for property inspection? A. It is not Line Item 2, actually, display for
the property inspections. MS. SIMPSON: Your Honor, if counsel objects,
we can strike that $307 amount for property inspections. THE COURT: I don't know. Again, are we talking about
MR. BRADSHAW: the proposed order? MS. SIMPSON: that? MR. BRADSHAW: a copy. I'm sorry.
Yes.
Did I give you a copy of
No, ma'am.
I still don't have I put my
Actually, you did.
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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 fee?
book on top of it. MS. SIMPSON:
I apologize. At any rate, if he can't pick
out where exactly the property inspection amounts are, we're willing to waive the property inspection amounts, is what I'm getting at. THE COURT: MS. SIMPSON: THE COURT: MS. SIMPSON: BY MS. SIMPSON: Q. And then just to repeat one previous It's waived. I'm sorry? It's waived then. No problem.
question, your firm has hired Smith, Hiatt & Diaz and has agreed to pay us reasonable attorney fees and costs? A. Q. Yes. Would those costs have included performing a
title search? A. Q. Yes. Would those costs include this court's filing
A. Q. A.
Yes. Would those costs include service of process? Yes. MS. SIMPSON: Thank you. No further
questions.
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THE COURT: MS. SIMPSON: THE COURT:
Are you positive? Yes, sir. You're up, sir. Once again, Your Honor, I'd
MR. BRADSHAW:
like to renew my request for a verdict in favor of the defendant. The plaintiff has failed to prove
when the default occurred. THE COURT: continue on. I thought you were going to
I'm sorry. Well, Your Honor, they failed They've also As the
MR. BRADSHAW:
to prove when a default occurred.
failed to prove the amounts due and owing.
witness testified, Paragraph 2 -- I'm sorry, not paragraph, Exhibit 2, did not show whether or not any payments had been made. THE COURT: Okay. And are you complete?
Have you completed your argument? MR. BRADSHAW: THE COURT: MS. SIMPSON: Yes, Your Honor.
Ma'am, you may respond. Yes, Your Honor.
The witness testified as the amount due and that the loan is in default. Specifically when the
loan went into default is not something that's required, but that it's in default and how much it's in default. He did testify to those amounts.
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MR. BRADSHAW:
Your Honor, the event of So
default is a necessary element to the action.
just going into default at some time isn't specific enough. It requires an event of default in order
for them to have a foreclosure action, Your Honor. THE COURT: I see. Do you have the items in
evidence, or did you give them back to me? THE WITNESS: THE COURT: again, please. MR. BRADSHAW: THE COURT: please. MR. BRADSHAW: Yes, Your Honor. Sir? I gave them back to you, sir. Would you repeat your arguments
Make your arguments again,
In order to win a foreclosure action, the plaintiff has to prove an event of default with specificity. And the reason being, Your Honor
is -- and I don't have it with me today, but there was a Supreme Court case in 2004 where a foreclosure action was brought based upon a specific event of default and failure to make a payment, because the plaintiff wasn't able to prove their case concerning that particular event of default, and the defendant prevailed. When the defendant failed to make the next
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payment, they brought another action based on a new event of default. There was conflict between the
districts, and the Supreme Court came back and said, Each failure to make each payment is the free-house case, meaning that's a fallacy. Meaning, if they don't prevail today, my client doesn't make the next payment, then they can file another foreclosure action. The Supreme Court has
ruled that each payment is a new event of default. That's one of their prerequisites, Your Honor, that's part of Form 1.944 forms of Florida rules of procedure as well. THE COURT: MS. SIMPSON: It's one of their requirements. Ma'am, do you want to respond? I rest on the witness
testimony, Your Honor, that the loan was in default and the letter went out indicating what would be required to cure the default and the default was not cured. I'm not aware of any case -- and
counsel has not cited a case -- that says that there's a specific default date required to be proven. MR. BRADSHAW: Just so the record's clear,
the witness never testified about any letter going out. The witness testified that that letter was
found in the records that were transferred by

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Litton.
Just so we're clear, as far as the notice
defense -- and I haven't gotten to my affirmative defenses yet. Once again, we're here on my motion There's been no testimony
for a verdict on this.
concerning whether or not that letter went out. THE COURT: Okay. Motion for directed
verdict is respectfully denied. Do you wish to call any witnesses or cross-examine or call this witness on your case chief? MR. BRADSHAW: I would like to examine
Mr. Barnes, Your Honor. THE COURT: right now. MR. BRADSHAW: Yes, Your Honor; and a hostile So he's considered your witness
witness at that, Your Honor. THE COURT: That's fine. Your Honor, would it be
MR. BRADSHAW:
possible to take a quick break? THE COURT: minutes. (Whereupon a short break was taken at 10:18 a.m. and resumed at 10:21 a.m.) MR. BRADSHAW: oath, Your Honor?
Sure, sure.
Let's take five
Mr. Barnes is still under
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THE COURT:
Yes.
DIRECT EXAMINATION MR. BRADSHAW: Q. Mr. Barnes, when did Green Tree take over And I apologize if I asked
servicing of this loan?
that question before, because I didn't write that date down. A. Q. (Perused documents.) Would that information be contained in
Exhibit 2 of the records? A. I would have to look at Exhibit 2 to see if
it's contained in there. MS. SIMPSON: look at Exhibit 2? MR. BRADSHAW: THE COURT: By all means. Can the witness take another
Sure. It should be -- it's
listed in the payment history report as being 5/8/2008 as when the conversion was established. BY MR. BRADSHAW: Q. A. Q. 5/8/2008; is that correct? Yes. And on page -- just for my own edification,
on Page 4 of Exhibit 2, where the date says 5/8/2008, it says, Conversion loan established, is that the
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record you're referring to? A. Q. Yes. On the right-hand side of that page at the
top, what does it say right there? A. to. Q. These records appear to be in some sort of a The left-hand side, it says, Transaction I'm not sure exactly where you're referring
line format.
date, which has 5/8/2008, transaction code, total principal due, insurance. Do you see what I'm getting at here? A. Q. say? A. Q. Back date. Where you were testifying that Green Tree Right. On the far right-hand side, what does that
took over servicing on 5/8/2008, it said to back date that to 8/10/2004; is that correct? A. Q. A. Q. That's what it says. What does that mean? I'm not familiar with that term. Okay. Earlier, you testified with these
disbursement amounts for your escrow here, where it says -- for instance, on that same page 11/10/2008, you describe the disbursements amounts as No. 210.
It
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shows a transaction amount and a total, and it shows that same amount under escrow, but it doesn't show it as being for insurance; is that correct? A. Q. Correct. As a matter of fact, none of these
disbursements for escrow show them as under the category of insurance, do they? A. Q. correct? A. insurance. Q. A. Q. The escrow does? Yes. What escrow would that be? Looking here it And then Well, the escrow identifies as taxes and Correct. And there is no category for taxes; is that
just says, 210 disbursement, escrow only.
under, Categories, it has total, principal, insurance, interest, escrow, late charges, back date. Where is the word taxes anywhere in these records? A. Q. (Perused documents.) It doesn't.
And just so I'm clear, Mr. Barnes, you
started working for Green Tree approximately three years ago; is that correct? A. Correct.
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Q.
So you were not working for Green Tree on
5/8/2008; is that correct? A. Q. Correct. And I believe you already testified you did
not, at any time, work for either Litton or SunTrust; is that correct? A. That's correct. MR. BRADSHAW: with Exhibit 3. counselor. mess going. MS. SIMPSON: MR. BRADSHAW: You want to use this one? Yes, thank you. And I don't know what I did
I know you handed it to me,
Excuse me, Your Honor, I've got a big
Your Honor, would it be possible for the witness to see Exhibit 3 again? BY MR. BRADSHAW: Q. I believe you testified that it was -- that
this was found in the records of Litton Loan Servicing; is that correct? A. Q. (Perused documents.) Yes.
I believe you testified that the date on the
letter was 6/9/2008; is that correct? A. Q. Yes. Perhaps I don't understand, but you testified
earlier that the servicing of this loan was transferred

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to Green Tree on 5/8/2008; is that correct? A. Q. That's correct. So the time this notice of default letter was
created, if the date is correct, Litton Loan Servicing was no longer servicing that loan; is that correct? A. Q. If the date was correct. Okay. Do you have any knowledge as to what
Green Tree's policies and procedures are for mailing? A. Q. A. Q. Of? Letters, correspondence, anything. Yes. Okay. Could you please explain those to us. Objection, Your Honor. Policies for mailing? Well, Your Honor, I believe
MS. SIMPSON: Question is vague. MR. BRADSHAW:
that the witness testified that he's familiar with the documents, how they were created, and how they were used. If that document was a letter, then
whether or not it was mailed or how it went about getting into the mail, I think, is certainly relevant. MS. SIMPSON: Objection. Relevance. There's
no indication that this letter was sent by Green Tree, and he's asking about Green Tree's policies and procedures for mailing this letter.
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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 loan. Q.
MR. BRADSHAW:
Well, I'm beginning there,
Your Honor, because he already testified he didn't work for Litton. back from that. THE COURT: if you can, sir. A. Standard industry practice, when it comes to Overruled. Answer the question I'm just seeing if we can work
mailing a letter like this, is we'll send multiple copies. We'll send one via first class mail, and then
we send a second via certified mail. BY MR. BRADSHAW: Q. A. Okay. Where would that letter be generated?
Whichever office was currently assigned that
Okay.
And as of 5/8/2008, what office would
that have been? A. I cannot tell that. MR. BRADSHAW: Your Honor, I would once again The
renew my objection to the letter, Exhibit 3. witness has testified now that Litton Loan
Servicing was not the servicer; therefore, I think it's highly suspect that this letter should be contained in their records if they were not the servicer on the date that this letter was purportedly to have been produced.
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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 I'm --
THE COURT: MS. SIMPSON:
Ma'am, any response? Yes, Your Honor.
The witness has not testified that the letter was sent out or that Litton Loan Servicing wasn't servicing the loan at the time the letter was sent out. The witness testified that, if the date on
Exhibit 2 accurately reflects the date that Green Tree began servicing then... and then. So that's a lot of if
He hasn't definitively testified one way
or the other and, in fact, he couldn't; other than the business records, which he has testified to. Secondly, Your Honor, if I could ask a couple of questions, I could clear up easily how it is that the letter could have gone out on Litton's stationary at the time that Green Tree was taking over servicing of the loan. MR. BRADSHAW: No offense, Your Honor, but
THE COURT:
Our time is up.
We got started a
half hour late, and therefore I have other hearings scheduled at 10:30. I suggest that you both go up
to my office and meet with my judicial assistant and set a date for this trial to be continued. Until then, I'll see you all. MR. BRADSHAW: Thank you, Your Honor.
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THE COURT:
Thank you.
Ma'am, I would suggest that these issues that Mr. Bradshaw's brought up -- one of them being whether or not the records custodian was qualified concerning business records and the person that he is and was, however, is an issue that you might be prepared to argue again, in addition to when this notice of default was entered. It would seem to me
that, if he says, as he testified, that there's a certified copy somewhere, or a certified letter, that would prove the date it was sent. MS. SIMPSON: Exhibit 2, Your Honor. It
shows the certified numbers on there, and the numbers on the envelope match. The certified
registration numbers on the copy of the envelope match the certified registration numbers on the letter. THE COURT: MS. SIMPSON: MR. BRADSHAW: And the return receipt? There was no return receipt. Your Honor, just so we're
clear, the witness never testified this was mailed. The witness has only testified it was found within the records when they were transferred to Green Tree at some time after 5/8/2008. THE COURT: And also, as far as the qualified
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witness, it's still my opinion as any witness who has knowledge of the business methods by which a particular record was entered and recorded, traditionally, the witness laying the foundation must not have personal knowledge of the facts in the record, but must have knowledge of the recordkeeping system; and that's why I've ruled in the manner that I have. You might want to take a look at these cases, though, ma'am, that he provided. upstairs in just a few minutes. MR. BRADSHAW: And you'll be Thank you.
Thank you, Your Honor.
(Whereupon the proceedings were concluded at 10:36 a.m.)
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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 STATE OF FLORIDA COUNTY OF MARION
C E R T I F I C A T E } }
I, Jennifer Little, Court Reporter and Notary Public, hereby certify that I was authorized to and did stenographically report the foregoing proceedings in the above-styled cause before the HONORABLE MARK J. HILL; and that the transcript, pages 4 through 74, is a true record of the foregoing proceedings. I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorneys or counsel connected with the action, nor am I financially interested in the action. Dated this ____ day of March, 2012.
JENNIFER LITTLE

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Green Tree Servicing vs Ernset Aulls, et al

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 REPORTER: DATE: TIME: LOCATION: vs.

GREEN TREE SERVICING, LLC, Plaintiff,

Green Tree Servicing vs Ernset Aulls, et al

CAB Reporting, Inc. (352) 401-0080

Green Tree Servicing vs Ernset Aulls, et al

I N D E X TESTIMONY OF GARY BARNES PAGE

No. 1 ............................................13 No. 2 ............................................27 No. 3 ............................................39

Green Tree Servicing vs Ernset Aulls, et al

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 BY MS. SIMPSON: Whereupon,

Have a seat and raise your

Sir, do you solemnly swear to

CAB Reporting, Inc. (352) 401-0080

Green Tree Servicing vs Ernset Aulls, et al

outside of the office. Q. Okay. Does it have to do with servicing

mortgage home loans? A. Q. Yes. Are you actively involved in servicing

Green Tree Servicing vs Ernset Aulls, et al

Yes. Did the servicer deliver the note to

from standard practices. Q. Okay. By loan documentation in the system,

Go ahead. Your Honor, I'm not putting him

that I come in contact with.

Green Tree Servicing vs Ernset Aulls, et al

THE COURT: documentations? THE WITNESS:

Are you in charge of making those

Anytime anyone in our company

May I approach the witness,

Green Tree Servicing vs Ernset Aulls, et al

He's not be qualified as a witness with

Does the borrower on the note match the

Green Tree Servicing vs Ernset Aulls, et al

company is it from? A. Oh. Without recourse paid to the order of

SunTrust Mortgage. Q. If I might direct your attention a little

I just want compare, if

Green Tree Servicing vs Ernset Aulls, et al

THE COURT: MS. SIMPSON:

That's quite all right. While he's looking through

record, in the court file.

introduced into evidence, we'll be introducing the

Green Tree Servicing vs Ernset Aulls, et al

CAB Reporting, Inc. (352) 401-0080

Green Tree Servicing vs Ernset Aulls, et al

The witness may be able to testify

Green Tree Servicing vs Ernset Aulls, et al

I didn't ask whether that was I asked whether that

the original document.

into evidence as Plaintiff's 1. THE COURT: Let me see those, please.

Ma'am, please mark this as

Green Tree Servicing vs Ernset Aulls, et al

Yes. Are these business records compiled as a

CAB Reporting, Inc. (352) 401-0080

Green Tree Servicing vs Ernset Aulls, et al

Green Tree Servicing vs Ernset Aulls, et al

SunTrust Bank? A. Q. No, sir. And as a field representative, I believe you

Green Tree Servicing vs Ernset Aulls, et al

would those duties entail? A. Myriad of going into repossessed and

Clarifying his duties, Your

Green Tree Servicing vs Ernset Aulls, et al

In the five to six hours per week that you

documentation to verify loan amounts, to verify all the

Green Tree Servicing vs Ernset Aulls, et al

the notes that were generated not by our company.

Green Tree Servicing vs Ernset Aulls, et al

So none of the company documents that you

locations... Q. So we're not really sure where exactly that