0001
 1                IN THE UNITED STATES BANKRUPTCY COURT
 2                      MIDDLE DISTRICT OF ALABAMA
 3                           EASTERN DIVISION
 4   
 5   
 6              TORIANO J. AVERY,
 7                       Plaintiff,
 8                vs.               CASE NO. 06-80210-WRS-13
 9              WELLS FARGO BANK, et al.,
10                       Defendants.
11   
12   
13               *    *    *    *    *    *    *    *
14                        September 24th, 2008
15                    Deposition of Beverly DeCaro
16                *    *    *    *    *    *    *    *
17   
18   
19   
20            The deposition of BEVERLY DeCARO was taken
21   before Stephanie D. Garrett, Certified Court Reporter,
22   ACCR No. 49, as Commissioner, on Wednesday, September
23   24th, 2008, commencing at approximately 10:12 a.m., in
24   the law offices of Sirote & Permutt, Birmingham,
25   Alabama, pursuant to the stipulations set forth herein.
0002
 1                *     *     *     *     *     *     *
 2                            APPEARANCES
 3         Representing the Plaintiff:
 4              MR. NICK WOOTEN
                Attorney at Law
 5              Wooten Law Firm
                Post Office Drawer 290
 6              LaFayette, Alabama  36862
 7         Representing the Defendants:
 8              MS. ROBIN BEARDSLEY
                MR. STEPHEN PORTERFIELD
 9              Attorneys at Law
                Sirote & Permutt
10              2311 Highland Avenue South
                Post Office Box 55727
11              Birmingham, Alabama  35255
12   
                MR. JEREMY RETHERFORD
13              Attorney at Law
                Balch & Bingham
14              1901 6th Avenue North
                Birmingham, Alabama  35203
15   
16   
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18   
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25   
0003
 1              *    *    *    *    *    *    *    *    *
 2                            STIPULATIONS
 3             It is hereby stipulated and agreed by and
 4   between counsel representing the parties that the
 5   deposition of BEVERLY DeCARO is taken pursuant to the
 6   Rules of Civil Procedure, and that said deposition may
 7   be taken before Stephanie D. Garrett, Certified Court
 8   Reporter, as Commissioner, without the formality of a
 9   commission; that objections to questions, other than
10   objections as to the form of the questions, need not be
11   made at this time, but may be reserved for a ruling at
12   such time as the deposition may be offered into
13   evidence, or used for any other purpose by either party
14   hereto, provided by the Statute.
15        It is further stipulated and agreed by and between
16   counsel representing the parties in this case, that the
17   filing of the deposition of BEVERLY DeCARO is hereby
18   waived, and that said deposition may be introduced at
19   the trial of this case or used in any other manner by
20   either party hereto provided for by the Statute,
21   regardless of the waiving of the filing of same.
22        It is further stipulated and agreed by and between
23   counsel and the witness that the reading and signing of
24   the deposition is hereby waived.
25   
0004
 1              *    *    *    *    *    *    *    *    *
 2                              I N D E X
 3          EXAMINATION                            PAGE
 4          BY MR. WOOTEN:                           5
 5          EXHIBIT                                PAGE
 6          Plaintiff's Exhibit No. 1.........      20
 7          Plaintiff's Exhibit No. 2.........      36
 8          Plaintiff's Exhibit No. 3.........      61
 9          Plaintiff's Exhibit No. 4.........      61
10          Plaintiff's Exhibit No. 5.........     101
11          Plaintiff's Exhibit No. 6.........     102
12                  *   *   *   *   *   *   *   *   *
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0005
 1                           Beverly DeCaro,
 2       of lawful age, first being duly sworn, testified as
 3       follows:
 4                             EXAMINATION
 5   BY MR. WOOTEN:
 6      Q   Ma'am, if you would, state your full name for
 7   the record, please.
 8      A   Beverly DeCaro.
 9      Q   I am the attorney representing Toriano Avery in
10   this lawsuit against Wells Fargo and Washington Mutual.
11   Have you ever given a deposition before?
12      A   Yes.
13      Q   So you're familiar with the process with respect
14   to questions and answers?
15      A   Yes.
16      Q   And you understand that you need to let me ask
17   my question, and then I need to let you give me your
18   answer, right?
19      A   Yes.
20      Q   How many times have you been deposed?
21      A   I think four.
22      Q   Okay.  All right.  Well, rather than go into a
23   long time-wasting talk about how this deposition is
24   going to go down, I'm just going straight to the
25   questions.  If you don't understand my question, if you
0006
 1   would, please ask me to restate it or explain what you
 2   don't understand, and I'll try to ask it a different
 3   way.  Okay?
 4      A   Right.
 5      Q   Other than your current last name, have you ever
 6   been known by any other name?
 7      A   Yes.
 8      Q   And what is that?
 9      A   White.
10      Q   Okay.  And is that a maiden name or married
11   name?
12      A   It's a married name.
13      Q   And is DeCaro your maiden name?
14      A   DeCaro is my married name.
15      Q   Other than White and DeCaro, any other names
16   that you've been known by?
17      A   My maiden name is Fulvio, F-U-L-V-I-O.
18      Q   Can you spell your last name for me, please?
19      A   D-E, capital C, A-R-O.
20      Q   And where do you currently reside, Ms. DeCaro?
21      A   Frederick, Maryland.
22      Q   And can you give me what your current address is
23   in Maryland?
24      A   2511 Shelly Circle, Frederick, Maryland.
25      Q   And what is your current age?
0007
 1      A   Fifty-six.
 2      Q   Okay.  Where were you born at?
 3      A   New York.
 4      Q   City, right?
 5      A   No.  Upstate.
 6      Q   What city, please?
 7      A   Beacon, B-E-A-C-O-N, New York.
 8      Q   And it's my understanding that you are employed
 9   by Wells Fargo.
10      A   Correct.
11      Q   How long have you been so employed?
12      A   It will be two years in December.
13      Q   What is your job title at Wells Fargo?
14      A   Default litigation representative.
15      Q   Tell me what the job description is for a
16   default litigation representative, please, ma'am.
17      A   I work in the bankruptcy area.  When we receive
18   an adversary, it is assigned to me and others on my
19   team.  We set the loan up in our system, in our
20   litigation tracking.  We contact the attorney who will
21   be representing us in that case, and we assist the
22   attorney with research.
23      Q   Okay.  Are you physically located in the --
24   well, for lack of a better term, the new building that
25   was built there in Frederick, Maryland, for Wells Fargo
0008
 1   employees?
 2      A   Yes, I am.
 3      Q   Are you located physically within that building
 4   in the area that houses America's Servicing Company?
 5      A   There's different sections that handle ASC.
 6      Q   So no one on your team does anything for ASC?
 7      A   Yes.
 8      Q   They do?
 9      A   We are not specifically ASC, but we do have ASC
10   accounts.
11      Q   All right.  Let me backtrack for a minute.  Tell
12   me about your education, please, ma'am.
13      A   I graduated from high school.  I have one year
14   of college.  In 2002 I attended the University of Texas
15   at Austin legal assistant program, and I have a
16   certificate for paralegal.
17      Q   And is that when you became a paralegal, in
18   2002?
19      A   Yes.
20      Q   And is that a position that you've held since
21   2002?
22      A   Yes.  I've done the same type of work.
23      Q   Do you have any type of criminal record?
24      A   No.
25      Q   Where did you graduate?
0009
 1      A   Our Lady of Lords High School, Poughkeepsie,
 2   New York.
 3      Q   I think I know how, but I'm not sure if the
 4   court reporter does.  Could you spell that town,
 5   please?
 6      A   P-O-U-G-H-K-E-E-P-S-I-E.
 7      Q   All right.  You indicated that you've been an
 8   employee of Wells Fargo for approximately two years.
 9      A   Yes.
10      Q   Were you hired on as a default litigation
11   specialist?
12      A   Yes.
13      Q   I don't want to mischaracterize your work, but
14   is it fair to say that that is, in fact, paralegal
15   work?
16      A   It's more support than it is paralegal.  There
17   are no attorneys in our building.
18      Q   Okay.  Well, let me ask that a better way.
19   Really what you guys do is work with the attorneys out
20   in the field that Wells Fargo hires; is that right?
21      A   Correct.
22      Q   So is it fair to say that most of the people who
23   are default litigation representatives are, in fact,
24   paralegals?
25      A   Most of them, yes.
0010
 1      Q   Have you received any promotions or advancements
 2   in your position since you were hired by Wells Fargo?
 3      A   I had a review last year at the end of my first
 4   year.
 5      Q   Okay.  So you're in your second year of
 6   employment?
 7      A   Yes.
 8      Q   Not through it yet?
 9      A   No.  In December, I'll be through it.
10      Q   Okay.  Prior to working for Wells Fargo, what
11   did you do for work, ma'am?
12      A   I worked at Chase Manhattan Bank for eight
13   years.
14      Q   And where did you work for Chase Manhattan Bank
15   at?
16      A   I started working in Austin, Texas, when it was
17   First USA Bank.  BankOne then bought First USA Bank.
18   That site closed, and I moved to Frederick, Maryland,
19   with BankOne, and then Chase Manhattan Bank bought
20   BankOne.
21      Q   Okay.  When you were in Austin, Texas, what year
22   was that?
23      A   I was there from 1990 to 2002.
24      Q   Okay.  And what year did you begin working at --
25   is it BankOne, you said, the first one?
0011
 1      A   First USA Bank.
 2      Q   First USA.  When did you begin working for them?
 3      A   1998.
 4      Q   Okay.  What did you do for them?
 5      A   I worked in their bankruptcy litigation area for
 6   credit cards.
 7      Q   Okay.  What was your job title?
 8      A   Paralegal 1.
 9      Q   Is that like an entry-level position?
10      A   Yes.
11      Q   And then you said they were bought by BankOne;
12   is that right?
13      A   Yes.
14      Q   And when was that?
15      A   Maybe about 2000.  I'm not exactly sure of the
16   date.
17      Q   Okay.  And how long after they were bought did
18   that -- was it before that location closed?
19      A   They closed in -- completely in 2002.
20      Q   When did your position transfer to Maryland?
21      A   When I moved, 2002.
22      Q   Did you choose to move because of your career,
23   or was there some other influence?
24      A   Just a combination of different things.
25      Q   So did you arrange that through your employer so
0012
 1   that you could make that move?
 2      A   Yes.
 3      Q   Where in Maryland was your employment?
 4      A   Frederick, Maryland.
 5      Q   Okay.  It was also in Frederick?
 6      A   Yes.
 7      Q   All right.  And what year did Chase Bank buy
 8   BankOne?
 9      A   It might have been 2006, but I, again, don't
10   remember.
11      Q   So you worked for Chase for a few months before
12   moving over to Wells Fargo?
13      A   Yes.
14      Q   I think I asked you how many times you've been
15   deposed earlier, and you said four; is that right?
16      A   About four times.
17      Q   Were all of those depositions given while you
18   were employed at Wells Fargo?
19      A   Yes.
20      Q   So all of those would have been in the last two
21   years?
22      A   Yes.
23      Q   Do you remember where those depositions would
24   have been given, as in what state?
25      A   New York.  I think by phone once.  I was in
0013
 1   Frederick.
 2      Q   Okay.
 3      A   Ohio.  I really don't remember.
 4      Q   Does your employer require you to keep any
 5   records with respect to each time that you were
 6   deposed?
 7      A   No.
 8      Q   Do you have a history of cases that you've been
 9   assigned to that is accessible through any of your
10   various computer databases?
11      A   Yes.
12      Q   Would it be possible for you to go back into
13   your records and determine which cases that you were
14   required to give testimony?
15      A   Yes.
16      Q   Okay.  Could you provide that to your attorneys
17   in this case, so that they could get that for me?
18      A   Sure.
19                  MR. PORTERFIELD:  Get it to us.
20                  MR. WOOTEN:  Get it to them.  And if
21             y'all need me to file something formal to ask
22             for that, I'll do that.
23   BY MR. WOOTEN:
24      Q   Do you have any kind of management or
25   supervisory responsibilities in your current position?
0014
 1      A   No.
 2      Q   I don't want you to tell me about anything you
 3   talked with your attorneys about, but I want to ask you
 4   what documents you reviewed prior to coming here today
 5   for your deposition.
 6      A   The note, the mortgage, payment history,
 7   letters, motions.
 8                  MS. BEARDSLEY:  Notes.
 9                  THE WITNESS:  Notes, collection notes.
10   BY MR. WOOTEN:
11      Q   Your collection notes, are those the notes that
12   are kept and maintained in the ordinary course of
13   business by Wells Fargo?
14      A   Yes, they are.
15      Q   And do those notes represent Wells Fargo's
16   complete record of its contacts and conversations with
17   Ms. Avery?
18      A   Yes.
19      Q   Okay.  And the bulk of the notes at Wells Fargo
20   would be used to verify its activities with respect to
21   her account?
22      A   Yes.
23      Q   Would it be those notes that Wells Fargo would
24   rely on to document its interactions with Ms. Avery?
25      A   Yes.
0015
 1      Q   Are those notes part and parcel of something
 2   called the 100 Percent Monitoring System at Wells
 3   Fargo?
 4      A   100 Percent Monitoring System.  I'm not familiar
 5   with that.
 6      Q   So you would not know whether they are part of
 7   that system or not?
 8      A   I do not.
 9      Q   Are you testifying that you have never heard of
10   nor had any experience with a program called the
11   100 Percent Monitoring System with Wells Fargo?
12      A   I've never heard it referred to as that.
13      Q   Is there a monitoring system that Wells Fargo
14   uses to maintain a record of its contacts with various
15   borrowers?
16      A   Yes.
17      Q   Are you aware of any name for that system?
18      A   That system is called Fidelity.
19      Q   Okay.  Within the Fidelity system, are there any
20   sub-groupings or subsections?  Or is that system
21   referred to solely as Fidelity?
22      A   It's referred to as Fidelity, but it does have
23   subsystems.  There's a bankruptcy system.  There's a
24   foreclosure system.  There's an REO system.
25      Q   Is Fidelity the name that Wells Fargo chose for
0016
 1   that system?  Or is Fidelity the name of the vendor
 2   that provides that software system?
 3      A   I believe it's the vendor.
 4      Q   Is that software system also commonly referred
 5   to as MSP or Magnified Servicing Platform?
 6      A   I don't know if that's that system.
 7      Q   Okay.  But you would agree that your
 8   understanding is that Fidelity reflects the name of a
 9   vendor which provides this software for Wells Fargo?
10      A   Correct.
11      Q   And within that software, there is a -- would
12   the term "module" be appropriate for those subsets?
13      A   That's fine.
14      Q   Is that your understanding, or do you have a
15   different name for them?
16      A   We just call it different areas of the loan.
17      Q   Okay.  So there are different areas, then, where
18   any given loan might find itself, correct?
19      A   Correct.
20      Q   Bankruptcy being one of those?
21      A   That's correct.
22      Q   Foreclosure being another?
23      A   Yes.
24      Q   And the REO, which is the module for properties
25   that have become bank owned due to the foreclosure
0017
 1   being completed, right?
 2      A   Correct.
 3      Q   Is there another module dealing with simply the
 4   servicing of performing loans?
 5      A   You mean for customer service?
 6      Q   Well, I'm assuming since you're in the
 7   bankruptcy department, you probably don't ever deal
 8   with the normal performing loans, do you?
 9      A   No.
10      Q   So you wouldn't have any familiarity with any
11   name for any module that's over there, right?
12      A   Right.
13      Q   But you will agree that Wells Fargo is the
14   second largest servicer in the United States, right?
15      A   I agree.
16      Q   And obviously those are not all defaulted loans,
17   at least yet, right?
18      A   No.
19      Q   And you've never had any involvement with the
20   customer service side of things with respect to the
21   performing loans, right?
22      A   No.
23      Q   And is that housed also in the building in
24   Frederick, Maryland, or is that some other location?
25      A   I don't think it's in our building.
0018
 1      Q   Okay.  To the best of your knowledge, is there
 2   anyone in Frederick, Maryland, that is not related to
 3   foreclosure, REO, default, or bankruptcy?
 4      A   No.
 5      Q   So that is the housing center for those
 6   services?
 7      A   Yes.
 8      Q   Can you tell me, if you have any familiarity
 9   with it, ma'am, what goes on in the South Carolina
10   facility?
11      A   Bankruptcy processing is there, and I think
12   collections.
13      Q   So none of the work that you guys do is
14   outsourced to South Carolina, to the best of your
15   knowledge?
16      A   No.
17      Q   In Frederick, Maryland, are there any other
18   entities who co-locate employees in your facility, such
19   as Fidelity or Brice Vander Linden?
20      A   No.
21      Q   So there's no one in Frederick, Maryland, but
22   Wells Fargo employees?
23      A   No.
24      Q   No representatives of MERS?
25      A   No.
0019
 1      Q   And you said earlier that you had reviewed
 2   Ms. Avery's account; is that correct?
 3      A   That's correct.
 4      Q   With respect to that, can you tell me how Wells
 5   Fargo came to be the servicer of this account?
 6      A   We acquired it from Washington Mutual.
 7      Q   Okay.  And when you acquired it from Washington
 8   Mutual, did you also obtain any charges or advances
 9   from Washington Mutual as part of obtaining servicing
10   rights of that loan?
11      A   I don't think I understand your question.
12      Q   Okay.  Typically when servicing is bought and
13   sold, if there are any outstanding unpaid or
14   alleged-to-be-due fees and charges from the prior
15   servicer, typically, at least my understanding is,
16   those charges transfer to the new servicer; is that
17   correct?
18      A   That's correct.
19      Q   Are you aware of whether or not there were any
20   charges on Ms. Avery's account that Washington Mutual
21   contended was due when it was transferred for servicing
22   to Wells Fargo?
23      A   Yes.
24      Q   Do you know the dollar amount of those charges?
25      A   I don't know.
0020
 1      Q   Okay.  Is there a document that you have with
 2   you that you could review that would tell you what the
 3   dollar amount of those charges were?
 4      A   Yes.
 5      Q   Okay.  Which one would that be?
 6      A   I have a payment history.
 7      Q   Okay.  Is that -- there's obviously no video
 8   camera here, but this document appears to be the
 9   payment history.
10      A   Correct.
11      Q   Could you look at that document and tell me
12   where it indicates what amount you received in
13   transferring from Washington Mutual to Wells Fargo?
14                  MS. BEARDSLEY:  This is her payment
15             history.  It is different than that one.  So
16             I don't know if you want to mark it.
17                  MR. WOOTEN:  Why don't I just make a
18             copy of that?
19                  MS. BEARDSLEY:  I brought copies,
20             because I figured that would be --
21                  MR. WOOTEN:  Well, let's just mark this.
22                  (Plaintiff's Exhibit No. 1 was marked
23                  for identification.)
24                  MS. BEARDSLEY:  And this is the payment
25             history that she brought to us as part of her
0021
 1             deposition and her preparation.  So I'm sure
 2             you want to --
 3                  MR. WOOTEN:  Yeah.  I'd like to see it
 4             if it's different than what we're already
 5             going by.
 6   BY MR. WOOTEN:
 7      Q   Let me back up a little bit.  The document that
 8   I've been presented, Ms. Beardsley has represented to
 9   me, is a payment history that you put together in
10   preparation for the deposition; is that correct?
11      A   That's correct.
12      Q   Okay.  And Ms. Beardsley indicates that there
13   might potentially be differences between this payment
14   history and the one that we submitted to the Court.
15                  MR. WOOTEN:  Robin, do you remember when
16             we submitted this one?
17                  MS. BEARDSLEY:  I don't think it's --
18             it's the one I provided to you as part of the
19             initial discovery.
20                  MR. WOOTEN:  Okay.  Right.
21                  MS. BEARDSLEY:  I e-mailed it to you.  I
22             don't know what date, but I'll tell you
23             that's the one I e-mailed to you, so --
24                  MR. WOOTEN:  That's fine.  I'm just
25             trying to keep our timelines, chronology
0022
 1             together.  I'm sorry.  I'm looking for the
 2             Rule 26 disclosure so I can try to get these
 3             dates correct.
 4                  Okay.  Well, I'm having trouble putting
 5             my hands on this.  I've taken apart my file
 6             today, so that's part of it.
 7   BY MR. WOOTEN:
 8      Q   So it looks like this would have been done in
 9   probably June of 2008, and this was a payment history
10   that was produced that we used in prior conferences
11   with the Court.
12               Are you aware, as you sit here, of any
13   differences between the one that you've brought today
14   and the one that we used previously?
15      A   Yes.
16      Q   Okay.  Can you tell me what those differences
17   are?
18      A   I -- can we look on this one?
19      Q   Sure.  Let's just do that.  And let me go a
20   little further and say, with respect to anything
21   between the date of origination in November of 2007,
22   because nothing in the complaint deals with anything
23   beyond November of 2007, so --
24      A   The difference on this, if you want to look,
25   there's a motion for relief.
0023
 1      Q   Huh?
 2      A   The first payment would have been due -- the
 3   first post-petition payment would have been --
 4      Q   What date was that motion for relief?
 5      A   1/17/07, it was granted.
 6      Q   All right.
 7      A   On this payment history, it says the first
 8   post-petition payment is due for 8/1/06.  This payment
 9   history brought it current because of the consent
10   order.
11      Q   Okay.
12      A   So this is correct.  This one is correct.
13      Q   Sure.  All right.  Did that affect in any way
14   the accounting as between the two payment histories
15   that you provided?
16      A   In what way?
17      Q   Did it alter in any way the accounting provided
18   with respect to these two payment histories?
19      A   No.
20      Q   Bear with me for a second, if you will.
21      A   Sure.
22      Q   Let's start with the entries beginning at 1/22
23   of '07 --
24      A   Okay.
25      Q   -- from that motion for relief.  There is an
0024
 1   inspection fee paid on 1/22 of '07 in the amount of
 2   $15.
 3      A   Yes.
 4      Q   Tell me --
 5                  MR. PORTERFIELD:  I'm sorry.  What was
 6             that date again?
 7                  MR. WOOTEN:  1/22/07.  It's the first
 8             entry after that motion for relief was
 9             granted.
10                  THE WITNESS:  Okay.
11   BY MR. WOOTEN:
12      Q   Tell me why the inspection would have been
13   ordered on that day, after the motion for relief was
14   granted.
15      A   They're usually ordered when there's delinquency
16   on the loan.  I don't know if that time maybe it
17   crossed.  I don't know when this was ordered, actually.
18   We can find out the dates.
19      Q   Sure.  Well, let's talk about that for a moment,
20   if we can.  I understand that the bankruptcy module for
21   Fidelity sets up timelines for certain events to occur
22   based on the date of delinquency; is that right?
23      A   Right.
24      Q   So how long past the initial delinquency is it
25   before the first property inspection is ordered?
0025
 1      A   I think it's 30 days.
 2      Q   Okay.  And then is my understanding correct that
 3   every day -- every 30 days from then on, until the
 4   delinquency is cured, a property inspection is ordered?
 5      A   That's right.
 6      Q   When we're looking at your payment history that
 7   we've marked as Exhibit 1, can we agree that the
 8   delinquency date for MSP or Fidelity is assessed based
 9   on the contractual due date?
10      A   After bankruptcy?
11      Q   Uh-huh.
12      A   The delinquency date is calculated by the
13   post-petition due date.
14      Q   Okay.  So, for instance, in this pay history
15   we're looking at -- it looks like the one that y'all
16   sent me is backwards in time from the one that you're
17   looking at.  Well, I take that back.  That's not
18   correct.  In other words, the one that I'm looking at
19   that we got in -- I'm just gonna say June of '08.
20      A   Okay.
21      Q   The last page starts with -- well, that ain't
22   right.  I'm sorry.  Looks like somebody stapled it
23   wrong.  The first page starts with the 9/17/02.  You're
24   right.  I had it -- somebody stapled it wrong in my
25   folder.
0026
 1      A   Okay.
 2      Q   But let's talk about that for a second.  We
 3   would have been running on delinquency in this case up
 4   until the bankruptcy was filed, which would have been
 5   April the 7th of 2006, and that's on, I think, Page 5;
 6   is that right?
 7      A   On -- yes, on your Exhibit 1.
 8      Q   Right.  And then what your testimony is, is that
 9   beginning on that date, the post-petition due date
10   would have been May the 1st of 2006, right?
11      A   Correct.
12      Q   And MSP would look at the date in that column to
13   determine whether or not to charge any of the automatic
14   charges that MSP or Fidelity generates based on the
15   date of delinquency, right?
16      A   I think MSP works off of the contractual due
17   date.
18      Q   Okay.
19      A   Bankruptcy is a manual process.  So any payment
20   that comes in after bankruptcy is posted post-petition
21   due date manually.
22      Q   Okay.  And let's talk about that a little bit.
23   And I know we keep jumping around, but there's not
24   really an orderly way to do this.
25               Just so that we can be clear for the Court,
0027
 1   what your testimony is, is that, in effect, the people
 2   in the bankruptcy department have to manually enter
 3   each of these transactions once a bankruptcy has been
 4   filed?
 5      A   The payments.
 6      Q   The payments?
 7      A   Right.
 8      Q   And can they enter anything other than the
 9   amount received and the date received?
10      A   I don't think so.
11      Q   So they do not determine, well, what amount is
12   applied to principal, what amount is applied to
13   interest, what amount is paid to escrow, or what amount
14   is paid to charges, nothing like that?
15      A   I think once they apply the payments, it gets
16   applied to wherever the money needs to go.
17      Q   Okay.  And I know this is probably an obvious
18   question, but who determines where the money needs to
19   go?  Is that a function of the software, or is that a
20   function of human input?
21      A   It's a function of the software.
22      Q   Okay.  Let's -- and this is just purely
23   hypothetical, but let's just assume that a bankruptcy
24   person entered $676.09 on May the 2nd of 2006.
25   Whatever was done with that money -- so basically
0028
 1   everything to the right of the line that says "Amount
 2   Received," that would have been done automatically by
 3   the computer?
 4      A   Right.
 5      Q   So what your testimony is, is that there are not
 6   a set of the MSP records for a bankruptcy account and a
 7   set of the manual records; there is a set of MSP
 8   records with manual input of payments?
 9      A   That's correct.
10      Q   Okay.
11                  MS. BEARDSLEY:  Are we referring to --
12             just to clarify the period of time, '06?
13                  MR. WOOTEN:  We're referring to
14             post-petition, post-bankruptcy petition.
15                  MS. BEARDSLEY:  But is this the period
16             of time when Wells Fargo was servicing, or
17             Washington Mutual?
18                  MR. WOOTEN:  We're going to talk about
19             that in just a second.
20                  MS. BEARDSLEY:  Okay.  I just --
21                  MR. WOOTEN:  I know that date is a
22             Washington Mutual date, but I think I'm
23             fixing to clear that up too.
24                  MS. BEARDSLEY:  Okay.
25   BY MR. WOOTEN:
0029
 1      Q   My understanding is that Fidelity, the vendor
 2   for this software, also owns a company called Fidelity
 3   Default Services or Fidelity National Foreclosure
 4   Services in Mankato, Minnesota, up near
 5   Minneapolis-St. Paul.  Are you familiar with that
 6   company?
 7      A   I'm not.
 8      Q   Do you know whether or not that company has
 9   anything to do with transferring servicing between
10   entities?
11      A   Oh, I'm sorry.  I thought you were not finished
12   with your question.
13      Q   I'm sorry.
14      A   No, I don't know.
15      Q   Do you know if that company has a contract to
16   provide foreclosure or default services to either Wells
17   Fargo or Washington Mutual?
18      A   I'm not familiar with that company at all, so I
19   don't know what they do.
20      Q   So your testimony is that you have never
21   interacted with a person from Fidelity Default Services
22   in Mankato, Minnesota?
23      A   No.
24                  MR. WOOTEN:  Can we take a break, and
25             I'll get a copy of this 119 to 156 or 157,
0030
 1             please, if you don't mind.
 2                  (A brief recess was taken.)
 3   BY MR. WOOTEN:
 4      Q   Beverly, so we don't waste any time, because I
 5   know that you've got to get back to the airport, while
 6   those copies are being made, let's just go ahead and go
 7   forward.
 8               Let's talk about the servicing software
 9   again and what I'm gonna refer to as automatics.  When
10   I say "automatic," I'm talking about a charge that is
11   automatically posted to a borrower's account, based on
12   the period of delinquency.  Okay?  Is that fair?
13      A   That's fine.
14      Q   There are several categories for automatics for
15   Wells Fargo, as is my understanding.  For instance, you
16   charge a property inspection fee approximately once
17   every 30 days after a 30-day delinquency; is that
18   right?
19      A   I'm not sure if it's 30 or 60 days, but that is
20   correct.  It gets charged on an ongoing basis.
21      Q   So if we reviewed the payment history and it
22   indicated either of those, either 30 or 45 or 60 days,
23   whatever that time frame is, you would agree that that
24   is the automatic charge based on the delinquency,
25   right?
0031
 1      A   Right.
 2      Q   Okay.  And that is a software-based charge?
 3      A   Yes.
 4      Q   Okay.  With respect to late fees, is that also
 5   an automatic?
 6      A   Yes.
 7      Q   And tell me what the date of the late fee is.
 8      A   After the 16th of the month.
 9      Q   Okay.  And that is not based on the current
10   month?  In other words, if you're charging in a
11   bankruptcy scenario, again, you're basing that based on
12   either the contractual due date or the post-petition
13   due date, right?
14      A   Correct.
15      Q   If your post-petition due date says June the 1st
16   of '06 and it's August the 15th of '06 when you get
17   payment, there's still gonna be a late charge for
18   August, because your post-petition due date says June,
19   right?
20      A   Correct.
21      Q   All right.  So what about -- well, before I get
22   off this subject with this property inspection, do you
23   have a third-party vendor that provides these services?
24      A   Yes.
25      Q   Okay.  And what is the name of that vendor?
0032
 1      A   I cannot remember.
 2      Q   Is it Premier Asset Services?
 3      A   Premier Asset does BPOs.
 4      Q   Okay.
 5      A   I don't think -- I don't think it's the same
 6   company.
 7      Q   Okay.  Do you know if it is possibly a Fidelity
 8   company that provides property inspections?
 9      A   I don't know that.
10      Q   Okay.  So you just don't remember the name, but
11   you know there is a third-party vendor?
12      A   Yes.
13      Q   Explain for the Court exactly what is entailed
14   in a property inspection.
15      A   It depends on what kind is ordered.  Usually
16   they just drive by the property to make sure that the
17   house is standing, the grass is cut, anything normal
18   that you can see that is upkeep of the house.
19      Q   Would it be fair to say that they're looking for
20   evidence of occupancy?
21      A   That also, yes.
22      Q   And what does the property inspection actually
23   cost Wells Fargo?
24      A   I don't know that.
25      Q   Is it fair to say that it is an amount less than
0033
 1   $15.
 2      A   I don't know.
 3      Q   Do you know who is the person at Wells Fargo who
 4   would know that?
 5      A   There is a department that we e-mail for
 6   property inspections.  I don't know if there's one
 7   specific person.
 8      Q   What is the name of that department, please?
 9      A   We just call it property inspections.
10      Q   Okay.  And you say you e-mail them for that.  Is
11   that so that you can view an inspection?
12      A   If we need the statement.
13      Q   Okay.  And I guess that was my next question.
14   There is actually a document entered into Wells Fargo's
15   database when there is a property inspection, correct?
16      A   Correct.  Every time they're billed, we have an
17   invoice.
18      Q   You have an invoice?
19      A   Right.
20      Q   But there's also a report form, right?
21      A   I've never seen the report.
22      Q   Do you know if there's a report?
23      A   I don't.
24      Q   This may seem like a strange question, but if
25   you don't have a report, how do you know that it's
0034
 1   done?
 2      A   Do you mean the report by the person who's
 3   driving by the property?
 4      Q   Uh-huh.
 5      A   I have seen reports.
 6      Q   And so -- and hence my question.  Is it your
 7   understanding that there is a report done for each
 8   drive-by inspection?
 9      A   Yes.  I'm sorry.  I misunderstood.
10      Q   And is that an electronic form that is
11   transmitted to Wells Fargo somehow, by e-mail or
12   something?
13      A   Yes.
14      Q   Do you know if that form is uploaded directly
15   into Wells Fargo's server?
16      A   I believe it is, because that's how we get the
17   information.
18      Q   Okay.  Do you know if these reports are ever
19   reviewed or verified in any way by anyone at Wells
20   Fargo?
21      A   I don't know.
22      Q   Okay.  Do you know the person who is in charge
23   of the property inspection department?
24      A   There's a person that I contact, but I don't
25   know if she's actually the person in charge or the
0035
 1   manager.
 2      Q   Okay.  What is her name?
 3      A   Her name is Sunni, S-U-N-N-I, Flippin.
 4      Q   Can you spell that?
 5      A   F-L-I-P-P-I-N.
 6      Q   All right.  With respect to the property
 7   inspections, do you know anyone in that department,
 8   other than this Sunni Flippin person, who might be able
 9   to tell us how those property inspections are processed
10   by Wells Fargo?
11      A   I don't know.  I'd have to find out.
12      Q   You said that you -- you mentioned earlier that
13   you had reviewed in the past a property inspection
14   report.
15      A   Yes.
16      Q   Can you explain for the Court exactly what is on
17   a property inspection report?
18      A   The one that I -- the particular one that I
19   reviewed had photos, had descriptions of the property,
20   the description of the inside of the house.
21      Q   So that -- but you would agree that that is not
22   a --
23      A   That's not typical.
24      Q    -- drive-by inspection?
25      A   That is not typical.
0036
 1      Q   Right.  But the typical drive-by inspection
 2   involves, as the phrase implies, a drive-by?
 3      A   Right.
 4      Q   Not an actual entry onto the premises, right?
 5      A   Correct.
 6      Q   In fact, the typical person would not even know
 7   that they had a drive-by inspection done; is that fair
 8   to say?
 9      A   That's correct.
10      Q   And is there a reason that they're done in that
11   manner, as far as you know?
12      A   No, I don't know if the reason is so that they
13   don't know.
14                  MR. WOOTEN:  Is it okay with you if I
15             mark this as a cumulative Exhibit 2, these
16             documents that we had copied?
17                  MS. BEARDSLEY:  Yeah.  Just what's
18             stapled together.
19                  MR. PORTERFIELD:  I don't have a
20             problem.
21                  (Plaintiff's Exhibit No. 2 was marked
22                  for identification.)
23   BY MR. WOOTEN:
24      Q   I'm going to mark as Exhibit 2 a series of
25   documents that I received in this lawsuit from
0037
 1   Washington Mutual, and they are numbered, as you will
 2   see, in the lower right corner, WAMU0119 through 0157.
 3               And I will represent to you that these
 4   notes appear to be consolidated notes logs from
 5   Fidelity Default Services with respect to Ms. Avery's
 6   loan, and they reference a transfer of servicing
 7   between Washington Mutual and Wells Fargo.
 8               Have you ever seen these documents prior to
 9   coming to the deposition today?
10      A   Yes.
11      Q   Okay.  And did you see these documents only in
12   preparation for this deposition?
13      A   No.  I've seen them from the beginning of when I
14   received the loan.
15      Q   Okay.  So you had access to these, are you
16   saying, basically from the time that I filed this
17   lawsuit?
18      A   Well, from the time I actually got the loan and
19   started researching and pulling documents.
20      Q   Okay.
21      A   I don't know exactly when.
22      Q   Where would you have gotten these documents
23   from?
24      A   I would have ordered them from our microfiche
25   area.
0038
 1      Q   All right.  The first page, No. 119, indicates
 2   on the third entry -- it appears to be on -- I'm
 3   assuming that this is a date code of 2/15/07.  It says,
 4   requesting 168.40 from HO escrow account to send to
 5   Wells Fargo due to loan transferred to Wells Fargo.
 6   And then it has a -- the letter F, and then it looks
 7   like the word "packer," P-A-C-K-E-R.  Do you see that
 8   entry?
 9      A   Yes.
10      Q   Does that indicate to you that this is in the
11   process of transferring this loan from Washington
12   Mutual to Wells Fargo?
13      A   No.  The loan was already transferred.  This was
14   just transferring money.
15      Q   All right.  And that would have been homeowner
16   escrow money.  Would that have been the amount of money
17   that was received from -- was due to Washington Mutual
18   when it transferred to you?
19      A   I believe that this is a tax refund.
20      Q   Okay.  Will you take a look at Page 121 of this
21   entry for me, please?
22      A   Okay.
23      Q   The top entry there, I believe it says 12/1 of
24   '06, and it says:  "T. Borden-motion for relief
25   hearing.  Objection date, 01/16/2007."  Do you see that
0039
 1   entry?
 2      A   I do.
 3      Q   And the next entry says:  "T. Borden-motion for
 4   relief filed date 12/1/2006."  It appears to be the
 5   same person on the same day.  Is that your
 6   understanding?
 7      A   Yes, it is.
 8      Q   And then the next entry says:  "User has
 9   completed the upload document data form with the
10   following entries:  Select file Affidavit.doc."  And it
11   says:  "Comment:  Please execute the imaged affidavit
12   and return to our office at your earliest convenience.
13   You may image a copy of the executed affidavit before
14   returning the original to our office.  TKS, Brenda."
15               Are you familiar with what affidavit they
16   would be referring to in that entry?
17      A   No.  These are not our notes.
18      Q   Okay.  Are those notes of Fidelity?
19      A   I don't know.
20      Q   Okay.  Let's look at the next entry.  It says:
21   "Fidelity AUTOPROC motion for relief referred to
22   attorney 11/30/2006."  Does that indicate Fidelity auto
23   processing?
24      A   Yes.
25      Q   Is it common practice in your industry for
0040
 1   default providers or default service providers to
 2   prepare documents and submit them for lenders so that
 3   they may seek motions for relief from stay or institute
 4   foreclosure proceedings?
 5      A   Is it common practice in our industry?
 6      Q   Well, if not in the industry, is it common
 7   practice with Wells Fargo to use an outsource provider
 8   for these types of documents?
 9      A   Yes.
10      Q   Is Fidelity one of those outsource providers?
11      A   I don't know.
12      Q   Let me make sure that I'm clear about this, just
13   so that this is not muddled.  Your department doesn't
14   do foreclosures?
15      A   No.
16      Q   And your department doesn't file motions for
17   relief from stay?
18      A   No.
19      Q   And you don't have any familiarity with what
20   really goes on in those departments, other than general
21   for that area?
22      A   Right.
23      Q   You're not specially trained in any of those
24   departments, right?
25      A   No.
0041
 1      Q   So, I mean, really, as we talked about
 2   earlier -- and it's not to belittle you in any way or
 3   what you do, it's just that you do litigation support
 4   for your outside counsel.
 5      A   Correct.
 6      Q   So it really wouldn't be fair for me to ask you
 7   what Wells Fargo normally does with its outsource
 8   providers, right?
 9      A   Probably not.
10      Q   Who is the person in Frederick, Maryland, who
11   would know the most about Wells Fargo's relationship
12   with its outsource providers?
13      A   You would probably need somebody in Fort Mill,
14   where the bankruptcy department is.
15      Q   Okay.  Does Sandy Bonderico still work in
16   Frederick?
17      A   I don't know her.
18      Q   Don't know her.  Who in Fort Mill would be the
19   person most knowledgeable about these issues?
20      A   The bankruptcy manager in Fort Mill is
21   Karen Abernathy.
22      Q   Okay.  Is Kim Miller located in Fort Mill also?
23      A   Yes.
24      Q   Is she the vice president in charge of
25   Fort Mill?
0042
 1      A   Yes, she is.
 2      Q   Is there anyone there above her in authority?
 3      A   I don't know.
 4      Q   Is she the highest ranking person you know about
 5   there?
 6      A   Yeah.
 7      Q   Okay.  But through your employment and your
 8   experience with Wells Fargo, you agree that it is
 9   common practice for Wells Fargo to use outsource
10   providers for the preparation of certain documents?
11      A   That's correct.
12      Q   Okay.  And some of these documents include
13   motions for relief from stay?
14      A   Yes.
15      Q   And some of those documents include motions
16   for -- excuse me -- foreclosure documents?
17      A   Yes.
18      Q   And let me ask you if you have enough
19   familiarity to comment; if you don't, just say that you
20   don't.  The process typically, as I understand it, is
21   that an outsource provider, such as Fidelity, prepares
22   a document and then e-mails it to either Wells Fargo or
23   directly to the attorney assigned to the file; is that
24   correct?
25      A   I don't know.
0043
 1      Q   You don't know.  Okay.  What about the
 2   affidavits used in support of motions for relief from
 3   stay?
 4                  MS. BEARDSLEY:  Now, in this case, those
 5             were done by Washington Mutual, so that was
 6             all before Wells Fargo's servicing.  So that
 7             wouldn't be --
 8                  MR. WOOTEN:  Actually, I think one
 9             affidavit was filed by you guys, but I may be
10             wrong.
11                  MS. BEARDSLEY:  Well, both of the
12             motions for relief of stay are in 2006,
13             before the servicing transfer.
14                  MR. WOOTEN:  Okay.
15                  MS. BEARDSLEY:  They're both valid --
16                  MR. WOOTEN:  Sure.  We're gonna get
17             around -- we'll get around to the relevance
18             of that to y'all in just a second.
19                  MS. BEARDSLEY:  Well, I'm just saying --
20                  MR. WOOTEN:  I'm with you.  I've got
21             you.
22   BY MR. WOOTEN:
23      Q   Look at Page 122 of these documents for me, if
24   you will.  The collection entry that is dated 11 --
25   11/18 of '06, it says:  "Score 146.  11/18/06, AGT
0044
 1   E90G, Days DEL 382, Risk F."  Are you familiar with
 2   that lingo?
 3      A   No.
 4      Q   Do you have an opinion as to what that lingo
 5   represents?
 6                  MS. BEARDSLEY:  I'm gonna object to
 7             that.  This is a Washington Mutual document.
 8                  MR. WOOTEN:  No, it's not a Washington
 9             Mutual document, Robin.  It's a Fidelity
10             document.  It was produced by Washington
11             Mutual.
12                  MS. BEARDSLEY:  This is a Fidelity
13             document.  It's not Wells Fargo.  I'm not
14             gonna let her testify about something that's
15             not Wells Fargo.
16                  MR. WOOTEN:  Well, first of all, this is
17             a deposition, so the only objection is to the
18             form of the question.  I asked her if she had
19             an opinion about what that represented.  The
20             reason I asked her if she had an opinion is
21             because she was familiar with the services
22             platform, which is uniform between Fidelity,
23             the outsource provider, and its vendees, such
24             as Wells Fargo.
25   BY MR. WOOTEN:
0045
 1      Q   Is that a fair statement?
 2      A   Yes.
 3      Q   So when you see code language, even though it's
 4   a Fidelity document, that code language is similar code
 5   language that Wells Fargo might use with some
 6   modification, right?
 7      A   It would be.
 8      Q   So this is not unfamiliar to you completely,
 9   right?
10      A   Not completely.
11      Q   So you can tell from looking at this that "Days
12   DEL" means days delinquent, right?
13      A   Yes.
14      Q   And this score is Fidelity's risk-based scoring
15   model that basically is an assumption about how likely
16   it is that this house is going to become a REO?
17      A   I don't know about the score.
18      Q   But you would agree that 11/18/06 is the date
19   entry, right?
20      A   Yes.
21      Q   And AGT is a code?
22      A   I'm sure it is.
23      Q   And then "E90G" has particular import within the
24   Fidelity system, correct?
25      A   Correct.
0046
 1      Q   And that code is not a code that maybe you have
 2   provided to me as part of Wells Fargo's disclosure, but
 3   you could find out what that code meant if you needed
 4   to, couldn't you?
 5      A   I'm sure I could.
 6      Q   Certainly.  And "Risk F," is that also a special
 7   code so that you guys, in reading that note, could
 8   evaluate where y'all thought that property was heading?
 9      A   I don't know what that is.
10      Q   But you could find that out, right?
11      A   I'm sure I could.
12      Q   All right.  Further down, there's a slightly
13   larger entry that says 10/31 of '06, and it indicates,
14   starting on the second line -- the last word says:
15   "Therefore removing DISB1 so that 2006 annual Blount
16   County taxes will pay."
17      A   Okay.
18      Q   Are you familiar with what county this property
19   is located in?
20      A   I assume it's Blount county.
21      Q   By reading that entry, that's what you would
22   suspect, right?
23      A   By reading that entry, yes.
24      Q   Okay.  How would Wells Fargo pay Fidelity for
25   the outsourced services that they provide on an account
0047
 1   such as this?
 2      A   I would assume by invoice, if they use Fidelity.
 3      Q   And would that typically be on a flat fee
 4   structure?
 5      A   I don't know what would be between the two.
 6      Q   Certainly.  In other words, assume with me for a
 7   minute that Fidelity provided affidavits for a motion
 8   for relief from stay.  Would they charge Wells Fargo a
 9   fee for that?
10      A   Probably.
11      Q   Okay.  And you -- we would assume that that's a
12   known amount somewhere, right?
13      A   Yes.
14      Q   So, I mean, it's like they don't charge you 300
15   for one and 10 for the next?
16      A   No.
17      Q   And how would those fees be reflected in my
18   client's account, or would they be reflected?
19      A   It would probably be reflected by a bankruptcy
20   fee.
21      Q   Okay.  So if I see, for instance, an entry that
22   says:  "Bankruptcy fee paid, $50" -- and there is an
23   entry to that effect on October 18th of 2007.
24      A   Okay.
25      Q   Is that likely to be a fee paid to Fidelity, or
0048
 1   would it appear in the account history in that manner?
 2      A   I don't know if it was Fidelity that we were
 3   paying, but this is a notice of default.
 4      Q   Okay.  All right.  Well, let me ask you -- and
 5   maybe I should just ask the question a better way.  I'm
 6   simply asking, would it appear in the records in that
 7   fashion?
 8      A   It would appear as a corporate advance.
 9      Q   Okay.  All right.  Now, that's different than a
10   bankruptcy fee paid, right?
11      A   No.  They consider all fees to be corporate
12   advances, if they're going onto the account.
13      Q   Sure.  Sure.  I'm with you.  I understand what
14   you're saying with respect to that.  What I'm saying
15   is -- and I'm just saying the same thing in a different
16   way.
17               I'm talking about if I were looking at
18   Ms. Avery's pay history and trying to determine what in
19   her pay history shows me that Wells Fargo paid Fidelity
20   money.  Would that entry that I cited to you on October
21   the 18th of 2007 -- would it look that way?  Would it
22   be that nonspecific?  Would it just say:  "Bankruptcy
23   fee paid"?
24      A   If you're looking at the raw data, there will be
25   a code.
0049
 1      Q   Yes.  And what code is that?  Do you know the
 2   number?
 3      A   Maybe 633 or six -- I'm not exactly sure.
 4      Q   Okay.  All right. I'm looking at a code sheet
 5   that was provided to me by your attorneys, and I see a
 6   631 for property inspection and maintenance.
 7      A   Okay.
 8      Q   632 for attorneys cost.
 9      A   Okay.
10      Q   633 for miscellaneous expenses.  And then a 630,
11   which is attorney advance disbursement.  And then a
12   601, which is a miscellaneous corporate disbursement.
13   Do you know if it would fall into one of those?
14      A   If we were paying an attorney, it would be a
15   630, a 601.
16      Q   Right.  And let me ask you, you would not code
17   Fidelity payments and attorney payments, would you?
18      A   Code Fidelity payments?
19      Q   Right.  To your outsource provider.  The money
20   that you pay to Fidelity to prepare your affidavit,
21   something like that --
22      A   Uh-huh.
23      Q   -- you wouldn't code that as an attorney
24   payment, would you?
25      A   No.
0050
 1      Q   So that's what I'm saying.  Which code would
 2   that fall under?
 3      A   It would probably be under miscellaneous.
 4      Q   So it would fall under 601?
 5      A   It might.
 6      Q   In reviewing Ms. Avery's history to prepare for
 7   this deposition, are there any fees or charges which
 8   you see that you know, based on your education,
 9   training, and employment, are Fidelity payments?
10      A   After coming to Wells Fargo?
11      Q   Yes, ma'am.
12      A   I don't think I can answer that, because I don't
13   know that we use Fidelity.
14      Q   Do you use Brice Vander Linden?
15      A   Yes.
16      Q   And their default servicing company is
17   Bankruptcy -- what is their default servicing company?
18   What's their name?
19      A   I don't know.
20      Q   It just codes under Brice Vander Linden.  I
21   mean, you're familiar that they do own a bankruptcy
22   default company, right?
23      A   Right.  Right.
24      Q   And the name escapes me at the moment, but you
25   don't know it either?
0051
 1      A   No.
 2      Q   It's like Bankruptcy Services or something like
 3   that.
 4                  MS. BEARDSLEY:  I'm not aware of them
 5             being on this account.
 6                  MR. WOOTEN:  They are.  There's code
 7             payments to them.
 8   BY MR. WOOTEN:
 9      Q   Let's just call them Brice, because that's who
10   actually runs it, right?  That's who your contract's
11   with?
12      A   Right.
13      Q   And in talking about Brice -- and just bear with
14   me, but in effect, Brice performs the same types of
15   services for Wells Fargo that Fidelity performs, is
16   that fair, as an outsource provider?
17      A   Yes, they do.
18      Q   So they would prepare affidavits for motions for
19   relief from stay?
20      A   They would, if it's in the correct jurisdiction;
21   otherwise, they would hire outside counsel.
22      Q   When you say "correct jurisdiction," tell me
23   what you mean by that.
24      A   Well, wherever they're -- wherever they can --
25      Q   They're pretty much a national firm, right?
0052
 1      A   They are a national firm, but they hire outside
 2   counsel.
 3      Q   Sure.  Do you know which states they hire
 4   outside counsel in?
 5      A   I don't.
 6      Q   Are there states in which Brice does not do
 7   Wells Fargo's work anymore?
 8      A   I don't know that.
 9      Q   Do you know the person who would be most likely
10   to have that information?
11      A   My bankruptcy supervisor.
12      Q   Who is that?
13      A   Theresa Diaz Cochran.
14      Q   Spell the last name.
15      A   C-O-C-H-R-A-N.
16      Q   Is she located in Frederick, or is she in
17   Fort Mill?
18      A   Fort Mill.
19      Q   Do you work with Diane Hudgens?
20      A   Yes.
21      Q   Is she also one of the default litigation
22   specialists?
23      A   She works in foreclosure.
24      Q   How long has she been in foreclosure, if you
25   know?
0053
 1      A   I don't know.  She's been with Wells Fargo
 2   many -- 15 years or so.  She was there before I got
 3   there.
 4      Q   Sure.  We were talking about late fees, and I
 5   kind of got away from myself for a minute on that.
 6               Your understanding is that whatever that
 7   automatic trigger is, then that trigger is every --
 8   every time that time period rolls around until the
 9   delinquency is cured, right?
10      A   Correct.
11      Q   And that's irrespective of whether or not there
12   is an actual problem with the home at any of the
13   inspections, right?
14      A   Correct.
15      Q   Let's talk a little bit about what I think you
16   guys refer to as BPOs or broker price opinions.
17   They're also an automatic, right?
18      A   No.  They have to be ordered.
19      Q   All right.  Is there a time frame in which they
20   are, for lack of a better term, automatically ordered?
21      A   I don't know.
22      Q   Okay.  What is your understanding about when and
23   why a BPO is ordered?
24      A   A BPO usually -- in a couple of my cases was
25   ordered to see what the value -- current value of the
0054
 1   property would be.
 2      Q   And a BPO, as you indicated, is also a service
 3   that's provided by an outsource provider?
 4      A   Yes.
 5      Q   And that outsource provider is Premier Asset
 6   Services?
 7      A   Yes.
 8      Q   And they provide all of Wells Fargo's BPOs?
 9      A   I don't know if they're the only ones.
10      Q   Are you familiar with any others?
11      A   No.
12      Q   And in two years, you haven't seen anybody
13   else's name cross the table on that, right?
14      A   Not for that, no.
15      Q   How frequently would a BPO be ordered typically?
16      A   I can only answer in my cases, so I don't -- I
17   don't know.
18      Q   Is it your testimony that you do not have enough
19   familiarity with Wells Fargo's corporate practices to
20   state with any certainty here today when or why Wells
21   Fargo would typically order a broker price opinion as a
22   matter of corporate policy?
23      A   No.
24      Q   I understand that Wells Fargo pays a fixed price
25   of $50 for a broker price opinion; is that correct?
0055
 1      A   The fixed prices that I've seen are $95.
 2      Q   Is that the amount that is charged to the
 3   account, or is that the amount that Wells Fargo pays?
 4      A   That's the amount that's usually charged to the
 5   account, but again, I don't know what Wells Fargo pays.
 6      Q   Have you ever seen a broker price opinion in
 7   excess of $95 charged to a borrower's account?
 8      A   I have.
 9      Q   Okay.  And do you know of any reason why an
10   amount other than $95 would be charged on any
11   particular account?
12      A   No.
13      Q   All BPO's contain the same information, correct?
14      A   I don't know that.
15      Q   Don't know that.  Okay.  Who at Wells Fargo
16   would know the most about that issue, about what is
17   contained in a BPO?
18      A   I would have to find that out for you.
19      Q   Is there a BPO department?
20      A   There is a department that we e-mail.
21      Q   For BPO's?
22      A   Yes.
23      Q   And who do you e-mail in that department?
24      A   It's just a mailbox, e-mail mailbox.
25      Q   Just like bpos@wellsfargo?
0056
 1      A   No.  It's called PASVAL.
 2      Q   I'm sorry?
 3      A   P-A-S-V-A-L.
 4      Q   P-A-S-V-A-L.  All right.  And is that just at
 5   Wells Fargo?
 6      A   Actually, we just -- I just put the name in and
 7   it sends it.  It's an internal --
 8      Q   My understanding is that every employee at Wells
 9   Fargo has a Wells Fargo e-mail address, right?
10      A   Correct.
11      Q   So yours would be beverly.decaro@wellsfargo.com?
12      A   It's beverly.a.decaro.
13      Q   If you were guessing, you would say that PASVAL
14   would be an @wellsfargo.com e-mail account, right?
15      A   If I guessed, yes, but I don't think it would --
16   I don't -- I don't know.
17      Q   Or it could be that PAS stands for Premier Asset
18   Services, right?
19      A   It might.
20      Q   Are there any automatic triggers with respect to
21   forced place insurance with Wells Fargo?
22      A   The way I know that forced placed insurance, is
23   they get a notice from the insurance company, either
24   canceling it or reissuing it.  That's how we find out
25   about the insurance.
0057
 1      Q   And you have a third-party vendor that tracks
 2   that information and provides it to you?
 3      A   I don't know.
 4      Q   All right.  So your testimony is that to the
 5   best of your knowledge, Wells Fargo does not
 6   automatically assess forced place insurance to an
 7   account, just by virtue of delinquency?
 8      A   No.
 9      Q   Tell me how you would receive a broker price
10   opinion.
11      A   If I ordered one how I would receive it?  By
12   e-mail.
13      Q   And tell me, based on your experience, what
14   would be contained in a broker price opinion?
15      A   Comparables, value of the house, current value
16   of the house, condition of the house.
17      Q   Okay.  And approximately how long -- how many
18   pages would the broker price opinion be?
19      A   Depends on how many comparables they did.  I've
20   gotten three pages, and I've gotten six pages.
21      Q   Is there one comparable per page?
22      A   There's usually three per page.
23      Q   You started talking earlier about corporate
24   advances, and we kind of got off of that a little bit.
25   Tell me again generally what Wells Fargo lumps into the
0058
 1   category of corporate advances.
 2      A   Usually attorneys' fees and costs.
 3      Q   Are you the person at Wells Fargo who is most
 4   knowledgeable about what Wells Fargo pays for various
 5   legal services?
 6      A   No.
 7      Q   And I should clarify that question.  With
 8   respect to bankruptcy or foreclosure services.
 9      A   Repeat the question, please.
10      Q   Are you the person at Wells Fargo who is most
11   knowledgeable about what Wells Fargo pays for
12   attorneys' fees in bankruptcy or foreclosure cases?
13      A   No.
14      Q   Do you know who that person would be?
15      A   I don't.  All the bankruptcy fees are usually --
16   there's some flat fees, and there are mostly hourly
17   fees.
18      Q   Okay.  And how do you know which cases fall in
19   which categories?
20      A   By looking at the invoices.
21      Q   So you're not familiar with Wells Fargo's
22   corporate policies or procedures with respect to that?
23      A   No.
24      Q   Or any contracts it may have with providers?
25      A   No.
0059
 1      Q   Do you know if Wells Fargo has direct contracts
 2   with various firms or if it's handled through an
 3   outsource provider?
 4      A   I believe we have both at this time.
 5      Q   Do you know -- and I don't want to be
 6   duplicative, but do you know who the person is who is
 7   most likely to have that information?
 8      A   Karen Abernathy.
 9      Q   She's in Fort Mill, right?
10      A   Yes.
11      Q   Do you know the total dollar amount of corporate
12   advances on Toriano Avery's account?
13      A   Right now I'm showing the corporate advance as
14   3,767.14.
15      Q   Do you have a summary, by category, of those
16   charges?
17      A   I do.
18      Q   Okay.  Is that on this document, or is there --
19      A   No.
20      Q   Do you have a separate document that it's on?
21      A   Yes.
22      Q   Is that a document that you've brought here
23   today with you?
24      A   Yes.
25                  MR. WOOTEN:  Is it something that we can
0060
 1             mark as an exhibit, Robin?
 2                  THE WITNESS:  It's the DDCH screen.  I
 3             use all these print screens to put
 4             information on here.
 5   BY MR. WOOTEN:
 6      Q   And when you say a "print screen," what you're
 7   referring to is the raw data information from the
 8   software, from your work station?
 9      A   Yes.
10      Q   And that is through the Fidelity software,
11   right?
12      A   Yes.
13      Q   And that is how you accumulated the information
14   that makes up Exhibit 1, right?
15      A   That's correct.
16      Q   And you're saying that you have with you in your
17   possession here today a screen shot of the summary of
18   charges, but you didn't bring it into the actual
19   deposition?
20      A   Well, it's in my bag.
21      Q   Okay.  Well, I'm just trying to --
22      A   I do, yes.
23      Q   Do you have a problem with us marking that as an
24   exhibit so that we can attach that to the court file?
25                  MS. BEARDSLEY:  That's fine.
0061
 1                  MR. WOOTEN:  And that's the other thing.
 2             Ms. DeCaro, if you need a break, just speak
 3             up.  I'm not trying to push you.  Let's just
 4             mark -- what are we on, three?
 5                  (Plaintiff's Exhibit No. 3 was marked
 6                  for identification.)
 7   BY MR. WOOTEN:
 8      Q   I'm gonna mark FEE1 as three, and DDCH as four.
 9   Okay?
10                  MR. RETHERFORD:  Okay.
11                  (Plaintiff's Exhibit No. 4 was marked
12                  for identification.)
13   BY MR. WOOTEN:
14      Q   All right.  Let's talk about this document that
15   I've marked as Exhibit 3.  This is the one that says --
16   it says "Fee 1" in the upper left.
17      A   Okay.
18      Q   And it -- well, I ain't gonna put words in your
19   mouth.  I think I know what this is, but you tell me,
20   please.
21      A   These are all the fees, late fees, return item
22   fees, any fee other than attorney fees.
23      Q   And it -- on this document, it says "Fee Code"
24   on the left, and then it has a description --
25      A   Right.
0062
 1      Q   -- right beside it.  And then it says the date
 2   assessed.  Okay.  Just so I can be sure about this,
 3   that is the date that that fee becomes due to Wells
 4   Fargo, right?
 5      A   That is the date that we charged her loan.
 6      Q   Okay.  Let me be real clear about that.  When
 7   you say "charged her loan," that means it is applied to
 8   her loan, and Wells Fargo expects to be paid for it?
 9      A   Correct.
10      Q   On the second page -- well, let's go back to the
11   first page for a second.  Down at the bottom of that,
12   it's got a series of lines with numbers across it, and
13   it says -- the first one says "Net 229.60."  Do you see
14   that?
15      A   Yes, I do.
16      Q   Tell me what that means.
17      A   That might be the amount -- total amount paid.
18   Totals would be the total amount billed.  Amount would
19   be what's -- I believe what's left at this point, of
20   late fees.
21      Q   Okay.  All right.  Well, let's try to take this
22   document in context, if we can.  Across the top there,
23   it says:  "Date Assessed, Amount; Date Paid, Amount;
24   Date Waived, and Amount."
25      A   Uh-huh.
0063
 1      Q   Just so that we're real clear about it, and I
 2   want -- don't let me put words in your mouth.  I'm just
 3   trying to make sure I understand this document.
 4               Where it says -- down at the bottom where
 5   it says "Totals" under "Date Assessed," your testimony
 6   is that that sum of 1148.40 is the total amount of all
 7   fees assessed on Exhibit 3?
 8      A   Yes.
 9      Q   And then moving over to the right, there is a
10   number, 794, and that says "Date Paid" and "Amount"; is
11   that right?  In other words, that next column is --
12      A   Yes.  Yes.
13      Q   794 appears to be the total of the fees actually
14   paid.
15      A   Right.
16      Q   All right.  And then the last column is the date
17   waived, and it has an amount of $124.80.  And I'm going
18   to guess that the 124.80 is the fees that were, for
19   some reason or another, waived by Wells Fargo.
20      A   That's correct.
21      Q   I -- give me just a second.  Just in doing a
22   quick little set of figuring there, it says "Net
23   229.60."  If you subtract what was paid away from that
24   total, you come out with 229.60.
25               So based on my representation to you that I
0064
 1   am capable of doing math with a calculator, which some
 2   days I'm not, does it seem fair, then, that net is the
 3   fees that are due to be paid but have not been paid
 4   yet?
 5      A   Yes.  Still outstanding.
 6      Q   Okay.  When did you prepare this document with
 7   respect to this case, or when did you --
 8      A   Printed it right before I came.
 9      Q   What was the date and time of that?
10      A   9/19/08.
11      Q   Is that the information in the upper right
12   corner of the page?
13      A   Yes.
14      Q   Can you take a second and look at the payment
15   history with me that you have provided?  Look at the
16   date of October 16th of 2006.
17      A   Okay.
18      Q   That indicates that a late fee was assessed on
19   that day in the amount of 22.96.
20      A   That's correct.
21      Q   And that was based on a payment posted on that
22   day; is that correct?
23      A   Was it based on that payment?
24      Q   Was the late charge based on the date of 10/1/06
25   or 11/1/05 on that day?
0065
 1      A   11/1/05.
 2      Q   Okay.  Right back above that, on 9/5/06, the
 3   late fee that is assessed in the amount of 22.96, is
 4   that based upon the date of 10/1/05 or 7/1/06?
 5      A   10/1/05.
 6      Q   Is that the automatic, that the date is figured
 7   by the software?
 8      A   Yes.
 9      Q   And that would hold true throughout the
10   document, correct?
11      A   That's correct.
12      Q   So from the date of filing, which is April the
13   7th of '06, forward, correct?
14      A   Yes.
15      Q   Every late fee that is assessed to this loan --
16   which you've testified Wells Fargo expects to be paid,
17   right?
18      A   They are paid -- they expect to be paid if it's
19   not discharged.  At discharge, there is a discharge
20   audit that is done.  All late fees are then waived.
21      Q   Okay.  Well, let me ask you this:  That late fee
22   is based upon the contractual due date, irrespective of
23   the filing of the Chapter 13?
24      A   That's correct.
25      Q   And your testimony is that if a discharge is
0066
 1   reached, that Wells Fargo will waive the late fees that
 2   they accumulated during the pendency of the plan?
 3      A   Correct.
 4                  MR. PORTERFIELD:  Off the record.
 5                  (A brief recess was taken.)
 6   BY MR. WOOTEN:
 7      Q   Let's talk about the document we marked as
 8   Exhibit 4, which is the DDCH document.
 9      A   Okay.
10      Q   Now, this document is a summary of all fees paid
11   on the loan or charged to the loan since you began
12   servicing it, right?
13      A   And prior, it looks like.
14      Q   Okay.  So is this part of the information that
15   you captured when the loan was transferred for
16   servicing to Wells Fargo from Washington Mutual?
17      A   Yes.
18      Q   Tell me again what that date was.
19      A   12/1/06.
20      Q   Is there any rhyme or reason as to why this
21   particular loan was transferred to Wells Fargo in '06,
22   as opposed to any other loan, or do you know if this
23   was a part of a mass transfer?
24      A   I believe it was part of a mass transfer.
25      Q   Okay.  Is this loan what's commonly referred to
0067
 1   as a securitized loan, where it's owned by some
 2   mortgage-backed securities trust?
 3      A   The investor on this one is Lehman.
 4      Q   Okay.  That's what I was looking at.  So Lehman
 5   Brothers was the ultimate owner of the loan or investor
 6   on the loan; is that right?
 7      A   Yes.
 8      Q   And so that means most likely, that Aurora would
 9   have been the master servicer, Lehman's servicing arm?
10      A   I don't know who the master servicer is.
11      Q   Do you know if Wells Fargo is servicing this
12   under a sub-servicing agreement?
13      A   I don't know.
14                  MS. BEARDSLEY:  Nick, was your last
15             question -- I don't recall what your last
16             question was.  If Aurora was the investor?
17                  MR. WOOTEN:  If Aurora was the master
18             servicer.
19                  THE WITNESS:  Yes.  When it was with
20             WaMu.  This is on the back of your exhibit --
21   BY MR. WOOTEN:
22      Q   What page is that on the lower left?
23      A   156, 0156.
24      Q   Okay.  So it says Aurora Loan Services is the
25   master servicer.  Lehman Brothers -- and I believe this
0068
 1   entry indicates that servicing was released to Wells
 2   Fargo on December 1st of '06.
 3      A   Correct.
 4      Q   And that was your understanding, right?
 5      A   Yes.
 6      Q   Do you know who the owner of this note is as you
 7   sit here today?
 8      A   I don't.
 9      Q   How do y'all find that out when you're doing a
10   foreclosure?
11      A   I don't do foreclosures, but I believe they go
12   to client services.
13      Q   Let's talk about this DDCH form some more.
14      A   Okay.
15      Q   Tell me what information I can glean from what's
16   on this first page of Exhibit 4.
17      A   If you look at the payee --
18      Q   Okay.
19      A   -- anything with an R in the middle of the two
20   numbers is charged to the loan as recoverable.
21      Q   Okay.
22      A   Anything else is not on this loan.
23      Q   Okay.  So also where it says "ESC Payee," that
24   tells you who you paid, right?
25      A   Yes.
0069
 1      Q   So who is SE-FNFS?
 2      A   This is the company that does the property
 3   inspections.
 4      Q   Do you know if that would be Southeast Fidelity
 5   National Foreclosure Services?
 6      A   I don't know.  I could find out.  What did you
 7   say?  I'm sorry.
 8      Q   Southeast Fidelity National Foreclosure
 9   Services.  Southeast being the geographic destination,
10   which I think would be Jacksonville, Florida.  If the
11   number has a T in the middle of it --
12      A   Uh-huh.
13      Q   -- what does that signify?
14      A   That is an account that we call third party.
15      Q   Okay.
16      A   It's just kind of a bucket where that money
17   comes out of.
18      Q   Okay.  When you look at the first column that
19   says "TRN," that is your transaction code?
20      A   Yes.
21      Q   And that is for --
22      A   That would be the list that you have.
23      Q   Yes.  That would be the codes that we were
24   discussing while ago.  So all these 600 codes are
25   either attorneys' fees or miscellaneous corporate
0070
 1   advances, right?
 2      A   Correct.
 3      Q   So it looks like you're paying the property
 4   inspections under 631.  And 745, is that a refund code?
 5      A   Oh, 745, yes.  It's not a refund code.  It could
 6   be -- well, yeah, it could be paid by the investor.  It
 7   could be just removing the money, removing the fees
 8   from the loan.
 9      Q   Okay.  So let's -- on the second page, you've
10   got a Code 745 on December 7th of '07 for 181.64
11   negative.  When that says negative, does that mean it's
12   reducing the amount that my client owes?
13      A   Yes.
14      Q   And it says that that was a recoverable balance,
15   right?
16      A   Pay towards mortgage, recoverable.
17      Q   So would that be added back under some other
18   category?
19      A   No.
20      Q   On the fourth page, there are a series of
21   transactions there referencing Brice.  There's a 633 in
22   the amount of $50 on 11/20 of 2006.
23      A   Okay.
24      Q   And it says "Miscellaneous Expense"?
25      A   I think that was the notice of default that was
0071
 1   sent.
 2      Q   And then there was $300 on May the 25th of '06.
 3   What was that amount for?
 4                  MS. BEARDSLEY:  On May of '06 would be
 5             before it was Wells Fargo.  All these are
 6             before Wells Fargo except for the first one.
 7             I'm sorry.  Second one.
 8   BY MR. WOOTEN:
 9      Q   So everything -- you're saying everything below
10   the line there, you don't know what those charges would
11   have went to?
12      A   Everything below the second line.
13      Q   Right.
14      A   I mean, I can guess at what they are.  They're
15   foreclosure and bankruptcy fees.  But I can't tell you
16   for sure without the invoices.
17      Q   All right.  There is a -- on the third page
18   about halfway down, on March 7th of '07, there is a
19   50-dollar charge that goes to Brice.
20      A   It's a notice of default that went out.
21      Q   Okay.  And is that the letter that was prepared
22   that was mailed to my client post-petition, saying that
23   she had -- was behind?
24      A   I think, yes, it was.
25      Q   Does that look like it?
0072
 1      A   Yes.
 2      Q   And is it your testimony that that was prepared
 3   by Brice?
 4      A   This was not prepared by Brice.
 5      Q   Did Brice provide the information to Sirote to
 6   mail that letter?
 7      A   I'm not sure, but I assume they did.
 8      Q   Does the designation to the right that says
 9   "NI*," that says "User," is that supposed to be an
10   individual?
11      A   I don't think that -- I think that's a system
12   user.  That's not an individual.
13      Q   Okay.  Are there any of those codes under that
14   column that you recognize who that means when you see
15   those designations?
16      A   Which, the stars?
17      Q   Like NI*, and DS1.
18      A   DS1 is an individual, I believe.  Anything with
19   a star is system.
20      Q   An automatic, or is that something that's
21   programmed in?
22      A   It's -- I don't think fees are automatic.  I
23   think they're programmed in.
24      Q   Is there someone who might have possession of a
25   list of those user identifications, so that we can
0073
 1   determine who that is or what part of the system it is?
 2      A   I'm sure there is, but I don't know who that
 3   would be.  Maybe bankruptcy department.
 4      Q   Kim Miller's department, Fort Mill?
 5      A   Fort Mill, yes.
 6      Q   Do you know if there is an agreement to provide
 7   specific bankruptcy services, such as a motion for
 8   relief from stay, for a specific fee between Wells
 9   Fargo and its vendors?
10      A   I'm sure there is.
11      Q   Is it your opinion that that fee would be the
12   same for every motion for relief from stay?
13      A   Yes.
14      Q   Do you know what that fee typically is?
15      A   I think it's $150.  I'm not certain.
16      Q   Who would be the person most knowledgeable about
17   that?  Would that also be Kim Miller?
18      A   That bankruptcy group.
19      Q   Where -- these codes say "Description" over
20   here.
21      A   Okay.
22      Q   By each of these property inspections, it says
23   "INSP," and then space "REIN."  What does that mean?
24      A   I don't know what that REIN is.
25      Q   Beside that in a line to the left it says -- top
0074
 1   of that line is titled "RSN."  Is that reason, or do
 2   you know?
 3      A   Don't know.  Seems it would be.
 4      Q   Do you know what RISP means, that code?
 5      A   No.
 6      Q   Huh?
 7      A   No.
 8      Q   Let's talk about -- let's move back over one
 9   more line where it says "C/A Payee."  It says "01R01."
10   You indicated that the R means recoverable?
11      A   Correct.
12      Q   What is the significance of the 01 on each side
13   of that R?
14      A   Each department.  This would be the bankruptcy
15   department.
16      Q   01?
17      A   01R01 is a bankruptcy code.
18      Q   A Wells Fargo bankruptcy code?
19      A   I believe so.
20      Q   There is another 50-dollar fee to -- this one is
21   coded to Sirote for bankruptcy fees, 6/15/07.  Is that
22   also for preparing notice of default?
23      A   Yes.
24      Q   Who provides the information to Sirote to enter
25   into their notice of default?
0075
 1      A   Our bankruptcy department.
 2      Q   Your bankruptcy department?
 3      A   Wells Fargo's bankruptcy department.
 4      Q   So if that information is inaccurate, it would
 5   have come from Wells Fargo, right?
 6      A   If they gave inaccurate figures, it would.
 7      Q   Speaking hypothetically, of course.
 8               In this case there are three default
 9   letters.  The first one I think you have in front of
10   you is May 22nd of '07.
11      A   Yes.
12      Q   And it indicates that it is seeking a payment
13   for April and May of '07, right?
14      A   Okay.
15      Q   In the amount of $1,064.42, correct?
16      A   Correct.
17      Q   Okay.  Does your records indicate receiving a
18   payment in the amount of a $1,064.42 from
19   Toriano Avery?
20      A   Yes.
21      Q   And when was the date of that?
22      A   That was posted on 6/14/07.
23      Q   And what happened to that money?
24      A   That money went towards her March and April
25   payment, because three subsequent March payments that
0076
 1   she sent in were NSF checks.  So instead of going to
 2   April and May, this 1,064 paid March and April.
 3      Q   Okay.  All right.  That's your June 22nd letter.
 4      A   Okay.
 5      Q   Does it indicate that she is also due for March
 6   and April of '07?
 7      A   It does.
 8      Q   And that would be incorrect, wouldn't it?
 9      A   That is incorrect.
10      Q   There was another default letter sent out, was
11   there not?  Third one was sent out on September 26 of
12   2007.  Can we agree that June 22nd letter is off by at
13   least those two payments, the third and the fourth --
14   March and April of '07?
15      A   Yes.
16      Q   Okay.  Does this also indicate in this letter
17   that she was charged late payments for March and April
18   of '07?
19      A   Yes.
20      Q   And so those charges would have been improper
21   also?
22      A   No.
23      Q   Because those would have been based on the
24   contractual due date, right?
25      A   (Witness nods.)
0077
 1      Q   Which at that time you would have been running
 2   as roughly January of '06?
 3      A   Correct.
 4      Q   Can we agree that after my client paid $1,064 on
 5   June the 14th of '07, which was the amount requested in
 6   the initial default letter of May 22nd of '07, that she
 7   then followed that up with a payment of $700 on
 8   July 6th, $900 on July 17th, $700 on August 14,
 9   $417.58 -- I think that actually was a trustee payment.
10      A   Right.
11      Q   But $703 on 8/31 of '07 and $700 on October 5th
12   of '07?
13                  MS. BEARDSLEY:  Object to the form.
14                  MR. WOOTEN:  Well, let me ask that a
15             better way.
16                  MS. BEARDSLEY:  I don't know if I
17             followed all of it.
18   BY MR. WOOTEN:
19      Q   Do your records reflect that you received a
20   payment from my client on June the 6th of '07 in the
21   amount of $700?
22      A   My records reflect that payment, but I reflect
23   that it was returned as NSF.
24      Q   Okay.  And do your payment records reflect that
25   payment of $900 on July 17th of '07?
0078
 1      A   Yes.
 2      Q   And an additional $700 on August the 14th?
 3      A   Yes.
 4      Q   And $703 on August the 31st of '07?
 5      A   Yes.
 6      Q   And $700 on October the 5th of '07?
 7      A   Yes.
 8      Q   For the records that you have provided, are you
 9   able to tell me what the amount due on the notice of
10   default on September 26th, 2007, would have been?
11      A   On September 26th of 2007, she would have been
12   two payments down.  I don't know the exact amount.
13      Q   Okay.  I've got the form.  I just want to ask
14   you what you can tell from your records, what the
15   dollar amount should have been.
16      A   I can give you an approximate figure.  I can't
17   give you a definite figure.  I don't know if that's
18   good enough at this point.
19      Q   What is your approximate figure?
20      A   Okay.  This is how I did it.
21      Q   Well, let's talk about that.  Tell us exactly
22   how you arrived at your numbers.
23      A   I'm showing here two payments down, payments
24   being 679.70 each.  Two payments plus two late charges,
25   plus $50 for the notice of default, and at that point
0079
 1   there was 945.16 in suspense.  So I -- I would estimate
 2   that maybe she would owe like between six and 625.  You
 3   may correct me.
 4                  MS. BEARDSLEY:  I didn't do the math.  I
 5             wasn't doing the math.  Sorry.
 6   BY MR. WOOTEN:
 7      Q   She didn't do the math.  Let me ask you about
 8   that figure.  I notice that you didn't include anything
 9   from the trustee's balance in that, did you?
10      A   You mean the trustee's suspense?
11      Q   Because if you were declaring default and were
12   about to foreclose, she would be due credit also on
13   what the trustee had paid, because it was her money to
14   pay that arrears, right?
15      A   Well, it looks like they paid pre-petition fees
16   with the trustee money.
17      Q   As of 9/26/07 it says the total suspense is
18   $1,569.66.
19      A   They didn't touch the trustee money.
20      Q   You agree with me that the total suspense is
21   1,569.66 on that day, right?
22      A   Correct.
23      Q   And is it fair to say that the total suspense
24   should have been deducted from the default amount due
25   to arrive at what she owed on that day to cure her
0080
 1   default, right?
 2                  MR. PORTERFIELD:  Object to the form.
 3                  THE WITNESS:  Can you repeat that?
 4   BY MR. WOOTEN:
 5      Q   Sure.  Let me try to ask it a better way.
 6               What we're agreeing to is that on that day
 7   Wells Fargo says that there is two payments due, two
 8   late charges due, and a 50-dollar -- I'm not going to
 9   quibble with you about the $50.  All right?  We can
10   agree to that, right?
11      A   Yes.
12      Q   And can we agree that that adds up to -- well,
13   it's 1,359.40 plus $95.92, those two figures, right?
14      A   Okay.
15      Q   So let's take a second and do the math on that.
16   That's 32 and -- that's 1,455.32, right?
17      A   Yes.
18      Q   If you subtract the outstanding total suspense
19   on that date, 1569.66 --
20                  MS. BEARDSLEY:  So you're including
21             pre-petition debt with the post-petition --
22                  MR. WOOTEN:  Well, it's still wrong.
23             I'm just asking her how she figured it, to
24             make sure I understand.
25   
0081
 1   BY MR. WOOTEN:
 2      Q   What you're saying is y'all only figured that
 3   out based on the debtor suspense on that day, right?
 4      A   Yes.
 5      Q   You did not include the money that you were
 6   holding for trustee suspense, right?
 7      A   No.
 8                  MS. BEARDSLEY:  Pre-petition debt.
 9                  MR. WOOTEN:  Right.  But if you're
10             accelerating that, you're gonna have all that
11             in anyway.
12                  MR. PORTERFIELD:  This is not an
13             acceleration --
14                  MS. BEARDSLEY:  This is post-petition
15             default.
16   BY MR. WOOTEN:
17      Q   Well, let's just talk about that, where you get
18   your number 1,455.32, right?
19      A   Okay.
20      Q   According to this, you've got an outstanding
21   debtor suspense of 945.16, right?
22      A   Yes.
23      Q   If you take those two numbers away from each
24   other, that's $510.16, right?
25      A   (Witness nods.)
0082
 1      Q   That is the September 26 notice of default that
 2   was sent to Ms. Avery.
 3      A   Okay.
 4      Q   Would that also be incorrect?
 5                  MR. PORTERFIELD:  Which would be
 6             incorrect?  Her accounting or the letter?
 7   BY MR. WOOTEN:
 8      Q   The letter.
 9      A   I don't know the date that they actually got
10   these figures, because that always makes a difference.
11      Q   Well, track back up through there and tell me
12   where you see that debtor suspense balance of 509.10,
13   because I don't see it on that page.
14      A   I don't see it either.
15      Q   So it is fair to say that that's inaccurate?
16                  MR. PORTERFIELD:  Object to form.  It's
17             fair to say it doesn't match that document.
18   BY MR. WOOTEN:
19      Q   Okay.  You can answer, and he can object to the
20   form of the question.  That document does not reflect
21   Wells Fargo's records on that day, does it?
22      A   Not when I'm looking at what I'm looking at, it
23   doesn't.
24      Q   Well, let me ask you this, because this is kind
25   of what I come around to in all these cases eventually.
0083
 1   If we can't rely on what you give us as Wells Fargo
 2   accountants, what can we rely on for what the numbers
 3   are?
 4                  MR. PORTERFIELD:  The raw data is the
 5             same number.
 6                  MS. BEARDSLEY:  Does that make a
 7             difference?
 8                  MR. WOOTEN:  I'm gonna -- let's take a
 9             break and you go ahead and look at that while
10             I take a break.  I need to step out for just
11             a second.
12                  (A brief recess was taken.)
13   BY MR. WOOTEN:
14      Q   All right.  So Ms. DeCaro, we took a small
15   break, and I'm assuming that you were looking at this
16   thing while we were out.  Did you notice any reason --
17   find anything any different since before we took the
18   break?
19      A   I did.
20      Q   Okay.  Tell me what that is.
21      A   The debtor suspense balance in September of '07
22   was 945.16.  I did not deduct this 462.56 from the
23   outstanding fee balance, which is where the 509.10
24   would come from.
25      Q   Is it your assumption that the 462.56 consists
0084
 1   solely of post-petition fees and charges?
 2                  MR. PORTERFIELD:  What's the date of the
 3             bankruptcy again in this case?
 4                  MS. BEARDSLEY:  April of '06.
 5                  THE WITNESS:  At the time that she filed
 6             bankruptcy, her outstanding fee balance was
 7             zero.
 8   BY MR. WOOTEN:
 9      Q   Okay.  And the $462.56 on that day would have
10   been made up entirely of late charges?
11      A   Late charges, the returned item fees.
12      Q   Bounced check charges?
13      A   Yes.
14      Q   And property inspection fees?
15      A   All of her property inspection fees went under
16   corporate advance.
17      Q   Okay.
18      A   Not fees assessed or recovered.
19      Q   So the late charges, then, and bounced check
20   charges make up the entirety of 462.56?
21      A   Correct.
22      Q   And on that day, you are figuring what she is
23   alleged to be in default by, by deducting those fees
24   from her debtor suspense balance?
25      A   Correct.
0085
 1      Q   Do you know why her debtor suspense balance was
 2   sitting at 945.16?
 3      A   Well, if we went line by line, I could probably
 4   explain it to you.
 5      Q   Well, why don't we do that.
 6      A   And where would you like to start?
 7      Q   I would like for you to start at the point you
 8   need to start at to explain to me why she has more than
 9   a month's payment in suspense on her account.
10      A   Okay.  Let's start -- how about we start at
11   7/17/07?
12      Q   Okay.
13      A   She had -- she had, at that point, 681.26 in
14   suspense.
15      Q   Okay.
16      A   She made a 900-dollar payment on up to 1581.26.
17   They took 679.70 out, which brought her down to 901.
18      Q   Okay.  Can I stop you for just a second?
19      A   Yeah.
20      Q   Do those two lines that you just discussed
21   indicate that on one day her payment was received, but
22   it was two days later before her payment was actually
23   processed?
24      A   The reason that it's not processed on the same
25   day is because it comes into cash first, and it has to
0086
 1   go to bankruptcy next, to the bankruptcy representative
 2   who's handling this, to make sure that the money can be
 3   placed on the loan, since it is in bankruptcy.
 4      Q   All right.  So even though the debtor is making
 5   a direct post-petition payment, it has to pass through
 6   the bankruptcy department to determine if a direct
 7   post-petition payment can be applied to the loan?
 8      A   Correct.
 9      Q   Can you tell me any reason why a direct
10   post-petition payment could not be applied to the loan,
11   as a matter of course?
12      A   As a matter of course, I would assume that if it
13   comes into the cash department and it's a bankrupt
14   loan, the person who -- in the cash department doesn't
15   know if there may be consent order, there may be --
16   they don't know exactly how to post the money unless
17   they talk to bankruptcy.
18      Q   Okay.  I thought you told me earlier the
19   computer posts the payments.
20      A   The computer posts the payments.
21      Q   My understanding --
22      A   After -- it can be -- yes, after they get
23   permission to apply it, approval to apply the payment.
24      Q   Okay.  Well, let's talk about that for a minute.
25   Who gives them approval to apply a post-petition direct
0087
 1   loan payment?
 2      A   Bankruptcy.
 3      Q   So it is your testimony that even if a debtor
 4   sent you a check on July 17th of '07 that said it was
 5   for July 17th or July 2007's payment, that you or Wells
 6   Fargo may not apply that payment to July of 2007,
 7   depending on what the bankruptcy department said?
 8      A   It usually is applied within a day, within a day
 9   or two.  This is her July payment.
10      Q   When the money is placed into suspense, is that
11   a general account where all funds are placed for
12   segregation that sweeps each night and earns interest?
13      A   It does not earn interest.
14      Q   So you don't place this $900 into some general
15   holding account somewhere until you determine what to
16   do with it?
17      A   It's only this person's expense account.
18      Q   I understand that.  With respect to my client's
19   account, you have only one Toriano Avery suspense
20   account?
21      A   Correct.
22      Q   Okay.  But what I'm speaking to is in general
23   terms, when money is placed into suspense with
24   Wells Fargo, is it swept and paid interest overnight
25   while it sits in suspense in the company?
0088
 1      A   Do we pay her interest on this?  Is that --
 2      Q   No.  I'm saying does Wells Fargo earn interest
 3   on the money it's holding in suspense accounts while
 4   it's determining what to do with it?
 5      A   No.
 6      Q   And how do we know that?
 7      A   Because I was told that.
 8      Q   Okay.  Who told you?
 9      A   It must have been a question I asked.
10      Q   Do you know who it was that would have told you
11   that?
12      A   I probably would have asked my supervisor.
13      Q   And who is that?
14      A   Mark Kline.
15      Q   Mark Kline.  Okay.  When did Mark Kline move
16   over to your department from America's Servicing
17   Company?
18      A   I don't know.  He's been there since I've been
19   there.
20      Q   Okay.  Tell me again what your start date was?
21      A   12 -- 12/4/06, I think.
22      Q   And your testimony is, is that since 12/4/06,
23   Mark Kline has been a supervisor in your department?
24      A   No.  He was a representative, and then a few
25   months after I got there he was promoted to supervisor.
0089
 1      Q   And that's in the default litigation department?
 2      A   Yes.  Correct.
 3      Q   Do you know when he was promoted?
 4      A   I don't know the exact date.  I didn't know too
 5   many people when I first started.
 6      Q   All right.  You said the 1581 was based on the
 7   900-dollar deposit.  Then on July 19th, you posted
 8   $679.70 of that money from suspense to the debtor's
 9   payment account, right?
10      A   Were we still on 7/07?
11      Q   7/19 of '07.
12      A   Okay.
13      Q   I was just trying to recap where we were.
14      A   Oh, okay.  Yes.  On the 19th, they took 679.70
15   out and made a payment.
16      Q   Okay.  All right.
17      A   On the 14th, her payment of 700 came in.
18      Q   Let me back you up just a minute.  What is this
19   negative 523.63 and negative 34.39 from escrow?
20      A   523.63 was her hazard insurance that Wells Fargo
21   paid.  34.39 was her mortgage insurance that Wells
22   Fargo paid.
23      Q   And that came from the escrow balance, right?
24      A   Yes.  Her payment came in on 8/14, went into
25   suspense.  Then they took it out on the 15th and made
0090
 1   her payment.
 2      Q   Okay.  Let me ask you something.  The $22.96
 3   charge on the 16th, was that in any way impacted by the
 4   processing of the payments on the 14th and 15th?
 5      A   Yes, because she was two payments down.  So
 6   that's why she was charged a late fee.
 7      Q   Okay.  I thought you testified earlier that late
 8   fees were tied to the contractual due date.
 9      A   I did say that.
10      Q   And property inspections were tied to the
11   post-petition due date?
12      A   Right.
13      Q   So the 22.96 was based on the April 1st, '06
14   date, or on the June 1st, '07 date?
15      A   I believe that late fees -- we can charge late
16   fees post-petition.  And I think I should probably
17   correct myself, if I'm allowed, that these late fees
18   were assessed post-petition.
19      Q   Okay.  I understand that they were assessed
20   post-petition.  What I'm concerned about is whether
21   they are assessed based on the contractual due date or
22   the post-petition due date, because I think you
23   testified earlier that they were based on the
24   contractual due date.
25      A   I did.  I did say that.
0091
 1      Q   Is that right?
 2      A   I don't think that's right.  I think they are
 3   based on the post-petition payments.
 4      Q   Okay.  Well, what about the property inspection
 5   charges?  Are they tied to the contractual due date, or
 6   are they tied to the post-petition due date?
 7      A   Those are also post-petition.
 8      Q   Okay.
 9                  MR. PORTERFIELD:  Y'all want to take a
10             quick break and have our sandwiches or eat
11             while we go?
12                  (A brief recess was taken.)
13   BY MR. WOOTEN:
14      Q   So we were talking about late charges and
15   property inspection fees, and we were trying to
16   determine if they were tied to the contractual due date
17   on the mortgage or the post-petition due date.  And you
18   had indicated that you believe they were both tied to
19   the post-petition due date.
20      A   Correct.
21      Q   Is that a programming item?  In other words,
22   does some computer programmer tell MSP to tie those
23   dates to the post-petition due date?
24      A   I don't know that for sure.
25      Q   Do you know the person who's most likely to know
0092
 1   that?
 2      A   Probably the person I gave you before, Theresa.
 3      Q   Her name is --
 4      A   Theresa Diaz Cochran.
 5      Q   I would assume that that is selectable by the
 6   user, the vendor, like Wells Fargo can choose those
 7   options, right?
 8      A   I think you can choose any options.  Right.
 9      Q   I mean, you make the software -- you set up the
10   automatics, in other words?
11      A   Correct.
12      Q   So Wells Fargo would choose how to do that?
13      A   Correct.
14      Q   Is that something that would be treated
15   uniformly amongst all accounts involved in a Chapter 13
16   bankruptcy?
17      A   Yes.
18      Q   So irrespective of who you might be servicing
19   for or what the servicing agreement is, or even if it's
20   in the same pool of loans, Wells Fargo would treat
21   those items the same for every Chapter 13 loan, right?
22      A   I don't know that.  I don't know if they go by
23   the servicing agreement or if it's generic across the
24   board.
25      Q   Okay.  On the second page of Exhibit 4, the
0093
 1   450-dollar entry under transaction code 630 to
 2   Sirote --
 3      A   That's --
 4      Q   -- is that a flat fee that's paid for a
 5   foreclosure?
 6                  MS. BEARDSLEY:  When is this?
 7                  MR. WOOTEN:  12/21/07.  I think that's
 8             when --
 9                  MS. BEARDSLEY:  Okay.
10   BY MR. WOOTEN:
11      Q   What is that fee?
12      A   I don't think it's a bankruptcy fee.
13      Q   Because I know in your entry that you brought
14   today, that you have a publication fee.
15                  MS. BEARDSLEY:  I see.  I've got my
16             dates -- I'm thinking '06, and we're into
17             '07.  Sorry.  That's my mistake.
18   BY MR. WOOTEN:
19      Q   Do you know if that is the flat fee for
20   conducting a foreclosure?
21      A   I don't know if they do have a flat fee.
22      Q   Okay.  Who would be the person that would know
23   that?  Theresa Diaz Cochran or Kim Miller?
24      A   Probably Theresa.
25      Q   Do you know what triggers the filing of a motion
0094
 1   for relief from stay on any particular loan?
 2      A   I believe a 60-day delinquency or 45-day
 3   delinquency.
 4      Q   Is that post-petition delinquency or -- I know
 5   sometimes y'all come in and file these right after the
 6   filing of a bankruptcy.  I mean, is it -- is that
 7   typically supposed to be a 60-day post-petition
 8   delinquency before you file a motion for relief from
 9   stay?
10      A   Well, it has to be post-petition.
11      Q   Do you know why you would file a motion for
12   relief from stay almost immediately after the filing of
13   a bankruptcy?
14      A   I would assume because they did not make the
15   first post-petition payment.
16      Q   Do you know how many motions for relief from
17   stay have been filed in this case?
18      A   Two.
19      Q   Have you reviewed the original proof of claim in
20   this case prior to coming to the deposition today?
21      A   Yes.
22      Q   When was your proof of claim filed in the case?
23                  MS. BEARDSLEY:  The Wells Fargo --
24                  THE WITNESS:  We didn't file a proof of
25             claim.
0095
 1   BY MR. WOOTEN:
 2      Q   Have you reviewed that proof of claim, though?
 3      A   Yes.
 4      Q   Do you know when it was filed?
 5      A   July of '06, maybe.
 6      Q   Do you have a set fee that you pay attorneys for
 7   filing a motion for relief from stay?
 8      A   That Wells Fargo pays?
 9      Q   Uh-huh.
10      A   I think it's $150.
11      Q   Is that a situation where an outsource provider
12   provides the information to the attorneys so that they
13   can file the proof of claim or the motion for relief
14   from stay?
15      A   Yes.
16      Q   Tell me -- while I'm looking for this, I want
17   you to tell me, does Wells Fargo consider the filing of
18   a Chapter 13 to be an event of default under the
19   mortgage and note?
20      A   No.
21      Q   Is it -- does Wells Fargo have a standard
22   position as to what constitutes a default under the
23   mortgage and the note?
24      A   I would assume that your loan is in default when
25   you miss your payment.
0096
 1      Q   Any payment?  Even one?
 2      A   Yes.
 3      Q   Would you agree that Wells Fargo began servicing
 4   this loan after it was already in default?
 5      A   Yes.
 6      Q   You have any idea of how many loans Wells Fargo
 7   might service that are currently in default?
 8      A   I do not know that.
 9      Q   Do you have any idea how many loans Wells Fargo
10   currently services that are a part of a Chapter 13
11   bankruptcy?
12      A   No.
13      Q   Do you know who the person is who would be the
14   most knowledgeable about those two items?
15      A   Karen Abernathy.
16      Q   Do you know if there are any Fidelity employees
17   co-located in Fort Mill, South Carolina?
18      A   I don't know that.
19      Q   Do you know if there are any MERS employees
20   co-located in Fort Mill, South Carolina?
21      A   I don't know that.
22      Q   Do you know if there are any Brice Vander Linden
23   employees co-located in Fort Mill, South Carolina?
24      A   I don't know that either.
25      Q   Is this an example of the type of affidavits
0097
 1   that your outsource providers would typically provide
 2   for Wells Fargo?
 3                  MS. BEARDSLEY:  This is a Washington
 4             Mutual affidavit.
 5                  MR. WOOTEN:  I know that.
 6   BY MR. WOOTEN:
 7      Q   What I'm asking you is, is that an outsource
 8   affidavit?  Does it appear to be?
 9      A   I suppose it could be.
10      Q   Okay.  And is that the type of affidavits that
11   Wells Fargo -- and I'm speaking very generally.  Is
12   that the type of documents Wells Fargo expects its
13   outsource providers to produce for them?
14      A   It's not the same format, but it would be the
15   same information.
16      Q   Right.  Okay.  Well, yeah.  I'm with you.  And
17   so your testimony is that in Alabama, you're using
18   Brice to provide these types of services for Wells
19   Fargo?
20                  MS. BEARDSLEY:  Object to the form.  She
21             has never testified to that.
22                  MR. WOOTEN:  I think she did earlier in
23             this deposition.
24   BY MR. WOOTEN:
25      Q   Y'all use Brice for this stuff, right, rather
0098
 1   than Fidelity?
 2                  MS. BEARDSLEY:  No, she did not testify
 3             to that.  I don't --
 4   BY MR. WOOTEN:
 5      Q   Okay.  Well, let me ask you -- let me just
 6   re-ask you the question.
 7               Wells Fargo uses an outsource provider for
 8   this type of information?
 9      A   Yes.
10                  MS. BEARDSLEY:  I'm sorry.  What type --
11             you mean this affidavit?  I'm sorry, but --
12   BY MR. WOOTEN:
13      Q   Let me back up a little bit.  Wells Fargo uses
14   outsource providers with respect to managing it's
15   motions for relief from stay and it's foreclosure
16   proceedings, right?
17      A   Yes.
18      Q   And those outsource providers provide
19   information to the attorneys who actually file the
20   motions for relief from stay and foreclosures, correct?
21      A   Correct.
22      Q   Some of the things that the outsource providers
23   give to those attorneys are affidavits in support of
24   those actions, correct?
25      A   Correct.
0099
 1      Q   Who is the outsource provider for Wells Fargo in
 2   Alabama?
 3      A   We actually have two bankruptcy outsource -- I
 4   don't know if -- well, it seems that it would be Brice
 5   on this loan, since Brice is in the documentation.
 6      Q   Okay.  Who is the other that you sometimes use?
 7      A   McCalla.
 8      Q   And that's MR Default Services, right?
 9      A   I think so, yes.
10      Q   Do you know typically what the outsource
11   provider would charge you for an affidavit in support
12   of a motion for relief from stay?
13      A   I have seen it at $150.  I'm not sure if it's on
14   every single motion for relief.
15      Q   Okay.  We talked about earlier that you said the
16   attorneys' fees were $150.
17      A   Uh-huh.
18      Q   Are you confusing the attorneys' fees with the
19   charge for the affidavit?
20      A   I may have.  The attorney fee for -- for filing
21   the motion for relief is 150.
22      Q   Is it your testimony that you think that the
23   affidavit charge is also 150?
24      A   I don't -- no, I don't know.
25      Q   Okay.  All right.  Tell me what information you
0100
 1   provide to your outsource providers so that they can
 2   prepare these affidavits.
 3      A   I don't know what they give them.  I don't work
 4   in that area.
 5      Q   Is that also Theresa Diaz Cochran?
 6      A   Yes.
 7      Q   Or Karen Abernathy?
 8      A   It's -- Fort Mill is where the processers are.
 9      Q   Do you know how many employees of Wells Fargo
10   there are in Fort Mill?
11      A   I'm sorry?
12      Q   Do you know how many employees of Wells Fargo
13   there are in Fort Mill?
14      A   I don't know how many.
15      Q   So the information -- you don't know how the
16   information goes into the affidavits in support of a
17   motion for relief from stay?  You don't know where it
18   comes from or how it makes it to the outsource
19   provider?
20      A   Well, I'm sure they pull it off of Fidelity, off
21   of the system.
22      Q   So they would be accessing your database
23   remotely, logging in or something of that nature?
24      A   Right.
25      Q   So, in effect, they would -- well, don't let me
0101
 1   put words in your mouth.  Would it seem that they have
 2   access to the same information your employees do?
 3      A   Yes.
 4      Q   So even though they're employed by a separate
 5   corporation, they would be accessing Wells Fargo's
 6   data?
 7      A   Some of them can, yes.
 8      Q   Okay.  Is it your testimony that Brice and MR
 9   Default Services can do that?
10      A   Yes.
11      Q   Can you tell me the person responsible for
12   making the decision to refer my client's loan for
13   foreclosure at the end of October of 2007?
14      A   The representative who referred it?
15      Q   Yes.
16      A   Georgiana -- hang on.  Georgiana Vanstrum
17   (spelled phonetically).
18      Q   And can you tell me what day that decision was
19   made?
20                  MR. WOOTEN:  I'm sorry.  Did you make a
21             copy of that for me?
22                  MS. BEARDSLEY:  Uh-huh.
23                  MR. WOOTEN:  Let's go ahead and mark
24             that.
25                  (Plaintiff's Exhibit No. 5 was marked
0102
 1                  for identification.)
 2   BY MR. WOOTEN:
 3      Q   I'm gonna mark that as Exhibit 5.
 4      A   I wrote it down.  Do you mind if I look?
 5      Q   Go ahead.
 6      A   6/29/07.
 7      Q   Okay.  6/29/07, I have a highlighted entry that
 8   says:  "Open in error per relief granted.  Transferring
 9   to bankruptcy write off review"; is that right?
10      A   10/29.  I'm sorry.
11      Q   10/29?
12      A   Yes.
13      Q   What are -- the document that I marked as
14   Exhibit 5, what is the proper corporate designation for
15   these documents?
16      A   It's the consolidated note log.
17      Q   And that is a Fidelity document, right?
18      A   Yes.
19                  MR. WOOTEN:  Is that another document
20             that needs to be marked, Robin?
21                  MS. BEARDSLEY:  Uh-huh.
22                  MR. WOOTEN:  Just hand me a copy, and
23             I'll go ahead and mark it.
24                  (Plaintiff's Exhibit No. 6 was marked
25                  for identification.)
0103
 1   BY MR. WOOTEN:
 2      Q   The document that -- the other document, at the
 3   top it says "For Process Notes."  Is it different
 4   than -- I've marked that as Plaintiff's Exhibit 6.  Is
 5   it different than Plaintiff's Exhibit 5?  Plaintiff's
 6   Exhibit 5 is what you said was the consolidated note
 7   log.
 8      A   The consolidated note log.
 9      Q   Yeah, that's five.
10      A   Okay.
11      Q   This -- this where it says, "For Process Notes,"
12   I've marked that as six.
13      A   Okay.  Usually on the consolidated note log,
14   there's a line that has each department.
15      Q   Uh-huh.
16      A   These are foreclosure notices.
17      Q   Okay.  So what you've given me as five are
18   foreclosure notes?
19      A   The "FOR," when you see that, that means
20   foreclosure.
21      Q   That's No. 6?
22      A   Correct.
23      Q   So --
24      A   You can get general notes.  If you just want
25   notes, you can get general notes that basically has
0104
 1   each department.  If you want generalized notes, you
 2   have to tell it that you want either foreclosure or
 3   bankruptcy.  If you only want to see bankruptcy, you
 4   have to tell it you only want to see bankruptcy notes.
 5   If you only want foreclosure notes, you can get
 6   foreclosure notes.
 7      Q   So I guess my next question would be, is these
 8   are obviously, then, not all the notes in this case,
 9   right?  There are also bankruptcy notes, at least,
10   right?
11      A   There -- yes, there are bankruptcy notes.  But
12   if you look -- these are bankruptcy notes.
13      Q   This document I've marked as five, the one
14   that -- the one that's got the highlights on the front
15   page -- I think this is the one -- are these general or
16   bankruptcy, or can you tell?
17      A   I cannot tell.  If you look at these, these are
18   probably bankruptcy notes, and I'm saying that because
19   if you look at some of these entries -- I'm looking at
20   10/5/07.  And like I explained about applying the
21   payments, whoever this person is, is applying the check
22   per instructions.  The instructions being from --
23   actually, these are probably general notes, because
24   that person is getting instructions from bankruptcy to
25   apply the payment, $700 applying per payment.
0105
 1               And if we look at our spreadsheet in 10/07,
 2   10/5/07 -- 10/5/07, they put $700 on her loan.
 3      Q   Okay.
 4      A   So the payments should correlate with the notes,
 5   because they have to get approval to apply to
 6   repayment.
 7      Q   So I'm gonna reask my question.  Do you believe
 8   that the document I marked as Exhibit 5 is bankruptcy
 9   notes?
10      A   Yes.
11      Q   And the document we've marked as Exhibit 6 is
12   foreclosure notes?
13      A   Yes.
14      Q   And then there's a category called general
15   notes, right?
16      A   If you don't specify what notes you want, it
17   just will pull --
18      Q   Everything?
19      A   Well, collections and -- it won't pull customer
20   service.  We don't have access.
21      Q   Okay.  So there is a collection notes log for
22   this loan?
23      A   Yes.
24      Q   Do you have that with you?
25      A   No.
0106
 1      Q   So other than the category of being general
 2   collection, foreclosure, and bankruptcy, are there any
 3   other categories of notes?
 4      A   REO is on there.  I don't know what all else is
 5   on there.
 6      Q   Okay.  So I would assume that the last page of
 7   these notes was the earliest possible day that you had
 8   access to this?  Looks like that it came in the day
 9   before she filed or the day that she filed her
10   bankruptcy, along in there.
11      A   Well, some of these notes are WaMu notes.
12      Q   Well, let me ask you about that, because there
13   doesn't seem to be any real break in there.  Are these
14   WaMu notes that you pulled from the Fidelity database?
15      A   These are notes that -- the WaMu notes I have to
16   get from microfiche, so those have to be ordered.
17      Q   That's what I'm saying.  You, at Wells Fargo,
18   have access to Washington Mutual's servicing
19   notes because of the Fidelity software?
20      A   Correct.  Yes.
21      Q   So you're able to look at everything that
22   Washington Mutual entered from, basically, looks like
23   the petition date up until when servicing was released
24   to Wells Fargo, right?
25      A   Yes.
0107
 1      Q   So even if a client called in and said, "Well,
 2   something happened when Washington Mutual had it."
 3   But, you know, since I filed bankruptcy, you should
 4   still be able to see that through those notes, right?
 5      A   Yes.
 6      Q   Is it fair to say that Wells Fargo makes more
 7   money off cases that are -- where either relief is
 8   granted or bankruptcy is terminated than cases where
 9   Wells Fargo has a borrower get a discharge?
10                  MS. BEARDSLEY:  Object to the form.  You
11             can answer, if you -- I mean --
12                  THE WITNESS:  Well, if it's dismissed or
13             relief is granted, then we're allowed the
14             fees and costs on the loan.
15   BY MR. WOOTEN:
16      Q   So is it fair to say that Wells Fargo is gonna
17   make more money if the person doesn't get a discharge
18   than if they do, right?
19      A   Only if there is additional fees on the loan.
20      Q   You testified earlier that there would be fees
21   on the loan because of the tracking fees, based on the
22   due dates, right?
23      A   I did.
24      Q   Okay.  So you can't collect those fees,
25   according to your testimony, if the client gets a
0108
 1   discharge.
 2      A   No.
 3      Q   Okay.  So the only way to recover those fees is
 4   for the client to not get a discharge, either by a
 5   relief from stay or a dismissal of their case, right?
 6      A   Right.
 7      Q   Do you have any idea what the total dollar
 8   amount of fees assessed to accounts in bankruptcy is by
 9   Wells Fargo?
10      A   Total, no.
11                  MS. BEARDSLEY:  Are you talking about
12             this loan?
13                  MR. WOOTEN:  I'm talking about total.
14                  THE WITNESS:  Total.  In general.
15                  MS. BEARDSLEY:  Object to form.
16   BY MR. WOOTEN:
17      Q   Who would be the person at Wells Fargo who would
18   most likely have that information?
19      A   Probably Karen.
20      Q   Karen's last name?
21      A   Abernathy.
22      Q   Do you have the actual invoices and remittances
23   for the fees that were paid on this account?
24      A   I do, but I didn't -- I don't have them with me.
25      Q   Are they imaged in some manner into Wells
0109
 1   Fargo's records?
 2      A   Yes.
 3      Q   So it would be a simple matter of pressing a
 4   button to print those out so they could be reviewed?
 5      A   Yes.
 6      Q   Would it be time-consuming for you to do that?
 7      A   No.
 8      Q   About how long would it take?
 9      A   It would all depend on which invoices are in
10   there.  If there's not a specific invoice in there,
11   then I would have to go to the attorney.
12      Q   Would there be an invoice for all the charges
13   that are reflected in Plaintiff's Exhibit 4, the DDCH
14   screen?
15      A   Yes.
16      Q   So every entry on DDCH would have an invoice in
17   the system, right?
18      A   Yes.
19      Q   How long would it take you to print the entries
20   on the DDCH?
21      A   Some of those inspection invoices may not be
22   films, so I would have to go to that department to get
23   the invoices.  So that depends on how long it takes
24   them to get back to me.
25      Q   Well, for the ones that are imaged, for you to
0110
 1   print those, how long would it take you to do that?
 2      A   As long as it takes me to look at it and --
 3      Q   Mash "print"?
 4      A   Right.
 5      Q   So a few minutes?
 6      A   Yeah.
 7      Q   And it doesn't require any special
 8   authorizations or approvals or anything like that?
 9      A   No.
10      Q   Is my understanding correct that anyone who has
11   access to the Fidelity database can basically access
12   Wells Fargo's information if they have an agreement
13   with Wells Fargo?
14      A   I don't know who gets --
15      Q   For instance, do your local attorneys have the
16   right to access Wells Fargo's data for the purposes of
17   a motion?
18      A   Local attorneys being direct source attorneys
19   or --
20      Q   Like this firm, could they access Wells Fargo's
21   data?
22      A   Yes.
23      Q   You said that the decision to foreclose was made
24   on December the 29th of '07.
25      A   October, I believe.
0111
 1      Q   On October 29th?
 2      A   Yes.
 3      Q   I believe it's in the one I marked as Exhibit 6.
 4   Do you have the default letter, acceleration and
 5   default letter for this loan in October of '07?
 6      A   I don't think I have one.  This is
 7   September '07.
 8      Q   Do you have the acceleration letter for that
 9   sale?
10                  MS. BEARDSLEY:  I think we looked at it
11             last night, but I don't know if it's my copy
12             or --
13                  THE WITNESS:  This letter?
14                  MS. BEARDSLEY:  No.  The acceleration
15             letter.
16                  THE WITNESS:  I don't have it.
17   BY MR. WOOTEN:
18      Q   Where would the figures on the acceleration
19   letter come from?
20      A   From Fidelity.
21      Q   From Fidelity?  Not from Wells Fargo?
22      A   Well, the Fidelity system within Wells Fargo.
23      Q   I just wanted to make sure I was clear about
24   that.  When you say that those numbers come from
25   Fidelity, do they come from a software that Wells
0112
 1   Fargo's using, not the outsource provider?
 2      A   Correct.
 3      Q   Can you tell me what was contractually past due
 4   on Toriano Avery's loan on October 15th of '07?
 5      A   Contractually due, she was due for 7/1/06.
 6      Q   I'm sorry.  That wasn't asked very well in this
 7   highly technical world that we deal with in these
 8   cases.  You had a September 26th of 2007 default letter
 9   to her.
10      A   Correct.
11      Q   Okay.  My question is, what was she actually due
12   for on the day that Washington -- or Wells Fargo
13   decided to foreclose?
14      A   She was actually due for 7 of 2006.
15      Q   And that's based on the contractual due date?
16      A   Yes.
17      Q   Okay.  The decision to foreclose was not based
18   on the contractual due date, correct?
19      A   Well, if we already received the relief,
20   wouldn't it be on the contractual due date?
21      Q   That's what I'm asking you.
22      A   At this point, the notice of default had just
23   gone out, so she was still -- she was still due
24   post-petition for 8/1/07.
25                  MS. BEARDSLEY:  You're talking about
0113
 1             October of '08?
 2                  THE WITNESS:  Yes.
 3                  MS. BEARDSLEY:  Uh-huh.
 4   BY MR. WOOTEN:
 5      Q   And I guess maybe that's what I'm trying to ask
 6   you.  Is the decision to foreclose based on the fact
 7   that you say she's $946.22 past due on September 26th
 8   of '07?
 9                  MR. PORTERFIELD:  Where did that number
10             come from?
11                  MS. BEARDSLEY:  That's in the September
12             letter.  I was gonna say, it gives her a
13             period of time to pay it.
14                  THE WITNESS:  And then on 10/29 is when
15             they removed the hold to proceed with
16             foreclosure.
17   BY MR. WOOTEN:
18      Q   Okay.  Can we agree that your payment history
19   reflects a payment in the amount of $700 on October the
20   5th of 2007?
21      A   Yes.
22      Q   So if she were contractually delinquent in the
23   amount of 946.22 on September 26th, 2007, then that
24   would have been $700 less after October 5th of '07,
25   right?
0114
 1                  MR. PORTERFIELD:  Object to the form.
 2             Don't need to --
 3                  MR. WOOTEN:  You --
 4                  MR. PORTERFIELD:  -- contractual --
 5                  MR. WOOTEN:  You're right.  And I don't
 6             need to do that.  Let's ask that a different
 7             way.
 8                  Stephanie, just strike that question.
 9   BY MR. WOOTEN:
10      Q   There was a 15-day notice of default that says
11   she was due for $946.22.
12      A   Right.
13      Q   And then she paid $700 on October the 5th of
14   '07.
15      A   Okay.
16      Q   Which was applied as a regular -- a regular
17   payment on that date?
18      A   It was actually applied on the 8th.
19      Q   Right.  Right.  But it was applied as a regular
20   payment, correct?
21      A   Yes.
22      Q   So she would have been less in default after
23   having made that payment than she was on
24   September 26th, correct?
25                  MR. PORTERFIELD:  Object to the form.
0115
 1             You can answer.
 2                  THE WITNESS:  Yes.
 3   BY MR. WOOTEN:
 4      Q   Because now her debtor suspense has increased,
 5   correct?
 6      A   It's 965.
 7      Q   And now she is -- she has $522.90 in surplus,
 8   even if you pay yourself the fees that are listed there
 9   that day, right?
10      A   Yes.
11      Q   All right.  So I mean, again, my question is, is
12   that based on the payment that was received and
13   credited on October 5th, 2007, she was no longer
14   $946.22 in default, correct?
15      A   965 in default.  That's -- that's the suspense
16   total.
17      Q   946.22.
18      A   Oh, I'm sorry.
19      Q   That's what was on that letter in front of you.
20                  MS. BEARDSLEY:  Just to be true, that is
21             the -- were you referring to that she's --
22   BY MR. WOOTEN:
23      Q   So after the $700 was credited to her account on
24   October 8th, the default numbers that are on the
25   September 26th letter, she's not as far in default as
0116
 1   indicated in the September 26th letter?
 2                  MS. BEARDSLEY:  And she had another
 3             payment come due on October 1st.
 4                  MR. WOOTEN:  She will have another
 5             payment come due.  What I'm saying is, the
 6             calculation could change based on the
 7             crediting of that payment, right?
 8                  MS. BEARDSLEY:  As to what date?  I --
 9             are you talking about going backwards in time
10             to September?
11                  MR. WOOTEN:  No.  What I'm talking about
12             is after the payment is made in October,
13             calculations of the default change.  The
14             numbers are gonna be different.
15                  THE WITNESS:  She would --
16                  MS. BEARDSLEY:  She would be credited
17             700, and another payment would come due.
18                  MR. WOOTEN:  Exactly.  There were
19             payments that because of the passage of time,
20             all the numbers changed again.
21                  MS. BEARDSLEY:  Okay.
22                  MR. WOOTEN:  Right?
23   BY MR. WOOTEN:
24      Q   I mean, it's a pretty simple question we've made
25   all complicated.  All I'm saying is we've taken and
0117
 1   added another payment in.
 2      A   Right.
 3      Q   And then there's another payment that's due --
 4      A   Right.
 5      Q   -- that isn't late yet as of the 15th.  It's not
 6   late until the 16th, right?
 7      A   That's correct.
 8      Q   But what I'm saying is, all the numbers in
 9   arrears changed because that payment was accepted and
10   credited to the account, right?
11                  MS. BEARDSLEY:  You're talking about
12             like October the 5th?
13                  MR. WOOTEN:  (Attorney nods.)
14                  MS. BEARDSLEY:  Okay.
15                  THE WITNESS:  Yes.
16   BY MR. WOOTEN:
17      Q   $700.  Where in the note log does it authorize
18   the $700 to be accepted and applied to the account?
19      A   10/5/07, applying per instructions, $700.  Gives
20   her check number.
21      Q   Do the notes that you provided today indicate
22   the financial information contained in the notice of
23   default letters that we've been previously referring
24   to?
25      A   It doesn't look like it.
0118
 1      Q   Do any of the documents that you have brought
 2   with you today provide the financial information that's
 3   included in the notice of default letters that we've
 4   referred to today?
 5      A   I don't think so.
 6      Q   Is there some other portion of the software
 7   where this information is stored?
 8      A   I -- I don't know for sure.  I mean, these are
 9   the notes that I would refer to.  I don't think so, in
10   this system.
11      Q   Okay.  I want you to take that notice of default
12   letter that you're looking at there and look at your
13   spreadsheet again with all your numbers in it, and I
14   want to make sure I'm real clear about something.
15      A   Okay.
16      Q   All the fees that are deducted from the debtor's
17   suspense account to arrive at the 509.22 figure are
18   post-petition fees assessed to the account?
19      A   Yes, because she was at zero when she filed.
20      Q   What would her delinquency be on that day, if
21   you did not deduct those fees, if you just deducted the
22   debtor suspense balance from the amount owed?
23      A   She would have -- well, she would have two
24   payments in suspense.
25      Q   So you would have zeroed out suspense prior to
0119
 1   foreclosing, right?
 2      A   I would assume they would do that.
 3      Q   So her suspense would have paid those payments,
 4   basically, correct?
 5      A   Yes.
 6                  MS. BEARDSLEY:  Now, wait a minute.
 7             Now, you're referring to 9/26/07, when her
 8             suspense was 945.16?
 9                  THE WITNESS:  Oh, 9/26.  I'm sorry.  I'm
10             looking at 10/5/07.
11                  MS. BEARDSLEY:  Yeah, after the
12             700-dollar payment.
13                  THE WITNESS:  Sorry.
14   BY MR. WOOTEN:
15      Q   All right.  You want to refigure that?
16      A   She would have 945.16 plus 462.56.
17      Q   Do you have a --
18      A   At that point she would still only have 945.16
19   if we didn't deduct, because that other payment didn't
20   come in until the 5th.
21      Q   I'm with you.  What I'm saying is, if you look
22   at 9/26 of '07 --
23      A   Okay.
24      Q   -- and the letter that was sent on that day --
25   and you said that letter that was sent on that day, the
0120
 1   reason that it deducts debtor suspense of 509.22 is
 2   because in figuring that, Wells Fargo captured its
 3   $462.56 in post-petition fees from the debtor suspense
 4   to arrive at 509.22, correct?
 5      A   Correct.
 6      Q   And what I'm asking you to do is tell me what
 7   her default would have been that day, had you given her
 8   credit for the full $945.16.
 9                  MS. BEARDSLEY:  Object to the form.
10                  THE WITNESS:  Can I answer?
11                  MS. BEARDSLEY:  You can answer.
12                  THE WITNESS:  If they used that 945 and
13             made a payment, she would be one down.
14   BY MR. WOOTEN:
15      Q   It is fair to say you could just subtract the
16   full 945.16 from the amounts that you claim are due?
17      A   Say that again.
18      Q   Yeah, I can say it again.  Is it fair to say
19   that you could have simply deducted $945.16 instead of
20   509.22 to get the number that I'm talking about?
21      A   To make another payment?  Is that what you're
22   talking about?
23      Q   I think you're making it a little more
24   complicated than I intended.  I'm saying that on that
25   date, this default letter was sent on Sirote's
0121
 1   letterhead, indicating an arrears of $946.22, right?
 2      A   Correct.
 3      Q   What I am saying is, had she been given credit
 4   for the full amount in the debtor suspense, $945.16,
 5   then she would not have been in default that day
 6   946.22, correct?
 7                  MS. BEARDSLEY:  Object to the form.
 8                  THE WITNESS:  Correct.
 9   BY MR. WOOTEN:
10      Q   Okay.  It would have been less than one month's
11   delinquency, right?
12                  MS. BEARDSLEY:  Object to the form.
13                  THE WITNESS:  Less than a month.
14   BY MR. WOOTEN:
15      Q   And I can tell you how you can arrive at that
16   number, if you want to do it.  You can take the 946.22,
17   and you can subtract from it 462.56, and that would
18   tell you what she would be behind.
19      A   Yes.  That's correct.
20      Q   And that is not even a full month's payment.
21      A   No, it's not a full month's payment.
22      Q   All right.  And, but for the notice of default
23   letter, you would not be assessing those fees to her
24   balance, right?
25      A   Which fees?
0122
 1      Q   The outstanding fee balance that reduced the
 2   credit to her from 945.16 to 509.22.
 3      A   Are you saying we would not assess her that?
 4      Q   No, ma'am.  I think you're misunderstanding me.
 5   I noticed that as we track this outstanding fee balance
 6   column --
 7      A   Yes.
 8      Q   -- it continues to climb up to where it looks
 9   like you take some money out of trustee suspense on
10   October 25th of '07 and pay what appears to be some
11   fees out of the outstanding fee balance.  Does that
12   look right to you?
13      A   Yes.  Those paid pre-petition fees.
14      Q   Okay.
15      A   That actually came out of corporate advance, not
16   late fees.
17      Q   Well, let me go back up and -- okay.  I'm sorry.
18   I told you the wrong dates.  On 10/17 of '07, there was
19   $114.80 that was negative in the column called "Fees
20   Assessed or Recovered."
21      A   Those were waived.
22      Q   And that lowered her outstanding fee balance to
23   347.76?
24      A   Yes.
25      Q   Okay.  Up until that point, her fee balance had
0123
 1   only climbed, correct?
 2      A   Correct.
 3      Q   And every dollar in that fee balance was a
 4   post-petition fee?
 5      A   Yes.
 6      Q   Do you have any applications for any
 7   post-petition fees under the bankruptcy code in this
 8   file?
 9      A   I think the only fees under the bankruptcy code
10   are the ones that were in the consent orders.
11      Q   Okay.  So again, my point being, the entire
12   balance of 462.56 consisting of returned item charges
13   and late charges, are fees that were not applied for
14   nor approved by the bankruptcy court, right?
15                  MS. BEARDSLEY:  Object to the form.
16                  MR. PORTERFIELD:  Object to the form.
17             She just said some of them are in the consent
18             orders.
19   BY MR. WOOTEN:
20      Q   The consent orders are attorneys' fees that
21   you're referencing, right?
22      A   I believe they also have late fees in the
23   orders.
24      Q   Are these the orders that you're talking about?
25      A   Yes.
0124
 1      Q   Okay.  Let me take a look at those.
 2      A   This is not one.  That's the affidavit.
 3      Q   So that says three late charges of 68.88,
 4   correct?
 5      A   Yes.
 6      Q   So you charged a late charge every month, right?
 7      A   If the payment's late.
 8      Q   And you already testified that the payment was
 9   going to be late for Wells Fargo's purposes, because
10   the late charge is tied to the contractual due date,
11   right?
12      A   I think I changed --
13                  MR. PORTERFIELD:  Object to the form.
14   BY MR. WOOTEN:
15      Q   All right.  So that is the 17th of January of
16   '07, motion for relief from stay that includes three
17   late charges.  Do you have the other order for motion
18   for relief from stay that grants any other late
19   charges?
20                  MS. BEARDSLEY:  I don't have it with me,
21             but it's --
22   BY MR. WOOTEN:
23      Q   Is it fair to say that any late charges not
24   included in those orders have not been approved by the
25   Court?
0125
 1                  MR. PORTERFIELD:  Object to the form.
 2             That calls for a legal conclusion.
 3   BY MR. WOOTEN:
 4      Q   Let me ask you another way.  Have your attorneys
 5   filed any motion seeking approval of any of these late
 6   charges assessed post-petition that are not included in
 7   those two motions from relief from stay?
 8      A   No.
 9      Q   I think that gets us to the same point.  So with
10   the exception of the charges that are approved and the
11   outstanding fee balance -- which does not include the
12   attorneys' fees from the motion for relief from stay,
13   correct?
14      A   Correct.
15      Q   The only ones that have been approved by the
16   Court by an order are the ones that are included in the
17   motion for relief from stay?
18      A   Correct.
19      Q   But you assessed the whole balance when you
20   figured what her arrears was, correct?
21      A   Yes, we did.
22      Q   So what I was saying before we delved off down
23   that rabbit trail was that you were not taking out
24   these payments from her suspense account, you were not
25   taking out charges, even though the money was there to
0126
 1   pay them?  You were not taking out these fees, right?
 2      A   No, we were not.
 3      Q   And again, can you explain why she would be
 4   sitting there with over -- more than a payment in
 5   suspense just sitting there, not being applied to her
 6   account?
 7      A   I can't explain.
 8      Q   Okay.  And had that 945.16 been applied to an
 9   additional payment on September 26th, 2007, would the
10   system have triggered a default letter?
11      A   I don't think so.
12      Q   Because she wouldn't be 60 days behind, would
13   she?
14      A   No.  But I'm not exactly sure if it's -- I'm not
15   exactly sure of the days.
16      Q   But she had almost a payment and a half in
17   suspense at that time, right?
18      A   Correct.
19      Q   So if you applied the whole balance to what she
20   owed, even according to your letters, assuming that
21   everything you had in there is correct, you had 946.22,
22   and you subtracted out 462.56, that's $483.66 that
23   she's behind.  That's not even a month's payment,
24   right?
25      A   That's not a month's payment.
0127
 1      Q   And then there's also $50 because of that
 2   letter, right?
 3      A   Right.
 4      Q   So that makes it 433.66, right?
 5      A   Right.
 6      Q   And that letter also exaggerates her balance,
 7   because it adds the late charges in her arrearage,
 8   right?
 9                  MS. BEARDSLEY:  Object to form.
10                  MR. PORTERFIELD:  Object to form.
11   BY MR. WOOTEN:
12      Q   If you figured what she was in default in
13   payments, not including the late payments, it would
14   even be less than 433.66, right?
15                  MS. BEARDSLEY:  Object to the form.
16                  THE WITNESS:  Repeat that one, please.
17   BY MR. WOOTEN:
18      Q   You arrived at 946.22 by including late charges?
19      A   Correct.
20      Q   Okay.  What I'm saying to you is, is the reason
21   for the 50-dollar charge is because you sent the
22   letter, right?
23      A   Right.
24      Q   So it's not fair to include that in her default
25   prior to the letter being sent, right, because that's
0128
 1   only because you sent the letter?
 2      A   Right.
 3      Q   Okay.  And if you were figuring what she was
 4   actually behind, you wouldn't have figured those two
 5   late charges at that point; you figured those because
 6   you sent the letter, right?
 7                  MR. PORTERFIELD:  Object.  That's not
 8             what she testified.  She testified that the
 9             $50 would not have been added if you don't
10             send the letter.
11   BY MR. WOOTEN:
12      Q   What I'm saying is, if you're taking what's in
13   her suspense balance from what she's delinquent on and
14   you did not include the $22.90, then that's 55 more
15   dollars that is less than what's on that letter,
16   basically.
17                  MS. BEARDSLEY:  Object to the form.
18             I --
19                  THE WITNESS:  Those two late fees were
20             charged prior to.
21   BY MR. WOOTEN:
22      Q   In other words, what I'm saying is, if you
23   subtract the two contractually due payments and you
24   subtract the 945.16 from it before you add anything
25   else, that's an entirely different number than what's
0129
 1   in that letter, right?
 2      A   Yes.
 3      Q   And what I'm saying is, is between the 50-dollar
 4   letter fee and the $55 worth of charges, that's another
 5   $100 it looks like she's behind because of those fees,
 6   right?
 7                  MS. BEARDSLEY:  Object to the form.
 8                  THE WITNESS:  Well, the late fees would
 9             have still been on there.
10   BY MR. WOOTEN:
11      Q   Sure.  I agree with you.  But you're not
12   collecting those late fees when they're incurred,
13   because you haven't been collecting them all the way
14   through, right?
15      A   Right.
16      Q   You didn't collect them until you exaggerated
17   her delinquency in that letter by taking it from her
18   suspense balance, is what I'm saying.  Then she looks
19   more behind, because you take those fees out at that
20   point, right?
21      A   Well, if we would have applied the suspense, she
22   would have been less behind.
23      Q   Right.  And if you had applied the suspense, you
24   would not have sent the default letter?
25      A   Correct.
0130
 1      Q   And she would not have been foreclosed on at
 2   that point?
 3      A   I don't think she was foreclosed on.
 4                  MS. BEARDSLEY:  Object to the form.
 5   BY MR. WOOTEN:
 6      Q   That letter was the reason that her default was
 7   triggered that led to her being put into foreclosure,
 8   right?
 9                  MR. PORTERFIELD:  Object to form.
10   BY MR. WOOTEN:
11      Q   I mean, the records that you gave me today say
12   that you sent for foreclosure based on that letter,
13   right?
14      A   Yes.
15      Q   Okay.  So what I'm saying is, is had you applied
16   suspense to the amounts that were due on
17   September 26th, you would have never sent that letter,
18   would you?
19      A   Probably not.
20      Q   And that's based on your own internal computer
21   logic for making those decisions, right?
22      A   Yes.
23      Q   Okay.  And the reason she wasn't foreclosed on
24   was because of the intervening lawsuit, right?
25      A   Correct.
0131
 1      Q   Other than the injunction from the Court, you
 2   would have completed the sale?
 3                  MS. BEARDSLEY:  Object to the form.
 4                  THE WITNESS:  I don't know that, because
 5             I'm not familiar with --
 6                  MR. PORTERFIELD:  I don't think there
 7             was an injunction, was there?
 8                  MS. BEARDSLEY:  Yes, there is no
 9             injunction.
10                  MR. PORTERFIELD:  I don't think it ever
11             was filed.
12   BY MR. WOOTEN:
13      Q   Well, we can agree that the intervening lawsuit
14   stopped the sale, right?
15      A   Yes.
16      Q   And barring some other extraordinary
17   intervention, the sale would have gone forward, right?
18      A   I suppose, if nothing else.
19      Q   Do you know if there are any special rules for
20   handling the bankruptcy files in Frederick with respect
21   to the management of those files, or that is all
22   handled in Fort Mill?
23      A   The processing part of it?  Processing is all
24   handled in Fort Mill.
25      Q   So it only comes back to Frederick in the event
0132
 1   that someone files a lawsuit?
 2      A   Yes.
 3      Q   Who is the person who would be most
 4   knowledgeable about the handling of the files,
 5   especially with respect to accounting entries for Wells
 6   Fargo on a bankruptcy case?
 7      A   Who's in charge of the account?  Who would know
 8   more about the accounting?
 9      Q   As far as how and why payments are posted in any
10   particular fashion.
11      A   The bankruptcy department.
12      Q   So that would be the ladies that we've been
13   talking about?
14      A   Yes.
15      Q   Okay.  Why does Brice Vander Linden get involved
16   in any particular file of Wells Fargo?  What is the
17   trigger?
18                  MS. BEARDSLEY:  You talking about any
19             file?
20                  MR. WOOTEN:  I'm talking about -- yes,
21             any file.
22                  MS. BEARDSLEY:  Chapter 13?  I -- I
23             mean, can we narrow that a little?  We're not
24             going to talk about any file on earth.
25   BY MR. WOOTEN:
0133
 1      Q   I think that the reason that they get involved
 2   is because the file's in bankruptcy.  Is that your
 3   understanding of why they become involved?
 4      A   Yes.
 5      Q   So any Wells Fargo file that's in bankruptcy,
 6   Brice Vander Linden might become involved in, or either
 7   another default services provider?
 8      A   Yes.
 9      Q   Do you -- or are you familiar with the process
10   for involving them in a particular Wells Fargo file
11   where a bankruptcy has been filed?
12      A   No, I'm not involved in that.
13      Q   Is that a function of Fort Mill?
14      A   Yes.
15      Q   Do you know why -- strike that.  That's not a
16   good question.
17               What work do they perform for Wells Fargo
18   on a file that's in bankruptcy?
19                  MS. BEARDSLEY:  Who are you referring
20             to?
21                  MR. WOOTEN:  Brice Vander Linden.
22   BY MR. WOOTEN:
23      Q   If you know.
24                  MS. BEARDSLEY:  Object to the form.
25                  THE WITNESS:  I don't know all of what
0134
 1             they do.  I do know that it's outsourced to
 2             them.  They then outsource to local counsel.
 3   BY MR. WOOTEN:
 4      Q   Okay.
 5      A   I'm sure they do more than that, but I'm not --
 6      Q   And we talked about the fact that they provide
 7   affidavits for motions for relief from stay.
 8      A   Yes.
 9      Q   And we talked about the fact they have access to
10   Wells Fargo's computer data?
11      A   Yes.
12      Q   And we talked about the fact that they provide
13   information on -- well, let me ask this:  Do you know
14   they provide information for reinstatement quotes for
15   people who are facing foreclosure?
16      A   Do they provide information to the borrowers on
17   reinstatements?
18      Q   Well, you're familiar with what a reinstatement
19   quote typically looks like, right?
20      A   Yes.
21      Q   It talks about how many payments are behind,
22   what fees have been charged, and what amount is owed to
23   bring the loan current and reinstate it, right?
24      A   Yes.
25      Q   And someone gathers that information to put onto
0135
 1   that form, right?
 2      A   Correct.
 3      Q   Is that a service that they typically provide,
 4   to the best of your knowledge?
 5      A   Yes.
 6      Q   And is all of those services, to the best of
 7   your knowledge, provided with respect to some type of
 8   flat fee arrangement?
 9      A   I don't know if that's a flat fee.
10      Q   Do you know if there is a contract between Brice
11   Vander Linden and Wells Fargo for mortgage work?
12                  MS. BEARDSLEY:  Object to the form.
13                  THE WITNESS:  I can only assume they do.
14             I can't say positively.
15   BY MR. WOOTEN:
16      Q   Well, do you know who the person is who is most
17   likely to know whether or not a contract for these
18   services exist between Brice and Wells Fargo?
19      A   Karen Abernathy.
20      Q   She's the bankruptcy manager, right?
21      A   Yes.
22      Q   Is it your understanding that an invoice is
23   submitted and a check written for each service provided
24   by Brice for Wells Fargo?
25      A   Yes.
0136
 1      Q   And would that be so that the debtors' or
 2   borrowers' accounts could be properly charged, and
 3   Wells Fargo could have accurate records of the payment?
 4      A   Yes.
 5      Q   And would those records be kept in the ordinary
 6   course of business?
 7      A   Yes, they are.
 8      Q   Are those records typically imaged in such a
 9   manner that they are searchable by a borrower?
10      A   I don't think so.
11      Q   In other words, you provided me, I believe
12   you're calling it the DDCP --
13      A   CH.
14      Q   -- DDCH printout, and -- for Toriano Avery.  And
15   that shows -- you indicate that that shows every
16   invoice for every fee for her account.
17      A   Correct.
18      Q   And in any case where Brice Vander Linden has
19   charged a fee for a specific borrower's account, would
20   it also show up in the DDCH screen?
21      A   Yes.
22      Q   And would that represent an entry indicating an
23   invoice for that charge?
24      A   Yes.
25      Q   Would it also have a copy of the remittance to
0137
 1   pay the that invoice?
 2      A   Yes.
 3      Q   Do you know if there is a contract or any type
 4   of limited power of attorney authorizing Brice to act
 5   in the name of Wells Fargo?
 6      A   I don't know that.
 7      Q   Would that be something that I should ask
 8   Ms. Abernathy?
 9      A   Yes.
10      Q   When Wells Fargo has servicing released to it
11   from another entity, we talked about the fact that they
12   might also receive or pay that other entity fees, which
13   they then expect to collect later.  Is that fair?
14               For instance, when you took servicing on
15   this loan, there was some fees that were owed, right?
16      A   Yes.
17      Q   And those fees, Wells Fargo paid to Washington
18   Mutual, right?
19      A   I assume they paid it with the entire balance.
20      Q   Okay.  And so those fees would be added to the
21   client's balance, the borrower's balance, and Wells
22   Fargo would expect to collect those fees at some point
23   in the future, right?
24      A   They weren't added to it; they were already on
25   the loan.
0138
 1      Q   Let me make sure I ask that clearly, because I
 2   don't want to be confused, and I don't want to be
 3   accused of trying to confuse you.  You're right.  They
 4   were already on the loan.
 5               What I'm saying is, is Wells Fargo accepts
 6   those charges and continues to try to collect those
 7   charges, right?
 8      A   Right.
 9      Q   With respect to the Fidelity database, other
10   than the note functions that we've talked about, the
11   accounting functions that we've talked about, what
12   other functions does the Fidelity database provide for
13   Wells Fargo?
14      A   I'm -- don't know if there's anything else.
15   This is what I use in my job.
16      Q   So you use the note functions to review what
17   entries have been made by various employees of Wells
18   Fargo?
19      A   Uh-huh.
20      Q   And then you use the accounting functions to
21   create these spreadsheets, right?
22      A   Right.
23      Q   Is this spreadsheet a function of a key
24   transaction report?
25      A   That ledger is the result of their raw data.
0139
 1      Q   All right.  Are you familiar with a key
 2   transaction report?
 3      A   No.
 4      Q   Are you familiar with the Alex database?
 5      A   Yes, I am, a little.
 6      Q   Huh?
 7      A   Yes.
 8      Q   All right.  What does the Alex database do for
 9   Wells Fargo?
10      A   I don't think it does anything anymore.  I think
11   it's been discontinued.  Alex was something that we
12   went into to take compliance courses.
13      Q   It was a training database?
14      A   Yes.
15      Q   Okay.  And your testimony is that you believe
16   that that training database has been discontinued right
17   now?
18      A   Yes.
19      Q   Is there a replacement training database?
20      A   Yes.
21      Q   What's the name of it?
22      A   It's called The Learning Center.
23      Q   And is it structured in modules based on what
24   your job function is?
25      A   Yes.
0140
 1      Q   So it would have a module related to bankruptcy
 2   cases and the management of those loans?
 3      A   As far as the processing, yes.
 4      Q   And I'm assuming that there is a section dealing
 5   with your work as a default litigation specialist?
 6      A   No.
 7      Q   Okay.  Do you know what categories of -- or
 8   modules of training exist with respect to The Learning
 9   Center database?
10      A   I know foreclosure.  I don't know what else.  I
11   haven't gone in there to look at anything else.
12      Q   Collections?
13      A   Yes.
14      Q   And REO, I would assume?
15      A   Yes.
16      Q   So probably every subcategory that you have for
17   Fidelity is probably present in The Learning Center?
18      A   I would think they have policies and procedures.
19      Q   Does it also have company policies and
20   procedures, or is it merely for these different areas?
21      A   I believe just for the different areas.
22      Q   Is this database server-based or Web-based?
23      A   I think it's Web-based.
24      Q   Is it printable?
25      A   Yes.
0141
 1      Q   So any module that you're being trained on, you
 2   can print off and read?
 3      A   Yes.
 4      Q   Doesn't require any special authorizations or
 5   tricks to print something off?
 6      A   No.
 7      Q   Are you able to select by chapter or heading
 8   what you want to print?
 9      A   Yes.
10      Q   We've talked about these three default letters
11   that were prepared by Sirote and sent to Ms. Avery.
12   Those letters -- the information in those letters was
13   provided to Sirote by someone; is that correct?
14      A   I assume our bankruptcy department.
15      Q   Okay.  Is there anything in any of the documents
16   that you brought with you today that would allow me to
17   identify who provided that information to Sirote?
18      A   I don't -- I don't think so.  Can I --
19      Q   Take a look, if you need to.
20      A   I don't think it's gonna tell me who gave the
21   figures.
22      Q   I'm looking at an entry on 9/10 of '07 -- excuse
23   me -- 9/7 of '07.  There are actually several entries
24   on there, but I'm looking at the one at the bottom that
25   has a highlight on it.  You see that?
0142
 1      A   I see it.
 2      Q   It says:  "Per our attorney, NOD, notice of
 3   default, should not be sent until 9/07 payment is past
 4   due.  Debtor has almost a full payment in suspense.
 5   Debtor's attorney will likely object if we send NOD
 6   with current amount due."
 7      A   Okay.
 8      Q   Then going up the page, there continues to be a
 9   discussion.  Is there anywhere in that entry that tells
10   us who that person is that was making that entry?
11      A   The FXV is the person.
12      Q   Got any idea who that might be?  That's some
13   pretty odd initials.
14      A   It might -- I don't know who that is.  I'd have
15   to -- we'd just have to look it up.
16      Q   All right.  Well, then I have -- I mean, you go
17   further up the page and you go from FXV to FXQ.  You
18   sure that maybe isn't a transaction code?
19      A   No.
20      Q   You're not sure or you're sure it's not a
21   transaction code?
22      A   It's not a transaction code.
23      Q   So you've got somebody logging on here with the
24   initials of FXV and the initials FXQ?
25      A   That's right.
0143
 1      Q   That ought to be pretty easy to track down,
 2   shouldn't they?  I'd say that's a rare set.
 3               In the middle of the page, there's a 9/10
 4   entry that says:  "User has reprojected the step
 5   default letter mailed 9/12/07.  Reason:  Other.
 6   Comments:  Issue placed 9/6/07.  NOD should not be sent
 7   until debtor past due for 9/07.  Awaiting response to
 8   issue."
 9      A   Okay.
10      Q   When we track that back, I think it goes all the
11   way back to 9/4 of '07, where it says:  "E8L.  Eligible
12   for default letter.  Request sent to attorney."  And
13   then it says:  "NOD has been referred."
14      A   Okay.
15      Q   And then right above that it says:  "9/6/07 at
16   12:13:51."  Again, we have the mysterious FXV.  It
17   says:  "Please provide the AOD figures sheet which
18   states exactly what months need to be included in AOD."
19   So who is that message going to?
20      A   Well, they're saying that they need to provide
21   months, so I'm assuming once they get all the figures,
22   they would give the figures to the attorney.
23      Q   All right.  But who is -- this 9/6/07 message
24   about providing these figures, who is that going to?
25   What person?
0144
 1      A   This looks like it might be the attorney.  No.
 2   But it's FXV.
 3      Q   All right.  At the top of that page -- you're
 4   not -- I'm assuming you're not -- you just don't know
 5   who FXV is, right?
 6      A   I don't know if it's a system or if it's
 7   actually a person.
 8      Q   Okay.  And you wouldn't know who I could ask
 9   that would know the answer to that question, would you?
10      A   Well, I actually can find that out.
11      Q   So you'd have to go back and place some sort of
12   request, right?
13      A   If it's a person, I can look on the system and
14   it will tell me.
15      Q   Okay.  But as we sit here at this moment, after
16   seeing all these entries, are you sure that it's a
17   person or are you unsure now?
18      A   I'm not sure it's a person.
19      Q   Okay.  At the top of that page it says -- it
20   references "New Document Management/NewTrak VIE" -- or
21   I'm assuming that's view -- "docs uploaded 9/4/07."
22      A   NewTrak, I believe, is what the attorneys use to
23   correspond with Wells Fargo.
24      Q   Okay.  Nothing you've given me or nothing that's
25   been produced in this case contains a NewTrak document,
0145
 1   does it?
 2      A   I don't have access to -- I don't use NewTrak,
 3   so I don't.
 4      Q   Okay.  And is NewTrak the document production
 5   system where documents are provided to the attorneys
 6   for foreclosures or motions for relief from stay?
 7      A   I think they communicate on NewTrak.  I don't
 8   know exactly what is sent back and forth.
 9      Q   All right.  Well, just in reading this entry, it
10   says:  "Please continue to refer to the ledger attached
11   to the BK A OD figures on new document
12   management/NewTrak, view docs uploaded 9/4/07.  No
13   payments have been made since the ledger was last
14   updated.  Thank you."
15      A   This is Wells Fargo and the attorney
16   communicating.
17      Q   Okay.  So obviously, from reading that entry,
18   Wells Fargo has uploaded documents for the attorneys
19   using the NewTrak system, right?
20      A   According to this, yes.
21      Q   So in reading that, does it appear that the
22   documents that make up -- or the figures that make up
23   the September 26, '07 letter, were actually loaded onto
24   the Fidelity system on September 4th of '07?
25      A   That could be possible.
0146
 1      Q   Okay.
 2                  (A brief recess was taken.)
 3   BY MR. WOOTEN:
 4      Q   Let me try to cover just a couple more things
 5   right quick, and I won't go much longer.  We'll let you
 6   get out of here, and we'll sort this out amongst us.
 7               We're talking about -- we spent a lot of
 8   time talking about the amount that was allegedly due on
 9   September 26 of 2007, the last default letter that
10   triggered the foreclosure.  That's the letter that's
11   right there.
12      A   Uh-huh.
13      Q   It -- I'm gonna show you this.  I think Robin
14   has probably already showed you this.  That's something
15   that y'all gave us back in June, when we first filed
16   this lawsuit.  And I don't know if -- did you prepare
17   that and send it to Robin?
18      A   Part of it was already prepared by bankruptcy.
19   I just added to it.
20      Q   So you did have a hand in preparing that?
21      A   I did, yeah.
22      Q   And sent it to Robin?
23      A   Uh-huh.
24      Q   Look with me at the September 26, '07 date, just
25   as a baseline.
0147
 1      A   Okay.
 2      Q   And look at the balance sheet or the spreadsheet
 3   that you brought today, and let's just start in the
 4   debtor suspense balance column.  Do those numbers
 5   agree?
 6      A   No.
 7      Q   Okay.  What about the trustee suspense balance?
 8      A   Yes.
 9      Q   Okay.  What about the total suspense balance?
10      A   No, it's not gonna.
11      Q   What about the outstanding fee balance?
12      A   No.
13      Q   And what about the outstanding corporate advance
14   balance?
15      A   No.
16      Q   What about the principal balance?
17      A   Yes.
18      Q   And what about the escrow balance?
19      A   No.
20      Q   Okay.  Is it safe to say that both the documents
21   you brought today and the document that I got in June
22   were documents that were prepared from the raw data on
23   the MSP or Fidelity system?
24      A   Yes.
25      Q   And are these documents documents that you
0148
 1   prepared, for lack of a better term, to support the
 2   position of Wells Fargo in the litigation?
 3      A   This that I brought today with me?
 4      Q   Both.  The one I got in June and the one that
 5   you brought today?
 6      A   Yes.
 7      Q   And is it also fair to say that the raw data is
 8   ultimately what should be relied upon for what has
 9   transpired with the account?
10      A   Correct.
11      Q   So while we've been spending a lot of time
12   talking about the spreadsheets, the fact of the matter
13   is that you've put together two of them, and there were
14   differences in those numbers?
15      A   Correct.
16      Q   Do you -- are you able to determine why there's
17   differences in the numbers?
18      A   No.  I did not compare the two.
19      Q   Okay.
20      A   I just did this one all over again.
21      Q   So if we want to be where the real numbers are
22   at, we should be referring to the raw data?
23      A   Yes.
24      Q   And you can't even tell us -- as we sit here
25   today, you can't swear to the absolute accuracy of
0149
 1   either of those two documents, right, the ones that
 2   you've prepared?
 3      A   I believe I can swear to the accuracy of this
 4   one, because this one matches Fidelity, the system
 5   Fidelity.
 6                  MS. BEARDSLEY:  When you say "this one"
 7             you --
 8   BY MR. WOOTEN:
 9      Q   And that's the one we marked as Exhibit 1 today?
10      A   Yes.
11      Q   And when you say it matches Fidelity, does it
12   match the raw data that was provided to us at the
13   beginning of this litigation, that I believe was
14   printed off on April 3rd of 2008?
15      A   Yes.
16      Q   Did you print that raw data off?
17      A   Yes.
18      Q   And is that data that existed in the Fidelity
19   system at the date of printing that data?
20      A   Was it in the system when I printed this?
21      Q   No.  No.  The raw data I'm speaking to, that you
22   printed on April 3rd of 2008, is it an accurate
23   reflection of the data that existed in the Fidelity
24   system maintained by Wells Fargo on April the 3rd of
25   2008?
0150
 1      A   Yes, the raw data was.
 2      Q   And it would accurately reflect all of Wells
 3   Fargo's activities with respect to this account, as far
 4   as charges, credits, transaction codes, through a
 5   period of time in which it was printed, right?
 6      A   Right.
 7      Q   I'm gonna hand you this stack of documents.
 8   It's 247 entries on 50 pages.  If you would just tell
 9   me where on that first page I could determine the date
10   of that transaction with respect to that raw data.
11      A   The oldest transaction is 3/4/05.  This starts
12   at 3/4/05.
13      Q   All right.  Where in that transaction column
14   could I determine that day?
15      A   In the column.
16      Q   So it would be the 3/03/04 entry?
17      A   This entry right here.
18      Q   At the very top?
19      A   Yes, 3/4/05.
20      Q   Okay.  Where can I determine the year from that
21   entry?
22      A   You can't.
23      Q   Okay.  So if I know that that is 3/4/05, then
24   going -- these are transactions going forward, as if
25   you are reading from right to left instead of left to
0151
 1   right?
 2      A   You are reading from right to left.
 3      Q   So I can simply monitor this day, since I know
 4   that this is '05, and I could simply keep up and look
 5   at the months, right?
 6      A   Yes.
 7      Q   So we would be to 2006 on Page 40 of 50, and we
 8   would be in 2007 on Page 27 of 50.  And basically
 9   everything in the first 26 pages would have more or
10   less been Washington Mutual's entries?
11      A   Right.  Up until December of '06.
12      Q   I want to hand you -- this is Page 8 of 50.
13   Tell me where on that page I can get the information
14   that is on your spreadsheet with respect to these
15   balances that are due.
16      A   9/4/07.
17      Q   Okay.  Is that on that sheet?
18      A   It's -- the balance is the same on 9/11.  I
19   don't know what your -- the previous page --
20      Q   I'm looking at 9/11.
21      A   '07?
22      Q   '07.  Okay.
23      A   8/31/07.
24      Q   Let's just pick out this 9/11/07 date on this
25   thing.  Okay?
0152
 1      A   Uh-huh.
 2      Q   Where on this document that's numbered Page 8 of
 3   50, for instance, can I get the debtor's suspense
 4   balance?
 5      A   You can't.
 6      Q   I can't?
 7      A   There's not a running total.
 8      Q   All right.  Is there a running total of the
 9   trustee suspense balance?
10      A   No.
11      Q   Is there a running total of the fee balance?
12      A   No.
13      Q   What about the corporate advance balance?
14      A   No.
15      Q   So it looks to me like about all I can get off
16   of this page -- I see an advance balance.  What is
17   that?
18      A   That's the escrow.  Advance balance is -- this
19   is a negative --
20      Q   Okay.
21      A   1,216.20.
22      Q   So if there was excess escrow, there would be a
23   negative sign out by it?
24      A   If we advance it -- if we paid it and she
25   didn't --
0153
 1      Q   Right.  I'm with you.  What I'm saying is, if
 2   she were ahead in escrow --
 3      A   It would be right up here.
 4      Q   Okay.
 5      A   The escrow balance.
 6      Q   This would be zero?
 7      A   That -- yes.
 8      Q   So what you've got here is that there is nothing
 9   in escrow on that day, right?  She has an advance
10   balance of 1,216.20?
11      A   Right.
12      Q   And there is a suspense on that day of 207.52.
13   That's the actual transaction amount, right?
14      A   Yes.  That went into trustee suspense.
15      Q   But that balance is not shown on here as a
16   running total either?
17      A   No.
18      Q   Is there an automated process that you guys use
19   that converts this raw data into a spreadsheet?
20      A   No.
21      Q   Not that you're familiar with?
22      A   No.
23      Q   Are you familiar with whether or not any other
24   department might have that information?
25      A   They do not.
0154
 1      Q   They do not?
 2      A   No.
 3      Q   So in looking at the raw data that you've
 4   provided, the only way to make an approximation of
 5   numbers that you have on your spreadsheet is to set up
 6   a spreadsheet to keep these running totals, right?
 7      A   Correct.  And there are the screens that you
 8   already saw.
 9      Q   Exhibit 4 and Exhibit 5?
10      A   (Witness nods.)
11      Q   All right.  So what your testimony is, is that
12   between these 50 pages and Exhibit 4 and Exhibit 5,
13   that should be every transaction through April the 3rd
14   of 2008, plus all the fees and charges on the loan?
15      A   Up to that -- on this spreadsheet, yes, up to
16   that point, April.
17      Q   All right.  And since -- I mean, we're not
18   addressing issues beyond really November of 2007, so
19   that covers all of that.  Will you look right quick
20   with me at your 12/7/07 entries?
21      A   Okay.
22      Q   It indicates that there's a debtor suspense
23   deduction of 137.76?
24      A   Yes.
25      Q   And that that paid late fees?
0155
 1      A   Yes, it did.
 2      Q   Which were paid -- which were assessed
 3   post-petition?
 4      A   Yes.
 5      Q   And we talked about the fact that there were
 6   three in one motion for relief and maybe a couple in
 7   another that were approved by the Court, right?
 8      A   Right.
 9      Q   And then there is a 210-dollar NSF fee.
10      A   Yes.
11      Q   Which is a -- again, all of those charges
12   accrued post-petition?
13      A   Correct.
14      Q   And then there was a $181.64 fee, and that says
15   it was paid to attorneys' fees.  Do you know what
16   attorneys' fees were paid out of that?
17      A   I don't know which fee this paid.
18      Q   In your Exhibit 4, it says that those fees were
19   paid --
20      A   Towards mortgage --
21                  THE COURT REPORTER:  I'm sorry.  What
22             did you say?
23                  THE WITNESS:  Mortgage recoverable.
24   BY MR. WOOTEN:
25      Q   It doesn't say attorneys' fees, does it?
0156
 1      A   It does not.
 2      Q   Under the reason, it says "PBAL" on your
 3   Exhibit 4.  What -- do you know what PBAL is?
 4      A   No.
 5      Q   Is that principal balance?
 6      A   No, because they wouldn't have taken it out of
 7   principal balance.
 8      Q   But nevertheless, your entry indicates that it
 9   is an attorney's fee?
10      A   Yes.
11      Q   So it would have either gone to Sirote or to
12   Brice?
13                  MS. BEARDSLEY:  Are we talking about
14             December 7th, '07?  Is that a credit or a --
15                  MR. WOOTEN:  It's money subtracted from
16             debtor's suspense, according to the
17             accounting.  It shows it being deducted from
18             outstanding corporate advances.
19                  MS. BEARDSLEY:  Okay.
20                  MR. WOOTEN:  And the reason I ask that
21             is because it's such an odd number and it
22             says attorneys' fees.  And those are
23             typically somewhat rounded.
24                  MS. BEARDSLEY:  Uh-huh.
25                  MR. WOOTEN:  Robin, do you have extra
0157
 1             copies of these four things that we marked?
 2                  MS. BEARDSLEY:  I think there were extra
 3             copies.  That's all four.
 4                  MR. WOOTEN:  Okay.  I'll take those and
 5             study them.
 6   BY MR. WOOTEN:
 7      Q   Do you know?
 8      A   I don't know that.
 9      Q   I don't know either, and it just seemed like an
10   odd entry.  But, you know, on this -- on your entry
11   here, it still shows a balance of debtor suspense after
12   that transaction.  But on the old one that you sent me
13   in June, it shows it taking the debtor suspense balance
14   of 60 cents.
15      A   May I see that?  Wait.  Trustee balance is
16   60 cents.
17      Q   Well, if you'll look at that one, both of them
18   are 60 cents on that one.
19      A   Okay.  I don't know.  I'll have to find out what
20   it is.
21      Q   Well, we can agree that in the original one,
22   those three transactions were basically zeroed out to
23   suspense balances?
24      A   Right.
25      Q   But in the one you've done today, there's still
0158
 1   about $500 in the suspense balance?
 2      A   Correct.
 3                  MR. WOOTEN:  I -- we need to stop.  If
 4             we don't stop now, I've got to launch into
 5             something entirely different.
 6                  What do we need to do?  Because, I mean,
 7             we've got -- we've got to do one of a couple
 8             of things.  One is cases have got to be
 9             resolved; two, we've got to try to get my
10             stuff done before next Tuesday; or three,
11             we've got to agree to continue deadlines.
12                  Let's get off the record and talk about
13             it.
14                  (The deposition was adjourned at
15                  3:54 p.m.)
16           *     *     *     *     *     *     *     *
17   
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20   
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25   
0159
 1                     *  *  *  *  *  *  *  *  *  *  *
 2                         REPORTER'S CERTIFICATE
 3                     *  *  *  *  *  *  *  *  *  *  *
 4   STATE OF ALABAMA)
 5   COUNTY OF PIKE)
 6              I, Stephanie D. Garrett, Certified Court
 7   Reporter and Notary Public in and for the State of
 8   Alabama at Large, do hereby certify that on Wednesday,
 9   September 24th, 2008, pursuant to notice and
10   stipulation on behalf of the Plaintiff, I reported the
11   deposition of Beverly DeCaro in the above-entitled
12   action; that the foregoing 158 pages contains a true
13   and accurate transcription of the aforementioned
14   proceeding; and that the reading and signing of said
15   deposition was waived by witness and counsel for the
16   parties.
17              I further certify that I am neither of kin
18   nor of counsel to the parties to said cause, nor in any
19   manner interested in the results thereof.
20              This the 16th day of October, 2008.
21                            ______________________________
22                            Stephanie D. Garrett, CCR, CSR
                              ACCR No. 49, Expires 9/30/08's
23   
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