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I N THE C I R C U I T COURT O F THE F I F T H J U D I C I A L C I R C U I T I N AND FOR HERNANDO COUNTY C a s e No.: H-27-CA-2009-001484

THE BANK O F NEW YORK MELLON

d / b / a T h e B a n k o f New Y o r k ,
CWABS,

as

T r u s t e e for the C e r t i f i c a t e H o l d e r s

Inc.,

A s s e t Backed C e r t i f i c a t e

Series 2006-8,
P l a i n t i f fsf
VS.

NOVEEN HOWELL,

et al.,

Defendant.

Hernando County Courthouse Brooksville, Florida

March 2 7 ,
10:OO a . m .

2012

- 10:30 a.m.

T R I A L O F PROCEEDINGS T h e H o n o r a b l e A n t h o n y M. Tatti

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1 APPEARANCES 2 3 ATTORNEY FOR PLAINTIFFS: 4 DENNIS BALLARD, ESQUIRE P.O. Box 950955
5 Lake Mary, Florida 32795-0955
Phone: 407-927-4952
6 Email: ballardlaw@cfl.rr.com
7
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9 ATTORNEY FOR DEFENDANT:
10 CONSTANTINE KALOGIANIS, ESQUIRE Kalogianis Law Firm, P.A. 11 8141 Bellarus Way, Suite 103 Trinity, Florida 34655 12 Phone: 727-8 17-0950 Email: chuck@kalogianislawfirm.com 13

a copy, I can provide him one. Do you have it, Judge? Judge, I have a copy if you don't have one. THE COURT: No. I'm wading my way through all of the pretrial motions, which I fiankly would have expected would have been filed before the pretrial hearing we had. MR. KALOGIANIS: This relates to -THE COURT: Not this morning. MR. KALOGIANIS: This relates to post discovery cutoff, post pretrial content, Your Honor. That's the only reason I filed for this morning. THE COURT: Well, you -- both sides have now severely cramped the time you have. I don't have much time this morning. I thought our pretrial matters were resolved when we were going to proceed directly to the merits of this. MR. KALOGIANIS: Again, if I could be heard, Your Honor? THE COURT: Yes, sir. MR. KALOGIANIS: Thank you. The Court entered an order compelling
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PROCEEDINGS THE COURT: Good morning. MR. KALOGIANIS: Good morning. MR. BALLARD: Good morning, your Honor. THE COURT: This is the Bank of New York Mellon versus Noveen Howell. The case number is 2009-CA-1484. We are here for trial ihis morning. Plaintiff ready to proceed? MR. BALLARD: Yes, Your Honor. THE COURT: All right. Is the Defendant ready to proceed? MR. KALOGIANIS: Yes, Your Honor. We have some pretrial motions set for 8:30 this morning, both sides. THE COURT: And what would those be? MR. KALOGIANIS: First, Your Honor, I filed a Motion for Sanctions against plaintiffs counsel. I'd like the opportunity to explain what the issues are. If Your Honor will recall, back in February, last month, February 14th, the Court entered an order compelling discovery against the plaintiff. I would direct the Court to take a look at that order. If the Court needs

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discovery on February 14th, at a hearing where it ordered that within 20 days from that date, which was March 6th, the plaintiff was to provide quote, a fully executed copy of the applicable pooling and servicing agreement, together with all pertinent schedules, exhibits and attachments thereon. In addition, plaintiff shall produce a fully executed copy of the servicing agreement between plaintiff and the servicing agent who executed the Defendant's First Set of Interrogatories. Plaintiff shall also be required to respond to the Defendant's First Set of Interrogatories, which were dated March of 2010. The numbers are specifically itemized in the order. And then, most significantly, Your Honor, the plaintiff shall also be required to produce the original note, together with any allonges and endorsements thereon in accordance with a request for inspection of originals that we had made. And the Court entered an order authorizing us to inspect that note. They had 20 days. They had to do it by

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5:00 p.m., March 6th, 2012. They did not substantially comply. What they did do is they did produce a week ago -- the discovery cutoff date, by the way, was March 13th. They did produce about a week ago an unexecuted copy of a pooling and servicing agreement with no schedules. I went ahead and did a Notice of Filing. I was hesitant to do it because of how thick it is, but I filed it anyways for the Court to take a look at it. They produced no copy of the servicing agreement between BAC, who signed the interrogatories,and the plaintiff, to demonstrate that they had any authority to sign anythlng on behalf of the plaintiff. The interrogatories, they were required to answer them. They had already objected to the interrogatories. That's what triggered the Motion to Compel. The Court ordered them to answer them. They filed a second set objecting to the -- having to answer the interrogatories. And then one week ago, even though they filed a two-count Complaint in the nature of a mortgage foreclosure and a lost instrument count, one week ago I get an e-mail saying the
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If there's any insinuation that somehow my bringing up these issues to the Court's attention for the Court to consider -- and the Court may want to do nothing, the Court may want to put them off, the Court may want to rule on them. I feel obligated to tell the Court that when I play by the rules and they don't, that can prejudice me. That can hurt my case. When they call somebody through that door that's not on their witness list, Your Honor, they have not a single name on their witness list, not a single name, then they don't show up for a depo, we call that surprise. I don't know what's going to happen today. But if Court's going to tell me that I should file a Motion to Continue, the response I would have for the Court is why should I? I haven't done anything wrong here. I've played by the rules. The Rules of Procedure, the rules of the game. They have not. And so I'm asking the Court to consider that as a sanction, and say to these folks, you don't want to play by the rules, this is what could happen in my courtroom. And I say that
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note is now available for inspection at our offices in Boca Raton, which is in contravention to my request, which said that it had to be produced up this way. Then prior to the discovery cutoff, ten days before, we tried to coordinate the deposition of the corporate rep so that we can know what they're going to testify to today. They didn't cooperate with us on that. We gave them dates. They said we're not going to show. We set the depo, Anderson Court Reporting. It was properly noticed. Nobody showed up. So they didn't show up for the deposition, and they didn't comply with this order. And that's what's before the Court this morning. Now, the Court correctly set this case for trial because nothing was going on with this case. It had been administratively closed for eight months. Plaintiff filed to reopen it. I don't know if you recall, but we showed up at a hearing, and plaintiffs counsel didn't show up. You said Counsel, I mgoing to set it for ' a trial. I said Judge, you do that. Let's go. You know, the case had been pending quite long enough.

with all due respect. The Court again may not want to take any action on this. But I feel obligated that when I follow the rules and they don't, and they're meaningful violations, we're not talking about insignificant petty violations, they're meaningful violations, that the Court should take some sort of action by way of either precluding these witnesses from being called at trial because they never allowed me the opportunity to talk to them, precluded the documents that we're talking about from coming into evidence because they never produced them, you know, some sort of sanction or striking the pleadings. Anything that's allowed under 1.380(b), I think the Court can consider. The relief that I would be requesting, if the Court's going to entertain my motion, the relief that I would be requesting is that they should be precluded from calling any witnesses not specifically named on their witness list for failing to provide me with any names. They should preclude the introduction of the original note if they now have it, for failing to allow me to look at it, to verify

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it, perhaps inspect it, preclude the plaintiff from providing testimony by a servicing agent because they didn't provide the servicing agreement, awarding attorney's fees or reservingjurisdiction on attorney's fees. And then in addition to that, whatever is provided under Rule 1.380(b)(2), which is -that is pretty much consistent with what I asked. It also has striking, which is the severe sanction. But striking the pleadings may be wananted by the Court in light of the multiple nature of the violations. We're not just talking about one or two, we're talking about five or six. I mean, at what point does it get absurd. And so I felt like I had to bring it to the Court's attention, and then the Court can do what it will. THE COURT: Counsel? MR. BALLARD: Thank you, Your Honor. As you know we got this case in mid-February. THE COURT: Let's start by identifying yourself. MR. BALLARD: I'm sorry, Dennis Ballard for the plaintiff, Your Honor.
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had said at that time we'll do our best. We know it's in transit, but we will get it at that -- you know, at the earliest convenience. In lieu of such, there was the interrogatories that were to be answered which we also -- we did -THE COURT: No, there was no in lieu of.
MR. BALLARD: Well, it does say that --
THE COURT: There was a list of things you
were directed to do. MR. BALLARD: Yes, Your Honor. THE COURT: And one -MR. BALLARD: And we did -THE COURT: -- didn't preclude any other. MR. BALLARD: Well, I believe the order did say in lieu of if -MR. KALOGIANIS: The Court.did say that if they produced the servicing agreement and the PSA that they wouldn't have to answer the interrogatories. THE COURT: But that part. But that there was no in lieu of producing the original note or the mortgage. MR. BALLARD: Correct, Your Honor. And we did, you know, finally obtain a copy. It was
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THE COURT: Thank you. MR. BALLARD: I know we've had a couple of hearings. We've gotten this a little late in the game, however at that time -THE COURT: Whoa, whoa, whoa, whoa. MR. BALLARD: I'm sorry? THE COURT: We're not going to talk about it being late in the game on a case that was filed in April of 2009. MR. BALLARD: And, I know, your Honor -THE COURT: What's late in the game is the disposition in this matter. MR. BALLARD: And I agree, Your Honor. However, at that time we had a Motion to Compel, there was an order that we produced the original documents, and pooling and servicing agreement, if available, and the servicing agreement if one was applicable which, you know, we found out -THE COURT: And the original note and the -MR. BALLARD: The original note. Yeah, I -THE COURT: -- by March the 6th. MR. BALLARD: Exactly. You gave us a -- I

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in transit. We explained that. I think we did a Motion for an Extension of Time, and we did some other things where we explained that. We did get a copy to opposing counsel as soon as possible. We did have it in our hands as of last
week, and that's when we did do a notice, and
also e-mailed a copy of the exact original, and
said it was available. Under the rules we made
it available as prescribed under the discovery
rules, Your Honor.
We also gave them a pooling and service
agreement, and we distinctly said that as far
as we were told by the client, they are not
positive it is even a pooling and service
agreement. However, if it were, it would be in
this one in particular because of the date.
And, unfortunately, that's why there's no -- this is an execution copy, by the way, that we provided, and for whatever reason, I mean, it's -- it's probably not in there. It's probably not in a pooling and service agreement, and that's something that, you know, we have a witness to testify to. We did the original.

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THE COURT: And who would the witness be? MR. BALLARD: Your Honor, I have Josh Lipkey. (Phonetic) THE COURT: Is there some reason there is no name on the witness list? MR. BALLARD: We had to get a last minute witness, Your Honor. THE COURT: Well, then, let's talk about that last minute issue. MR. BALLARD: And that goes to -THE COURT: Because the -- now, let me finish now. The pretrial order, the order scheduling the hearing and the pretrial conference required a witness list be filed five days prior to the pretrial conference. MR. BALLARD: Yes, Your Honor.
THE COURT: Which was not done.
MR. BALLARD: Correct. We did file on the
24th, Your Honor, which was late. THE COURT: What I have in my hand now is a witness list from the plaintiff -MR. BALLARD: I'm sorry, that was on the 29th. THE COURT: -- filed on March the lst,
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there's various reps which there are, Your Honor. For Bank of America there's a lot of reps, and they're making themselves available as best they can, but they all are custodians of the business records and that's what they testify to. And I did make available and -- you know, any corporate rep that would like to be deposed by opposing counsel. This is going back to the 17th, Your Honor, where we talked about this. And I, of course -THE COURT: And he asked to set one deposition, and you objected and then didn't show. MR. BALLARD: That's not correct, Your Honor. THE COURT: It's not correct? MR. BALLARD: The -- no. If you read my response -- and I do provide all of the documentation in it -- they asked for three people. They asked for the corporate rep -they did not ask for a specific name. They asked for a corporate rep. THE COURT: Well, they didn't have a specific name.
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2012, that bears no name or address. MR. BALLARD: That's correct, Your Honor. And we did -THE COURT: Does that not violate the pretrial order? MR. BALLARD: Well, it does because it was late, and we discussed that, I believe, on the pretrial conference. THE COURT: Right. We discussed you providing a list of names. MR. BALLARD: Well, that was -- again, Your Honor, we provided a corporate representative which, you know, we did not know who it would be at the time. I've discussed this fact from the 17th. THE COURT: And then it says other representatives on behalf. What does that mean? MR. BALLARD: It's possible that there would be other representatives, if called. However, we normally use a corporate rep in these trials. And, I mean, you know, obviously there's
this case law that says a corporate rep, you
know, may not be defined at the time because

MR. BALLARD: I understand, your Honor. They asked for two third-party -- they asked for specific named people, third parties, for the plaintiffs to produce. And as you know, the case law they have to subpoena those people. The plaintiff cannot just direct third parties to show up at a deposition. And I explained that to them. And there's e-mails going back and forth. And they said your corporate rep may appear by phone, you know, kind of short, if you can get a corporate rep to appear by phone. And we want these other two people. And I wrote them back and I said no, I can't produce two specifically named people. You have to follow the rules, you have to subpoena them, and that's how it works. But I will produce a corporate rep for you, because you're making it very easy by telephone. I appreciate that. It was very gracious. The next thing I know, they turned around and said no, you need to bring them here, you need to show up with your witness in our offices. And I told them -- and this was way before the deposition, way before, Your Honor.

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And I said there's no way I can do that in short term, but I'll try and coordinate as best as I can. And I did. I worked really hard to get that coordinated. They would not do it by telephone. They went back on what they were saying. Because we had someone arranged by telephone. And instead they gave me about five hours to coordinate a time with them. And then, obviously, I couldn't that in five hours, they went ahead and set it unilaterally. And that's why I was forced to file a Motion for Protective Order. And I told them to -- distinctly, in writing and by phone, we would not be there, we could not be there. And they set it anyway, they get a court reporter, and they said they incurred all this expense, when they had more than enough time in advance to know that we were going to be there. And I did tell them I would coordinate a time to get a rep there, if need be. THE COURT: A rep, still to be named. MR. BWLARD: A corporate rep, yes, Your Honor.
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10-day notice after they failed to appear, and we said listen, the trial is coming up, let's get this done. We sent is a 10-day letter. It's attached to my Amended Motion for Sanctions. So, please contact us. We still have time before the trial. Granted the discovery cutoff date had run, but you know how that goes sometimes, Your Honor. We made every effort to try to coordinate after they failed to appear, to say, please, call us, let's set something up. We still have time before the trial. I would have incurred a rush fee on a transcript, but hey, you know, that's life. No response. So we have tried everything possible and, you know, you have to -- you have to start to wonder, you know, what is going on. Now, if I were in counsel's position -and I'm not -- I've been around the block a little bit here, and I know the Judge has, and he's a relatively new attorney, I might be having a conversation with my client, and I might be saying, you know what guys, these Court orders mean something. And if you're not going to show up, I'm not going to go down with
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MR. KALOGIANIS: If I could respond, Your Honor. THE COURT: Yes, sir. MR. KALOGIANIS: After -- well, first, here's the Notice of Taking Deposition. Of course, you have it already. THE COURT: I have it. MR. KALOGIANIS: Okay. The Notice of Taking Deposition sets forth the matters that we wanted to take -- that we wanted to inquire into dated March 2nd. I set it for the last possible date before the discovery cutoff to maximize the amount of time they had. It was ten days. If the Court wishes to hear testimony, my assistant here, she can testify she e-mailed at -- giving them five dates, asking for them to give us a date. They refused. With respect to the other two witnesses, those were witnesses. We were going to subpoena them. We elected not to. But this Notice of Talung Deposition is as to party. This is a party Notice for Deposition, number one. Number two, if his arguments that he's making are true, we sent a

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the sinking ship. That's what I might have done. Instead, he's showing up here today aligning himself with their behavior, instead of saying I'm a court officer, you know, I'm going to do what's right by the Court as well. And so I think, you know, if there's a learning experience that can come out of this for a relatively new, young attorney, it's that be careful when you align yourself with your client's conduct. If your client's not complying with the Court order, then you better watch out. You know, there are rules that could, you know, hit you up with sanctions as well. So that's just a bit of friendly advice. But in terms of the Notice, it was properly noticed, we have the e-mailed attached to my Motion for Sanctions where we gave them the five dates. They didn't -- they said they weren't going to come. So, you know, we went hoping they would change their mind. They did intimate that they were going to produce a servicing agent. And I said, you know, honestly, guys, this is -- this is a notice for a party. The servicing agent is not

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a party. I don't want a servicing agent at this deposition. It's not noticed for that. And that's when they shut down and said we're not going. So I think they had the intent of producing a servicing agent instead of a plaintiff. That's the only conclusion I can draw from that -- the only inference I can draw from that. So I would ask the Court just to take judicial notice of the Notice. You know, it speaks for itself. A corporate representative of the plaintiff. MR. BALLARD: Your Honor, I appreciate the personal attack on me and my client, but, you know, we have worked with opposing counsel in every way possible. And I do have the e-mails where they give the five dates, and it says our standard office policy is required, parties do appear in person, in the venue for deposition. However, having the very small window of opportunity in which depositions can be scheduled in this case, Attomey -- and if I may pronounce your last name -MR. KALOGIANIS: Kalogianis. MR. BALLARD: Kalogianis?
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listed? MR. BALLARD: And I agree, Your Honor, as far as that not being listed. But he had never asked for -THE COURT: In violation of the Court order. MR. BALLARD: And I agree, Your Honor. And there's, you know, unfortunately, no way I could get a specific person and be guaranteed that person would show up. THE COURT: Well, Counsel, I understand to some extent you're at the mercy of your client. MR. KALOGIAMS: I agree with you on that, your Honor. THE COURT: And I have -- the block that I've been around doesn't involve mortgage foreclosures. I spent twenty-two and a half years as a prosecutor responsible for the presentation of evidence necessary to deprive a citizen of his or her liberty, and in many instances their lives. That's what I did. And if I showed up for trial and violated half of the Court orders in the file, and stood in front of one of my judges and announced ready for trial, I would have fully expected to have
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-- we'll make an exception to allow your

client's corporate rep to appear telephonically for deposition. There was never any objection to a corporate rep. There was never, you know, any talk of them having to be there. And then I get the next day -- actually I take that back, at 5:10 the same day, Your Honor, it says that Mr. Kalogianis will be taking the deposition of plaintiffs corporate rep in the venue, Hemando County, per Rule 1.310. It was a total 180. And I did do whatever I can. There's tons of e-mails going back and forth, Your Honor. And, you know, there's no way in the time frame of, you know, a few hours I could arrange that for a rep to be there personally. But there was never any issue, any objection to a corporate rep being deposed. We had no objection to it. There was never any specifically named person asked for, Your Honor. Any I know the Court order -THE COURT: And I go back to the question I've asked several times. How could he ask or set a specifically named person for deposition when one, to this moment, has never been

been taken into custody on a contempt order. MR. BALLARD: And I understand, Your Honor, especially in that situation where you're dealing with someone's freedom. THE COURT: Well, today we're talking about somebody's property. MR. BALLARD: We're talking about someone's residence, as far as I know. I believe it is their residence. THE COURT: Right? MR. BALLARD: And -THE COURT: There was --just so that the record is clear, as I recall it -- and if I'm wrong someone should feel free to correct me -but this case languished with no activity for a period of many months, prompting the setting of the hearing by the Court. Not at the request of any party, but by the Court, to get the case moving. And upon the receipt of the plaintiff's motion to reopen the case that had been administratively closed. And in the order reopening the case, because it -- I guarantee you the order administratively closing the case gave leave to reopen when the plaintiff was

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ready to proceed to summaryjudgment. I know it says it in that order. The order reopening the case set a summary judgment here pursuant to that order, which was ignored by the plaintiff. No one appeared except Mr. Kalogianis. And I set the case for trial. We had a pretrial hearing. And if I recall, the pretrial, the order setting the pretrial hearing was not complied with because there was no witness list provided by the plaintiff, which the order specifically required you to do five days before the hearing. A witness list with names and addresses, as I recall it. MR. BALLARD: And I believe it is, Your Honor. THE COURT: And today after I've asked you if you're ready for trial and you tell me yes, there still is no witness list with names and addresses, and there are these volumes of discovery issues now, and motions and counter-motions and motions for sanctions on the day of trial. And as far as I can tell, that's at least three court orders that the plaintiff failed to comply with.
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choice. It happened all since February 14th. And they had till March 6th to comply. So I couldn't do anything before March 6th because I was in a holding pattern waiting for them to comply with the Court order. Now, March 6th through today, the 27th 21 days, that would have given me sufficient time to prepare for these documents. I would have been fine. But that didn't happen. THE COURT: Well, pursuant to Rule 1.380(B)(2)(c),I find at this point the plaintiff has failed to comply with the Court's pretrial order directing the plaintiff to file a witness list with the names and addresses of the witnesses they intended to call at the trial, in violation of the order entered on December 12th, 201 1. Similarly, an order granting the Defendant's Amended Motion to Compel -- where is it? Now I have lost it. The one that told you you had to file a witness list by March the 6th. MR. KALOGIANIS: I'm sorry, Your Honor, that's the order -MR. BALLARD: The note -- the original
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MR. BALLARD: Again, Your Honor, prior to February I cannot, you know, make any comment. I have no idea what transposed. I'm taking everybody's word that -THE COURT: Well, even if it's the count since February of 2011 -MR. KALOGIANIS: Twelve. Last month. THE COURT: Twelve. Okay. Well, that's just been since the pretrial hearing. MR. KALOGIANIS: Right. MR. BALLARD: Right. And we've picked -MR. KALOGIANIS: The only one that they weren't on, Your Honor, was the hearing where they didn't appear. In fairness to opposing counsel, that was Kass Shuler. But they were on the hearing for the order compelling discovery. That's when they substituted in. It was on the 14th. And thereafter this is when all of the problems really began. Outside of the lack of activity before that, which it forced the Court to close the file for eight months. All of this conduct, again, I'm bringing to the Court's attention late in the game because I have no

note and pooling and service agreement. MR. KALOGIANIS: There's an order dated February 22,20 12, compelling discovery. It doesn't mention a n y t h ~ ~ ~ g witness list. about It talks about the documents and the original note. The witness list requirement was part of the pretrial, which had to be five days prior to. THE COURT: Right. There's no witness list. The pretrial -- the order compelling discovery was not complied with in a timely manner in any regard. I understand you had some difficulty obtaining the documents that weren't in your possession; however, the order specifically directed you to make the original note and mortgage available to the defendant by March the 6th, which clearly was not done. Pursuant to the rule, I'm going to dismiss this action as a sanction for failure to comply with the Court's discovery orders for pretrial orders. It is without prejudice, and you can refile the case, but this lawsuit is over with. MR. KALOGIANIS: Your Honor, I can -- I will prepare that if you'd like me to. I do have just one minor housekeeping

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matter. I took the liberty on behalf of the plaintiff, again, to -- it was an order withdrawing Kass Shuler. I'd like to present that to the Court for signatures so they're officially off the case. THE COURT: That's fine. MR. KALOGIANIS: I would like to -- since they didn't prepare and provide one to the Court, I'd like to, because what happens is it forces me to keep copying Kass Shuler, and I really would rather not cut all those trees down. THE COURT: Do you have any objection to that? MR. BALLARD: No. I know we -- I believe we filed the motion a while back. MR. KALOGIANIS: But this is the order. MR. BALLARD: That's the actual order? MR. KALOGIANIS: Correct. MR. BALLARD: There might be one in the file, Your Honor. THE COURT: Mr. Kalogianis, any motion you have for attorney's fees, I would ask that you file it. MR. KALOGIANIS: I would ask the Court to
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1 CERTIFICATE OF REPORTER 2 3 STATE OF FLORIDA 4 COUNTY OF HERNANDO I, Jeannie Correll, CSR, CCR, Court 5 Reporter and Notary Public, certify that I was 6 authorized to, and did stenographically report 7 the foregoing proceedings, Pages 1-31; and that 8 the transcript is a true record of my said 9 10 stenographic notes. I further certify that I am not a relative 11 12 employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any 13 14 of the parties' attorneys or counsel connected 15 with the action, nor am I financially 16 interested in the action. 17 Dated this 30th day of March, 2012. 18

Jeannie Correll, CSR, CCR 22 Court Reporter and Notary Public State of Florida at Large 23 24 25

reserve based on the dismissal. THE COURT: I will reserve the issue. MR. KALOGIANIS: I do have a -- well, I have a proposed order on my Motion for Sanctions, but it's kind of boilerplate. I didn't know if the Court wants to sign it today and take a look at it. I left some lines for you to fill in. THE COURT: I would rather not fill in blanks. MR. KALOGIANIS: I will just submit that. Or is the Court going to do that order? THE COURT: If you're willing to I'll -MR. KALOGIANIS: I'm willing to, absolutely. THE COURT: I will be perfectly happy for you to do it. Just make sure that counsel gets a look at it. MR. KALOGIANIS: Will do, your Honor. That's all I have. THE COURT: All right. Maybe the second time around it will go a little smoother. All right. Thank you, gentlemen. (End of Hearing)

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