Webster - Non-Jury Trial - Brevard County - 05-2009-CA-74735

NON-JURY TRIAL JP MORGAN CHASE vs.
KELTY
January 17, 2014 1
1 IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR 2 BREVARD COUNTY, FLORIDA 3 4 5 JP MORGAN CHASE, 6 Plaintiff, 7 -vs8 PATRICE KELTY, 9 Defendant. 10 __________________/ 11 12 13 NON-JURY TRIAL BEFORE THE HONORABLE ROBERT BURGER 14 15 16 17 18 19 20 21 Reported by: 22 23 24 25 Logan Brooks Notary Public, State of Florida Esquire Deposition Services Orlando Office - 47342 Phone - (407) 426-7676 Friday, January 17, 2014 BREVARD COUNTY COURTHOUSE Viera, Florida 9:30 a.m. - 2:00 p.m.
800.211.DEPO (3376) EsquireSolutions.com
NON-JURY TRIAL JP MORGAN CHASE vs. KELTY
January 17, 2014 2
1 2 APPEARANCES: 3 Appearing on behalf of the Plaintiff: 4 5 6 7 8 ALBERTO ORIZONDO, ESQUIRE Ronald R. Wolfe & Associates, P.L. 9830 SW 77th Avenue Suite 210 Miami, Florida 33156 (813) 251-4766
9 Appearing on behalf of the Defendant: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 GEORGE GINGO, ESQUIRE George Gingo, P.A. 400 Orange Street Titusville, Florida 32796 (321) 264-9624
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1 2 P R O C E E D I N G S 3 * * * * * * 4 Thereupon, the following proceedings were had: 5 THE COURT: Private counsel on behalf of 6 Patrice Kelty? 7 MR. GINGO: George Gingo for her husband, 8 Mr. Webster. 9 THE COURT: All right. 10 MR. ORIZONDO: Ms. Kelty has been 11 defaulted and discharged the debt in 12 bankruptcy. 13 THE COURT: Okay. Is there any other 14 defendants? 15 MR. ORIZONDO: I believe the HOA did file 16 an Answer in Affirmative Defense; I have not 17 been approached by the attorney on behalf of 18 the HOA as of yet. 19 THE COURT: We have private counsel here 20 for what purpose? 21 MR. GINGO: For Mr. Webster. 22 THE COURT: Is he a defendant? 23 MR. GINGO: Yes. 24 THE COURT: Okay. What's the status of 25 Mr. Webster?
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1 MR. ORIZONDO: Well, Your Honor, he did 2 file an Answer in Affirmative Defenses. We 3 have discussed the case, tried to work out 4 something, but we have been unable to reach 5 one. 6 MR. GINGO: Your Honor, this was a trial 7 that began in November, November 14, 2013. The 8 witness was sworn, testimony was taken and then 9 the case was continued. 10 MADAM COURT REPORTER: Counsel, can you 11 speak up, please? 12 MR. GINGO: Yes. This was a trial that 13 began November 14, 2013. Testimony was taken 14 with the witness. 15 THE COURT: Who was the judge? I'm going 16 to have to start all over again. 17 MR. GINGO: Judge Maxwell. 18 THE COURT: It was Judge Maxwell? 19 MR. ORIZONDO: Your Honor, we have a 20 brand new cast of characters. I wasn't the 21 attorney here on behalf of the plaintiff. 22 THE COURT: So you're ready to start over 23 again? 24 MR. ORIZONDO: So we are ready to start. 25 THE COURT: Let's get it over then, all
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1 right? 2 MR. ORIZONDO: Yes, sir. 3 THE COURT: Are you ready to get started? 4 MR. ORIZONDO: We are ready to proceed. 5 THE COURT: All right. Ma'am, would you 6 raise your right hand, please. Do you solemnly 7 swear or affirm the testimony you're about to 8 give will be the truth, the whole truth and 9 nothing but the truth so help you God? 10 WITNESS: Yes, I do. 11 THE COURT: Thank you. You may proceed. 12 MR. ORIZONDO: Thank you. 13 DIRECT EXAMINATION 14 BY MR. ORIZONDO: 15 Q. Ma'am, could you state your name for the 16 record? 17 A. Karen Schell. S-C-H-E-L-L. 18 Q. And Ms. Schell, by whom are you employed? 19 A. JP Morgan Chase Bank, N.A. 20 Q. What is your title, duties and 21 responsibilities with JP Morgan Chase Bank, N.A.? 22 A. I'm a research officer and I review 23 internal business records for loans involved in default 24 litigation. 25 Q. Ms. Schell, in that capacity are you
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1 familiar with the record keeping practices of JP Morgan 2 Chase Bank? 3 A. Yes, I am. 4 Q. Are the entries in your record made 5 contemporaneously with the event described? 6 A. Yes. 7 Q. At the time that those records are made, 8 are they imputed into your system by someone with 9 personal knowledge of the event? 10 A. Yes, they are. 11 Q. Is it the common practice of JP Morgan 12 Chase Bank to maintain records in this fashion? 13 A. Yes. 14 Q. Based on your review of the records 15 pertaining to the loan of one Patrice J. Kelty, were 16 they kept in accordance with JP Morgan Chase Bank's 17 policies and procedures? 18 A. Yes, they were. 19 Q. Ms. Schell, what business records did you 20 review in preparation for today's trial? 21 A. I reviewed the note, the mortgage, the 22 payment history, the breach letter, the origination 23 file and our system. 24 Q. Okay. 25 MR. ORIZONDO: Let the record reflect
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1 that I'm showing counsel for the defendant what 2 will be marked as Plaintiff's Exhibit 1 and 2 3 for identification. 4 BY MR. ORIZONDO: 5 Q. Ms. Schell, I'm showing you a copy -6 pardon me. Can we go off for a second? 7 8 (Thereupon, a discussion was held off the record and 9 the proceedings continued as follows:) 10 11 MR. ORIZONDO: Back on the record. 12 BY MR. ORIZONDO: 13 Q. I'm showing you what will be marked as 14 Plaintiff's Exhibit 1. Can you please describe that 15 document? 16 A. This is a copy of the note; it's dated 17 April 26, 2006. The original lender is MHC Mortgage, 18 Inc. of Florida, and it is signed by Patrice J. Kelty. 19 Q. Ms. Schell, did you review that document 20 in preparation for today's trial? 21 A. Yes, I did. 22 Q. Did you see the image of that document in 23 your business records? 24 A. Yes, I did. 25 MR. ORIZONDO: Your Honor, I would move a
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1 copy of the original note -- previously filed 2 with the Court -- into evidence as Plaintiff's 3 Exhibit No. 1. 4 MR. GINGO: May I voir dire? 5 THE COURT: Yes. 6 BY MR. GINGO: 7 Q. Ma'am, you indicate you work for JP 8 Morgan Chase Bank; is that correct? 9 A. Yes. 10 Q. Are you the custodian of the business 11 records? 12 A. I'm the custodian for this loan. I 13 reviewed the loan for today. 14 Q. For these particular business records? 15 A. Yes. 16 Q. And have you looked at the note that was 17 attached to the complaint of this particular case? 18 A. Yes. 19 Q. Have you recognized that the note that's 20 attached to the complaint in this case doesn't contain 21 all the endorsements that are contained upon the note 22 that is allegedly in the Court's file? 23 A. Yes. 24 Q. The note that's in the court file, isn't 25 it true that that one contained an additional
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1 endorsement in blank? 2 MR. ORIZONDO: Objection, Your Honor. 3 The voir dire goes to admissibility of this 4 exhibit. I believe he's making arguments as to 5 whether or not the endorsements are existing or 6 not. I think it's outside of the scope of the 7 voir dire. 8 MR. GINGO: Your Honor, she's testifying 9 to the admissibility of a note, and what's on 10 that note is relevant. I have a case, it came 11 from the Florida Supreme Florida Court, it's 12 called Fladel. 13 I filed a motion in this case after the 14 last trial, a Motion in Limine, where I argued 15 that under Fladel, if the note that they're 16 trying to introduce is different from the 17 exhibit that's attached to the complaint, then 18 a Motion to Dismiss is appropriate where the 19 exhibits differ. 20 They're unable to plead what they're 21 unable to prove what they've pled. They pled 22 the note with two endorsements. The 23 endorsements on the note attached to the 24 complaint do not cause them to be a holder, do 25 not cause that document to be a bearer
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1 document. Therefore, the exhibits conflict. 2 So my objection would be that this 3 witness can't authenticate the original note, 4 if that's the original note in the court file 5 because of difference in the exhibits. 6 May I approach with the Fladel case? 7 THE COURT: Yes, sir. 8 MR. GINGO: Additionally, it becomes 9 hearsay on her statements. I've given counsel 10 a copy of the Fladel case. And I remember, 11 Your Honor, that was the reason why Judge 12 Maxwell continued the case. The court clerk 13 didn't have the file. I think that was the 14 problem. 15 THE COURT: Counsel, do you want to 16 approach? Why don't you ask your client to 17 review the note that's attached as an exhibit 18 and then look at the original note in the court 19 file. 20 MR. ORIZONDO: Yes, Your Honor. Um, Your 21 Honor, just very briefly. The copy or the 22 original note is not into evidence yet. I was 23 just asking to move it into evidence as a 24 document that she reviewed in preparation for 25 today's trial. If it's admitted into evidence,
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1 then I think we can go into the meat as to the 2 endorsements on the actual note and the amounts 3 and all that. 4 MR. GINGO: The problem is they can't 5 authenticate it at this point. She works for 6 JP Morgan Chase Bank. The plaintiff is Chase 7 Home Finance, LLC. This witness hasn't 8 testified to any of the elements under 8036 as 9 it relates to records of Chase Home Finance. 10 She may be competent to testify to records of 11 JP Morgan Chase Bank, but she didn't offer any 12 evidence to support the foundation to Chase 13 Home Finance, LLC. 14 MR. ORIZONDO: Your Honor, JP Morgan 15 Chase Bank was substituted as a plaintiff in 16 this case. And my witness can testify as to 17 the relationship between the prior plaintiff, 18 Chase Home Finance, and JP Morgan Chase Bank, 19 if it interests the Court. 20 THE COURT: Stand by just a minute. 21 MR. ORIZONDO: Pardon me? 22 THE COURT: Stand by just a minute. What 23 I'm asking and what he's asking is the note 24 that's attached to your complaint, is that a 25 true and correct copy of the note under which
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1 you're suing on? 2 MR. ORIZONDO: Um, do you want -3 THE COURT: That's the question. 4 MR. ORIZONDO: Yes. Is the note attached 5 to the complaint6 THE COURT: The exhibit, which is the 7 copy. 8 MR. ORIZONDO: -the exhibit to the 9 complaint a true and accurate copy of the note 10 that is in front of you right now, which is the 11 original note. 12 WITNESS: Can I see it? 13 MR. ORIZONDO: Yes. Let the record 14 reflect that I'm showing the witness a copy of 15 the original filed complaint with the exhibits. 16 WITNESS: No. 17 THE COURT: What's different about the 18 note that's attached versus the original note? 19 WITNESS: The original note has an 20 additional endorsement from Suntrust Mortgage 21 to blank. 22 THE COURT: Okay. And then from -- so 23 the one that you have attached is not a true 24 and correct copy of the note as it existed at 25 the time of filing; is that correct? I'm
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1 asking counsel that. 2 MR. ORIZONDO: Yes, Your Honor. The note 3 that was filed, that was attached to the 4 complaint is not an accurate copy of the note 5 that existed at the time of filing. There was 6 actually a previously filed foreclosure action 7 -- I'll have the Court take judicial notice of 8 it. It's case number 2008-CA-46054 filed in 9 Brevard County, Florida. 10 That case was filed with two counts: a 11 mortgage foreclosure action and a lost note 12 count. And to that complaint, we did attach a 13 copy of the note bearing all three 14 endorsements. 15 THE COURT: Okay. Let me finish. 16 MR. ORIZONDO: This case was consequently 17 then dismissed as a result of a settlement. 18 And then this foreclosure action was initiated 19 when, not this defendant, Ms. Kelty, did not 20 follow through on the terms of that settlement. 21 THE COURT: Okay. So counsel, what's 22 your objection in moving forward with the 23 trial? 24 MR. GINGO: Well, if they're going to 25 move forward with the trial, I believe the
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1 original note needs to be excluded from 2 evidence because it conflicts with what they've 3 attached to the complaint. 4 As to his issue of the prior lawsuit, I 5 would object to relevance. They didn't plead 6 that regarding the prior lawsuit. So we 7 haven't been put on notice that they're going 8 to prove judicial notice that the original 9 complaint with the third endorsement was in the 10 prior lawsuit and somehow now that changes 11 their complaint in this case to reflect the 12 original note. They have conflicting evidence. 13 They need to plead what they've prove, prove 14 what they've pled. 15 They pled two endorsements. The two 16 endorsements demonstrate that they're not a 17 holder. So my issue at this point is they 18 haven't authenticated it and the issue is a 19 Motion to Dismiss. 20 Under Fladel, that original note should 21 not be admitted into evidence. 22 MR. ORIZONDO: Your Honor, the original 23 note, it was filed with the Court, and we did 24 provide copies to counsel in the past. 25 Assuming that that endorsement is for some
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1 reason going to be excluded, the plaintiff did 2 plead in its complaints that it is either the 3 holder or entitled to enforce the note. 4 Meaning we have two prongs under 673.3011 that 5 we can move under. 6 Number one, which is an older number, 7 two, is a person in possession of the original 8 with the rights of the holder by virtue of an 9 assignment. And we do have an Assignment of 10 Mortgage in this case. 11 THE COURT: Was that done prior to filing 12 the lawsuit? 13 MR. ORIZONDO: Yes, sir. 14 THE COURT: So you've alleged that in 15 your complaint? 16 MR. ORIZONDO: We allege in our complaint 17 that we are either, that we are the holder of 18 the mortgage note and/or mortgage and/or 19 entitled to enforce the note and mortgage. 20 That is what we pled in our complaint. 21 The Assignment of Mortgage was recorded 22 and executed prior to the filing of this 23 foreclosure action. 24 THE COURT: Okay. Your response? 25 MR. GINGO: She hasn't provided any
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1 testimony as to entitlement to enforce this. 2 If they're going to attempt to go down that 3 road, the alternative pleading in their 4 complaint, I think they're entitled to attempt 5 to prove entitlement to enforce the note. 6 THE COURT: At this time I'll go ahead 7 and admit the copy of the note, which you say 8 is a true and correct copy of the one that's 9 the original in the file; is that correct? 10 MR. ORIZONDO: Yes, Your Honor. That's 11 what my witness testified to, yes. 12 THE COURT: I'll go ahead and admit that 13 over the objection. I'll admit the note. 14 MR. ORIZONDO: Thank you, Your Honor. 15 Does the Court wish that I proceed with the 16 original document since they're already17 THE COURT: You might as well. 18 MR. ORIZONDO: Okay. 19 THE COURT: So we'll admit the note as 20 Plaintiff's Exhibit 1. 21 MR. GINGO: Your Honor, is that subject 22 to them demonstrating entitlement to enforce 23 the note? 24 THE COURT: That's just admitted into 25 evidence. She's authenticating it.
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1 MR. GINGO: Thank you. 2 MADAM CLERK: May I have the documents 3 first to mark them? 4 BY MR. ORIZONDO: 5 Q. Ms. Schell, I'm turning your attention to 6 the original note that's already been admitted into 7 evidence. For what amount was the note? 8 A. $169,795. 9 Q. Who originated? You previously testified 10 -- can you please repeat who originated the loan? 11 A. MFC Mortgage, Inc. of Florida 12 Corporation. 13 Q. And does the note bear any endorsements? 14 A. Yes. It's endorsement from MFC Mortgage, 15 Inc. of Florida to Suntrust Mortgage, Inc. and Suntrust 16 Mortgage, Inc. in blank. 17 Q. Now Ms. Schell, did you review your 18 business records to see when that note was received by 19 JP Morgan Chase? 20 A. Yes, I did. 21 Q. On or around what time did JP Morgan 22 Chase receive that document? 23 A. It was -- I know it was before the filing 24 of the complaint. I don't know the exact date. 25 MR. GINGO: Objection, Your Honor.
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1 Non-responsive. Motion to Strike. 2 WITNESS: I don't want to guess at the 3 date, but I know it was prior to filing of the 4 complaint. 5 MR. GINGO: Same objection. 6 THE COURT: I'll sustain the objection. 7 Go ahead and ask the question again. 8 BY MR. ORIZONDO: 9 Q. Ms. Schell, do you remember the date that 10 JP Morgan Chase acquired the loan in question? 11 A. Can I see the acquisition screen? 12 Q. If you don't remember the date, just say 13 you don't remember the date. 14 A. I don't remember the exact date. 15 Q. Is there a document that I could show you 16 that would refresh your recollection as to the exact 17 date? 18 A. Yes. 19 Q. What document would that be? 20 A. That's our acquisition screen, which is 21 in our system of record. 22 Q. Ms. Schell, I just handed you a document 23 for the purposes of refreshing your recollection. Is 24 your recollection refreshed? 25 A. Yes.
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1 Q. Could you proceed and testify now? 2 A. We acquired the loan on September 19, 3 2007. 4 MR. GINGO: Objection, Your Honor. She's 5 reading from a document that's not been 6 admitted into evidence. It's hearsay. 7 THE COURT: Overruled. If you would just 8 qualify where that document came from. 9 MR. ORIZONDO: Very well. 10 BY MR. ORIZONDO: 11 Q. Are you familiar with this record? 12 A. Yes, I am. 13 Q. Can you describe to the Court what that 14 record is? 15 A. This comes from our system called MSP. 16 That's the servicing platform for JP Morgan Chase Bank. 17 And this is the MS, MAS1 AQN1 screen. This is what 18 shows when we acquired the loan and the date that we 19 acquired it. 20 Q. Is that record made on or near the time 21 that JP Morgan Chase received the original documents? 22 A. Yes. 23 Q. At the time that that record would be 24 made, would it be made by someone with personal 25 knowledge of receipt of those documents?
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1 A. Yes. 2 Q. Is it the common practice of JP Morgan 3 Chase Bank to maintain records in that fashion when 4 receiving original documents? 5 A. Yes. 6 Q. Based on your review of this particular 7 record, was it kept in accordance with JP Morgan Chase 8 Bank policies and procedures? 9 A. Yes, it was. 10 MR. ORIZONDO: Your Honor, I would move 11 the MAS loan acquisition screen into evidence 12 as Plaintiff's Exhibit No. 2. 13 MR. GINGO: May I voir dire? 14 THE COURT: Certainly. 15 MR. GINGO: May I see the document? 16 MR. ORIZONDO: Sorry about that. 17 BY MR. GINGO: 18 Q. Ma'am, is this a document that is created 19 by JP Morgan Chase Bank, N.A.? 20 A. Yeah. 21 Q. Does this document contain any 22 information from any prior loan servicers? 23 A. The information that it contains is when 24 we acquired the loan. 25 Q. So it doesn't contain information from
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1 any prior loan services; is that correct? 2 A. Not specific information -- not on that 3 screen. 4 MR. GINGO: Okay. I have no objection, 5 Your Honor. 6 THE COURT: So admitted to become Exhibit 7 2. 8 MADAM CLERK: Actually, Judge, we need to 9 make this Plaintiff's Exhibit 3 because I made 10 the mortgage Plaintiff's 2. 11 THE COURT: Which hasn't been admitted 12 yet. 13 MADAM CLERK: We can make this 2. I 14 apologize. I jumped the gun. 15 THE COURT: That's okay. We'll make this 16 Exhibit 3. 17 BY MR. ORIZONDO: 18 Q. Ms. Schell, in reviewing the date of the 19 acquisition of the original note, did you review an 20 image system copy of it? 21 A. Yes. 22 Q. On that image system copy, did you find 23 all the endorsements that you presently find on the 24 original? 25 A. Yes.
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1 Q. And you previously testified to JP Morgan 2 Chase being in possession of this note prior to the 3 complaint being filed? 4 A. Yes. 5 MR. ORIZONDO: Ms. Schell, I'm showing 6 you now what has been marked or what will be 7 marked, I guess, as Plaintiff's Exhibit No. 3 8 for identification. 9 BY MR. ORIZONDO: 10 Q. Do you recognize that document? 11 A. Yes. 12 Q. What do you recognize it to be? 13 A. It is the original mortgage; it's dated 14 May 5, 2006. It is recorded in Brevard County. The 15 borrower is Patrice J. Kelty joined by her husband, 16 Thomas A. Webster and -17 MR. GINGO: We will be able to stipulate 18 to that one. If I can just quickly look at the 19 signature. 20 MR. ORIZONDO: Yes. 21 MR. GINGO: Your Honor, that is an 22 original mortgage, and it's authenticated. 23 MR. ORIZONDO: Your Honor, I move the 24 original mortgage into evidence as Plaintiff's 25 Exhibit No. 3.
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1 THE COURT: No objection? 2 MR. GINGO: No objection. 3 THE COURT: It will be Plaintiff's 4 Exhibit Number 2. 5 BY MR. ORIZONDO: 6 Q. And briefly Ms. Schell, is the property 7 description on the mortgage consistent with that of the 8 subject property before the Court today? 9 A. Yes. 10 MR. GINGO: Your Honor, just for 11 clarification. One is the note, two is the 12 mortgage, three is the MSP platform document? 13 MADAM CLERK: Yes. 14 THE COURT: Correct. 15 MR. ORIZONDO: Let the record reflect 16 that I'm showing counsel what's marked as 17 Exhibit Number 4. 18 BY MR. ORIZONDO: 19 Q. Ms. Schell, I'm handing you what will be 20 marked as Plaintiff's Exhibit 4. Do you recognize that 21 document? 22 A. Yes. 23 Q. What do you recognize it to be? 24 A. This is a copy of the Assignment of 25 Mortgage; it is dated July 28, 2008. Mortgage of
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1 Electronic Registration System, as nominee, for MFC 2 Mortgage, Inc. of Florida conveyed to Chase Home 3 Finance, LLC. 4 Q. Is that a document that is customarily 5 kept in the regular course of business by Chase? 6 A. Yes, it is. 7 Q. Was that document imaged into your system 8 of records on or near the time it was received? 9 A. Yes. 10 Q. When it was imaged, was it imaged by 11 someone with personal knowledge of receipt of that 12 document? 13 A. Yes. 14 Q. Is it the common practice of JP Morgan 15 Chase Bank to keep Assignments of Mortgage in the 16 system of records? 17 A. Yes. 18 Q. You reviewed that in preparation for 19 today's trial? 20 A. Yes, I did. 21 MR. ORIZONDO: Your Honor, I would move 22 the recorded copy of the Assignment of Mortgage 23 into evidence as Plaintiff's Exhibit No. 4. 24 MR. GINGO: May I voir dire? 25 THE COURT: Yes, sir.
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1 BY MR. GINGO: 2 Q. Ma'am, isn't it true that this is a copy 3 of a document from a government record? 4 A. I don't know what you mean by government 5 record. 6 Q. That purports to be a recorded Assignment 7 of Mortgage with the Clerk of the Court, correct? 8 A. Correct. 9 Q. Isn't it true that that is a copy, not an 10 original from the Clerk of the Court? 11 A. Yes. 12 MR. GINGO: Your Honor, I would object to 13 this. In 8036 it's hearsay. It's not a 14 business record. It is not a 15 self-authenticating record under 9902 because 16 that would require there be a seal from the 17 Clerk of the Court. 18 An Assignment of Mortgage is not an 19 interest in real estate, so it's not able to be 20 authenticated by the exceptions for interest in 21 real estate. I believe this document is not 22 admissable. 23 THE COURT: Response? 24 MR. ORIZONDO: Your Honor, my client did 25 testify to it being a business record. It was
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1 a document that was received by JP Morgan Chase 2 Bank to reference the transfer of the mortgage 3 and note from MERS into JP Morgan Chase Bank. 4 Upon it being recorded, it was imaged 5 into her system. It was a document that she 6 reviewed in her regular course of business. As 7 such, it is admissable as a business record. 8 I was unable to get a certified copy from 9 the clerk due to the time constraints. If the 10 Court will grant me a quick recess, I can go 11 and get it. But as of right now, we do have a 12 copy from the business records, which can be 13 moved in as a business record. 14 THE COURT: Why would it not be a 15 business record? She's testified it's kept in 16 the ordinary course of business. 17 MR. GINGO: This document, the document 18 itself, would be hearsay within hearsay. So 19 what they're doing is he's saying this 20 document, from the Clerk of the Court website, 21 which is unauthenticated, which contains its 22 own hearsay, suddenly becomes a business record 23 of JP Morgan Chase. 24 The whole essence of 8036 is that the 25 business records that are created by JP Morgan
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1 Chase Bank are subject to 8036 and should come 2 in without question. But when those business 3 records derive from some another entity, 4 another bank, perhaps, or the government, then 5 8036 says wait a minute, that document now 6 contains hearsay. 7 They either need to bring in the prior 8 loan servicer as a witness or they need to 9 bring in somebody from downstairs from the 10 clerk's office who can properly produce a 11 certified document. 12 MR. ORIZONDO: Your Honor, this is a 13 document that wasn't prepared by Chase, it was 14 prepared on behalf of MERS, Mortgage Electronic 15 Registration Systems. It was executed and 16 transferred to Chase to reference and show the 17 transfer of the recorded note and mortgage. 18 THE COURT: But it wasn't created by 19 Chase; is that correct? 20 MR. ORIZONDO: It was not. 21 THE COURT: So he's absolute correct in 22 his hearsay. 23 MR. ORIZONDO: Your Honor24 THE COURT: This is a document that you 25 received. It's like you can receive a letter,
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1 you know, that would be the same thing. It 2 would be hearsay. What you need to do is 3 authenticate that for me. If you want to 4 continue this and5 MR. ORIZONDO: I mean, like I said, I did 6 try to get a certified copy, but the clerk was 7 not open at the time that I went to it, and 8 this trial started at 9:30, so I did not want 9 to be late. 10 THE COURT: Well, he's absolutely 11 correct. It is hearsay. It's a document that 12 wasn't created by your client, it was received. 13 But it is pure hearsay. 14 MR. ORIZONDO: Your Honor, if the Court 15 will grant me a ten minute recess, I can go and 16 get a certified copy. 17 THE COURT: Why don't we do that then. 18 Counselor, are you going to assist on that? 19 MR. GINGO: Yes. 20 THE COURT: If that's what you want to 21 do. 22 MR. GINGO: If it's short23 THE COURT: We'll take a recess and I'll 24 move on to the next case and we'll hear the 25 rest of this later then.
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1 MR. ORIZONDO: Very well, Your Honor. 2 Thank you. 3 4 (Thereupon, the a recess was taken and the proceedings 5 continued as follows:) 6 7 MADAM COURT REPORTER: Ma'am, you're 8 going to have to speak up for me. 9 WITNESS: Okay. 10 MADAM COURT REPORTER: The air 11 conditioner is making it hard for me to hear. 12 THE COURT: Okay, you may proceed. 13 MR. ORIZONDO: Yes, Your Honor. 14 MR. GINGO: Counsel has obtained a 15 certified copy of the Assignment of Mortgage, 16 and so it would certainly be self-authenticated 17 under 902. May I complete my voir dire of the 18 witness? 19 THE COURT: Certainly. 20 MR. GINGO: Thank you. 21 BY MR. GINGO: 22 Q. Ma'am, do you have any personal knowledge 23 that Mortgage Electronic Registration Systems, Inc. 24 actually had physical possession of the note that this 25 document says was transferred to Chase Home Finance,
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1 LLC? 2 A. That they have physical possession of it? 3 Q. Correct. 4 A. Other than knowing that we received the 5 note, no, I don't. 6 Q. Do your records reflect who you received 7 the note from? 8 A. We received the note from the prior 9 servicer. 10 Q. So the prior servicer was who? 11 A. Was Suntrust and Chase -- well, Suntrust 12 went to Chase Home Finance, which is a part of JP 13 Morgan Chase. 14 Q. What date do your records reflect that 15 the original note was received by your office? 16 A. I don't have the exact date. I know that 17 in 2008 I have a screen shot showing the note with all 18 the endorsements on it. But I don't have the exact 19 date. 20 Q. So is it your testimony that your, the 21 entity that you work for, JP Morgan Chase, received the 22 original note some time in 2008? 23 A. I know that I have a copy of the note 24 scanned in there in 2008. 25 Q. Have you read the note in this particular
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1 case? 2 A. Not the entire note. 3 Q. Is Mortgage Electronic Registration 4 Systems, Inc. named in the note? 5 A. I would have to look at the note. 6 MR. GINGO: Your Honor, the original 7 note, would that be back with the clerk? 8 THE COURT: That would be back in the 9 file. 10 MADAM COURT REPORTER: Ms. Schell, I 11 really need you to speak up. 12 WITNESS: I'm sorry. 13 MADAM COURT REPORTER: If I can't hear 14 you, you're not going to be on the record. 15 WITNESS: Okay. 16 BY MR. GINGO: 17 Q. Ma'am, I'm handing you what the clerk 18 gave to me. Would you take a quick look at the 19 original note and tell me if Mortgage Electronic 20 Registration Systems, Inc. is named in the note? 21 A. No, it's not. 22 Q. Okay. 23 MR. GINGO: Your Honor, my objection to 24 this particular document that the plaintiff 25 would want to admit is that it contains hearsay
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1 evidence, which is unsupported. There's nobody 2 here from Mortgage Electronic Registration 3 Systems, Inc. It purports to transfer the 4 original note. The witness has no personal 5 knowledge as to whether that note was 6 transferred by Mortgage Electronic Registration 7 Systems, Inc. 8 The information that she does have is 9 that the note was transferred to her end by a 10 prior loan servicer, not by Mortgage Electronic 11 Registration Systems, Inc. 12 THE COURT: Again, I don't have the 13 document in front of me. Who was the prior 14 owner of the note? 15 MR. ORIZONDO: Your Honor, owner is -16 the prior holder is Suntrust Mortgage. 17 Suntrust Mortgage was in physical possession of 18 the note endorsed to Suntrust Mortgage, Inc. 19 They subsequently then endorsed in blank and 20 transferred it to Chase Home Finance. Chase 21 Home Finance accepted that original note with a 22 blank endorsement prior to this complaint 23 filed. 24 In addition, an Assignment of Mortgage 25 was executed and recorded. It is from MERS,
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1 Mortgage Electronic Registration Systems, Inc., 2 as nominee, for MFC Mortgage, Inc. of Florida, 3 which was the original lender in the case. And 4 that document transfers the interest in both 5 the recorded mortgage and -- I'm reading from 6 the Assignment of Mortgage -- together with the 7 note and indebtedness secured thereby. 8 MR. GINGO: The reason this is important, 9 Your Honor, is because they, the plaintiff, has 10 indicated that they pled in the alternative, 11 that the plaintiff was the holder and/or 12 entitled to enforce the note. The pleadings 13 had not been to conformed to any evidence to 14 suggest that the note that's in the court file, 15 the one with three endorsement, is the correct 16 note. Therefore, as counsel indicated, they're 17 attempting to prove an entitlement to enforce 18 the note. 19 673.3011 subsection 2 lists a methodology 20 by which a note may be enforced. In this case, 21 that is a person, not a holder, who has 22 possession with the rights of the holder. 23 That's what position they're in. They have an 24 original note, apparently, but it's not 25 endorsed to them because their evidence didn't
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1 conform to their pleadings. So they have to 2 prove the rights of a holder, rights of a 3 holder, and that's going to be done by way of 4 ownership. 5 The case of Richards vs. HSBC Bank, which 6 came out of 5th District Court of Appeals on 7 June 22 of 2012, addresses this is. It 8 suggests that there are four ways in which the 9 plaintiff can demonstrate ownership or 10 entitlement to enforce. They must tender the 11 original promissory note to the Courts or seek 12 to reestablish the note under 673.3091 Florida 13 Statute 2010. 14 If the note does not name the plaintiff 15 as the payee, then the note must bear an 16 endorsement in favor of the plaintiff or blank 17 endorsement citing the Gee case. That also 18 came from the 5th. 19 The last section is what's relevant to 20 our assessment here. Alternatively, the 21 plaintiff may submit evidence of an assignment 22 from the payee to the plaintiff. Stop right 23 there. The payee on the note is some other 24 entity than Mortgage Electronic Registration 25 Systems. The Assignment of Mortgage they have
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1 here says that Mortgage Electronic Registration 2 Systems is transferring the note. They're not 3 the payee of the note. 4 So alternatively, the plaintiff may 5 submit evidence of an assignment from the payee 6 to the plaintiff or an affidavit of ownership 7 to prove its status as the holder of the note. 8 Now this is on page 234, if I could show 9 counsel. I just had one copy apparently 10 printed. Page 234. So that's why -- may I 11 approach with this case? 12 THE COURT: Your response? 13 MR. ORIZONDO: Well, Your Honor, first 14 and foremost, we are, more than anything, 15 moving under prong one of 673, which is the 16 holder, and we have tendered the original note 17 to the Court with a blank endorsement, and 18 we're relying on that. In the alternative, 19 we're relying on the Assignment of Mortgage. 20 Counsel keeps on referring to MERS. MERS 21 -- he's not reading the entire assignment. 22 MERS is acting on behalf of, as a nominee, on 23 behalf of MC Mortgage, which is the designated 24 payee on the original insured. 25 As for the pleadings conforming to the
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1 evidence, I have not rested. I still have more 2 evidence to introduce, and I was intent on 3 making that motion at the end of conclusion 4 case and chief (sic). 5 The only criteria that would be taken 6 into consideration is to whether or not there's 7 any prejudice to the defendant. Given the fact 8 that a copy of the original note bearing all 9 endorsements were attached to the previously 10 filed foreclosure action, and the fact that the 11 note has been provided in discovery with those 12 endorsements on it. 13 In addition to being filed with the 14 Court, I think two years before today's trial, 15 shows that there's absolutely no prejudice to 16 the defendant in allowing for the pleadings to 17 conform to the evidence once I conclude 18 plaintiff's case and chief. 19 MR. GINGO: That doesn't address my 20 hearsay issue with the contents of the 21 documents, or that it's even relevant. 22 THE COURT: But they're the holder of the 23 note, correct? 24 MR. GINGO: No, because they haven't 25 conformed the pleadings. He hasn't made that
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1 motion yet, Your Honor. 2 THE COURT: But my understanding right 3 now is he's tendered evidence that the 4 plaintiff is the holder of the note, correct? 5 MR. GINGO: I believe -6 THE COURT: They're the holder. 7 MR. GINGO: Well, other than the 8 pleadings, yes. 9 THE COURT: No, she's testified that they 10 hold the note. 11 MR. GINGO: But the pleadings don't state 12 that. 13 THE COURT: I'm not worried about the 14 pleadings right now. 15 MR. GINGO: Okay. 16 THE COURT: I'm listening to evidence. 17 We're gone beyond the four corners of the 18 complaint at this point. If you had a Motion 19 to Dismiss you wanted me to hear that should 20 have been previously heard prior to trial. But 21 we're at trial now. 22 MR. GINGO: That's why I opened with my 23 Motion to Dismiss. 24 THE COURT: Well, it's too late. We're 25 here at trial. Weren't all motions to be
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1 already heard? 2 MR. ORIZONDO: Yes, Your Honor. 3 THE COURT: Again, we had Judge Eaton 4 handling this. I assume there's an order in 5 the court file that said all motions, such as 6 Motions to Dismiss, would have already been 7 heard prior to today. Wasn't there a cutoff 8 date? 9 MR. ORIZONDO: Um, I10 THE COURT: I believe that's true. 11 Counsel, am I right or am I wrong? 12 MR. GINGO: Well, I believe you're right 13 that there's a standing order that says that; 14 however, I believe it conflicts with law that 15 says that a Motion to Dismiss for failure to 16 state a claim can be brought at any time, even 17 after close of their case and chief. 18 THE COURT: I'll let you bring it up for 19 his case and chief, but right now I'm at trial, 20 and any Motions to Dismiss should have been 21 held. If all you're looking at is the four 22 corners, within the four corners of the 23 complaint, we're beyond that point. We're 24 already into trial now. 25 What is the objection, specifically, to
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1 the assignment? 2 MR. GINGO: Yes. The contents of the 3 assignment are hearsay, and it's irrelevant. 4 THE COURT: Well, it's been 5 authenticated. The clerk has certified it, 6 correct? 7 MR. ORIZONDO: Yes, Your Honor. I have a 8 certified copy here. 9 THE COURT: I'll go ahead and admit it 10 into evidence. 11 MR. GINGO: That's 4? 12 THE COURT: Pardon me? 13 MR. GINGO: That's Number 4? 14 MR. ORIZONDO: Yes. 15 THE COURT: I believe that would be -16 the Assignment would be Plaintiff's Exhibit 4. 17 MR. GINGO: Thank you. 18 MR. ORIZONDO: Ms. Schell, I'm showing 19 you Plaintiff's Exhibit 4 already into 20 evidence. 21 BY MR. ORIZONDO: 22 Q. Could you please identify the assignee of 23 the recorded mortgage? 24 A. Chase Home Finance, LLC. 25 Q. Ms. Schell, can you briefly describe to
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1 the Court the relationship between Chase Home Finance, 2 LLC and JP Morgan Chase Bank, N.A.? 3 A. Chase Home Finance, LLC was a servicer 4 for JP Morgan Chase and they merged with JP Morgan 5 Chase Bank, N.A. on May 1, 2011. 6 MR. GINGO: Objection. Hearsay. 7 Speculation. Lack of foundation. 8 MR. ORIZONDO: Your Honor, my witness is 9 testifying as to her personal knowledge as an 10 employee of JP Morgan Chase Bank. 11 THE COURT: Is that a personal knowledge? 12 WITNESS: Yes. 13 THE COURT: Overruled. That's to become 14 Exhibit 4. 15 MR. ORIZONDO: Yes. Let the record 16 reflect that I'm showing counsel what we marked 17 as Plaintiff's Exhibit No. 5 for 18 identification. 19 BY MR. ORIZONDO: 20 Q. Ms. Schell, I'm showing you Plaintiff's 21 Exhibit No. 5. Do you recognize that document? 22 A. Yes. This is a copy of the breach 23 letter. It is dated February 14, 2009. It is sent to 24 the borrower at her mailing address. 25 MR. GINGO: Objection. As to the
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1 colloquy, may I have a continuing objection as 2 to hearsay and lack of foundation then they can 3 get through that? 4 MR. ORIZONDO: She's identifying the 5 document, Your Honor. 6 MR. GINGO: She just testified to what 7 the contents said. 8 MR. ORIZONDO: The contents that she 9 identified are the ones that she recognizes it 10 to be a part of this particular11 THE COURT: I'll overrule the objection. 12 She's just merely authenticating the document 13 at this point as to what it is. 14 BY MR. ORIZONDO: 15 Q. Ms. Schell, did you review that document 16 in preparation for today's trial, within the business 17 records of the loan pertaining to Patrice Kelty? 18 A. Yes. 19 Q. Are you familiar in which the manner in 20 that document is created? 21 A. Yes. 22 Q. Is that demand letter created on or near 23 the time of the date that it is sent out? 24 A. Yes. 25 Q. At the time that that demand letter is
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1 generated and created, would it be made by someone with 2 knowledge? 3 A. Yes. 4 Q. Is it a common practice of JP Morgan 5 Chase Bank to send out demand letters in this fashion? 6 A. Yes. 7 Q. Based on your review of the records, was 8 this demand letter sent out in accordance with JP 9 Morgan Chase policies and procedures? 10 A. Yes. 11 MR. ORIZONDO: Your Honor, at this moment 12 I would move the copy of the demand letter into 13 evidence as a business record following under 14 the hearsay exception. 15 MR. GINGO: May I voir dire? 16 THE COURT: Yes. 17 BY MR. GINGO: 18 Q. Ma'am, this letter says -- captioned at 19 the top -- Chase, Chase Home Finance, LLC. Did you 20 work for Chase Home Finance, LLC on or about February 21 14, 2009? 22 A. I didn't. I work for JP Morgan Chase 23 Bank. 24 Q. But on or about February 14, 2009, when 25 this letter purportedly was created, did you work for
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1 Chase Home Finance, LLC? 2 A. No. 3 Q. Do you have any personal knowledge that 4 this letter was put in the mail on or about February 5 14, 2009 by Chase Home Finance, LLC? 6 A. I have personal knowledge after reviewing 7 our business recordings that it was mailed. 8 Q. But outside of your business records, I'm 9 talking about whether you have personal knowledge that 10 this was actually placed in the mail. 11 MR. ORIZONDO: Objection. Asked and 12 answered. 13 THE COURT: I'll overruled the objection. 14 WITNESS: I didn't physically mail it, 15 but according to my records, it was mailed. 16 BY MR. GINGO: 17 Q. Did you talk to anybody that worked for 18 Chase Home Finance, LLC about whether or not this 19 document was place in the mail on February 14, 2009? 20 A. No. 21 Q. Did you ever work for Chase Home Finance, 22 LLC? 23 A. Well, they were a subsidiary of Chase, so 24 I was employed during the time before the merger. 25 Q. Are you saying you were an employee of
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1 Chase Home Finance, LLC? 2 A. No, JP Morgan Chase. 3 Q. Okay. Were you ever trained on Chase 4 Home Finance, LLC's computer system for inputting this 5 type of data into the computer? 6 A. It's the same system. It's all the same 7 system. 8 Q. Were you ever trained on Chase Home 9 Finance, LLC's computer system? 10 A. Yes. 11 Q. Were you trained by Chase Home Finance, 12 LLC? 13 A. JP Morgan Chase Bank. 14 Q. Do you have any personal knowledge that 15 Chase Home Finance, LLC used the exact same computer 16 system that you use at JP Morgan Chase? 17 A. Yes. 18 Q. What is that personal knowledge based on? 19 A. As an employee, I know that they're one 20 in the same, that we use the same system. 21 Q. And this letter indicates it was sent to 22 Patrice J. Kelty, 6230 Riverwalk Lane, Unit 5, Jupiter, 23 Florida 32458. 24 What is the official notice address in the 25 mortgage?
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1 A. That's not the property address, but 2 that's the address that she gave as a mailing address. 3 Q. Isn't it true that Paragraph 15 of the 4 mortgage requires that this letter be sent to the 5 notice address, the property address? 6 A. That is the notice address. That's the 7 address that she noticed, advised us that she wanted 8 her -9 Q. Do you have any document that you brought 10 today to demonstrate that the address 6230 Riverwalk 11 Lane, Unit 5, Jupiter, Florida is the notice address 12 for Ms. Kelty? 13 A. I don't have the document. 14 MR. GINGO: Your Honor, I would object. 15 Paragraph 15 of the mortgage makes it very 16 clear that there's only one address to which 17 notice should be sent to a borrower, and that 18 address is the property address. The property 19 address can be changed, but it can only be 20 changed in writing. And there's an exception. 21 And that is if the bank creates some 22 alternative method by which they're going to 23 allow a change, such as if they make a policy 24 or procedures change. But this witness hasn't 25 testified that the notice address had been
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1 changed. 2 THE COURT: Is there a claim that the 3 notice was not received? 4 MR. GINGO: Yes. Our first affirmative 5 defense is lack of notice of the breach letter. 6 THE COURT: You can present that as part 7 of your case. 8 MR. GINGO: Thank you. 9 MR. ORIZONDO: Your Honor, if I may? I'm 10 just going to state it for the record, we're 11 going to object to any type of testimony by Mr. 12 Webster as to not receiving the Notice of 13 Acceleration or any dispute as to payments. 14 Mr. Webster is not an individual who signed the 15 note, he is, therefore, not a borrower. And 16 the mortgage specifically states that the 17 Notice of Acceleration, and any notice with 18 regard to the account, must be sent to the 19 borrower. 20 As a matter of fact, JP Morgan Chase Bank 21 would be in violation of Federal laws if they 22 did anything other than send it directly to the 23 borrower. Sending it to anyone else would 24 subject JP Morgan Chase Bank to penalties for 25 violating confidentiality.
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1 THE COURT: Do you want to go ahead and 2 admit this document at this time? 3 MR. ORIZONDO: Yes, Your Honor. 4 THE COURT: I'll go ahead and admit. 5 MR. GINGO: And, Your Honor, for the 6 record, that's over my objections of7 THE COURT: Yeah. State your objections 8 again for the record. 9 MR. GINGO: Hearsay, lack of foundation. 10 Paragraph 15 was not complied with. The 11 witness testified that this letter went to an 12 address different that's required by the 13 mortgage. 14 THE COURT: Objection overruled. 15 MR. GINGO: Thank you. 16 THE COURT: So admitted. 17 MADAM CLERK: Plaintiff's Number 5. 18 MR. ORIZONDO: Thank you. 19 THE COURT: Do you have that document? 20 MR. ORIZONDO: Yes. 21 BY MR. ORIZONDO: 22 Q. Ms. Schell, again I'm showing you 23 Plaintiff's Exhibit 5. Confirm the address to which 24 the demand letter was sent. 25 A. 6230 Riverwalk Lane, Unit 5, Jupiter,
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1 Florida 32598. 2 Q. Is that address either the property 3 address or the mailing address as designated by the 4 borrower, Patrice J. Kelty? 5 MR. GINGO: Objection. Asked and 6 answered. Hearsay. Speculation. 7 THE COURT: Overruled. 8 WITNESS: This is a mailing address. 9 BY MR. ORIZONDO: 10 Q. And does it advise Ms. Kelty of a default 11 of the subject account? 12 A. Yes. 13 Q. Does it provide her with an opportunity 14 to cure that default? 15 A. Yes, 16 Q. How many days does it provide? 17 A. Thirty-two days. 18 Q. Based on your review of the records, has 19 that default been cured? 20 A. No, it has not. 21 MR. GINGO: Objection, Your Honor. 22 Hearsay. 23 THE COURT: Overruled. 24 MR. ORIZONDO: Let the record reflect 25 that I'm showing counsel what we marked as
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1 Plaintiff's Exhibit No. 6 for identification. 2 MR. GINGO: Payment records? Is that 3 what that is? Payment history? 4 MR. ORIZONDO: Yeah. 5 MR. GINGO: Okay. 6 BY MR. ORIZONDO: 7 Q. Ms. Schell, I'm showing you what we 8 marked as Plaintiff's Exhibit No. 6 for identification. 9 Do you recognize that document? 10 A. This is a copy of the payment history 11 showing the payments and disbursements made on the 12 loan. 13 Q. And are you familiar in which the manner 14 those records are made? 15 A. Yes. 16 Q. Are the entries in those records made 17 contemporaneously with the event described? 18 A. Yes. 19 Q. At the time the records are made, are 20 they made by someone with knowledge? 21 A. Yes. 22 Q. Is it the common practice of JP Morgan 23 Chase Bank to maintain records in this fashion? 24 A. Yes. 25 Q. Based on your review of the records
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1 pertaining to the loan of one Patrice Kelty, were those 2 records kept in accordance with JP Morgan Chase Bank 3 policies and procedures? 4 A. Yes, they were. 5 Q. Would you also classify that as a 6 summary, a general summary, of your business records in 7 this case? 8 A. Yes. 9 Q. And you recognize that to be the payment 10 history of this particular account how? 11 A. It reflects the borrower's name, the 12 address. This is what I review on-line and on our 13 business records. 14 MR. ORIZONDO: Your Honor, I would move 15 the loan payment history into evidence as 16 Plaintiff's Exhibit No. 6. 17 THE COURT: Any objection? 18 MR. GINGO: May I voir dire? 19 THE COURT: Certainly. 20 BY MR. GINGO: 21 Q. Ma'am, this payment history, does it 22 include payments made to the original lender, MFC 23 Mortgage, Inc.? 24 A. No, it doesn't include the original 25 payments.
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1 Q. Why would that be? 2 A. Well, when the loan, when the documents 3 come over into the boarding process, the figures are 4 all, are calculated and they start off with a figure. 5 Why I don't have a copy right here, I don't know. 6 Q. So would it be true to say that the 7 payments made to MFC Mortgage, a record of those 8 payments were summarized and transferred to the next 9 loan servicer, which would have been Chase Home 10 Finance? 11 A. Right. 12 Q. And then would it be safe to say that 13 Chase Home Finance would then compile and summarize 14 those records and transfer those records to JP Morgan 15 Chase? 16 A. Well, no because Chase Home Finance 17 merged with Chase, so it just stays the same. All the 18 information is the same. 19 Q. Did you ever work for MFC Mortgage? 20 A. No, I did not. 21 Q. So do you have any personal knowledge as 22 to whether or not the numbers that were transferred 23 over from MFC Mortgage were true and accurate? 24 A. Personally, other than reviewing the 25 business records, no. They don't enter -- I have no
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1 reason to believe they weren't accurate when they were 2 entered. 3 Q. Did you do a calculation before you got 4 here today to make sure that the amount of principle on 5 the default date was correct? 6 A. No. 7 Q. Did you do a calculation to make sure 8 that the amount of interest due on the default date was 9 correct? 10 A. No. 11 MR. GINGO: I would object, Your Honor. 12 This document is full of hearsay. She has not 13 laid the proper foundation for those records. 14 BY MR. ORIZONDO: 15 Q. Ms. Schell, are you -- when records are 16 boarded from other servicer, are you familiar with the 17 process that's undertaken for that? 18 A. Yes. 19 Q. Could you briefly describe that process 20 to the Court? 21 A. The records come in and they come in to 22 the boarding process department, and those employees 23 are trained to review the payment history, the loan 24 history. They review the numbers and the figures and 25 they have quality checks in place to make sure that
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1 everything's accurate. The copies of the documents are 2 then scanned into IVOLT (phonetic) and they're 3 cataloged individually. And then the originals are 4 placed in the vault in Monroe, Louisiana. 5 Q. Ms. Schell, hypothetically, if any 6 regularity or any notation in that review process was 7 found to show that the prior servicer's records were 8 maybe kept incorrectly, what would Chase do? 9 A. They would not board the loan. 10 Q. Okay. And did you review your business 11 records to ensure that this process was conducted with 12 regards to a particular case? 13 A. Yes. I didn't see any error in boarding 14 it. 15 Q. So is it correct to state that JP Morgan 16 Chase, in boarding this loan, did not find anything in 17 the prior servicer's records that would lead Chase to 18 believe that those records were untrustworthy? 19 A. Yes. 20 Q. So they didn't find any? Oh, yeah, 21 that's correct. Sorry. I got confused by my own 22 question. 23 MR. ORIZONDO: Your Honor, I would, once 24 again, move to have the payment history 25 admitted as a business record. And as to the
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1 fact that the numbers in the payment history 2 were derived from a prior servicer's business 3 records, I have a federal case, which is United 4 States bankruptcy court case, In Re: Sagamore 5 -- I have a copy for counsel -- versus JP MMC 6 2006. 7 In this particular case, Your Honor, the 8 court of the southern district of Florida, 9 federal court, essentially, I'm trying to find 10 the -- did I give you the wrong one? One 11 moment, Your Honor. 12 In that case, the court says: The Court 13 is persuaded by the conclusions of courts in 14 other jurisdictions that have confronted this 15 issue and have agreed that the loan records and 16 transaction history of a prior loan servicer 17 can be relied on by a subsequent servicer and 18 admitted into evidence as a subsequent 19 servicer's business records. 20 I will cite it as -- it's a West Law 21 cite. It's 2012 West Law 3564014. This case, 22 essentially, states because of the -- I'm going 23 to summarize it. It also states that because 24 of the general banking practices, it is 25 essential for banks to rely on prior servicer's
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1 business records when boarding loans into their 2 own particular systems. To not be able to do 3 so, you know, would probably result in the 4 collapse of the banking industry as we know it. 5 MR. GINGO: Your Honor, he asked her a 6 few more questions. May I follow up with 7 questions that he asked? 8 THE COURT: Certainly. 9 BY MR. GINGO: 10 Q. Ma'am, what steps did you take to verify 11 that the numbers in that payment history are correct? 12 A. Um, we run, we now run our own figures. 13 So the system generates the numbers and I physically go 14 in and, as far as the escrow, go through and make sure 15 that everything balances through the escrow. 16 Q. Are you saying you rely on a computer to 17 tell you whether the numbers are right or did you go 18 through and individually check the numbers to make sure 19 they were right? 20 A. No. For the escrow I went through it and 21 individually checked it. 22 Q. How about for the principle and the 23 interest? Did you go through and check the principle 24 and interest yourself to make sure they were correct? 25 A. No.
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1 Q. Okay. Do you know who did go through and 2 check the principle and interest to make sure they were 3 correct upon boarding? 4 A. The actual person? 5 Q. Yes. 6 A. No, just someone in that department that 7 handles that. 8 Q. Did you ever work in that department 9 before? 10 A. No. 11 Q. Were you ever trained on that 12 department's procedures to make sure how data is 13 properly verified upon boarding? 14 A. No. 15 Q. Can you -- do you have any personal 16 knowledge that the prior loan servicers used acceptable 17 account procedures and practices to make sure that data 18 was correct and verified? 19 A. I don't know what their procedures were. 20 MR. GINGO: Your Honor, the Yang case is 21 pretty specific. It's a case out of the 4th 22 District, 2013, July 2013. I have a copy here. 23 It describes what a business record is and what 24 it's going to take to get a business record in. 25 In essence, this witness has to -- she
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1 can testify as to her own business records, but 2 she can't testify to somebody else's business 3 records if she can't lay some foundation for 4 it. She certainly hasn't laid the foundation. 5 May I approach with the Yang case? 6 THE COURT: It sounds like, based on the 7 federal case, though, the successor holder of 8 the note's entitled to rely on the previous 9 lender's documents. 10 MR. GINGO: May I see that case? 11 MR. ORIZONDO: Absolutely. 12 THE COURT: I've got to allow these 13 clerks to have a lunch break at this time. How 14 much longer do you all think you're going to 15 be? 16 MR. ORIZONDO: I think -- I mean, I don't 17 know what counsel's going to -- this is my last 18 document, Your Honor. 19 MR. GINGO: If it was his last document, 20 I think, basically what I would like, since I 21 haven't read his case, perhaps if the Court can 22 withhold making a decision for two days, get a 23 brief to the Court on this case. 24 THE COURT: I have a question, Counsel. 25 What is Mr. Webster's standing in the case?
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1 MR. GINGO: Mr. Webster signed the 2 mortgage. He's a mortgagor. 3 THE COURT: Is he an owner of the 4 property? 5 MR. GINGO: Yes, he's an owner of the 6 property, and he's the mortgagor. 7 THE COURT: His name's on the title? 8 MR. WEBSTER: Yes, sir. 9 THE COURT: Is that correct? 10 MR. ORIZONDO: Yes, sir. 11 MR. GINGO: And if you can take that as 12 testimony, I don't think he's been sworn, but, 13 just for the record, maybe we can do that real 14 fast. 15 THE COURT: Okay. I thought perhaps he 16 was only signing because of homestead issue. 17 MR. ORIZONDO: He did sign for homestead 18 issues, but he was also on the title. I do not 19 know if the property consequently transfers 20 solely under his name. My understanding is 21 shortly after this loan was originated he and 22 Ms. Kelty divorced. I'm not particularly privy 23 to any of the divorce proceedings, but my 24 understanding is he is on the title. I don't 25 know if there was a subsequent transfer of
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1 title just solely into his name. 2 THE COURT: But at the time of the 3 mortgage, he was a title holder to this 4 property? 5 MR. ORIZONDO: Yes, that is my 6 understanding, Your Honor. 7 THE COURT: But he didn't sign the note? 8 MR. ORIZONDO: He did not sign the note. 9 He was never on the account. He never -- his 10 income information was never used to originate 11 this action, and he was never personally 12 responsible for making any payments. 13 THE COURT: Okay. 14 MR. GINGO: But he is on the mortgage. 15 If counsel agrees to that, then I don't need to 16 put him on the stand and perhaps we can close 17 this out. If the Court will let me have a 18 couple days to read this case, which I haven't 19 read. 20 THE COURT: Well, I want to get this over 21 with today. We're here at trial. 22 MR. ORIZONDO: Your Honor, very briefly. 23 I can stipulate to him, to Mr. Webster, being a 24 mortgagor. If the defense is willing to state 25 that he is not a borrower in either the, I'm
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1 sorry, not identified as a borrower neither in 2 the note or in the mortgage, because the 3 mortgage specifically designates Ms. Kelty as 4 the borrower and joined by her spouse. 5 THE COURT: Well, that was my question. 6 Because what I thought may have happened here 7 is he signed simply because of the homestead if 8 they were married at the time. 9 MR. ORIZONDO: Yes. 10 THE COURT: I presume they were because 11 it does say her husband. 12 MR. ORIZONDO: Yes. 13 THE COURT: But if he's not title holder 14 at the time of the mortgage, it was only -15 you're only trying to encumber based on his 16 potential homestead claim. But you're telling 17 me that, in fact, the deed was in his name. 18 MR. ORIZONDO: My understanding is that 19 the deed was under his name. 20 THE COURT: Are you sure of that? 21 MR. ORIZONDO: The issue is, Your Honor22 THE COURT: Are you sure? 23 MR. ORIZONDO: I mean, I'm not one 24 hundred percent positive, no. 25 MR. GINGO: He can testify to that. And
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1 also, Your Honor, the word borrower is next to 2 his name in the mortgage. I had this issue in 3 federal court maybe two months ago, and the 4 federal court said that borrower, that means 5 that person is a borrower under that note. 6 THE COURT: I disagree with your federal 7 judge. 8 MR. GINGO: I did, too. 9 THE COURT: If he didn't sign -- truly. 10 With all due respect to federal court, but if 11 he did not sign that note, there is no way I'm 12 going to enter a deficiency judgment against 13 your client. So, you know, a federal judge can 14 say whatever he wants, but I'm certainly not 15 bound by his pronouncement. 16 And the fact that he's listed as a 17 borrower in the mortgage is just verbiage that 18 is part of the form. It doesn't necessarily 19 mean that he borrowed any money. I don't think 20 that's a dispute. 21 MR. GINGO: What I think it does, though, 22 is I think it makes it so that he is entitled 23 to all the rights and benefits of that mortgage 24 and whatever liabilities that mortgage puts 25 upon him, such as the fact that this property
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1 can be taken from him. 2 THE COURT: Well, his property can be 3 taken, but they can't issue a deficiency. I 4 can't issue a deficiency judgment against 5 Mr. Webster in this case. 6 MR. ORIZONDO: Exactly, Your Honor. I 7 mean, you can't use the mortgage as a sword and 8 as a shield, I mean, yeah, and not allow to be 9 as a shield. 10 THE COURT: My only question was about 11 was whether or not Mr. Webster in fact is a 12 title holder at the time the mortgage was 13 signed. If he wasn't, I suspect his interest 14 in the property is gone. But you're telling me 15 he was on the title at the time. 16 MR. ORIZONDO: Yes. My understanding is 17 the only -- that he executed the mortgage as 18 both the person on title, if I believe, and as 19 the record spouse of Ms. Kelty. 20 THE COURT: That would give him standing 21 if his name was on the deed. 22 MR. ORIZONDO: It would give him standing 23 to contest the foreclosure, yes. And I agree 24 with that. What I state what my objection was 25 to his testimony prior was that he has no
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1 standing to contest the payments or the 2 operations of the account because he was never 3 on the actual account. Since he was never 4 personally liable for the amounts due on the 5 note, he was, you know -- if you look at the 6 statements, they were never sent to Ms. Kelty 7 and Mr. Webster, they were only sent to Ms. 8 Kelty because she was the only one who assumed 9 personal liability, and she was the only one 10 who had the duty to make payments on it. 11 So if payments were not made, it would 12 fall on Ms. Kelty to contest that and not 13 Mr. Webster because Mr. Webster is not entitled 14 to even know about the account because, 15 unfortunately, if Chase were to provide 16 Mr. Webster with information about the account, 17 and did not have authorization from Ms. Kelty 18 to disclose that information to him, they would 19 be in violation of federal confidentiality 20 rights. 21 THE COURT: Okay. 22 MR. GINGO: In the case that counsel's 23 provided me, it looks to me, from a cursory 24 review, that the witness did have sufficient 25 personal knowledge to establish the prior loan
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1 servicers. 2 In our case, this witness has not 3 established any prior knowledge, any personal 4 knowledge of prior loan servicers. She doesn't 5 know whether those documents were accurate and 6 correct. She doesn't even know whether the 7 procedures in her company caused for 8 verification of the prior loan servicer's 9 numbers. So I think it's distinguishable on 10 that ground. 11 MR. ORIZONDO: Counsel's 12 mischaracterizing the witness's testimony. She 13 testified, first and foremost, to a JP Morgan 14 Chase created document. She didn't testify to 15 any prior servicer's business records. And 16 then she testified that those numbers in 17 Chase's records were derived from prior 18 servicers records. She explained the process 19 by which it is, you know, the loan is boarded, 20 and that process is what is supported and 21 identified by Sagamore as being a regular 22 banking practice. 23 THE COURT: I'm going to give you all a 24 choice. We can come back in thirty minutes -25 we'll break for lunch. I'm under an obligation
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1 to the staff here to give them a lunch break, 2 or we can continue this to another day. 3 MR. ORIZONDO: Your Honor, I've come from 4 Miami and my witness flew in here. I mean, if 5 we do continue, I would prefer to just do it in 6 just thirty minutes and getting this done 7 today. 8 THE COURT: I'll go ahead and at this 9 time and we'll have a thirty minute recess, and 10 we'll reconvene at one o'clock. 11 MR. GINGO: All right. 12 MR. ORIZONDO: Thank you, Your Honor. 13 14 (Thereupon, a break was taken, and the proceedings 15 continued as follows:) 16 17 THE COURT: You may proceed. 18 MR. ORIZONDO: Your Honor, I believe we 19 left off on argument. I had moved the loan 20 payment history into evidence and simply 21 waiting on a ruling on that so my client can 22 testify as to this exhibit. 23 THE COURT: Let me -- just to refresh my 24 memory, counsel. Do you want to state your 25 specific objection?
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1 MR. GINGO: Yes. I think it was hearsay, 2 lack of foundation, lack of trustworthiness. 3 Those were it. 4 THE COURT: All right. I'll go ahead and 5 overrule those objections, and I'll admit that 6 document into evidence. 7 BY MR. ORIZONDO: 8 Q. Ms. Schell, I'm showing you the loan 9 payment history. Does it show the payments, or lack 10 thereof, with regards to the account? 11 A. Yes, it does. 12 Q. And does it also show advancements made 13 as to taxes and insurance owed on the subject property? 14 A. Yes. 15 Q. Does the payment history -- based on the 16 payment history, have those funds been recouped from 17 either Ms. Kelty or Mr. Webster? 18 A. No. 19 Q. And for what date is the loan due? 20 A. It's due for November 1, 2008 as a result 21 of modification that was made that there weren't any 22 payments made on it, so we advanced the loan to that 23 date. 24 Q. Let me just clarify for the record. 25 You're saying that there was a loan modification
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1 afforded in this property? 2 A. Right. 3 Q. And around what date was that loan 4 modification given? 5 A. It was in, it was September 2008. 6 Q. And the first payment due on that loan 7 modification was November 1st of 2008? 8 A. Exactly. 9 Q. And Ms. Kelty never made that payment? 10 A. No. 11 Q. Okay. 12 MADAM CLERK: I believe this will be 6. 13 Yes, Plaintiff's 6. 14 THE COURT: Plaintiff's Exhibit 6 into 15 evidence. 16 MR. ORIZONDO: Let the record reflect 17 that I'm handing counsel a copy of the proposed 18 final judgment. If I may approach, Your Honor, 19 and hand one to you, as well. 20 THE COURT: All right. 21 BY MR. ORIZONDO: 22 Q. Ms. Schell, I'm showing you a copy of the 23 proposed final judgment. Have you had a figurative 24 review of the proposed final judgment prior to today's 25 date?
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1 A. Yes, I did. 2 Q. Are the figures in the proposed final 3 judgment consistent with those reflected in your 4 business records? 5 A. Yes. 6 Q. Did you retain Ronald R. Wolfe & 7 Associates to represent you in this matter and agree to 8 pay them reasonable attorneys fees? 9 A. Yes. 10 Q. What is the total amount being sought in 11 this judgment? 12 A. $242,780.53. 13 Q. Thank you. 14 MR. ORIZONDO: Your Honor, no further 15 questions. 16 THE COURT: Okay. Do you rest at this 17 time? 18 MR. ORIZONDO: No, Your Honor, I'm just 19 giving him an opportunity to ask questions on 20 cross. 21 THE COURT: On cross. Okay. 22 CROSS EXAMINATION 23 BY MR. GINGO: 24 Q. Ma'am, you testified that there was a 25 loan modification. I haven't received any loan
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1 modification in discovery. Please tell me what was the 2 address for Ms. Kelty given in the loan modification? 3 A. I don't know what you mean. 4 Q. The loan modification was as to the loan 5 that's the subject of the trial today, correct? 6 A. Right. 7 Q. Did that loan modification state an 8 address for Ms. Kelty? 9 A. I don't know. You mean her mailing 10 address? 11 Q. Did it state an address for which she was 12 to receive documents relating to this particular loan? 13 A. I don't know. 14 Q. Okay. Nothing further on that then. 15 Regarding the final judgment, did you, 16 yourself, verify that the unpaid principal balance is 17 $177,490.51? 18 A. Yes. 19 Q. Did you go back through and add up all 20 the payments to get to that figure? 21 A. No, I didn't physically do that. 22 Q. When you say yes, you verified it, is it 23 true then that you just looked at the computer screen 24 and saw a number and verified that number was the 25 number that we just discussed?
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1 A. After the numbers were run, I took those 2 figures from the screen. 3 Q. And regarding the $45,829.78 interest on 4 the note and mortgage, did you personally go back 5 through and add up all the interest? 6 A. No, I did not. 7 Q. Regarding the title search expenses, what 8 did you do to verify that the $175 had actually been 9 incurred? 10 MR. ORIZONDO: Your Honor, if I may 11 interject. That is actually one of the items 12 listed that I believe are in our attorneys fees 13 and costs affidavit. 14 THE COURT: So that's something that your 15 office incurred? 16 MR. ORIZONDO: Yes, Your Honor. 17 THE COURT: But can she testify as to 18 that? 19 MR. ORIZONDO: We submitted affidavits, 20 but I can testify as to that as well, Your 21 Honor. 22 MR. GINGO: Your Honor, I'm okay with 23 that. If it came from the attorney's office 24 I'm not going to have an issue. 25 THE COURT: Do you have the title search
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1 with you? 2 MR. ORIZONDO: I believe I may, Your 3 Honor. 4 MR. GINGO: Your Honor, if the title 5 examination fees are in his affidavit then I'm 6 okay with that, too. 7 MR. ORIZONDO: I have a copy of the 8 affidavit for counsel. 9 THE COURT: I was curious if you had the 10 title search. 11 MR. ORIZONDO: The results of the title 12 search? no, Your Honor. I thought I had it, 13 but it's unfortunately not in this file. 14 THE COURT: Okay. All right. You may 15 proceed. 16 MR. GINGO: Thank you. 17 BY MR. GINGO: 18 Q. Ma'am, did you personally verify that 19 $7,075.65 were owed for taxes on this property? 20 A. Yes. 21 Q. And how did you do that? 22 A. By going through the payment history and 23 calculating line-by-line the taxes. 24 Q. And attorneys fees, of course, your 25 attorney would know about.
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1 Regarding the insurance, $6,482.79, did you 2 personally verify that that amount was owed for 3 insurance? 4 A. Yes. 5 Q. How did you do that? 6 A. The same way, by going through the 7 payment history and calculating. 8 Q. And looking at the records? 9 A. Yes. 10 Q. So the information that you used to 11 determine taxes and insurance came out of computer 12 records, not by any independent investigation by 13 yourself with, for instance, a taxing authority or with 14 an insurance company? 15 A. Correct, it came from our system. 16 MR. GINGO: I have nothing further, Your 17 Honor. 18 THE COURT: Any re-direct? 19 MR. ORIZONDO: Brief re-direct. 20 RE-DIRECT EXAMINATION 21 BY MR. ORIZONDO: 22 Q. Ms. Schell, as to all the figures on the 23 proposed final judgment, they were extrapolated from 24 your business records? 25 A. Yes.
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1 Q. And you previously testified as to all 2 figures, including the unpaid principle balance being 3 derived or possibly being derived from a prior 4 servicer's business records? 5 A. Yes. 6 Q. And you saw in your business records that 7 the prior servicer's records were reviewed and no issue 8 as to the trustworthiness of those records was 9 determined? 10 A. Correct. 11 MR. ORIZONDO: No further questions, Your 12 Honor. 13 At the time, the plaintiff would, first 14 and foremost, move to have the pleadings 15 conformed to the evidence presented at trial so 16 as to account for the existence of the original 17 note bearing all three endorsements. 18 And in support of that motion, I would 19 cite to the Carnival Cruise Line versus Jose 20 Nunez case. Citation is 646 So. 2nd 831 1994. 21 The case stands for the proposition that in 22 evaluating whether or not to grant the motion 23 to have the pleading conformed to the evidence, 24 the Court needs to take into consideration only 25 the prejudice to the opposing party.
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1 In this particular case, given the fact 2 that the note bearing all three endorsements 3 was attached to a previous foreclosure action 4 in which Mr. Webster was a defendant. In 5 addition to the fact that the note was produced 6 in discovery on, I believe, two occasions and 7 was previously filed with the Court two years 8 prior to the date of this trial, we would ask 9 the Court to find that there's no prejudice by 10 granting this motion to the defendant. 11 We move for entry of a final judgment of 12 foreclosure. 13 THE COURT: Let me ask counsel. Did you 14 have any re-cross? 15 MR. GINGO: No. 16 THE COURT: With regard to his motion, 17 your response? 18 MR. GINGO: Yes, Your Honor. We didn't 19 try that issue by consent. I objected all 20 along. It's untimely at this point. The time 21 for motions would have occurred prior to the 22 trial. Evidence has closed and now counsel 23 brings his motion. So I would object. 24 THE COURT: Can you put on the record any 25 prejudice you have suffered should this motion
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1 be granted. 2 MR. GINGO: Yes, Your Honor. The 3 prejudice is that we had proceeded on the basis 4 that the plaintiff would attempt to prove an 5 entitlement to enforce, by way of ownership. 6 The focus of our case has been to demonstrate 7 that their only proof of ownership is by a 8 hearsay document, that being the Assignment of 9 Mortgage. So we didn't have an opportunity to 10 defend based on the argument of holder. 11 THE COURT: What document are you saying 12 was hearsay that they relied upon? 13 MR. GINGO: In this case, the document 14 that is offensive is what the Court would deem 15 the original note that's in the court file. 16 THE COURT: Would you agree that they've 17 proven that the plaintiff is the owner and the 18 holder of the note? 19 MR. GINGO: No. When the Court talks 20 about owner, my basis for that comes from, I 21 believe, 673.3012, which would demonstrate that 22 value would have to be paid. The appellate 23 court in the Richard's case suggested, referred 24 to the Gee case, G-E-E, which demonstrated that 25 the party had to prove both ownership and that
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1 it held the note. That came from the 5th 2 District Court of Appeal. 3 The way you prove ownership is, as I 4 stated, either an Affidavit of Ownership, which 5 nothing had been produced, or some type of an 6 assignment. The assignment that they produced 7 is based on hearsay and comes from Mortgage 8 Electronic Registration Systems, Inc. 9 The witness testified she had no 10 knowledge whatsoever that the note was held by 11 Mortgage Electronic Registrations, Inc. and 12 transferred to her employer. In fact, she 13 testified that that note came from a different 14 entity, which would suggest that Mortgage 15 Electronic Registrations, Inc. didn't have 16 possession of the note at all. 17 THE COURT: Do you agree that the 18 plaintiff was the holder of the note? 19 MR. GINGO: No. Again, I don't. And 20 that's because it relates to time. I don't 21 believe they were a holder. All the way 22 through the moment of this trial, if they 23 became a holder, they became a holder just now 24 when the Court admitted the document. I think 25 that, in essence, could make them a holder.
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1 But prior to that moment, I don't think they 2 were a holder because they didn't have any 3 document to demonstrate that they had a right 4 to enforce that note. 5 THE COURT: If they're physically in 6 possession of it does that not make them a 7 holder? 8 MR. GINGO: No. I believe it's Florida 9 Statute 671.201 which describes what a holder 10 is. If I can pull it up real quick. 11 Subsection 21 -- I take that back, Your Honor. 12 Holder says the person in possession of a 13 negotiable instrument that is payable to either 14 the bearer or to an identified person that is 15 the person in possession. 16 So perhaps the Court is right. 17 THE COURT: So would you agree that they 18 were the holder and it was endorsed in blank. 19 MR. GINGO: Right. I would agree that 20 they were the holder, it was endorsed in blank. 21 However, they didn't plead that properly under 22 -- he just now moved to amend the complaint, to 23 conform to the evidence. They didn't properly 24 plead it. 25 THE COURT: No, no. Did you not plead
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1 that2 MR. ORIZONDO: Yes, Your Honor. 3 THE COURT: -just that the exhibit didn't 4 indicate the blank endorsement. 5 MR. ORIZONDO: Yes. The basis of my 6 motion in having the pleadings conformed to the 7 evidence is so as to account for the, I guess, 8 attachment of the incorrect note to the 9 complaint. 10 THE COURT: Your amendment is only to the 11 attachment? 12 MR. ORIZONDO: Yes, Your Honor. 13 THE COURT: Not to the actual allegations 14 in the complaint? 15 MR. ORIZONDO: In the complaint we allege 16 to be the holder of the note and/or entitled to 17 enforce the note. 18 THE COURT: Based on the fact that the 19 allegations in the complaint do indicate that 20 the plaintiff is the holder of the note, I'll 21 go ahead and grant the Motion to Amend the 22 pleadings so that the attached note would be 23 the correct note, which was the one actually 24 offered in evidence this morning. 25 MR. ORIZONDO: Yes, Your Honor.
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1 THE COURT: Do you rest at this time? 2 MR. ORIZONDO: Plaintiff reserves right 3 to recall any witnesses for rebuttal or 4 impeachment purposes. Other than that, 5 plaintiff would rest. 6 THE COURT: Okay. Any motions at this 7 time? 8 MR. GINGO: No motions at this time. 9 THE COURT: You may proceed. 10 MR. GINGO: I would like to call my 11 witness. 12 THE COURT: Sir, would you raise your 13 right hand, please. Do you solemnly swear or 14 affirm the testimony you're about to give will 15 be the truth, the whole truth and nothing but 16 the truth, so help you God? 17 MR. WEBSTER: I do. 18 THE COURT: You may proceed. 19 MR. GINGO: Madam Clerk, may I have the 20 mortgage? 21 THE COURT: I'm give you all the 22 exhibits, all six. 23 DIRECT EXAMINATION 24 BY MR. GINGO: 25 Q. Mr. Webster, I'm handing you what has
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1 been admitted into evidence as Exhibit 3. Do you 2 recognize this document? 3 A. Yes. 4 Q. What is this? 5 A. Mortgage. 6 Q. Is that the mortgage of a particular 7 piece of property? 8 A. Yes, it is. 9 Q. What's the address for that particular 10 property? 11 A. Property address 4655 Elana Way in 12 Melbourne. 13 Q. Did you sign this mortgage? I'll go back 14 to the signature line. 15 A. Yes, I did. 16 Q. Did you own that property at the time 17 this mortgage, before this mortgage was taken out? 18 A. I believe the day of settlement, title 19 passed and documents were signed at the closing 20 company. 21 Q. You didn't sign the note; is that 22 correct? 23 A. No. 24 MR. GINGO: Okay. And I'll present all 25 of these back to the clerk.
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1 BY MR. GINGO: 2 Q. Ms. Kelty. Do you know who Ms. Kelty is? 3 A. Yes. 4 Q. Who is she? 5 A. My spouse at the time. 6 Q. And who made the payments to the mortgage 7 company on this particular property? 8 A. I did. 9 Q. At some point, did you learn that the 10 property was in default? 11 A. Upon receiving the service processor's 12 information that they gave me that the property was in 13 foreclosure. 14 Q. So you learned that the property was in 15 default when you received the lawsuit? 16 A. Yes. 17 Q. So the mortgage was in default, excuse 18 me. Did you have a method by which you could pay off 19 the mortgage at that time? 20 A. I did. 21 Q. And how is it that you were able to pay 22 off the mortgage at that time? 23 MR. ORIZONDO: Objection. Relevance. 24 THE COURT: Help me. How is that 25 relevant?
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1 MR. GINGO: Your Honor, this goes to the 2 default letter. And the reason for the default 3 letter is to allow cure. I had already -- in 4 the plaintiff's case in chief, I demonstrated 5 that the default notice didn't go to the 6 property address. My client resided at the 7 property address, and I'll get there. Had he 8 received the default letter, he could have 9 cured. 10 THE COURT: I guess we're going to go 11 back to the same issue. Since he was not -- he 12 did not sign the note, does he have the right 13 to these notices? 14 MR. GINGO: Your Honor, Paragraph 13 of 15 the mortgage, it describes that he is an 16 obligor under the mortgage. The note doesn't 17 provide for a breach letter. The mortgage 18 provides for the breach letter. So the bank 19 was obligated to conform its breach letter to 20 the terms of the mortgage, which was to say, 21 send the breach letter to the property address 22 where my client resided. 23 So yes, he had a right to receive that 24 breach letter at the property address. 25 MR. ORIZONDO: If I may interject, Your
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1 Honor? The mortgage specifically states that 2 the lender shall give notice to the borrower. 3 So if the borrower has advised the servicer of 4 a change in address, in order to comply with 5 the relevant paragraph of the mortgage, which 6 is Paragraph 22, which is the one that governs 7 acceleration, the notice would have to be sent 8 to the borrower, not the property address. 9 THE COURT: So I go back to the issue 10 then. How is it relevant that he had the funds 11 available to pay this mortgage? 12 MR. GINGO: Well, I believe he had a 13 right to cure. Paragraph 19, it's entitled 14 Borrower's Right to Reinstate After 15 Acceleration. The signature lines state that 16 my client is a borrower. Paragraph 13 says 17 that he's an obligor under this mortgage. 18 Paragraph 19 says the borrower shall have the 19 right to have enforcement of security 20 instrument determined -- I can't read the word 21 -- discontinued at any time prior to earliest 22 of -- well, it specifies time to cure, he can 23 cure the default. 24 So Paragraph 19 provides the borrower 25 with the right to cure. He's a named borrower
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1 on the mortgage. Paragraph 13 says he's 2 obligated under the terms of this particular 3 document. And Paragraph 15 says that the 4 borrower's entitled to notice at the property 5 address. I believe6 THE COURT: Does the mortgage anywhere 7 define the term borrower? 8 MR. GINGO: I've never seen it. I would 9 say it's public policy to say if a person is 10 married to a spouse who signed the note, and 11 that they have, if it's his homestead, there 12 certainly should be some equitable principle 13 for a marital right for the right to cure this 14 mortgage. That's a homestead property. That's 15 a marital asset. 16 THE COURT: Again, I don't know if it was 17 homestead at the time. 18 MR. GINGO: Well, if we can get to that. 19 THE COURT: We'll get to that in a 20 moment. 21 MR. ORIZONDO: On that, Your Honor, just 22 because he's bringing up notice requirements. 23 If, in fact, and assuming the Court is going to 24 consider Mr. Webster borrower, Paragraph 15 of 25 the mortgage says: Notice to anyone borrower
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1 shall constitute notice to all borrowers, 2 unless applicable law expressly requires 3 otherwise. 4 By virtue of the fact that the notice of 5 Intent to Accelerate was sent to Ms. Kelty, Ms. 6 Kelty is not here to testify otherwise, we are 7 in compliance with Paragraph 15 and 22 by 8 sending a notice to her. 9 THE COURT: I'll sustain your objection. 10 Go ahead and make your proffer, though. 11 MR. GINGO: My proffer is that 12 Mr. Webster, being married to his wife, would 13 have a marital interest in the property and 14 would have a right to pay off the mortgage 15 loan. Because he owned the property, he was 16 making payments to the bank. They were 17 accepting his payments. Certainly the bank had 18 established a pattern of practice of dealing 19 with him taking his payments. 20 So it would seem that equity would say 21 that the bank, if he were to have come up with 22 all the money to pay this off, which he did 23 have a source of the money -- his mother -24 that the bank would have been required to honor 25 that agreement and to accept the payoff of this
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1 particular mortgage property. 2 THE COURT: Okay. You may proceed. 3 MR. GINGO: Thank you. 4 BY MR. GINGO: 5 Q. Mr. Webster, I'm not sure if I asked you 6 this. Did you own the property at the time the 7 mortgage was taken out? 8 A. Yes. 9 Q. Were you married to Ms. Kelty at that 10 time? 11 A. Yes. 12 Q. When you received the foreclosure lawsuit 13 -- prior to the date that you received the foreclosure 14 lawsuit, did you receive the Notice of Default, which I 15 believe was Exhibit 5 in this lawsuit? 16 A. No. 17 MR. ORIZONDO: Your Honor, I'm just going 18 to ask for clarification. As counsel's 19 referring to the 2009 case, and not the 2008 20 case, just because there was two foreclosure 21 actions filed with regard to this note. 22 MR. GINGO: I am referring just to the 23 action that's currently before the Court. 24 MR. ORIZONDO: Okay. 25 BY MR. GINGO:
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1 Q. When did you first receive the Notice of 2 Default, which was Exhibit 5 in the case? 3 A. It was with the documents that the 4 servicer brought that was within the complaint or the 5 foreclosure action. 6 Q. And is your mother somebody who has some 7 wealth? 8 A. Somewhat. 9 Q. Does she own a number of houses free and 10 clear in this area? 11 A. Yes, she does. 12 Q. Had you talked to her about paying off 13 the mortgage? 14 A. Yes, I did. 15 MR. ORIZONDO: Judge, I'm going to 16 object, again, on relevance and move to strike. 17 How does that have anything to do with this 18 action? 19 THE COURT: I'll sustain the objection. 20 BY MR. GINGO: 21 Q. Was this property homesteaded? 22 A. Yes. 23 Q. And it was homesteaded in your name? 24 A. That's correct. 25 Q. Did you ever authorize a change of
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1 address to the mortgage company to the address given on 2 the Notice of Breach Letter? 3 A. No. 4 Q. Because you were making payments on the 5 mortgage -- after you received the lawsuit, did you 6 have any communications with the mortgage company? 7 A. At the time we were married, the servicer 8 wanted authorization, in writing, to allow me to speak 9 on behalf of Ms. Kelty. That was submitted. I do have 10 correspondents subsequent to that that shows the 11 parties, that the plaintiffs were in communication with 12 me, but that did not last. 13 Q. Did you ever have communication with 14 somebody at the bank telling you how you should make 15 payments? 16 A. I was told if I wanted to get assistance 17 I had to stop making payments for ninety days. 18 Q. So then did you do that? 19 A. I did and called back on the ninety-first 20 day making an offer with money. 21 Q. And what did they say? 22 A. Call the investor because the investor is 23 the one that will make that call. 24 Q. Were you ever able to get back in touch 25 with the mortgage company to make your offer of
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1 payment? 2 A. No. They said that they needed written 3 authorization, and I told them that they had that. 4 Q. So you were making your payments, you 5 were contacting them and then they cut off all 6 communication with you? 7 A. Yes. 8 MR. GINGO: I have nothing further. 9 THE COURT: All right. 10 CROSS EXAMINATION 11 BY MR. ORIZONDO: 12 Q. Mr. Webster, you previously testified 13 that you were the one that was making payments on this 14 loan, correct? 15 A. We relocated because of my employment; my 16 wife was not working. 17 Q. No, no, no. I asked18 A. Yes, I was making all payments. 19 Q. You were making all payments? 20 A. Yes, sir. 21 Q. And it's your testimony that you did not 22 know that the note -- you just testified that you did 23 not know the loan was in default until you received the 24 service papers for the lawsuit; is that correct? 25 A. No. I said that I did not know that
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1 there was a pending foreclosure or a default because I 2 was under the impression, by speaking with the 3 representatives at plaintiff's Executive Resolution 4 Group, that there was going to be some kind of a 5 formidable work-out solution. 6 Q. Mr. Webster, is your testimony that you 7 have been, you were making payments all the way through 8 the filing of this foreclosure action? 9 A. No, sir. I had lost my job and my wife 10 went to work. She was subsequently making payments and 11 then quit her job. 12 Q. So would you agree that by not making a 13 mortgage payment on a loan, the loan would be in 14 default? 15 A. Well, I would say that if one has cash 16 money ready to offer I would not know who in their 17 right mind would refuse it. 18 Q. That's not the question I asked. If a 19 payment is not made on an account, would you consider 20 that being a default? 21 A. If the servicer had a lawful right to 22 tell me to stop making payments -23 MR. ORIZONDO: Will the Court please24 WITNESS: -- I don't know why they would 25 tell me to stop making payments.
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1 MR. ORIZONDO: Will the Court please 2 instruct the witness to answer the question? 3 THE COURT: Mr. Webster, you need to be 4 very specific and answer the question. 5 WITNESS: Could you rephrase that, 6 please? 7 BY MR. ORIZONDO: 8 Q. Mr. Webster, if a payment is missed on an 9 account, would you consider that a default? 10 A. If someone told you to stop paying11 MR. GINGO: You have to answer his 12 question. 13 THE COURT: Let me clarify for you. When 14 did you make your last payment? 15 WITNESS: It was on about early 2008. 16 THE COURT: Okay. 17 BY MR. ORIZONDO: 18 Q. Mr. Webster, would it be reasonable to 19 expect a foreclosure action if you stopped makings 20 payments on the mortgage? 21 A. I listened to what my loan servicer told 22 me. That was my mistake believing JP Morgan Chase. 23 Q. So then if you purposely stopped making 24 the payments, how do you explain testifying that you 25 did not know that the loan was in default?
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1 A. There was money ready to be placed in the 2 hands of your client, and they refused it. 3 Q. Again, that's not the question I asked. 4 If you did not make payments, how can you testify that 5 you did not know the loan was in default? 6 A. It sounds like you're leading me down to 7 the answer that you would like. 8 MR. GINGO: You've got to answer his 9 question. 10 MR. ORIZONDO: This is cross-examination, 11 I'm allowed to lead the witness. 12 THE COURT: Mr. Webster, let me help you. 13 When did you make your last payment again? 14 Some time in -15 WITNESS: This was on or around 2008 at 16 their request to stop paying. 17 THE COURT: When was it, though, that you 18 actually made your last payment, not when you 19 stopped. When did you make the last payment, 20 do you know? 21 WITNESS: That was on or around Spring of 22 '08. 23 THE COURT: Spring of '08? 24 WITNESS: Yes, sir. 25 THE COURT: And this loan went into
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1 default when? 2 MR. ORIZONDO: The witness previously 3 testified the loan went into default is due for 4 the November 1 of 2008 payment. That is 5 because after the default in the Spring of 6 2008, Ms. Kelty was approved for a loan 7 modification, that she subsequently did not 8 make any payments on. 9 THE COURT: So the lack of -- the first 10 payment that you're foreclosing on is failure 11 to make a payment that was due on November 1, 12 2008? 13 MR. ORIZONDO: Yes, sir. 14 THE COURT: All right. Thank you. 15 MR. ORIZONDO: No further questions, Your 16 Honor. 17 THE COURT: Any cross? 18 MR. GINGO: No, sir. 19 THE COURT: Anything else? Do you have 20 to offer any evidence? 21 MR. GINGO: No. 22 MR. ORIZONDO: Argument? 23 THE COURT: Argument. 24 MR. ORIZONDO: Your Honor, this is a 25 residential foreclosure action. Plaintiff has
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1 met its burden by proving standing on their 2 Florida Statute 673.3011 subsection 1 by virtue 3 of the witness testifying to Chase being in 4 possession of an original note with an 5 endorsement in blank making it a bearer paper. 6 In addition, the plaintiff alternatively, 7 also proves standing under Florida Statute 8 673.3011 subsection 2 by virtue of the witness 9 testifying that the JP Morgan Chase was in 10 possession of the original note prior to the 11 complaint being filed. And having a recorded 12 Assignment of Mortgage, which transferred 13 interest in both the recorded mortgage and the 14 note and indebtedness secured thereby. 15 The plaintiff has also proven by the 16 preponderance of the evidence compliance with 17 conditions precedent and that a Notice of 18 Acceleration was sent to the borrower, as 19 required by Paragraph 22 of the mortgage, at 20 the mailing address that she provided to the 21 servicer advising of the default, providing an 22 opportunity to cure the default. And that 23 default was never cured. 24 Plaintiff has also provided evidence by 25 way of the payment history to support its
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1 finding as to amounts due on the loan, 2 including, but not limited to, the unpaid 3 principle balance, the unpaid interest, any 4 escrows due on the loan for funds advanced by 5 JP Morgan Chase that have been unrecouped. 6 Again, the plaintiff was also granted a 7 motion to have the pleadings conformed to the 8 evidence so as to account for the note attached 9 to the original filing of the complaint not 10 bearing the endorsement that was, in fact, on 11 the original note prior to the complaint being 12 filed as evidence by that note, that 13 endorsement, existing on the note attached to 14 the previously filed foreclosure action in 15 2008. 16 For all these reasons, Your Honor, we 17 feel we have met the burden, which is 18 preponderance of the evidence. We would, 19 again, move for entry of a final judgement of 20 foreclosure and request that the foreclosure 21 sale be scheduled for the next available sale 22 date. 23 THE COURT: Counsel? 24 MR. GINGO: Yes. I think there's just 25 one issue from the defense perspective here,
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1 Your Honor, and that relates to the default 2 notice under Paragraph 15. The witness 3 testified that there was only one address of 4 record, that's the property address. The 5 address on the default letter went to some 6 other address, it didn't go to the property 7 address. I believe the issue comes down to, as 8 the Court indicated, whether or not the 9 borrower -- this borrower -- has a right to 10 cure under the mortgage note. 11 The reason for the requirement that 12 notice be sent to the property address is to 13 make sure that the person who's in the house 14 would have the right to cure. That's the 15 reason for that notice. It comes under 16 Paragraph 19 of the mortgage, and the right to 17 cure certainly would be available to somebody 18 if they had funds to cure. 19 Now my client, although the evidence was 20 sustained, he's indicating that he did have 21 access to some funds. But more importantly, 22 the breach notice, there's only one official 23 address of record, that's what Paragraph 15 24 says. And the only way it gets changed is if 25 the person who changes their address does so in
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1 writing to the lender. The witness didn't come 2 to court today with any evidence, documentary 3 evidence, whatsoever to demonstrate that Ms. 4 Kelty had changed her official address for 5 mailing of the breach letter. 6 So I believe that the argument comes down 7 to whether or not Mr. Webster had the right to 8 cure, and thus, whether that right, under 9 Paragraph 15, to receive the notice at the 10 property address. I believe he did. Paragraph 11 13 says he's an obligor under that mortgage. 12 The note doesn't talk about a breach 13 letter. The mortgage talks about a breach 14 letter in Paragraphs 15 and 22. And so he 15 signed as a borrower under the mortgage. 16 That's what -- it says that next to his name. 17 So my belief is he has all the rights 18 that go, that are incumbent upon the mortgage, 19 and he also has all the liabilities that are 20 incumbent upon the mortgage. He was a married 21 person at the time. He did own the property at 22 the time. It was his homestead. So I believe 23 he was entitled to receive that at the property 24 address pursuant to Paragraph 15. 25 THE COURT: Do you wish to respond?
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1 MR. ORIZONDO: Very briefly, Your Honor. 2 I understand counsel's argument. But at the 3 same time, there are many properties that are 4 currently inhabited by tenants and it is, if 5 the Court were to follow counsel's argument, it 6 would essentially be on the tenants to cure a 7 default on a mortgage by virtue of a Notice of 8 Acceleration being sent to the property 9 address, you know, where they live, and that is 10 not what the statute requires. 11 The only person that is responsible for 12 curing a default is the person who is on the 13 account. And the only person who was on the 14 account is the person who has availed 15 themselves personally liable for those amounts 16 due and owing, and that person is the person 17 who executed the note. 18 Mr. Webster is not personally liable for 19 this. After this judgment -- if a judgment is 20 entered, he does not have to fear JP Morgan 21 Chase Bank coming after him for a deficiency or 22 anything along those lines. It is not his 23 responsibility to cure the default. Ms. Kelty 24 is the one who went into default. She, 25 consequently, discharged this note in
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1 bankruptcy. She's done with it. There's 2 nothing more to be done with regards to the 3 note. 4 Respectfully, I do not believe it is 5 proper for the Court to -- I do not believe 6 that it would be proper for the Court to find 7 an individual, other than the note signer, 8 responsible for the amounts due on the note and 9 for the responsibility to cure any default on 10 the note. And for that reason, I disagree, 11 respectfully disagree, with counsel's argument 12 as to that point. 13 And given that notice was, in fact, sent 14 in compliance with the relevant paragraphs of 15 the mortgage to the borrower, Patrice Kelty, we 16 have complied with conditions precedent. 17 MR. GINGO: One last thing, Your Honor? 18 THE COURT: Certainly. 19 MR. GINGO: We're here on a mortgage 20 foreclosure complaint. Count one. There is no 21 count two for damages. They're foreclosing the 22 mortgage. That's it. 23 THE COURT: Just out of curiosity, is 24 there any case law that you're aware of on 25 behalf of the defendant, Mr. Webster, that says
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1 the mortgagor has the right to cure when they 2 didn't sign the promissory note? 3 MR. GINGO: No. And Your Honor, if the 4 Court would give me a few days to brief it, I 5 will certainly do so. 6 THE COURT: As we sit here you're not 7 aware of any8 MR. GINGO: No. 9 THE COURT: -that would support the 10 mortgagor? 11 MR. GINGO: My guess is the Court's about 12 to make a, depending on which way you go, 13 you're about to make14 THE COURT: Well, I'm curious if you were 15 aware of that. I assume that you would have 16 researched that because I'm not aware of any 17 law18 MR. GINGO: I have looked. I haven't 19 found anything. 20 THE COURT: I'm not aware of any law that 21 says the mortgagor as opposed to the borrower. 22 I'm interpreting the borrower being Ms. Kelty, 23 since she's the one that signed the note. I'm 24 not aware of any law that says a mortgagor that 25 didn't sign the note has a right to cure it.
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1 It's an interesting issue. 2 MR. GINGO: Yeah. 3 THE COURT: I'll go ahead and find that 4 the evidence from the plaintiff's witness did 5 support that notice was given to Ms. Kelty. I 6 also think you have a default against her, do 7 you not? 8 MR. ORIZONDO: Yes, sir. We have a 9 default against Ms. Kelty. And as I said, she 10 already discharged personal liability on the 11 bankruptcy. So this judgment, for purposes of 12 today, would be in rem only. 13 THE COURT: So I would take then the 14 default to mean that all the allegations in 15 your complaint as to her would be admitted as 16 true? 17 MR. ORIZONDO: Yes, Your Honor. 18 THE COURT: So therefore, she did get 19 notice, although, apparently Mr. Webster may 20 not have. It appears that I received no 21 evidence contradicting the fact that Ms. Kelty 22 didn't get notice of the default. 23 So based on all that, I'll go ahead and 24 enter the final judgment, and we need a sale 25 date.
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1 MR. ORIZONDO: Yes, Your Honor. We would 2 request the first available sale date. 3 MR. GINGO: Can we have sixty days? He 4 lives in the house. 5 THE COURT: You're still living in the 6 house, Mr. Webster? 7 MR. WEBSTER: Yes, sir. 8 THE COURT: Okay. I'll go ahead and move 9 it out to March 20th. Any objection to that? 10 MR. ORIZONDO: No. That's fine, Your 11 Honor. 12 THE COURT: Set the sale date for then, 13 for March 20th. 14 MR. ORIZONDO: If I may approach, Your 15 Honor, with two copies for conforming. 16 THE COURT: Give that to Madam Clerk. 17 MR. GINGO: Your Honor, just an 18 observation. My co-counsel mentioned that the 19 Leave to Amend the complaint would have set 20 aside the default. I'm only telling the Court 21 because my co-counsel told me. No other 22 reason. 23 MR. ORIZONDO: Your Honor, we simply 24 amended the pleadings to conform to the 25 evidence presented at trial. Again, I'll cite
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1 to the Carnival Cruise Line versus Jose Nunez. 2 This is a perfectly permissible course of 3 action to have the pleadings conformed to the 4 evidence. 5 And as Your Honor pointed out, it is for 6 the limited purposes of making sure that the 7 proper note, the original note that was 8 introduced into evidence today, is reflected as 9 the one that was attached to the complaint. 10 THE COURT: I amended it only for the 11 purpose of trial. 12 MR. GINGO: Thank you. 13 THE COURT: It wasn't amended for any 14 other purpose. Anything else you want to take 15 up on this case? 16 MR. ORIZONDO: No, Your Honor. Thank 17 you. May we be excused? 18 THE COURT: Yes. 19 (Thereupon, the hearing was concluded at 2:00 p.m.) 20 21 22 23 24 25
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1 2 CERTIFICATE OF REPORTER 3 4 The State of Florida ) County of Brevard ) 5 6 7 8 9 10 11 12 13 14 15 16 I, TAMMY LOGAN BROOKS, a Shorthand Reporter and Notary Public in and for the State of Florida at Large, do hereby certify that I was authorized to and did report said hearing in stenotype; and that the foregoing pages, numbered 1 to 104, inclusive, are true and correct transcription of my shorthand notes of said hearing. I further certify that said hearing was taken at the time and place hereinabove set forth and that the taking of said hearing was commenced and completed as hereinabove set out. I further certify that I am not an attorney or counsel of any of the parties, nor am I a relative or employee of any attorney or counsel of party connected with the action, nor am I financially interested in the action. The foregoing certification of this transcript does not apply to any reproduction of the same by any means unless under the direct control and/or direction of the certifying reporter.
17 IN WITNESS WHEREOF, I have hereunto set my hand this 11th day of February, 2014. 18 19 ____________________ 20 TAMMY LOGAN BROOKS 21 22 23 24 25

Webster - Non-Jury Trial - Brevard County - 05-2009-CA-74735

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NON-JURY TRIAL JP MORGAN CHASE vs.

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800.211.DEPO (3376) EsquireSolutions.com

NON-JURY TRIAL JP MORGAN CHASE vs. KELTY

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800.211.DEPO (3376) EsquireSolutions.com

NON-JURY TRIAL JP MORGAN CHASE vs. KELTY

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NON-JURY TRIAL JP MORGAN CHASE vs. KELTY

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NON-JURY TRIAL JP MORGAN CHASE vs. KELTY

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NON-JURY TRIAL JP MORGAN CHASE vs. KELTY

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