1

1 IN THE CIRCUIT COURT OF THE

FOURTH JUDICIAL CIRCUIT, IN

2 AND FOR DUVAL COUNTY, FLORIDA.

3 CASE NO.: 2004-CA-4835-XXXX

DIVISION: CV-E

4

TCIF REO2, LLC,

5

Plaintiff,

6

-vs-

7

MARTIN L. LEIBOWITZ, AS

8 TRUSTEE, etc., et al.,

9 Defendants.

10 ___________________________________

11

12 Proceedings before the Honorable Bernard

13 Nachman, Circuit Judge, in the above-entitled action,

14 on Wednesday, April 5, 2006, at 2:05 p.m., in

15 Chambers, at the Duval County Courthouse,

16 Jacksonville, Florida, before Shelli Kozachenko, RPR,

17 CRR, CSR (CA), and a Notary Public in and for the

18 State of Florida at Large.

19

20

21

22

23

24 SHELLI KOZACHENKO, INC.

11111-70 SAN JOSE BLVD., #161

25 JACKSONVILLE, FL 32223

(904) 710-2925

2

1 A P P E A R A N C E S

2

3 ROY A. DIAZ, Esquire

Smith, Hiatt & Diaz

4 2691 East Oakland Park Blvd., Suite 303

Fort Lauderdale, FL 33306

5 (954) 564-2050

6 Attorney for Plaintiff.

7

8

JAMES A. KOWALSKI, JR., Esquire

9 Tromberg & Kowalski

4925 Beach Boulevard

10 Jacksonville, FL 32207

(904) 396-5321

11

Attorney for Defendants Robert and Lillian Jackson.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

3

1 I N D E X

2 PAGE

3 PROCEEDINGS 4

4

5

6

7

8

9

10

11

12 N O E X H I B I T S

13

14

15

16

17

18

19

20

21

22

23

24

25

4

1 P R O C E E D I N G S

2 April 5, 2006 2:05 p.m.

3 - - -

4 MR. KOWALSKI: Judge, we're here on two

5 motions actually. The first is our motion for

6 sanctions, and the second is a motion for

7 leave to file an amended complaint.

8 On the motion for sanctions, we brought

9 this because the plaintiff, through its

10 servicing agent, GMAC, regularly and routinely

11 lied to the Court. The issue is not whether

12 it lied or whether the falsehoods were

13 uttered. The question is how seriously those

14 falsehoods should be taken by this Court.

15 The plaintiff argues in their memorandum

16 that the ability of the Court to adjudicate

17 the matter has not been affected, in other

18 words, that some finality that prevents the

19 Court from ruling has not occurred, but that's

20 only because we stopped them, and I'll cite to

21 some cases where they discuss this.

22 In this case the plaintiff filed a motion

23 for summary judgment on August the 6th, 2004,

24 an amended motion for summary judgment on

25 March the 10th, 2005, and again an amended

5

1 motion for summary judgment on November 3,

2 2005, and filed affidavits of indebtedness as

3 to each, and actually called up the motion for

4 summary judgment at a hearing when we were

5 trying to set this deposition.

6 And it was only because we had to move

7 for a continuance, arguing that discovery was

8 pending based upon the Publix v. Owens case,

9 that the motion for summary judgment was not

10 actually heard by the Court that day. It was

11 called up for hearing that day.

12 As the Court knows, motions for summary

13 judgment in foreclosure cases are the norm.

14 They're very common, and the affidavit is

15 routinely relied on by the Court, pursuant to

16 the business records exception, so that the

17 Court can have faith that the testifying

18 affiant really has reviewed the records in

19 depth, really has reviewed the file, really

20 has reviewed the official records, the

21 official pleadings, and the Court can have

22 some indicia of reliability before a home is

23 taken away. The affidavits themselves reflect

24 this.

25 I've referenced, I believe, the three of

6

1 them. I copied one of the three, and the

2 affidavit reflects the degree to which GMAC,

3 or to which this plaintiff through GMAC, is

4 asking that the Court have faith in the

5 testimony that's provided. The witness says

6 that she's examined the loan documents, that

7 she's examined the complaint. She's compared

8 the two and says here that each allegation of

9 the complaint is correct.

10 She's testified to the records being

11 regularly maintained, that they're truthful,

12 they're made at or near the time, and they're

13 made as a matter of daily routine, and that

14 they properly reflect payment charges and

15 advancements that are noted in the records.

16 She also testifies that she's reviewed the

17 entire loan history and that all payments

18 received have been properly applied to the

19 loan account in accordance with the terms of

20 the note and mortgage.

21 None of that is in fact correct.

22 THE COURT: I understand all she ever

23 really reviewed was one page of a computer

24 record.

25 MR. KOWALSKI: One computer screen called

7

1 a foreclosure work screen that is populated

2 solely for her review, populated by others,

3 she knows not how, created with data, she

4 knows not how or why. She only relies on the

5 single screen she reviews and completes this

6 affidavit but says she does other things. And

7 this is not a situation where the witness, on

8 her own, is making this up. It's clear from

9 the transcript which we filed with the

10 Court --

11 THE COURT: She was very candid.

12 MR. KOWALSKI: She is very forthcoming.

13 She did not have any guile. I certainly don't

14 think she was trying to be -- trying to avoid

15 the issues when she admitted that she's

16 signing these affidavits not in front of a

17 notary, which happens to be a violation of two

18 states' notary statutes. I don't think she's

19 testifying with guile.

20 The plaintiff's statement in the

21 memorandum is that the procedural

22 discrepancies -- which they call this a

23 procedural discrepancy. We call it a lie or a

24 falsehood to the Court.

25 They say that the procedural

8

1 discrepancies do not negate the fact that the

2 default was not cured and payments were not

3 made. That's not true. The only fact the

4 plaintiff has put before the Court to say that

5 the default was not cured and the payments

6 were not made is this affidavit, or are these

7 affidavits.

8 The plaintiff also argues that it

9 attached financial records to the affidavits

10 and that the Court I guess somehow could look

11 at the independent records as opposed to

12 relying upon the false statements of the

13 affiant. That's not true. None of the

14 affidavits that were filed with the Court have

15 any financial records attached.

16 They incorporate a reference to records,

17 but the witness has testified that this is

18 filled out only from this single screen,

19 populated by persons she is not aware of,

20 through procedures with which she is not

21 familiar. She does not review the loan

22 documents. She does not review the complaint.

23 She does not review the payment history. She

24 does not sign this in front of a notary.

25 The Jacksons, Mr. Jackson, in fact, has

9

1 provided the only testimony to this Court in

2 the form of an affidavit where he has stated

3 in fact that the payments were made or that

4 they were specifically not made based upon

5 instructions from the plaintiff.

6 Both sides have cited the law. In order

7 for -- we've asked for sanctions. We've

8 suggested dismissal, but the realm of

9 sanctions are up to the Court. In order for

10 the ultimate sanction of dismissal to be

11 entered by this Court, it must be demonstrated

12 clearly and convincingly that a party has

13 sentiently set in motion some unconscionable

14 scheme calculated to interfere with the

15 judicial system's ability impartially to

16 adjudicate a matter by improperly influencing

17 the trier of fact. That's in the case of Cox

18 versus Burke which has been cited by the

19 plaintiff and provided to the Court.

20 The Court should consider the proper mix

21 of factors and carefully balance a policy

22 favoring adjudication with competing policies

23 to maintain the integrity of the judicial

24 system.

25 The standard is not that the party has

10

1 succeeded in their scheme, which is what the

2 plaintiff is arguing, that the Court has been

3 stopped from ruling impartially, only that the

4 scheme has been set in motion. GMAC has set

5 in motion where the Court is misled not in

6 just this case but apparently as a routine

7 practice before every case where GMAC is the

8 servicing entity and testifies before this

9 Court. It's a routine practice, no review of

10 the court documents and no review of the

11 payment history.

12 The plaintiff has asserted specific

13 findings must be made. At page 5 of their

14 memorandum they cite to the Tri-Star versus

15 Miele, M-i-e-l-e, case where they say,

16 "Another finding that must be made for the

17 Court to dismiss an action based on fraud is

18 that the alleged misrepresentation must impair

19 the ability of the Court to impartially

20 adjudicate the matter."

21 That reference is nowhere in that case,

22 and in fact the standard is what I've just

23 read, that the scheme be set in motion, not

24 whether it has stopped the motion.

25 And, again, that can be seen in the Cox

11

1 versus Burke case which was a situation where

2 the plaintiff, in a personal injury case,

3 which most of these are, lied about prior

4 injuries. The plaintiff actually argued in

5 opposition to the dismissal that the volumes

6 of the medical records defense counsel has

7 found show that the defendants have not been

8 hampered in their discovery. In other words,

9 they found out she was lying and got the

10 records she was hiding.

11 Apart from the irony of the argument that

12 Cox should not be punished because she failed

13 to deceive, it is impossible to know what

14 defendants may not have found. The closer

15 question is how material, pervasive, or

16 extreme such false statements must be in order

17 for the extraordinary measure of dismissal to

18 be justified. And that's at Cox, page 46.

19 The plaintiff also argues that we must

20 show an intent to commit fraud and knowledge.

21 Again, the standard is that they must

22 sentiently or knowingly set in motion the

23 scheme. The intent for fraud, the citation in

24 their memorandum, is actually from a case

25 where the cause of action was for fraud, and I

12

1 would agree with that in those circumstances.

2 Here it is only that the party sentiently set

3 in motion a scheme that's intended to deceive

4 the Court or intended to impair the Court's

5 ability to decide the matter.

6 With regard to knowledge, it seems silly

7 for GMAC to argue that they didn't know that

8 this process they set in motion was designed

9 for the testifying witness before this Court

10 to lie in every affidavit. This is GMAC's

11 process. This was created so she reviewed a

12 single screen.

13 Under the Audi case, which was also cited

14 by the plaintiff and provided to the Court,

15 the Court -- and I'm reading here at page 1118

16 of the F.2d opinion: "The fraud on the Court

17 can take many forms. Corrupt intent knows no

18 stylistic boundaries." In that case they

19 found bad faith and dismissed, and that's at

20 page 4 of my Westlaw opinion, but at page 1118

21 of the F.2d opinion.

22 Judge, it's up to the Court to decide the

23 appropriate remedy. We believe dismissal

24 should be on the table, but we believe other

25 remedies may also be fashioned by this Court.

13

1 We suggest the dismissal for three false

2 affidavits, supported by a scheme under which

3 false statements in an affidavit form are

4 routinely supplied to this Court. We suggest

5 dismissal is the appropriate sanction.

6 THE COURT: Response?

7 MR. DIAZ: Well, Your Honor, from the

8 outset, I don't -- I do not believe that the

9 necessary elements to find that there was

10 fraud on the Court have been met under these

11 circumstances. I think that the Court does

12 have to find that there was an intent to

13 embark in this scheme that's referenced in the

14 Cox cases, and I don't believe that that's

15 something that's been established under the

16 circumstances of this affidavit.

17 Your Honor, over the years, and I'm sure

18 you've seen this more than anybody, the

19 practice of foreclosure, the foreclosure

20 practice, it has become a form practice.

21 Courts have recognized that it's a form

22 practice. Courts routinely award attorney's

23 fees based on its being a form practice.

24 If we received a foreclosure referral and

25 handled it in a traditional litigation sense

14

1 and came into the Court with a fee affidavit

2 asking for 4- or $5,000, the Court would say,

3 "That's not reasonable in the standards that

4 we're seeing because it's a form practice that

5 moves much less expensively for attorneys than

6 handling it traditionally."

7 And I think the situation we're facing

8 here is procedures at a servicer got away from

9 the forms, and I think that's really what

10 we're facing here. I'm not condoning it as

11 being something that's correct, but I don't

12 think it was a scheme to commit fraud on the

13 Court.

14 I think what the testimony that came out

15 of the deposition was we have a way of

16 handling volume foreclosure cases, volume

17 default cases, and we have a manner in which

18 we do that. And what we have in this case is

19 a form affidavit that -- that does not tie

20 into their system. I think that, at best, is

21 what went wrong here.

22 THE COURT: What system?

23 MR. DIAZ: The system that they utilize

24 and the procedures and policies that they

25 utilize in processing the defaulted loans.

15

1 THE COURT: Who prepares the affidavit?

2 MR. DIAZ: The affidavits are prepared by

3 our office and submitted to them to complete.

4 So they complete -- and when they complete it,

5 instead of going through the entire affidavit,

6 what they've done is they take the screen

7 shot -- which is a summary of the loan

8 history. It's not something that's just

9 randomly coming out of the air.

10 There's a loan history that's set up in

11 the computer that summarizes in a screen shot.

12 That screen shot that the processor works off

13 of, she takes that information, she populates

14 it into the form that was submitted, and

15 submits that form. And that's procedurally

16 how it works.

17 Is there a defect in that procedure?

18 There certainly is, and it's something that's

19 being -- certainly being corrected at GMAC at

20 this point. But as to this particular case --

21 because I don't think the Court can go outside

22 of this case. As to this particular case,

23 what we're looking at is the question of

24 whether or not the standard that's required

25 for a finding of fraud on the Court is met

16

1 under these facts. And I would submit to the

2 Court that that did not happen.

3 A knowing -- there's a case that we cited

4 in our memo that states that a fraud on the

5 Court would be a knowing deception with an

6 intent to prevent the defense from discovery

7 that's essential to defense of the claim. And

8 that case is Cross versus Pumpco, P-u-m-p-c-o,

9 and I have a copy of the case. It's cited at

10 910 So.2d 324, September 2005, Fourth District

11 Court of Appeals.

12 THE COURT: May I have a copy?

13 MR. DIAZ: Absolutely. I've highlighted

14 the portions that we're relying on.

15 THE COURT: Oh, this is the guy who hurt

16 his neck and they had a -- if I'm not

17 mistaken, they had the surveillance that

18 showed him doing things. But they said --

19 MR. DIAZ: Correct.

20 THE COURT: -- it was insufficient

21 because it didn't -- what it showed was that

22 he was doing all these things, but grimacing

23 with pain nonetheless.

24 MR. DIAZ: But I think the key -- one of

25 the key issues in this case --

17

1 THE COURT: So they didn't say that was

2 enough to dismiss.

3 MR. DIAZ: If you look at the last page

4 of the case where the Court states -- in its

5 last paragraph, the Court states: "He clearly

6 did not intentionally seek to hide relevant

7 information from opposing counsel, as

8 evidenced by disclosing the 1995 accident."

9 Then it says, "At deposition he

10 acknowledged that he had a preexisting knee

11 injury from an electrical accident that still

12 caused him problems." That's a similar

13 situation to what we had here. We had a

14 deposition of the person who signed the

15 affidavit. At no time did she waver on these

16 points. There was no intent for her to

17 deceive the Court by the signing of this

18 affidavit.

19 What became apparent in deposition --

20 THE COURT: Well, did she not know that

21 the affidavit was going to be filed with the

22 Court?

23 MR. DIAZ: She knew the affidavit was

24 going to be filed with the Court, but she did

25 not -- what became apparent in the deposition

18

1 was she did not review the entire affidavit to

2 verify those points. That's what seemed to be

3 apparent. And when her deposition was taken,

4 she didn't waver. She stated exactly what she

5 did, exactly what the procedure was.

6 So that's the distinction that we're

7 dealing with in this case, and I don't think

8 that we've met the standard that the Cox case

9 sets forth and requires for a finding of fraud

10 on the Court.

11 The Cox case states, "A requisite fraud

12 on the Court occurs where it can be

13 demonstrated clearly and convincingly that a

14 party has sentiently set in motion some

15 unconscionable scheme calculated to interfere

16 with the judicial system's ability to

17 impartially adjudicate the matter, improperly

18 influencing the trier of fact or unfairly

19 hampering representation to opposing party."

20 The Court goes on to say, "When reviewing

21 the case for fraud, the Court should consider

22 the proper mix of factors and carefully

23 balance a policy favoring adjudication on the

24 merits with competing policies to maintain the

25 integrity of the judicial system.

19

1 What I would submit to the Court is that

2 the activity involved in this affidavit, the

3 steps that were taken in this affidavit, were

4 more along the lines of an oversight in the

5 sense that she didn't testify --

6 THE COURT: This was done routinely in

7 these foreclosures by this servicing company,

8 was it not?

9 MR. DIAZ: The service -- what came out

10 of the deposition is she routinely executed

11 affidavits that were presented to her, and she

12 routinely reviewed her -- the system notes on

13 the default screen and verified the numbers

14 through that.

15 What we don't know is that she routinely

16 would execute -- we don't know what the

17 routine of the execution of other affidavits

18 were. What we know is she routinely takes

19 affidavits that are presented to her and

20 relies on those without necessarily going

21 through and scrutinizing them.

22 THE COURT: What are the instructions

23 given by your firm to the people who are

24 filling out and signing these affidavits?

25 MR. DIAZ: Review the affidavit, fill in

20

1 the amounts, and return it. Those are the

2 instructions.

3 THE COURT: I trust that it will be

4 different now, those instructions?

5 MR. DIAZ: The instructions -- there's an

6 entirely different procedure that has been

7 implemented related to affidavits.

8 The thing we emphasized in our reply

9 memorandum was that the critical -- when this

10 case -- if this case goes to trial, when the

11 Court considers a final judgment hearing, the

12 issue of the pleadings, whether she reviewed

13 the pleadings or not is irrelevant. The

14 Court's going to review the pleadings and rule

15 on the acceptability of the pleadings. The

16 note and the mortgage are going to be tendered

17 to the Court, and the Court is going to rule

18 on whether or not those documents are

19 acceptable as evidence.

20 The crux of the issue of an affidavit of

21 indebtedness, and by its title it states it,

22 is what is the debt, how much is the debt.

23 What came out of this deposition, without

24 question, is the screen that she reviews ties

25 into the loan history screen. The fact is

21

1 it's a servicer. The fact is there are

2 thousands of people that work there. There

3 are checks that arrive into mailboxes. Those

4 checks are administered by a lot of different

5 people. They're posted by a lot of different

6 people.

7 All of those things that happen, of

8 course this affiant doesn't do all of those

9 things and isn't involved in the day to day of

10 all those things. What she relies on is that

11 there's a computer system that's designed to

12 operate on a day-to-day basis, used on their

13 daily, routine practice, that everything is

14 contemporaneous, and it summarizes a default

15 screen which she can rely on.

16 THE COURT: I mean, maintenance computer

17 records is so routine nowadays that

18 computerized records can come in as ordinary

19 business records --

20 MR. DIAZ: Right.

21 THE COURT: -- if they are properly

22 predicated to do so.

23 You can have an affidavit attaching the

24 appropriate computerized record if it includes

25 the appropriate predicate.

22

1 MR. DIAZ: Correct.

2 THE COURT: That's not what this did at

3 all, is it?

4 MR. DIAZ: I agree this affidavit is

5 flawed, but it isn't --

6 THE COURT: It's false.

7 MR. DIAZ: It's --

8 THE COURT: It's false except, you're

9 saying, for the numbers.

10 MR. DIAZ: The numbers are correct.

11 THE COURT: Everything else is false.

12 MR. DIAZ: The basis of the numbers is

13 not false. The basis of the numbers is the

14 computer records that's properly delineated

15 here.

16 THE COURT: I'm not saying that the

17 numbers are false. Everything else, every

18 statement that's made other than the numbers,

19 is false.

20 MR. DIAZ: The statements that were made

21 that are false was a review of the complaint,

22 a review of the note and the mortgage --

23 THE COURT: Or her familiarity with the

24 whole process. She says -- I believe that she

25 admitted that she didn't know -- there were

23

1 four or five things that she admitted that she

2 did not know.

3 MR. DIAZ: That she wasn't involved with.

4 THE COURT: Yes.

5 MR. DIAZ: That she wasn't involved with.

6 THE COURT: Yes.

7 MR. KOWALSKI: Well, but she testified --

8 THE COURT: It was another department.

9 It was another person.

10 MR. DIAZ: Correct.

11 THE COURT: Look, I think that -- I think

12 I will not strike -- I will not dismiss the

13 case. I don't believe that the falsehoods

14 here go to the heart of the case.

15 Nevertheless -- I forget whether it was

16 in Cox or another case. They refer to an

17 older case called Parham versus Kohler that

18 talked about appropriate sanctions when there

19 was false testimony before the Court or

20 perjurious testimony before the Court. And

21 I'm going to just quote from it. That's --

22 the name is Parham versus Kohler, 134 So.2d

23 274, November 28th, 1961, which was right

24 after I got admitted to the bar.

25 "It is fundamental that the success of

24

1 our entire judicial system is dependent in no

2 small way on proper sanctions being at the

3 disposal of the judiciary so that they may

4 deal with perjured testimony. Otherwise there

5 would be no effective deterrent to future

6 witnesses and parties that have any ideas

7 about falsifying their testimony.

8 "However, the law has provided the courts

9 with definite alternatives as in the case at

10 bar that clearly established that perjured

11 testimony's been given. Among other things,

12 the Court may cite the person for contempt,

13 direct that the record be sent to the State

14 Attorney's Office for investigation, or in

15 proper case to strike the pleading or

16 testimony which has clearly been shown to be

17 sham."

18 The matters about which there is falsity

19 in these things do not go to the heart of the

20 affidavit; they go to how this person made

21 these determinations. In my view lying to the

22 Court, even on collateral matters, is a

23 sufficient basis for a finding of fraud,

24 although it may not be justifiable for the

25 entire dismissal of the case.

25

1 Parham indicates that the Court has a

2 variety of sanctions available to it, and so

3 we're now going to talk about the appropriate

4 sanctions.

5 Well, first of all, it goes without

6 saying I'm going to strike the affidavits.

7 MR. DIAZ: Can I make a comment?

8 THE COURT: Sure, as long as it

9 doesn't --

10 MR. DIAZ: I'm not asking you to

11 reconsider your ruling.

12 THE COURT: That you may not do, but you

13 may make a comment.

14 MR. DIAZ: As far as the issue of the

15 affiant in this case lying in her affidavit,

16 if she would have stated in her depositions,

17 "I read this. I saw and realized I was saying

18 this. I knew I didn't do this, but I went

19 ahead and said I did it anyway," then she

20 lied.

21 I think if you read the deposition what

22 came out at deposition was she didn't even

23 read what she was signing.

24 THE COURT: If someone submits an

25 affidavit that's going to go before the Court

26

1 and going to be used in litigation and doesn't

2 even read it to ascertain the truthfulness of

3 it and it is false, that's sufficient, in my

4 view, to constitute a fraud on the Court, even

5 though it might not be sufficiently egregious

6 to merit dismissal of the action.

7 MR. KOWALSKI: And, Judge, our point is

8 not that it's the affiant's fraud. It's the

9 plaintiff, through its servicer, GMAC's fraud.

10 THE COURT: Yeah. It's the system. I

11 understand.

12 MR. KOWALSKI: Right.

13 THE COURT: But all that goes into the

14 pot as a factor for the Court to consider.

15 I'm going to strike the affidavits.

16 How much time has been involved in this,

17 as far as the whole matter of the depositions,

18 these proceedings for sanctions, and so forth?

19 MR. KOWALSKI: Judge, I would have to

20 look more closely. We flew to Pennsylvania.

21 The deposition was actually taken in

22 Pennsylvania, so there was at least a day's

23 travel along with preparation of the --

24 THE COURT: I'm going to require that the

25 plaintiff pay the attorneys' fees based upon

27

1 the amount of time expended (a) in determining

2 the falsehood of the affidavit, and in

3 bringing these proceedings for sanctions.

4 MR. KOWALSKI: Would that include our

5 costs as well for the travel or -- that's up

6 to the Court.

7 THE COURT: Did you fly Southwest or did

8 you --

9 MR. KOWALSKI: I think we did.

10 MR. DIAZ: Well, you know --

11 MR. KOWALSKI: Yes, I think I did.

12 MR. DIAZ: -- if you read the deposition,

13 this isn't the only thing that came out of the

14 deposition.

15 THE COURT: Wasn't this a phone

16 deposition?

17 MR. DIAZ: No.

18 MR. KOWALSKI: No. The problem was the

19 court reporter did not appear live. We were

20 both live with the witness. The court

21 reporter was actually elsewhere by agreement

22 of the parties, given a snafu with the

23 reporter.

24 THE COURT: Okay.

25 MR. DIAZ: This is -- you know, the

28

1 deposition that was taken wasn't solely on

2 this issue, and there's other value to it.

3 That's -- I would just temper it with that.

4 THE COURT: Okay.

5 MR. KOWALSKI: I'll leave it up to the

6 Court, but our whole point of taking this

7 affiant was to explore the affidavits. The

8 actual notice, which we've attached, has two

9 issues. The first is all books and records

10 and documents kept which relate to Robert and

11 Lillian Jackson. This witness had none

12 because the only thing she reviewed was one

13 screen.

14 So we immediately defaulted to Issue 2 on

15 the notice of taking deposition which was any

16 and all documents, electronic memorandum,

17 policy manuals, servicing manuals, or other

18 items of any kind reviewed in preparation for

19 completion of those certain affidavits of

20 indebtedness.

21 THE COURT: Okay.

22 MR. KOWALSKI: We defaulted to that

23 because she didn't have anything else.

24 THE COURT: Yes. How long were you up

25 there?

29

1 MR. KOWALSKI: I was there and back in a

2 day.

3 THE COURT: Okay. So it's no overnight

4 stay.

5 MR. KOWALSKI: No overnight stay for us.

6 THE COURT: And so just for the plane

7 fare --

8 MR. KOWALSKI: Right.

9 THE COURT: -- and maybe a cab.

10 MR. KOWALSKI: And the costs of the court

11 reporter, whatever we were charged by Esquire.

12 THE COURT: Okay. The other thing that

13 I'd like to require is to have presented to

14 the Court whatever curative procedures are

15 being implemented to avoid a repetition of

16 this kind of occurrence in the future and some

17 sort of commitment in writing from the

18 plaintiff that these procedures will be

19 observed in all future foreclosures to be

20 filed in the state of Florida.

21 MR. DIAZ: From plaintiff.

22 THE COURT: Correct.

23 MR. DIAZ: Okay.

24 MR. KOWALSKI: Is that from the plaintiff

25 or GMAC? GMAC is the servicer for this

30

1 plaintiff, and GMAC is the designated entity,

2 and GMAC is the --

3 THE COURT: All right. GMAC, I guess.

4 MR. DIAZ: Well, it would actually be the

5 plaintiff who instructs GMAC servicing its

6 loans --

7 THE COURT: All right.

8 MR. DIAZ: -- on what the policy changes

9 are. That's how it works.

10 THE COURT: All right. Then it will be

11 plaintiff.

12 MR. DIAZ: GMAC services loans for a lot

13 of people.

14 MR. KOWALSKI: Okay.

15 THE COURT: Okay. Now, let me go off the

16 record for a minute.

17 (Off-the-record discussion.)

18 (The proceedings were concluded at 2:35

19 p.m.)

20 - - -

21

22

23

24

25

31

1 C E R T I F I C A T E

2

3 STATE OF FLORIDA )

4 COUNTY OF DUVAL )

5

6 I, Shelli Kozachenko, RPR, CRR, CSR (CA),

7 certify that I was authorized to and did

8 stenographically report the foregoing proceedings and

9 that the transcript is a true and complete record of

10 my stenographic notes.

11

12 DATED this 23rd day of April, 2006.

13

14

15 ___________________________

Shelli Kozachenko, RPR, CRR

16

17