1 IN THE SEVENTEENTH JUDICIAL CIRCUIT COURT
2 IN AND FOR BROWARD COUNTY, FLORIDA
3 CASE NO. CACE 09040986 (21)
4
5 U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE, SUCCESSOR-IN-INTEREST
6 TO WACHOVIA BANK, N.A., AS TRUSTEE
FOR MLMI 2005-A9,
7
Plaintiff,
8
vs.
9
ANDREW TREMBLAY,
10
Defendant.
11 ___________________________________/
12
13
14
15 DEPOSITION OF
16 RONALD CASPERITE
as Corporate Officer
17 with the Most Knowledge of the Trust
18
19
20
21 Wednesday, February 29, 2012
Deerfield Beach, Florida
22 1:18 p.m. – 2:12 p.m.
23
24
25
2
1 APPEARANCES:
2
3 ON BEHALF OF THE PLAINTIFF:
4 SHAPIRO, FISHMAN & GACHÉ, LLP
Suite 360
5 2424 North Federal Highway
Boca Raton, Florida 33431
6 561/998-6700
BY: DANIELLE SALEM, ESQ.
7
8
ON BEHALF OF THE DEFENDANT:
9
KORTE & WORTMAN, P.A.
10 Suite 102
2041 Vista Parkway
11 West Palm Beach, Florida 33411
561/228-6200
12 BY: ALLEGRA FUNG, ESQ.
13
14
15
16
17
18 I N D E X
19 WITNESS PAGE
20 RONALD CASPERITE
21 Direct Examination by Ms. Fung ……………. 4
22 Cross-Examination by Ms. Salem ……………. –
23
24
25
3
1 EXHIBITS IDENTIFIED
2 Defendant’s Exhibit Number 1 ……………….. 5
Amended Re-Notice of Taking Deposition
3 of Corporate Officer with the Most
Knowledge of the Trust
4
Defendant’s Exhibit Number 2 ……………….. 9
5 Summons, Notice of Lis Pendens, Complaint
and exhibits
6
Defendant’s Exhibit Number 3 ……………….. 15
7 Plaintiff’s Response to Defendant’s First
Set of Interrogatories
8
Defendant’s Exhibit Number 4 ……………….. 18
9 Merrill Lynch Mortgage Investors Trust
Series 2005-A9, 8K
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 The deposition of RONALD CASPERITE was taken
2 before me, Susan S. Kruger, Notary Public, State of
3 Florida at Large, at 10 Fairway Drive, Deerfield Beach,
4 Florida, on Wednesday, February 29, 2012, beginning at
5 1:18 p.m., pursuant to the notice in said cause for the
6 taking of said deposition, which is attached to the
7 court file herein, at the instance of the defendant in
8 the above-entitled cause, pending in the above-named
9 court.
10 THEREUPON,
11 RONALD CASPERITE,
12 being by me first duly sworn to tell the whole truth, as
13 hereinafter certified, testified as follows:
14 DIRECT EXAMINATION
15 BY MS. FUNG:
16 Q Can you state your full name for the record.
17 A Ronald Casperite.
18 Q And I won’t ask you to spell it since you
19 already did. Can you give me the benefit of your
20 education?
21 A I have a Bachelor’s degree from York College
22 of Pennsylvania in business, and I have an MBA in
23 finance from Widener University.
24 Q And what about your work experience, starting
25 with your most current position?
5
1 A I’ve been working for PHH Mortgage for the
2 past two years as a complex liaison. I handle title
3 issues, I handle litigated matters, I work with a couple
4 of our specialty clients. And it’s my responsibility to
5 come to depositions and trials, testify on behalf of PHH
6 and the investors on loans, the owners of the loans, the
7 various loans that we’re foreclosing upon.
8 Prior to that, I worked for a small bank, 20
9 years working originations, mortgage originations,
10 servicing, everything with the exception of
11 foreclosures. And it was in New Jersey.
12 Q And what was the name of the bank?
13 A Delanco, D-e-l-a-n-c-o, Federal Savings Bank.
14 Q Ironic it’s been everything but foreclosures.
15 A Yes. Well, they just turned that over to the
16 attorney to handle. And it was a portfolio lender, so
17 it wasn’t the complicated stuff that we have –
18 Q Nowadays.
19 A Today, right.
20 MS. FUNG: All right, I’m going to mark this
21 as Exhibit 1.
22 (Defendant’s Exhibit Number 1 was marked for
23 identification.)
24 BY MS. FUNG:
25 Q I’m going to show this to you and your
6
1 attorney. It’s a Notice of Depo. Have you seen that
2 document before?
3 A Yes.
4 Q If I may, this is just a notice of — I think
5 it’s an Amended Re-Notice of Depo changing the time from
6 10 a.m. to 1 p.m. today. And it lists on here the
7 corporate officer with the most knowledge of the trust.
8 Are you the person nominated by the plaintiff as the
9 person with the most knowledge of the trust?
10 A Yes.
11 Q What did you do to prepare for this depo
12 today?
13 A I reviewed the business records of PHH
14 Mortgage, who is the servicer of this loan.
15 Q Okay.
16 A And I reviewed the many different software
17 programs that are used to maintain the business records.
18 Q How are you nominated as the person with the
19 most knowledge of the trust?
20 MS. SALEM: Object to form.
21 You can answer.
22 THE WITNESS: Because it’s my responsibility
23 to review the servicing aspect of the loan when PHH is
24 the servicer. We’re also the record keepers of all
25 documents related to the loan, the origination file. I
7
1 review the — it’s my job to review the origination file
2 and the notes on our systems. I work with the various
3 departments within PHH that handle different aspects of
4 the servicing of the loan.
5 BY MS. FUNG:
6 Q Was it PHH then that — if you don’t mind,
7 just for the remainder of the depo, we’ll just, instead
8 of PHH Mortgage, we’ll just call it PHH, okay?
9 A Yes.
10 Q So is it PHH who, I guess, sent you to testify
11 as the person with the most knowledge of the trust, or
12 is it the actual custodian of the trust?
13 A It’s PHH. We have power of authority — power
14 of attorney to testify on their behalf, the trust’s
15 behalf.
16 Q Was it an actual power of attorney, or is it
17 through the Pooling and Servicing Agreement?
18 A It’s an actual limited power of attorney.
19 Q Did you review that document today?
20 A I did.
21 Q What powers were you — what limited powers
22 were you assigned? And by you, I mean PHH.
23 A PHH is allowed to take whatever steps are
24 necessary to collect the debt, in this instance from a
25 lack of payments.
8
1 Q Does that include the foreclosure process,
2 filing suit?
3 A Yes.
4 Q Testifying on behalf of the trust?
5 A Yes.
6 Q Do you remember the date the limited power of
7 attorney was signed?
8 A It’s February 2009.
9 Q And is it an indefinite amount of time that
10 the limited power of attorney allows you this right to
11 testify and to handle the foreclosure aspect?
12 A There’s no expiration date on it.
13 Q And you said that you looked at the limited
14 power of attorney document. Did you actually look at
15 the original, or was it actually just somewhere in your
16 imaging system?
17 A We actually hold the originals on the same
18 floor near where my department works.
19 Q So you did –
20 A So I did look at an original. And there are
21 many originals. They’ve been recorded in different
22 counties around the country.
23 Q Do you remember where this one was recorded?
24 A No.
25 Q Have you ever spoken to anybody with the
9
1 trust, U.S. Bank National Association, as Trustee –
2 sorry — Successor in Interest to Wachovia Bank, N.A.,
3 as Trustee for MLMI 2005-A9?
4 MS. SALEM: Object to the form.
5 MS. FUNG: Okay.
6 THE WITNESS: Not in particular to this loan,
7 no.
8 MS. FUNG: Let’s mark this as Exhibit 2.
9 (Defendant’s Exhibit Number 2 was marked for
10 identification.)
11 BY MS. FUNG:
12 Q Exhibit 2 is the Complaint that was filed.
13 A Okay.
14 Q When did your involvement in this case begin?
15 MS. SALEM: Object to form.
16 THE WITNESS: I would say probably in the last
17 two weeks, as a best guesstimate.
18 BY MS. FUNG:
19 Q Rough estimate?
20 A Um-hmm.
21 Q So you weren’t involved in the actual filing
22 of the suit or handling of any documents at that time?
23 A That is not part of my responsibilities.
24 Q Do you know which department is responsible
25 for those — that issue?
10
1 A I am familiar with — a specific department,
2 no. I have spoken to people that work in the area
3 related to the complaints when the Notice of Intent to
4 Foreclose is generated and understanding how that
5 process, in a general sense, how that process works.
6 Q Let’s go back. You said that you were — PHH
7 was given a limited power of attorney by the trust,
8 which we’ll just call it the trust at this point, which
9 is actually U.S. Bank National Association, as Trustee,
10 Successor in Interest, et cetera. Did you review any
11 other documents in preparation for this depo today?
12 A I’ve reviewed the note, the mortgage, the
13 Notice of Intent to Foreclose, payment history. I’ve
14 seen some loss mitigation letters that were written.
15 Q Did you take a look at the Pooling and
16 Servicing Agreement?
17 A Briefly. But it’s a very extensive agreement,
18 and it’s a public record.
19 Q And where did you look at the Pooling and
20 Servicing Agreement?
21 A I was provided a link by our attorney. It’s
22 an SEC link. You click on it, and it came right to the
23 particular pool.
24 Q All right. Actually, let’s, before we move on
25 to the trust, let’s talk about the Complaint, Exhibit 2.
11
1 There’s a lost note count as number two. Is that
2 correct? I believe that’s page five of the Complaint.
3 Is that correct?
4 A It is.
5 Q Has PHH found the note since the Complaint has
6 been filed?
7 A Yes.
8 Q Do you know where the note was found?
9 A No.
10 Q Do you know when the note was found?
11 A When it was found, no.
12 Q Is that a no? Sorry.
13 A No.
14 Q Do you know who notified PHH that the note had
15 been found?
16 A No.
17 Q Do you know the location of the note, the
18 original note right now?
19 A Yes.
20 Q And where is the note right now?
21 A It’s in the possession of the law firm.
22 Q That would be Shapiro & Fishman?
23 A Yes.
24 Q Do you know who sent the note over to Shapiro
25 & Fishman?
12
1 A As it relates to after it was found –
2 Q Yes.
3 A — or originally speaking?
4 Q Originally.
5 A Originally?
6 Q Right.
7 A Originally it was sent from — we had
8 possession of it, and we sent it to our outsourcer on
9 July 22nd, 2009.
10 Q And from your outsourcer to Shapiro?
11 A The outsourcer. Then they ship it to the
12 attorney’s firm.
13 Q And what’s the name of your outsourcer?
14 A Stars.
15 Q Just Stars?
16 A Yes. Stars stands for something, but I
17 don’t — I can’t remember what it is.
18 Q Okay.
19 A They’re one of two outsourcers that PHH uses
20 across the country.
21 Q You said it was sent from PHH to Stars, and
22 then Stars sent it over to Shapiro. Where do you guys
23 generally house your notes? Let me back up. That’s a
24 poorly worded question.
25 The note was sent from PHH to Stars. Where
13
1 was it sent from within PHH?
2 A We have a doc control team that houses the
3 origination files. There’s also a software program that
4 PHH maintains specifically for the original note, and
5 that’s how I came to find out the date of when it was
6 shipped from PHH to the outsourcer. And it was shipped
7 from Stars to the attorney’s firm on July 23rd, 2009.
8 Q On July 22nd, 2009 it was shipped from PHH to
9 the outsourcer or from the outsourcer to Shapiro?
10 A The 22nd it was from PHH to the outsourcer.
11 The 23rd was from the outsourcer to the attorney’s firm
12 via Fed Ex. Well, it was overnighted.
13 Q Okay, thank you.
14 A I can’t remember if it’s Fed Ex or UPS, but I
15 have the tracking numbers in the records.
16 Q And where was the actual physical location of
17 the note when it was within PHH’s possession?
18 A I don’t know where the location is where they
19 house it. It’s part of the doc control. And I
20 contacted the doc control team, and they advised me.
21 Q So I mean like being in a warehouse or a safe
22 house, wherever it may be, but do you have any idea what
23 state it’s in?
24 A No.
25 Q And this location, this is all within the
14
1 control of PHH?
2 A It’s my understanding, yes.
3 Q Can any other entity get access to any of the
4 documents that are in PHH’s control?
5 A I don’t know what the agreements are for
6 access. I can’t testify to that.
7 Q And do you know when PHH got custody of the
8 note?
9 A That was August of 2005.
10 Q And you just don’t remember the exact date in
11 August?
12 A No.
13 Q And that was the original note that was — how
14 did you determine the date that PHH received the note?
15 A It’s part of our business records.
16 Q And so from August of 2005, PHH had custody of
17 the note all the way up until July 22nd of 2009, when it
18 was then transferred to Stars; then on the 23rd, sent
19 over to your attorney. Is that correct?
20 A That’s what my research has shown, yes.
21 Q You said you took a look at the note which is
22 attached to the Complaint. Sorry, I didn’t tab your
23 copy. I should have.
24 A I see the mortgage on here.
25 Q It should be right behind the mortgage. No?
15
1 A No.
2 Q All right. Well, I’ll give you my copy. Is
3 that what the –
4 A That’s not the note either.
5 MS. FUNG: Let’s actually mark this as
6 Exhibit 3 then, which is actually Plaintiff’s Response
7 to Request to Produce.
8 (Defendant’s Exhibit Number 3 was marked for
9 identification.)
10 BY MS. FUNG:
11 Q I’ll just allow you to have the tabbed copy,
12 because it’s much easier.
13 A Okay.
14 Q Is that a copy of the note, as far as you
15 know? I mean I’m not asking you to swear that it’s a
16 true and correct copy, but does that look like it would
17 be the note regarding this case?
18 A Yes.
19 Q And the original lender on this case, do you
20 know who that is by looking at the note?
21 A Metrocities Mortgage, LLC.
22 Q And do you know how U.S. Bank got possession
23 of this note from Metrocities, LLC?
24 A The loan was assigned over to them.
25 Q Do you know when the loan was assigned?
16
1 A It was recorded 8-13 of ’09. July 30th is the
2 date that it was signed.
3 Q Of ’09?
4 A Of ’09, yes.
5 Q And what you’re looking at right now is the
6 assignment of mortgage, right?
7 A Correct.
8 Q Let’s back up. We’ve got a blank endorsement
9 following, or yes, following the –
10 A Endorsement in blank.
11 Q — note, yes. Do you have any idea when that
12 blank endorsement was placed on the note? You can
13 unclip it if you want to.
14 A I don’t have a specific date of when
15 Metrocities placed the endorsement in here, signed off
16 on it. I don’t know the date of that.
17 Q Do you know –
18 A Let me think. It was part of — the loan got
19 housed on our systems in August of 2005 as well. But to
20 this, when this was endorsed over, I can’t be sure.
21 Q August of 2005 is when — you said that it’s
22 when it got housed on your system. Does that mean when
23 PHH began servicing the loan?
24 A Correct.
25 Q Do you know who serviced the loan prior to
17
1 PHH?
2 A I don’t know. The first payment would have
3 been due July of ’05, and we were — acquired it in
4 August of the same year.
5 Q And when you say that the first payment was
6 due in July of ’05, are you talking about the first
7 payment under the note and mortgage?
8 A Yes, under the promissory note.
9 Q Does that indicate to you that there probably
10 was not — it was more likely than not that there was
11 not a servicer prior to you?
12 A Going from Metrocities to U.S. Bank in such a
13 short timeframe, I don’t really know. It was only a
14 month.
15 Q And you were looking at — let’s go back to
16 the assignment of mortgage.
17 A Okay.
18 Q You said that that was actually dated or
19 executed on July 30th of ’09.
20 A Correct.
21 Q And that actually assigns the — does it
22 assign the mortgage and the note, or just the mortgage?
23 A Both.
24 Q And this assignment of mortgage though comes
25 approximately four years after PHH actually began
18
1 servicing the loan, roughly?
2 A Yes.
3 Q PHH, has it always serviced the loan on behalf
4 of the trust?
5 A Yes.
6 Q And did that servicing begin August of ’05?
7 A Thereabouts that timeframe.
8 Q Well, let me rephrase. Did PHH ever service
9 the loan for anybody else other than the trust?
10 A No.
11 MS. FUNG: I’ll actually mark this as Exhibit
12 4, which is the trust agreement.
13 (Defendant’s Exhibit Number 4 was marked for
14 identification.)
15 BY MS. FUNG:
16 Q All right. As you said prior, you checked out
17 the Pooling and Servicing Agreement briefly after
18 looking at the SEC web site. This is what we were able
19 to pull off. If you can just double-check that this is
20 the proper name for the trust.
21 A MLMI 2005-A9.
22 Q Is that the correct name?
23 A Um-hmm.
24 Q Let’s flip to — actually, let me just ask you
25 a general question. Is PHH mentioned in any of the
19
1 trust documents as the servicer on behalf of the trust
2 that you know of?
3 A It should be somewhere. The specific section
4 or paragraph, I don’t know. I’ve reviewed a lot of
5 PSA’s over the course of time, and they are generally
6 specific into buyer, seller, servicer.
7 Q And did you look at those documents or
8 specifically that PSA regarding this case to determine
9 if PHH was assigned, as you just previously explained,
10 for this particular loan?
11 A No.
12 Q Did you need time to review?
13 A No.
14 Q You can correct me if I’m wrong, which I have
15 no problem with. This is the first page of the trust
16 agreement, am I right, the title of the trust agreement
17 that outlines the parties that are involved in the
18 trust? Is that correct?
19 A Appears to be.
20 Q The first line is Merrill Lynch Mortgage
21 Investors as the depositor. Am I reading that correctly
22 upside down?
23 A You are.
24 Q Is PHH involved in any way with Merrill Lynch
25 Mortgage Investors regarding this loan?
20
1 A We’re the servicer of the loan for this
2 particular pool.
3 Q But is PHH as the investor and then the
4 depositor, are they the actual trustee then?
5 MS. SALEM: Objection. Vague.
6 THE WITNESS: When it comes to the trust
7 documents and all the legal documents — or all the
8 legal wording that’s in here, I am not familiar with all
9 of that. I don’t — I mean this is all lawyers that
10 draw up these documents, and it’s not part of our
11 training to be able to read through the entire document
12 and be able to decipher it.
13 BY MS. FUNG:
14 Q All right. Well, let me just simplify it
15 then, and correct me if I’m wrong again. So you’re just
16 not familiar in terms, as you said, since it’s not part
17 of your training, as to how the depositor works in the
18 grand scheme of the trust or as the owner of the trustee
19 or any of those things. Is that what you’re saying?
20 A Yes. I can’t testify to the entire
21 relationship.
22 Q Okay.
23 A I know a lot of it, but as far as the
24 depositor is concerned and that sort of thing, I can’t
25 testify.
21
1 Q How familiar are you with this trust in
2 particular? Like specifically, do you know when the
3 dates were for, I guess, the loans to be deposited into
4 the trust?
5 A No. That’s more along the lines of the
6 investor accounting department that handles that sort of
7 work. So I don’t know how loans are pooled together or
8 how it goes here to there. That’s all accounting.
9 Q Right. Or who does it –
10 A Right.
11 Q — or anything like that?
12 A So attorneys and accountants work out those
13 details, so I can’t testify to that.
14 Q Fair enough. Did you look at the calculation
15 of damages regarding this loan in preparation for this
16 depo today?
17 MS. SALEM: Object to form.
18 Go ahead.
19 THE WITNESS: Is that amounts due and owing
20 kind of stuff?
21 BY MS. FUNG:
22 Q Yes, yes, yes.
23 A I believe so, yes.
24 Q How much is the plaintiff claiming that the
25 defendant owes them as of today, or as of whatever date
22
1 you may have calculated?
2 A I don’t know what the total amount is. I’d
3 have to review some docs. The principal has never been
4 reduced from the original amount. There’s interest
5 that’s due from March 1st of 2009 to present. There’s
6 at least $139,000 in escrow advances that occurred for
7 insurances, property taxes, and then there are other
8 recoverables, as we deem them, which are attorneys’ fees
9 and property inspections and things that we normally
10 handle as part of the servicing aspect of it. But I
11 don’t recall what the absolute total is.
12 Q I mean this is something that you guys would
13 prepare for trial?
14 A Yes.
15 Q Okay.
16 A And something that I would testify to at
17 trial.
18 Q Would you be the one who would prepare the
19 numbers for trial?
20 A No, I wouldn’t prepare it, but I would review
21 it off of our system, and I can verify all the numbers
22 that are generated.
23 Q Who would prepare them?
24 A I believe that’s completed by our outsourcer.
25 Q And would that be Stars again?
23
1 A Right. Part of my preparation is to review
2 and make sure that all those numbers are correct. I
3 physically go into our mainframe to verify the amounts
4 that are listed there, with the exception of the
5 attorneys’ fees.
6 Q And what actually is involved when you
7 physically verify? You go into the system. Do you
8 actually — are you looking through your imaging system,
9 or which is the part that you’re looking at?
10 A It’s our mainframe system where I go to find
11 out basic information, loss mit notes, collections,
12 inquiries from borrowers, any kind of correspondence.
13 Q Would you actually look at any physical copies
14 of any checks or anything like that?
15 A No.
16 Q So your verification would all be through the
17 system itself, through the computer system?
18 A Correct.
19 Q How is the interest calculated on this loan?
20 A I’d have to refresh by looking at the note.
21 There was an interest only portion, and then there’s
22 principal and interest.
23 Q Here’s Exhibit 3, a copy of the note.
24 A The interest rate was 5.875 percent. It was
25 fixed. Payment’s due July 1, 2005. It was adjustable.
24
1 The interest rate changed effective June 1st of 2010 and
2 every 12 months thereafter.
3 Q It was adjustable after the 2010?
4 A After five years.
5 Q Five years from 2010 or –
6 A 2005.
7 Q Okay.
8 A It was fixed 5.875.
9 Q Until 2010.
10 A Until 2010.
11 Q And then the adjustable rate, how is that
12 calculated?
13 A It’s based on an index. LIBOR is published in
14 the Wall Street Journal. And what the most recent index
15 figure available as of the date 45 days before the
16 change date is called the current index. There’s a
17 margin that is added of 2.25 percent to that index, and
18 then the interest rate is rounded to the nearest
19 one-eighth of one percent.
20 Q And you’re getting all that information from
21 the note, right?
22 A Yes.
23 Q Who calculates the LIBOR rate? And this might
24 make it easier for you. Let me back up and show you
25 where I’m going with this. Who keeps track of the
25
1 payments made on this account?
2 A Payments come in to PHH, and they are posted
3 by somebody that does that on an everyday basis.
4 Q Is there a certain department?
5 A Yes, but I don’t know.
6 Q The name of the department?
7 A Customer service or something; I don’t know.
8 Q Do you know if they post the payments
9 contemporaneously upon receipt?
10 A It’s supposed to be done at or near the time
11 of when the payment is received. It should be posted
12 the same day it’s received.
13 Q And then how do you know, I guess, when PHH
14 calculates the amount of interest — especially now
15 after 2010 on the adjustable rate, how is that interest
16 rate actually determined?
17 MS. SALEM: Objection. That’s asked and
18 answered.
19 THE WITNESS: Yes. Just as it is calculated
20 there.
21 BY MS. FUNG:
22 Q Well, all right, it was calculated by the
23 LIBOR rate.
24 A Right.
25 Q Right? And it’s an adjustable rate.
26
1 A Correct.
2 Q How does the computer know what the actual
3 rate is day to day?
4 A There has to be somebody that’s maintaining it
5 as part of their everyday procedures.
6 Q Do you know which department that is that’s
7 involved in that?
8 A I would not.
9 Q Is there any way to verify the accuracy, I
10 guess, of the index rate that’s entered into the system
11 to determine the interest rate charged?
12 A I’m sure there is. LIBOR is a published
13 index. And you could find that out on Wall Street –
14 Wall Street Journal or something to that effect. It’s
15 easy to get that history. It’s available online.
16 Q But you’re not sure how the LIBOR rate is
17 entered into PHH’s system?
18 A No.
19 Q That was where I was going.
20 A Well, I don’t know the particular people that
21 do it. I just know that that is what their function is.
22 Q Right. And then when you said you verify the
23 amount through the computer system, you’re assuming that
24 the interest rate was properly entered and calculated
25 through the system itself?
27
1 A Yes.
2 Q You’re not doing anything else to double-check
3 to make sure the math is correct?
4 A No. I know how to calculate interest based
5 upon the interest rate that is on the account at a
6 particular time.
7 Q Okay. And what about if you had to do an
8 adjustable rate calculated by the LIBOR? Do you know
9 specifically on this one, since you read from the note,
10 is it the LIBOR rate taken daily or weekly or monthly?
11 A It has to follow along exactly as the note
12 would state. The index is the average of Interbank
13 offered rates for one year U.S. dollar-denominated
14 deposits in the London market — quote, unquote –
15 LIBOR, as published in the Wall Street Journal. The
16 most recent index figure available as of the date
17 45 days before each change date is called the current
18 index.
19 Q But where would you get the specific figure?
20 MS. SALEM: Objection. Asked and answered.
21 THE WITNESS: It’s as published in the Wall
22 Street Journal. It’s a public record. So if the
23 borrower wanted to go and check himself, they would have
24 the ability to go out and verify that the interest rate
25 is correct, or if there’s a question, then contact.
28
1 BY MS. FUNG:
2 Q Have you ever calculated an adjustable rate
3 based on the LIBOR?
4 MS. SALEM: Objection to form.
5 THE WITNESS: I used to do it in my prior job.
6 But I haven’t done anything as far as PHH is concerned,
7 and I can’t speak to anything that — the procedures of
8 PHH, because I haven’t been involved with that. Yes, I
9 have some outside experience, but I’m not going to
10 testify to how PHH does it or what their expectations of
11 how it’s supposed to be verified and what the steps are
12 to make sure that the interest rate is correct. I can’t
13 testify to that.
14 BY MS. FUNG:
15 Q Fair enough. All right, let’s go back to the
16 trust. Do you know who is the custodian of the trust at
17 this time?
18 A Who the custodian of the trust is?
19 Q Yes.
20 A That would be U.S. Bank.
21 Q There’s no actual person appointed as the
22 custodian of this trust?
23 A I’m not aware of a specific person. This is a
24 pool of loans that Merrill Lynch pooled together, and
25 that’s what this trust is. It’s just a pool of –
29
1 Q So would Merrill Lynch then be the ones making
2 decisions on behalf of the trust?
3 A In what capacity?
4 Q Assigning you guys as the servicer.
5 A Yes.
6 Q Have you ever spoken to anybody in Merrill
7 Lynch regarding this case?
8 A No.
9 Q Have you ever spoken to anybody with U.S. Bank
10 regarding this case?
11 A No.
12 Q What about Wachovia Bank?
13 A No.
14 Q The title of the plaintiff is U.S. Bank
15 National, as Trustee, Successor-in-Interest to Wachovia
16 Bank. Do you know how U.S. Bank became the successor in
17 interest to Wachovia?
18 A No.
19 Q Do you know when the Pooling and Servicing
20 Agreement was executed?
21 MS. SALEM: Object to form.
22 THE WITNESS: I don’t have — I don’t know the
23 dates of it, no.
24 BY MS. FUNG:
25 Q Do you know who is authorized to make deposits
30
1 of any loans into this pool of loans under the trust?
2 MS. SALEM: Object to form.
3 THE WITNESS: No.
4 BY MS. FUNG:
5 Q Do you know if Metrocities took any payments
6 on this loan prior to transferring it over to — or,
7 sorry — prior to the blank endorsement?
8 MS. SALEM: Objection to form.
9 THE WITNESS: I don’t know. I’d have to look
10 at the payment history again.
11 BY MS. FUNG:
12 Q Have you ever worked for Metrocities?
13 A No.
14 Q Are you familiar with any of their accounting
15 practices?
16 A No.
17 Q Do you know when the note was actually
18 transferred to the trust?
19 A I believe I stated before it was August of
20 2005.
21 Q August of 2005 is when you said that the loan
22 was housed onto the system.
23 A I said that as well, yes. Both occurred –
24 Q And you said that in August of 2005, PHH had
25 custody of the original note.
31
1 A Yes.
2 Q So are you saying that PHH had custody of the
3 original note on behalf of the trust?
4 A Yes.
5 Q Is that what you’re — okay.
6 A That’s what I testified earlier, before those
7 points that you’re bringing up, prior to that I –
8 Q Okay. I just wanted to clarify it. All
9 right. Is the Pooling and Servicing Agreement in your
10 system?
11 A We have access to a copy of it. I don’t know
12 about an original.
13 Q Is it linked to the SEC web site, or is it an
14 actual copy that may have been scanned into your system?
15 A I usually can go and get a copy of — it’s
16 scanned into our system. It’s a shared drive.
17 Q And would that be an executed copy of the
18 Pooling and Servicing Agreement?
19 A Yes, there would be attachments showing
20 signatures.
21 Q Let’s go to Exhibit 4. This is page 51 of 54,
22 and this is just as an example. There’s no — this is
23 an unexecuted copy, correct?
24 A Correct.
25 Q So the copy that you guys would actually have
32
1 in your system would be an executed copy?
2 A There would be a copy of a page.
3 Q With the signature –
4 A The same page with signatures.
5 Q With exhibits, with items filled out like on
6 page 47?
7 A Yes.
8 Q And these are just as examples. Like on page
9 43, names of seller, names of buyer, all that
10 information would be filled out?
11 A I don’t know that every one of those are
12 filled out. I can’t be specific to that. I’ve seen
13 executed copies.
14 Q And so you didn’t really look — I mean you
15 glanced at the Pooling and Servicing Agreement in
16 preparation for today. Is it fair to say that you
17 didn’t actually look at every page to determine if it
18 had actually been fully executed?
19 A Yes.
20 MS. FUNG: Do you want to take a five minute
21 break so I can review?
22 THE WITNESS: Sure.
23 (Whereupon, there was a recess in the
24 proceedings.)
25 BY MS. FUNG:
33
1 Q Are there any other documents that would have
2 given PHH rights to service the loan on behalf of the
3 trust? Previously you said there was the Pooling and
4 Servicing Agreement and the power of attorney. Are
5 there any other agreements that you know of?
6 A I don’t know; I don’t know if there’s any
7 other docs. I know that the SEC web site is pretty
8 lengthy, and there’s a lot of agreements there, but
9 there are only certain ones that we look at.
10 Q When looking at the Pooling and Servicing
11 Agreement, you said you’re familiar with looking at them
12 and checking them and stuff like that. Is there any way
13 for you to determine where in a Pooling and Servicing
14 Agreement PHH is given the right to service the loan?
15 MS. SALEM: Objection. Asked and answered.
16 THE WITNESS: I don’t know.
17 BY MS. FUNG:
18 Q And that’s after reviewing Exhibit –
19 A 4.
20 Q — 4, okay. And you said, you mentioned that
21 there may be other documents within the trust, exhibits
22 in particular, that may actually state that PHH is the
23 servicer. Do you have examples that you’ve seen
24 previously that may? And what I’m asking for is the
25 title of the exhibits that may be in the trust that
34
1 would assign PHH the right to service the loan.
2 MS. SALEM: Object to form.
3 THE WITNESS: I don’t recall a specific
4 agreement. A lot of these that are listed here are ones
5 that I’ve reviewed, but that’s more of an accounting and
6 legality type aspect of it as far as I’m concerned, and
7 I can’t be specific as to which one. But I’ve looked at
8 pooling and service agreements, sale and servicing
9 agreements for different ones. I don’t recall which one
10 specifically states that. I can’t be specific.
11 BY MS. FUNG:
12 Q So basically, after reviewing Exhibit 4, you
13 can’t find where it is in the trust agreement –
14 A Right.
15 Q — that it states that PHH is the servicer?
16 A In my limited review of it.
17 Q Right.
18 A I didn’t review every page of all of these
19 pages.
20 Q And upon your limited review, you still
21 couldn’t find where in the trust PHH is assigned the
22 power of servicing the loan on behalf of the trust?
23 A I have my limited power of attorney that I
24 work — that we work off of that is specific to PHH and
25 the ability to service a loan.
35
1 Q And specifically this trust?
2 A That trust, yes.
3 Q Were you aware that the note was ever lost
4 prior to filing suit?
5 A Prior to filing suit?
6 Q Prior to the filing of suit.
7 A I’m not aware of that.
8 Q Based on your review of the system, the note
9 was boarded onto your system in August of ’05, went over
10 to Stars in ’09, and from there, it went over to your
11 attorney.
12 A Correct.
13 Q And so as far as your system is concerned, the
14 note was never lost?
15 A Upon my review, yes.
16 MS. FUNG: Any redirect? Read or waive?
17 MS. SALEM: Read, please.
18 MS. FUNG: That’s it.
19 (Witness excused.)
20 (Whereupon, at 2:12 p.m., the foregoing
21 deposition was concluded.)
22
23
24
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36
1 THE STATE OF FLORIDA )
)
2 COUNTY OF PALM BEACH )
3
4
5 I, RONALD CASPERITE, do hereby certify that
6 I have read the foregoing transcript of my deposition
7 given on February 29, 2012, and that together with any
8 additions or corrections made herein, it is true and
9 correct to the best of my belief.
10
11
12
13
14 __________________________________
RONALD CASPERITE
15
16
17
18 SWORN TO AND SUBSCRIBED before me
this _____ day of _____________, 2012.
19
20
________________________________________
21 Notary Public, State of Florida at Large
My Commission expires __________________
22
23
24
25
37
1 CERTIFICATE OF ADMINISTRATION OF OATH
2
3
4 THE STATE OF FLORIDA )
)
5 COUNTY OF PALM BEACH )
6
7
8
9 I, Susan S. Kruger, the undersigned
10 authority, hereby certify that RONALD CASPERITE
11 personally appeared before me and was duly sworn.
12 WITNESS my hand and official seal this
13 6th day of March, 2012.
14
15
16
17
18 _______________________________
Susan S. Kruger
19 Notary Public, State of Florida
Commission Number: EE040490
20 Expires: November 8, 2014
21
22
23
24
25
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1 C E R T I F I C A T E
2
3
THE STATE OF FLORIDA )
4 )
COUNTY OF PALM BEACH )
5
6
7 I, Susan S. Kruger, do hereby certify that I
8 was authorized to and did stenographically report the
9 foregoing deposition, and that the transcript is a true
10 and correct transcription of the testimony given by the
11 witness.
12 I further certify that I am not a relative,
13 employee, attorney or counsel of any of the parties,
14 nor am I a relative or employee of any of the parties’
15 attorney or counsel connected with the action, nor am
16 I financially interested in the action.
17 Dated this 6th day of March, 2012.
18
19
20
21 _________________________________
Susan S. Kruger
22
23
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25
