depo roy west more land bank united

8/7/2019 Depo Roy West More Land BANK UNITED

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DEPOSITION BY BRIAN KORTE ESQ

1 IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT

IN AND FOR ST. LUCIE COUNTY, FLORIDA

2

CASE NO.: 2009 CA 008365

3

4 BANKUNITED, AS SUCCESSOR IN

INTEREST TO BANKUNITED, FSB,

5

Plaintiff(s),

6

vs.

7

PAMELA E. SMITH,

8

Defendant(s).

9 _________________________________/

10

DEPOSITION OF ROY WESTMORELAND

11


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13 Wednesday, April 13, 2011

1:10 p.m. - 1:34 p.m.

14

15

16 Law Office of Korte & Wortman, P.A.

2041 Vista Parkway, Suite 102

17 West Palm Beach, Florida 33411

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1 APPEARANCES:

2 ON BEHALF OF THE PLAINTIFF(S):

3 BRIAN K. KORTE, ESQUIRE

KORTE & WORTMAN, P.A.

4 2041 Vista Parkway, Suite 102

West Palm Beach, Florida 33411

5

6 ON BEHALF OF THE DEFENDANT(S):

7 ADAM LEVINE, ESQUIRE

-AND-

8 REENA PATEL, ESQUIRE

VAN NESS LAW FIRM, P.A.

9 1239 E. Newport Center Drive

Suite 110

10 Deerfield Beach, Florida 33442

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1 - - -

I N D E X

2 - - -

3 WITNESS DIRECT CROSS REDIRECT RECROSS

4 ROY WESTMORELAND

5 By Mr. Korte: 4

6

7

8

9 - - -

E X H I B I T S

10 - - -

11 MARKED FOR I.D. DESCRIPTION PAGE


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12 Deft's 1- Complaint 8

Deft's 2- Adjustable Rate Mortgage 9

13 Deft's 3- Interrogatories 17

Deft's 4- Motion for Summary Final Judgment 23

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

2 - - -

3 Deposition taken before Tracy Lyn Fazio, Notary

4 Public in and for the State of Florida at Large, in the

5 above cause.

6 - - -

7 Thereupon:

8 ROY WESTMORELAND,

9 a witness herein being of lawful age, and being first

10 duly sworn in the above cause, testified on his oath

11 as follows:


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12 DIRECT EXAMINATION

13 BY MR. KORTE:

14 Q Sir, if you'll state your name for the

15 record spelling your last.

16 A Roy Westmoreland, W-e-s-t-m-o-r-e-l-a-n-d.

17 Q Sir, would you give me the benefit of your

18 educational background starting from the time you

19 left high school going forward.

20 A I went to the University of Massachusetts

21 at Lowell. Dual major in finance and accounting,

22 bachelors.

23 Q Any education beyond that?


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24 A Just various CEU's. No masters.

25 Q Would you give me the benefit of your


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5

1 employment history working backwards 10 years from

2 your current employer going backwards.

3 A Ten years?

4 Q Ten years.

5 A I've been with my current employer for 10

6 years.

7 Q That's good. Who's your current employer?

8 A My current employer is Asset Resolution

9 Corporation.

10 Q Sir, you've been asked to come here today

11 to give a deposition as the person with the most


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12 knowledge of BankUnited regarding the transfer of

13 the note, calculation of damages --

14 MS. PATEL: That notice was amended.

15 MR. LEVINE: Yeah. We have the amended

16 right here. This was the amended one.

17 MR. KORTE: Oh, I'm sorry. You're right.

18 BY MR. KORTE:

19 Q So you've been asked to come here today as

20 the person with the most knowledge of ARC Pool 1,

21 LLC with regard to the transfer of the note,

22 calculation of damages, affidavit of amounts due and

23 owing, lost note circumstances. Is that your


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24 understanding?

25 A Yes.


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6

1 Q What is the relationship between

2 BankUnited, the predecessor, and ARC Pool 1?

3 A What do you mean by relationship?

4 Q Well, you agree this case was brought by

5 BankUnited, as successor in interest to BankUnited,

6 FSB?

7 A Yes.

8 Q And at some point in time the Plaintiff

9 was substituted in as ARC Pool 1?

10 A Correct.

11 Q What's the relationship between parties?


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12 A ARC Pool 1 purchased the notes via the

13 FDIC from BankUnited.

14 Q When did that happen?

15 A The closing date was around December 9th

16 or 10th of 2009.

17 Q Explain to me how this transfer occurred.

18 You say ARC Pool 1 acquired the notes from --

19 A FDIC.

20 Q So the notes were assigned directly from

21 the FDIC to Pool 1?

22 A The notes were assigned from BankUnited.

23 FDIC took over I assume BankUnited. But they put up


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24 for auction -- FDIC put up for auction these notes,

25 BankUnited notes. I can't speak to the specifics of


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1 how the FDIC and BankUnited works together, because

2 that's beyond my knowledge.

3 Q Well, let's discuss for a moment the

4 relationship of the parties. You're here as the

5 person with the most knowledge regarding the

6 transfer of the note?

7 A Right.

8 Q Let's start with the origination of the

9 note. Do you know who originated the note?

10 A From the documentation that we received

11 via the FDIC from BankUnited, I see that the note


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12 was originated by BankUnited.

13 Q Now is that BankUnited, FSB or BankUnited,

14 N.A. or --

15 A I don't know the details. I can't

16 remember the details on that. I know it was

17 BankUnited, but the specifics I can't tell you.

18 Q Well, then let's work this backwards. ARC

19 Pool 1 received the note from what entity precisely?

20 A All I know is BankUnited. Now if you say

21 BankUnited, S.A. or BankUnited, N.A., I'd have to go

22 back and look at the documentation.

23 Q What documentation would you have to look


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24 at?

25 A Well, those would be the actual purchase


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1 and close agreement on the purchase of the notes.

2 (Thereupon, Defendant's Exhibit No. 1 was

3 marked for identification.)

4 BY MR. KORTE:

5 Q Sir, I've just handed you what's been

6 marked as Defendant's 1, which is the complaint that

7 was filed in this case.

8 Sir, will you do me a favor and find the

9 original note contained inside that document.

10 MR. LEVINE: Objection to the form. Just

11 there's no original attached to the complaint.


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12 MR. KORTE: I believe it's further back.

13 THE WITNESS: Is it?

14 MR. KORTE: Yes.

15 THE WITNESS: A lot of paper here.

16 MR. LEVINE: Go all the way to the back

17 and work forward. You'll find it.

18 THE WITNESS: Okay. We got the Adjustable

19 Rate Note. Are these things numbered? I see

20 Adjustable Rate Note and I see Adjustable Rate

21 Rider. Which one are you talking about?

22 MR. KORTE: The note. The rider is

23 attached to the mortgage.


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24 THE WITNESS: Okay.

25 BY MR. KORTE:


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1 Q Now that you found the Adjustable Rate

2 Note contained within Defendant's 1, I want you to

3 take a look at it and tell me if this is the true

4 and correct copy of the note that was provided to

5 ARC when it acquired the loan?

6 A It looks like it, yes.

7 Q I notice you were reviewing other

8 documents.

9 A Well, I can't memorize things.

10 Q I understand.

11 A So I brought a copy of the note we have


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12 that is I know to be the true note.

13 Q Will you do me and favor and we'll mark

14 that as Defendant's 2 so that we can refer to it

15 throughout the deposition so there's no confusion.



18 A Because if I look at this, I can't speak

19 to it. It could be a fake or not.

20 MR. LEVINE: Hold on. This is not part of

21 it. This goes with that.

22 BY MR. KORTE:

23 Q Sir, I'm going to hand you the documents


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24 that you brought with you. I'm going to mark it

25 Defendant's 2, and give them back to you, and ask


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1 you the same question.

2 Was the document contained in Defendant's

3 1 that I gave you as the note, a true and correct

4 copy of the note?

5 A Yes.

6 Q And Defendant's 2, is that also a true and

7 correct copy of the note?

8 A You mean this one?

9 Q I mean Defendant's 2, sir.

10 A Yes.

11 Q So when did you make a copy of Defendant's


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12 2?

13 A Of this one?

14 Q Yes, sir.

15 A Oh, I made a copy of it Monday. I needed

16 to review the course so I could speak to this

17 intelligently.

18 Q And you copied the original?

19 A No. I copied an electronic copy of the

20 original.

21 Q Have you ever seen the original?

22 A I don't have the original in my

23 possession. The original is in our California


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24 office or I believe it was sent to our lawyers.

25 MR. LEVINE: Yes.


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1 THE WITNESS: Yes. So the original is

2 with the lawyers.

3 BY MR. KORTE:

4 Q So just to lay the foundation. I think

5 you've already answered the question.

6 Can you tell me the date the original was

7 transferred from BankUnited, FSB to ARC 1, if ever?

8 MR. LEVINE: Objection.

9 THE WITNESS: Are you talking about the

10 legal transfer or the actual physical transfer?

11 MR. KORTE: I want a physical transfer


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12 date.

13 THE WITNESS: The physical transfer date,

14 I can't give you the exact date. But it was

15 done within the 30 days following the actual

16 purchase, which was December 9 or 10. Within

17 30 days of December 9 or 10.

18 BY MR. KORTE:

19 Q Who are the parties to that purchase? You

20 don't know if it's BankUnited or BankUnited, FSB?

21 A I would have to look that up. I can't

22 tell you off the top of my head BankUnited, FSB or

23 BankUnited. I'd have to go back and look at the


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24 document.

25 Q How did the FDIC get involved in the


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1 transfer if the note was in the possession of

2 BankUnited?

3 MR. LEVINE: Objection to form.

4 THE WITNESS: I can't speak to that. I

5 don't know how FDIC works with its banks and

6 what happens with the banking rules and

7 regulations with the FDIC.

8 BY MR. KORTE:

9 Q So as the person with the most knowledge

10 of the transfer of note, you can only speak to the

11 time that the note was transferred to ARC Pool 1,


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12 correct?


14 THE WITNESS: Correct.

15 BY MR. KORTE:

16 Q And you can't tell me specifically whom

17 transferred it to you?

18 MR. LEVINE: Same, form.

19 THE WITNESS: What do you mean by whom?

20 BY MR. KORTE:

21 Q Well, let me ask the question and we'll

22 get back to it. From what party did ARC accept the

23 note?


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24 A The physical note?

25 Q Either equitable or physical note.


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1 A You mean who had the possession that left

2 their possession and came into our possession?

3 Q Quite frankly, yes.

4 A That's what I'm trying to figure out,

5 right. Because we had to purchase it from FDIC.

6 Q So you wrote your check out to the FDIC?

7 A Yeah. We wrote our check out to the FDIC.

8 Now whether the FDIC were in charge of BankUnited in

9 their offices sending their stuff out, I can't speak

10 to that.

11 Q Who sent you the note?


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12 A I can't speak to that.

13 Q You wrote a check to the FDIC?

14 A Wrote a check to the FDIC. And we were

15 expecting and did receive our documentation. The

16 documentation we received came from and all

17 indications were on it that it was BankUnited.

18 Q But you don't know if it was BankUnited or

19 BankUnited, FSB?

20 A No, I can't off the top of my head. I

21 could find out. But I can't tell you at this time

22 sitting here.

23 Q Who were the parties to the transaction


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24 that culminated in the transfer of the note? Who

25 signed for the bank? Was it the FDIC that signed


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1 for the bank or was it the --


3 THE WITNESS: I would have to look at the

4 document. I didn't look at that document.

5 BY MR. KORTE:

6 Q You told me it was somewhere in December

7 of 2009?

8 A Around nine or 10. I'd have to go look up

9 the specific date, closing date.

10 Q But the year is 2009?

11 A 2009, yes.


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12 Q Other than the note, were there other

13 documents that were transferred along with the

14 closing?

15 A What we received were and wanted to

16 receive was the note, the mortgage, the entire loan

17 file for the customer, hard copy of the loan file,

18 at least one year pay history. And they were

19 required to send us a reassignment of mortgage and

20 an allonge.

21 Q Did you receive the note in this case?

22 A Yes.

23 Q Did you receive a copy of the mortgage?


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24 A Yes.

25 Q Did you receive the hard copy of the loan


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1 file?

2 A Yes.

3 Q What was contained in the hard copy of the

4 loan file, if you know?

5 A Oh, geez. It had the original

6 application. It had original appraisals. It had

7 credit records, original credit reports. It's a

8 full inventory. Probably 300 documents.

9 Q And you received a pay history for one

10 year?

11 A Yes.


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12 Q And you said you had a reassignment of the

13 mortgage?

14 A Right.

15 Q Reassignment of the mortgage from whom to

16 whom?

17 A From BankUnited to ARC Pool 1.

18 Q Was that document dated?

19 A Yes, they would be dated. I can't tell

20 you the date right now.

21 Q Was it dated before the transaction

22 occurred or --

23 A No.


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24 Q -- was it dated the day or thereafter?



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1 THE WITNESS: I would assume the date

2 would have been after the 9th or 10th of

3 December, 2009. I'd have to grab the document

4 and look at it.

5 BY MR. KORTE:

6 Q And you also said you received an allonge?

7 A Yes.

8 Q What is that?

9 A Well, that's the transfer of the -- let me

10 see. That's the transfer of the note. The

11 reassignment of the mortgage is the transfer of the


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12 mortgage. And the allonge is the transfer of the

13 note.

14 MR. LEVINE: I'm going to object to form.

15 THE WITNESS: I think. That's my

16 understanding.

17 BY MR. KORTE:

18 Q Do you know who the parties were to the

19 allonge?


21 THE WITNESS: I'd have to look at it. I

22 believe it was BankUnited and ARC Pool 1.

23 BY MR. KORTE:


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24 Q I'm kind of confused here. It sounds like

25 ARC Pool 1 acquired this loan somewhere in December


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1 2009, but didn't get around to substituting into

2 this case until 2011?

3 MR. LEVINE: Objection. Is that a

4 question?

5 THE WITNESS: You'd have to check with our

6 legal people.

7 MR. KORTE: I'll mark this as three.



10 BY MR. KORTE:

11 Q I'm going to hand you what's been marked


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12 as Defendant's 3, sir. What I'd like you to do if

13 you could is find the Plaintiff's response to

14 Defendant's interrogatories. I'm sure your lawyer

15 can help you out.

16 A Yeah. Would you do that for me.

17 MR. LEVINE: I just wanted to find it in

18 mine before I find it in yours.

19 THE WITNESS: When it gets too legal, it

20 gets way over my head.

21 MR. LEVINE: There you go.

22 THE WITNESS: Okay.

23 BY MR. KORTE:


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24 Q Sir, I'd like you to turn to the part

25 where someone signed off on this document.


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1 MR. LEVINE: Three or four pages.

2 THE WITNESS: Right here?

3 MR. KORTE: See the Jurat.

4 THE WITNESS: Yeah. Ann Keyser down here.

5 BY MR. KORTE:

6 Q Sir, do you know who Ann Keyser is?

7 A Yes.

8 Q Who is she?

9 A She's our person in California that

10 handles the defaulted loans, legal actions, and

11 other actions involved with defaulted loans.


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12 Q Does she work with ARC-1?

13 A Yes, she does. That's her job.

14 Q Well, do you see the date that the Jurat

15 is executed?

16 MR. LEVINE: Object to form as well.

17 THE WITNESS: December 9, 2010. I don't

18 know. Where am I looking at?

19 BY MR. KORTE:

20 Q That's all I'm asking. Is that accurate,

21 do you know?


23 THE WITNESS: I can't speak to that. I'm


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24 looking at it. This is what it says.

25 BY MR. KORTE:


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1 Q Well, if she works for ARC-1, why was she

2 signing on behalf of BankUnited?

3 THE WITNESS: It says Asset Resolution

4 Corporation here.

5 MR. LEVINE: Note my objection.

6 BY MR. KORTE:

7 Q Well, I'd ask you to turn to the first

8 page of the interrogatory answers.

9 A Well, now you're getting into a legal

10 situation that I can't speak to.

11 Q I'm going to ask you. Here it says


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12 Plaintiff's Answers to Interrogatories, correct?

13 A Yeah.

14 Q The Plaintiff in this particular case at

15 this time is BankUnited, as successor in interest to

16 BankUnited, FSB?

17 MR. LEVINE: Objection, calls for a legal

18 conclusion.

19 BY MR. KORTE:

20 Q Is that what it says, sir?

21 A That's what I read, yes.

22 Q Let's look at interrogatory number four,

23 the answer. Do you see that one?


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24 A Give me a second. Yes, I see it.

25 Q Do you see where it says, "Plaintiff took


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1 assignment on or about December 9, 2009 from

2 BankUnited, the Assignee of the FDIC"?

3 A Yes.

4 Q Why did you write Plaintiff took

5 assignment when it was actually ARC Pool 1 that took

6 assignment?

7 MR. LEVINE: Objection. He didn't write.

8 THE WITNESS: That's a legal question I

9 don't really -- I can't give you any insight to

10 plaintiff and whatnot.

11 BY MR. KORTE:


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12 Q Let's take --

13 A I'm an accounting person.

14 MR. LEVINE: Object to this because he

15 hasn't signed these. He didn't fill these out.

16 He didn't sign off on them. So he can't speak

17 to what another person has signed off on. Just

18 note my objection.

19 BY MR. KORTE:

20 Q Let's talk about this. You're the person

21 with the most knowledge regarding the transfer of

22 the note, right?

23 A Transfer of the purchase of the notes.


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24 Q No. It says transfer of the note.

25 A All right. Transfer. All right.


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1 Q Did BankUnited, as successor in interest

2 to BankUnited, FSB take assignment of this note on

3 or about December 9, 2009?

4 A What was that question again?

5 Q Did BankUnited, as successor in interest

6 to BankUnited, FSB take an assignment on or about

7 December 9, 2009?


9 THE WITNESS: I don't understand the

10 question.

11 BY MR. KORTE:


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12 Q We're discussing the assignment of the

13 note from the FDIC to the Plaintiff?

14 A Plaintiff being?

15 Q At this time it's BankUnited.

16 MR. LEVINE: Objection.

17 THE WITNESS: I don't understand Plaintiff

18 as BankUnited. I'm not a lawyer.

19 BY MR. KORTE:

20 Q Do you know if the note was ever assigned

21 to BankUnited, FSB as you sit here today?

22 A I can't speak to that. I know the note

23 was assigned to ARC Pool 1.


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24 MR. LEVINE: Note my objection.

25 MR. KORTE: Fair enough.


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22

1 BY MR. KORTE:

2 Q Let's discuss then and move on to the

3 damage calculation, if you would. Sir, how much is

4 the Plaintiff seeking in this case?

5 A I assume their outstanding principal,

6 interest and late fees and legal fees.

7 Q Do you have a specific number that you --

8 A I did not bring a specific number with me.

9 I was not instructed to do so.

10 Q How did the Plaintiff calculate damages in

11 this case?


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12 A Where is it at? Who did it?

13 Q Well, I'm asking you. You're the person

14 with the most knowledge of the calculation of

15 damages. Tell me how they calculated it.

16 A Where's it at? Who did it? I can't

17 answer a question that I can't see.

18 Q Did you before coming here today review

19 any documents in regards to the calculation of

20 damages?

21 A I was not instructed to.

22 Q Before coming here today, did you speak to

23 anybody besides your lawyer in regards to the


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24 calculation of damages?

25 A No, I haven't.


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1 Q Let's discuss the affidavits of amounts

2 due and owing.



5 Sir, you've been handed what's been marked

6 as Defendant's 4. I'd like you to turn to the

7 section, the addendum to that, or the attachment to

8 that that says the affidavit of the amounts due and

9 owing. It's the last couple of pages. It's

10 entitled, "Affidavit of Indebtedness."

11 A All right.


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12 Q I'd like to turn your attention to

13 paragraph five, which begins on page one and extends

14 to page two.

15 A Yes.

16 Q Sir, can you tell me under paragraph five,

17 Subsection A, how the principal balance was

18 calculated?

19 MR. LEVINE: Objection to the form.

20 THE WITNESS: I can give you -- I mean

21 this specific was done by Tanna Smith, the

22 account manager. I didn't personally do it.

23 But I can tell you the process.


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24 BY MR. KORTE:

25 Q So you didn't do any personal calculations


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1 here?

2 A I'm the CFO.

3 Q I understand that. But you're here today

4 as the person with the most knowledge --

5 A Right. I can speak to it, but I can't

6 speak to the specific person that did it. I can

7 speak to the process that did it. You're asking me

8 where did the principal balance come from?

9 Q Sir, again, the only way she's going to

10 get a clean record is if I can ask my questions for

11 completeness and then you answer the question.


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12 A All right.

13 Q That way we're not speaking over each

14 other and doesn't show an interrupted question.

15 Did you do any personal work to determine

16 the accuracy of the numbers contained in Defendant's

17 4?

18 A No.

19 MR. KORTE: I don't have anything further

20 for you, sir. I'll take it.

21 MADAM REPORTER: Did you want your client

22 to read or waive?

23 MR. LEVINE: He'll read. Let me explain


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24 it to you. You have the option to read or

25 waive reading of the deposition. Essentially


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25

1 you'll get a copy of it so you can verify the

2 questions and the answers are accurate. If

3 they're not, then you can make changes to that.

4 If they are accurate, then you can say, okay,

5 they're accurate and then the deposition will

6 be official.

7 THE WITNESS: Well, I think I'd rather

8 leave that to you.

9 MR. LEVINE: I'll say I think he'll read.

10 MADAM REPORTER: Would you like a copy?

11 MR. LEVINE: Sure. Sure.


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12 (Thereupon, the deposition concluded at

13 1:34 p.m.)

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1 CERTIFICATE OF OATH

2 STATE OF FLORIDA

3 COUNTY OF PALM BEACH

4

5 I, the undersigned authority, certify that

6 the witness personally appeared before me and

7 was duly sworn on the 13th day of April, 2011.

8 Witness my hand and official seal this 14th

9 day of April, 2011.

10

11


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12

____________________________________

13

Tracy Lyn Fazio

14 Notary Public - State of Florida

My Commission Expires: 1/6/2013

15 My Commission No.: DD 849618

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

2 STATE OF FLORIDA

3 COUNTY OF PALM BEACH

4

5 I, Tracy Lyn Fazio, Notary Public in and

for the State of Florida at Large, do hereby certify

6 that the aforementioned witness was by me first duly

sworn to testify the whole truth; that I was

7 authorized to and did report said deposition in

stenotype; and that the foregoing pages are a true

8 and correct transcription of my shorthand notes of

said deposition.

9

I further certify that said deposition was

10 taken at the time and place hereinabove set forth

and that the taking of said deposition was commenced

11 and completed as hereinabove set out.


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12 I further certify that I am not attorney or

counsel of any of the parties, nor am I a relative or

13 employee of any attorney or counsel of party connected

with the action, nor am I financially interested in the

14 action.

15 The foregoing certification of this

transcript does not apply to any reproduction of the

16 same by any means unless under the direct control

and/or direction of the certifying reporter.

17

Dated this 14th day of April, 2011.

18

19

20

21 _____________________________________

22 Tracy Lyn Fazio

23


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depo roy west more land bank united

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