From: Patterson, Annabelle L. [apatterson@baimlaw.com]

Sent: Friday, December 04, 2009 5:48 PM

To: O. Max Gardner III; List Mailing

Subject: Deposition of Juan Aguirre, corporate rep for GMAC/Homecomings

All:

Joel Hargis and I were in Dallas yesterday for deposition of Juan Aguirre, the designated Corporate Rep for GMAC/Homecomings in a mortgage case we are working.  Wanted to share some of the highlights, as I have not seen that anyone has deposed this guy except us.

He testified:

1.  He is one of two(2) Senior Litigation Officers for GMAC.  The other guy works out of GMAC’s Pennsylvania office.  All he does is travel around the country doing depositions, testifying in foreclosures and other litigation GMAC/HC is involved in.

2. He signed the answers to our interrogatories.  All of the documents were sent to him by their in-house counsel, and when he had questions about these, he asked the in-house counsel.

3. Loan in this case has been sold into a securitized trust.  He knew nothing about the PSA, did not know what an allonge was, did not know what an endorsement was.  Couldn’t explain anything about the endorsements or assignments. 

4. Testified that once an entry is made into LSAMS or Mortgage Serve, it cannot be altered.  Only way to change an entry is to reverse the incorrect entry, and reenter

5. Same thing for their notes system or communications system.  However, I have entries on the communications log dated in 2005, that refer to BPO’s, foreclosure fees and costs that are dated in 2006.  He could not explain how that happened.

6. He testified that GMAC does not collect interest on attorney fees, late fees, etc.  Great in our case because GMAC has paid non-interest items ahead of interest accruing items, of course in violation of the terms of the DOT as far as application of payments.  Apparently, they are going to try to argue that since our clients were in default and operating under a repayment agreement, that HC didn’t have to make payment applications as outlined in the note, even though the agreement says nothing about paying fees and costs first and specifically states that all other terms of the note and DOT remain in effect.

7. He knew nothing about Fidelity, although he had heard of the name.  Stated to his knowledge, that HC referred foreclosures directly to local attorneys, and didn’t use Fidelity.  Could not explain Fidelity’s name all over HC’s communications log.

8. I had him going in circles on the math.  I could read the transactions histories better than he could, although he stated he was trained on both systems.

9. Could not explain apparent alterations in the transaction histories. 

I know there’s more, but can’t think of anything else at this moment.  Joel may have tidbits to add.

Just wanted to share, and hope everyone has a great weekend!

Annabelle Patterson