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UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION IN RE: ) ) )CASE NO.: 08-42533-dml13 DEREK TROUTMAN AND LATITIA TROUTMAN Debtors. )Chapter 13 ) ) )
ORAL DEPOSITION OF ROGER KISTLER, produced as a witness at the instance of the Plaintiffs, and duly sworn, was taken in the above-styled and numbered cause on the 9th of April, 2010, from 1:18 p.m. to 2:11 p.m.,before Cinnamon Boyle, CSR in and for the State of Texas, reported by machine shorthand, at the offices of Hermes Sargent Bates, 901 Main Street, Suite 5200, Dallas, Texas, pursuant to the Federal Rules of Civil Procedure.
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A P P E A R A N C E S FOR THE DEBTORS: THEODORE O. BARTHOLOW, III ARMSTRONG KELLETT BARTHOLOW P.C. 11300 North Central Expressway Suite 301 Dallas, Texas 75243 (214)696-9000 thad@akbpc.com FOR MOVANT AMERICAN HOME MORTGAGE SERVICING, INC.: MARK ALFIERI HERMES SARGENT BATES 901 Main Street Suite 5200 Dallas, Texas 75202 (214)749-6534 mark.alfieri@hsblaw.com
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Reporter's Certificate.........................
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EXHIBITS NO. DESCRIPTION Affidavit in Support of Motion for Relief from Automatic Stay................ Limited Power of Attorney................. Assignment of Note and Deed of Trust...... August 1, 2006 Pooling and Servicing Agreement................................. PAGE
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P R O C E E D I N G S ROGER KISTLER, having been first duly sworn testified as follows: EXAMINATION BY MR. BARTHOLOW: Q. Good afternoon, sir. My name is Thad
Bartholow, and I am the Plaintiff's attorney -- or rather the Debtor's attorney in this case, and that would be Derek and Latitia Troutman. Are you -- is it
your understanding that you are here to testify about that bankruptcy case? A. Q. Yes, sir. Okay. Could you please state your name for
the record? A. Q. employed? A. I am employed by American Home Mortgage My name is Roger Kistler. Okay. And, Mr. Kistler, how are you
Servicing, Incorporated, as an assistant vice president. Q. Okay. And for how long have you been
employed by them in that role? A. 2008. Q. Okay. Prior to that, how were you employed?
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A.
collateral administration department. Q. A. Q. A. Of? American Home Mortgage Servicing. And prior to that, how were you employed? Prior to that, I was employed by various
mortgage departments, companies down in San Antonio, Texas. Q. Okay. What mortgage companies and
departments were you working for? A. I worked for Bank Plus Mortgage, Homeside
Lending and Washington Mutual in either their default department or their lien or lease department. Q. Okay. And in connection with your employment
with American Home Mortgage Servicing, Inc., has your office at all times been located in the Dallas/Fort Worth area? A. Q. Yes, it has. Okay. Has it been physically located in the
same building at all times? A. Q. No, sir, it has not. All right. And where are you currently?
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Q. A.
Okay.
Irving, Texas. Q. A. Q. A. Have you had any other addresses? No, sir. Okay. I take that back. We had 4650 Regent
Boulevard, Irving, Texas. Q. right? A. Q. A. Q. No, sir. No. No. All right. And have you ever been employed Okay. Okay. And those are in Las Colinas; is that
by American Brokers Conduit? A. Q. No, sir. Okay. And -- I guess let's talk about what
the scope of your current duties involves. A. I am the AVP for the collateral We are responsible for all
administration department.
custodial relationships with the various custodians that the company uses to hold their documents or each documents. Q. Okay. Let's unpack that statement a little You said the company.
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bit, please.
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to AHMSI? A. Q. I'm referring to AHMSI, yes. Okay. And in terms of you said to hold their
documents. A.
ownership of a loan and servicing of a loan? A. Q. Yes, sir. Okay. Can you explain to me in brief what
not the holder or investor of any mortgage loans. Q. Okay. And that is the case nationwide with
regard to every loan that is subject to AHMSI's responsibilities? MR. ALFIERI: Q. Objection to form.
that -- whole loans that AHMSI owns? A. Q. A. Q. Yes, sir. Yes? Yes. Okay. So generally speaking they are solely
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A. sir. Q.
Okay.
would include loans that AHMSI's actually owns? A. Q. Less than 1 percent. Okay. Do you know whether any of those loans
are for properties located in Texas? A. Q. A. Q. A. located. Q. Okay. Fair enough. And before we began this deposition, I had brought a number of documents with me, and we spoke about those documents; is that correct? A. Q. Yes, sir. Okay. And the -- the basic bottom line of No, sir. You don't know? I don't know. Okay. I am not aware of where the properties are
that conversation was that the documents we discussed were documents that you did not have knowledge of; is that also correct? A. Q. That's correct. Okay. What I'd like to do is rather than
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going to -- if Counsel will agree to this, we can mark them all as exhibits if counsel would prefer to do it that way. But I'm going to -- they are all documents
that were produced by AHMSI in connection with our discovery requests, so I'm going to identify them by the Bates numbers and ask you to state whether you have knowledge about those documents, okay? MR. ALFIERI: And are these the documents
that we discussed prior to the deposition? MR. BARTHOLOW: The documents that we
discussed today prior to the depositions that I showed to Mr. Kistler today prior to beginning this deposition. MR. ALFIERI: Okay. Then what I want to
say on the record is that when we received the notice of deposition -- we received a notice of deposition in this case for the -- for the designation of a corporate representative. There were a series of
topics number 14 on that topic list, and AHMSI has complied with that notice of deposition by giving Debtor's counsel notice that they will provide a Corp. rep on certain of those topics. I personally e-mailed
Debtor's counsel and noted the specific topic areas that Mr. Kistler would be knowledgeable of and capable of giving deposition testimony in this case.
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And so
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while AHMSI does not have an objection to -- well, let me think about that. Strike that.
AHMSI does object to the entry of any exhibit in this particular deposition that Mr. Kistler -- any exhibit that Mr. Kistler would not have knowledge of; and previous to this deposition, we went through each of those exhibits, and Mr. Kistler stated whether he had knowledge of those exhibits or not. So I think it's almost duplicative to do that So I would say let's go forward
with the deposition on those topics upon which he has been designated as having knowledge so that we can get this deposition moved. MR. BARTHOLOW: Your objection is noted,
and I would respond by saying that we have, as Counsel has indicated, provided a notice of deposition that designated several topics, and we have served discovery requests and received discovery responses including the documents that we've been discussing, and no motion to quash or other filing has been made with the Court seeking to limit the scope of this deposition, and for that reason I think that it is absolutely appropriate to at least identify those documents that have been produced but for which AHMSI has not produced a witness who is capable of
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testifying to, and so I'm simply going to go through those documents. We can mark them as exhibits and
have them attached to the transcript if Counsel would prefer to do that. I think it would be more expedient
simply to identify the Bates range and have the witness simply state that he's not here to testify about those documents and lacks knowledge about them. MR. ALFIERI: is we'll go forward. Okay. Then what we will do
Mr. Kistler, and our standing objection will be that pursuant to notification to Debtor's counsel he was advised that Mr. Kistler did not have knowledge of these particular areas, notwithstanding Counsel was presented documents and is asking Mr. Kistler to provide knowledge on those topic areas. And my advice
to Mr. Kistler, which I believe he will take, is that he will defer to my counsel and not provide any testimony on these particular designated documents. MR. BARTHOLOW: And, again, I'm not
asking Mr. Kistler to provide testimony on the documents. I'm asking Mr. Kistler simply to explain
that he will not be providing testimony on these documents. MR. ALFIERI: with doing that? Do you feel comfortable
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All right.
Then let's go
Okay.
going to hand you documents that are Bates labelled AHMSI Troutman dash 00070 through 00128. seen those documents before? A. before. Q. Okay. All right. And now I'm handing to you No, sir, I've never seen these documents Have you
documents Bates labelled AHMSI Troutman 00059 through 00063. A. Q. Have you seen these documents before? No, sir. Okay. Thank you. Now I'm handing you Have
documents Bates labelled 00045 through 00058. you seen these documents before? A. Q. No, sir.
And now I'm handing you documents Bates Have you seen these
Now, I'm handing you documents Bates Have you seen that before?
labelled 00064.
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A. Q.
you seen that? A. Q. A. Q. A. Q. A. Q. No, sir. And a document labelled 00066. No, sir. And a document labelled 00067? No, sir. And a document labelled 00069? No, sir. And I'm sorry. Let me -- it appears I've got
that printed twice, so we don't need to even look at that. Okay. Mr. Kistler, have you read the
motion for relief from stay that is the subject of this deposition? A. Q. No, sir. Okay. Have you read the affidavit of Mirjeta
(pronouncing) or Mirjeta Isufi that was filed in connection with this motion for relief from stay? A. Q. No, sir. Have you seen the notice of withdrawal of
motion for -- actually, you may want to correct me. That may be the affidavit that was filed in connection with the previous motion for relief.
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Yeah.
I never -- I don't
Okay.
Fair enough.
of withdrawal of the first motion for relief from stay filed in this case? A. Q. No. Have you seen the first motion for relief
from stay filed in this case? A. Q. No, sir. Okay. Have you seen the Debtor's response
filed in opposition to the current motion for relief from stay in this case? A. Q. No, sir. Okay. And -- we looked at that. I'm handing Have
you document Bates label AHMSI 00041 through 42. you seen this document before? A. Q. No, sir. Okay. I'm handing you document Bates Have you seen that
Simmons filed in connection with the current motion for relief from stay. Have you seen that document
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before? A. Q. No, sir. Okay. And I'm handing you the affidavit of
Laura Kelly that was filed in connection with the current -- no, the previous motion for relief from stay. A. Q. Have you seen that document before? No, sir. Okay. Now I'm handing you the affidavit of
Roger Kistler that was filed in connection with the current motion for relief from stay. that document before? A. Q. A. Q. A. Q. document? A. Q. A. Q. A. Q. A. Yes, sir. Okay. And is she an employee of AHMSI? Yes, sir. Is that your signature on that document? Yes, it is. Do you know who Mary Francis Archer is? Yes. Okay. Was she present when you signed this Have you seen
No, sir, she does not. Okay. What department does she work in?
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Q.
Okay.
written request letter dated April 9, 2009, that was sent by my office to American Home Mortgage Servicing, Inc. regarding this loan. before? A. Q. No, sir. Okay. And I'm handing you the affidavit of Have you seen that document
Roger Kistler from the Martin Louis Brown, Jr. case. Have you seen that document before? A. Q. A. Q. Yes, sir. And did you sign that document? Yes, sir, that is my signature. Okay. And do you know who Brenda -- is it
Pecina (pronouncing)? A. Q. A. Q. A. Q. A. Q. Pecina. Pecina? Yes. Okay. And is she an AHMSI employee?
Yes, she is. Does she work in your department? At this time, no, sir. Okay. As of the 16th day of February 2010,
did she work in your department? A. Q. I do not know that, sir. Okay. And did you testify in the Martin
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Louis Brown case in a case in which I was the counsel for the debtor? A. Q. Yes, sir. Okay. And that was in Judge Rode's court in
the Eastern District of Texas? A. Q. Yes, sir. Okay. And did my office serve a subpoena on
you for that? A. Q. Yes, sir. Okay. And so if we had a transcript of the
testimony that you gave in that case to the extent that it could be authenticated as the Court's transcript, would you agree that that's your testimony? A. Yes, sir. MR. BARTHOLOW: Okay. I'd like to
actually have this marked as Exhibit 1, please. (Exhibit No. 1 was marked) MR. BARTHOLOW: Q. Thank you.
(BY MR. BARTHOLOW) Why don't I mark the one Thank you. Okay.
record that according to this affidavit there were two attached exhibits, Exhibit A and Exhibit B, and that the affidavit that I've marked as Deposition Exhibit 1
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is simply the affidavit and does not include the attached note or deed of trust. that's the case? A. I agree, sir. (Exhibit No. 2 was marked) Q. (BY MR. BARTHOLOW) Okay. I've now marked as Do you agree that
Exhibit 2 a document that is Bates labelled AHMSI 00618 through 00628. document, please? A. Q. A. before. Q. Okay. As far as you are aware, who is the (Witness reads). Have you seen that document before? No, sir, I have never seen this document And will you take a look at this
current owner of the note and deed of trust at issue in this case? A. Deutsche Bank, National Trust Company as
trustee for the Harborview Securitization 2006-7. Q. Okay. And pursuant to what authority is
AHMSI authorized to service the loan on behalf of that trust? A. Under the pooling and servicing agreement
dated August -- I believe it's August 1st, 2006. Q. Okay. And is it your testimony that that
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the servicer of this trust? A. Yes, sir. (Exhibit No. 3 was marked) Q. (BY MR. BARTHOLOW) Okay. Let's see. I am
handing you a document that I've marked as Deposition Exhibit No. 3 which I'd like you to take a look at, and let me know whether you've seen that before. A. Q. A. Yes, sir, I have seen this document before. Okay. Can you tell me what it is?
Recordation System as nominee. Q. A. Q. Okay. Would that be Registration Systems. I'm sorry, sir.
of trust assigned according to this agreement? A. Q. A. Q. It is assigned to Harborview 2006-7. Okay. Is that the owner of the note?
That is the owner of the note, yes, sir. Okay. A moment ago you stated that the owner
of the note was Deutsche Bank as trustee for -A. Q. Harborview, yes, sir. Okay. And so now I'd like to hand you what
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I've marked as Deposition Exhibit 4. (Exhibit No. 4 was marked) Q. (BY MR. BARTHOLOW) And this is not stapled,
so if we do end up needing to take it apart, I just ask that we take care. It is Bates labelled, and I
will represent to you that it's Bates labelled AHMSI Troutman 00629 through 00849. confirm the Bates label. A. Q. Yes. And that's accurate, okay. Can you tell me Please take a look and
what that document is? A. This is the pooling and servicing agreement
for the Harborview 2006-7 securitization. Q. Okay. Is there a name for this trust that's
indicated on this agreement? A. Q. The trust is -And if you'd tell me where you're looking
when you tell me that. A. Harborview Mortgage Loan Trust Mortgage Loan
Past Due Certificate Series 2006-7. Q. Okay. And is that exactly what is written on
the assignment of note and deed of trust that we were just looking at? A. Q. No, it is not, sir. Okay. And is it your understanding that this
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assignment of note and deed of trust is the document that conveyed the mortgage loan to this trust? A. Q. A. Q. A. Yes, sir. Okay. Do you know who Robert Hardman is?
Yes, I know who Robert Hardman. Okay. How do you know Robert Hardman?
Mortgage Servicing as long as I have. Q. is. A. Q. to that? A. He was employed by American Home Mortgage Since April 13th of 2008. Okay. Do you know how he was employed prior Okay. And I'm sorry, remind me how long that
Holdings out of Melbourne, New York. Q. Okay. So does Mr. Hardman work for Mortgage
Electronic Registration Systems? A. Q. No, sir, he does not. Okay. As far as you're aware, has he ever
worked for them? A. Q. No, sir. Okay. Are you aware of him having ever been
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Q. A.
Okay.
Mortgage Electronic Registrations System to American Home Mortgage Servicing Inc. he is an authorized signer for MERS and the title of vice president and assistant secretary. Q. Okay. And has that -- are you aware of
whether that document has been produced in connection with this case? A. I'm not aware of any such -- I'm not aware
that it has been produced, no, sir. Q. Okay. And has Mortgage Electronic
Registration Systems ever owned this loan? A. Q. A. Q. loan? A. Q. No, sir. Okay. When did the trust that is identified No, sir. No? No, sir. Okay. Have they ever had possession of this
in Exhibit 4 first come into possession of the note that's the subject of this case? A. I believe on the date of that document, sir,
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Q.
Okay.
please, and tell me what the date of that document is? A. Q. That document is dated May 19, 2008. Okay. And so just to reclarify, it's your
testimony that the trust became the owner of this loan by virtue of this assignment; is that right? A. No, sir. The trust became the owner of the
note on August 1st, 2006. Q. Okay. Then can you clarify for me what the
effect of this assignment is? A. The effect of this assignment was to take the
loan out of title on the Tarrant County records and put it into the name of the trust, take it out of the name of Mortgage Electronic Registration System and put it into the name of Harborview 2006-7. Q. Okay. And so while I understand that you're
not a lawyer, correct? A. Q. No, sir, I am not a lawyer. Is it -- is it your understanding that an
assignment is simply a mechanism used to change the designation in the deed records? A. Q. Yes, sir. Okay. And that that's the sole purpose of
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Q.
Okay.
Okay.
Electronic Registration Systems, Inc. is? A. sir? Q. Well, it says there -- the name indicates Is it your understanding Would you expound on that question, please,
that they are incorporated. that they are a business? A. Q. Yes, sir. Okay.
business is? A. Q. No, sir. Okay. Do you know what authority Mortgage
Electronic Registration Systems had to make a change in the deed records? A. In this particular case, they are -- if you
looked at the deed of trust, they are the nominee for the lender as the beneficiary on the deed of trust. Q. A. Okay. What is a nominee for a lender?
It's -- that's normal MERS language, Mortgage Electronic Record -- Registration System, which I will abbreviate as MERS. Q. Okay. And so normal MERS language, does that
mean there's a MERS dictionary somewhere that we could look up that would tell us what a nominee is?
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A.
No, sir.
terminology and practice. Q. Well, I'm familiar with the term in the I'm a little less familiar with it What are a
political context.
nominees -- what is a nominee's role in a real estate deal or with regard to deeds of trust such as the one in this case? A. Q. I don't know, sir. Okay. Okay. I don't know.
has any employees? A. Q. A. Yes, sir, they have employees. Do you know where their business is located? Their business is in Flint, Michigan, I
believe, is the address that they use for all of their correspondence. Q. Okay. Do you know if that's where their --
do they have offices in Flint, Michigan? A. Q. I do not know, sir. Okay. And do you know whether Mr. Hardman
has any responsibilities as a vice president of MERS other than assigning documents? A. No, sir, he should not, but I am not -- I
can't swear that one way or the other. Q. Okay. And is there some document that
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actually conveys the authority to assign documents to Mr. Hardman that you're aware of? A. Q. There is a corporate resolution, yes, sir. Okay. And would you be able to produce that
Inc. can produce that if asked to, yes, sir. Q. A. Q. Okay. Do you know where it is maintained?
No, sir, I do not. Okay. MR. ALFIERI: Just to clarify, that's not
within our custody and control, that document that was just referred to. MR. BARTHOLOW: MR. ALFIERI: produced. MR. BARTHOLOW: I'm sorry. Mr. Alfieri, So -So that's why it was not
to produce a witness that's going to provide that testimony, that would be great, but -MR. ALFIERI: Look, I'm giving you a
heads-up that the document you just asked my witness for we do not have. It is not our document, and Now, you can do with
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heads-up right now at this deposition that we will not produce any document that we don't have custody of. MR. BARTHOLOW: Let the record reflect
that Mr. Alfieri is raising his voice. Q. (BY MR. BARTHOLOW) So given Counsel's
statement on the record, testimony, are you -- have you ever seen a power of attorney such as the one that you've described to me? A. Q. A. Q. A. Q. Yes, sir. You have? Yes, sir. Where were you when you saw it? At my desk. Okay. And so was your desk at American Home
Mortgage Servicing Inc.? A. Q. Yes, sir. Okay. And what was the context or the
circumstances in which you saw that? A. When I was also listed as a person who could
sign for Mortgage Electronic Registration System. Q. document? A. Q. A. No, I did not sign that document, sir. Okay. As counsel has said, that's a MERS document.
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Okay.
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That's not our document. Q. And so AHMSI does not retain a copy of that
document; is that your understanding? A. Q. document? A. I am not -- it is not my responsibility to I'm not sure, sir. Not sure, okay. What did you do with the
maintain that document, sir. Q. I understand. When you saw it, what was the
reason why you saw it? A. Just so that I could be sure that I was on
the list of authorized signers for that document for MERS. Q. A. form. Q. computer? A. Q. A. Q. A. Q. At that time it was, yes, sir. Did you delete it from your computer? I've had three computers since then, sir. Okay. Did you receive it via e-mail? It was an electronic form, so it was on your Okay. And was it in paper form? It was in soft copy electronic
No, sir.
I'm going to say yes, but I'm not sure. Okay. Do you recall when it was -- or have
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A. Q.
received that document when you first saw it? A. Since American Home Mortgage Servicing, Inc. I'm going to
became an entity among itself in 2008. say it was sometime after that. Q. Okay.
specific than that? A. Q. No, sir. Okay. Have you deleted e-mails that you have
received since the time that you began work at American Home Mortgage Servicing, Inc.? A. Q. Yes, sir. Have you deleted -- do you know where this
e-mail came from? A. Q. No, sir, I don't remember. Okay. Would you be able to look through your
e-mail records and let me know whether it is still stored in the archives? A. Q. I can do that. Thank you. MR. ALFIERI: I think the mechanism for
that going forward is if there are additional requests, I'd like you to put them in a letter and address them to counsel, me, and we'll address them
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he'd be able to do it, and his answer was yes, he'd be able to do it. I will make the request. MR. ALFIERI: Q. Please do. So Mr. Kistler, Do you know
let's turn back to Exhibit 4, please. what the term "depositor" means? A. Q. No, sir. Okay.
exhibit, there's a name at the very top of the page that says, "Greenwich Capital Acceptance, Inc." you see that? A. Q. Yes, sir. Okay. And beneath it, it says the word Do
"depositor"? A. Q. A. sir. Q. Okay. How do you know it to be the agreement Yes. Have you read this agreement before? I have read parts of this agreement, yes,
by which this particular trust came to be the owner of this loan? A. The pooling -- the Schedule A pooling
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Troutman loan on that documentation as part of this pooling and servicing agreement for this trust. Q. Okay. And what is a -- can you direct me to
the page where that is located at this time? A. I'm not sure it's located on this document.
It should be an attachment to this document. Q. Okay. And I believe Counsel has produced two
lines of an Excel spreadsheet that counsel has represented to me as indicating that this loan is a part of this pool. Aside from an electronic
spreadsheet, have you ever seen the schedule to which you are referring right now? A. That's -- that's what it is. It's an
guess we could make one. Q. A. Q. Is it 4300 lines? I believe so. Okay. And do you know whether that was filed
with the Securities and Exchange Commission? A. Q. I have no idea, sir. And do you know where that list is
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maintained? A. Q. list? A. Q. A. Q. compiled? A. Q. A. Q. I'm assuming -- no, sir. I'm not asking you to assume. No, sir, I do not know. Okay. Okay. I would like you to turn to No, sir. Okay. Do you know who compiled the list? No, sir. Okay. Do you know -- did you compile the
No, sir. Okay. Do you know when the list was first
Section 2.01 of this document, which I will represent to you is on Bates Page No. AHMSI 00685, also labelled page 57 of 221 in the upper right-hand corner. A. Q. I have it, sir. Okay. I would like you to begin reading the
paragraph and continue reading until I ask you to stop beneath where it says, "Section 2.01, Conveyance of Mortgage Loans." reading. A. "The Depositor, concurrently with the
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execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificate Holders and the Certificate Insurer all the right, title, and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-off Date Principal Balance, all interest due thereon after the Cut-off Date and all collections in respect with interest and principal due after the Cut-off Date, all the Depositor's rights, title and interest in and to the Distribution Account and all amounts from time to time credited to and to the proceeds of the Distribution Account, any real property that secured each Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure, the Depositor's interest in any insurance policies in respect of the Mortgage Loans, all proceeds of any of the foregoing; and all other assets included or to be included in the Trust Fund. Such
assignment includes all interest and principal due the Depositor or the Master Servicer after the Cut-off Date with respect to the Mortgage Loans." Q. That's fine right there.
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Actually, no. A.
I'm sorry.
assignments, the Depositor shall receive the certificates." Q. Okay. Thank you. Now, I would like you to
turn to the definition sections of this which is before the page where you just were, and I'll find the exact page where I want you to look. First, I'd like to ask you, when you were on the stand in the Martin Brown case that we were discussing before, did you read similar language in a different pooling and servicing agreement? MR. ALFIERI: Objection, form. You know,
there's no -- I'm going to have to object also to the question. First of all, he hasn't been presented with
his testimony in the Martin Brown case. Q. (BY MR. BARTHOLOW) If you recall. MR. ALFIERI: Secondly, he hasn't been
presented with the particular document you're referencing in the deposition in the Martin Brown case, so I'm just going to have to object to this entire line of questioning right now. MR. BARTHOLOW: That's fine. And, third, it's vague. I'm going to ask
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Q.
language in any pooling and servicing agreement as far as you recall? A. Q. As far as I recall, no. Okay. Have you ever, as far as you recall,
ever read the definition of what a depositor is in any pooling and servicing agreement? A. Q. No, sir. Okay. I would like you to return to page 22
of 221 in the upper right-hand corner which is Bates labelled page AHMSI 00650. A. Q. I have it, sir. Okay. And the second definition from the Is
bottom of that page, I believe, says depositor. that what you see? A. Q. A. Yes, sir.
Can you read what depositor is defined as? Greenwich Capital Acceptance, Incorporated, a
the Delaware Corporation or any successor in interest. Q. As far as you're aware, has Greenwich Capital
Acceptance, Inc. ever owned this loan? A. Q. No, sir. Okay. Are you aware of any entity having
owned this loan other than the trust at issue in this case?
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A. Q. A. Q.
Yes, sir. What entity? American Brokers Conduit, sir. Is it your understanding that American
Brokers Conduit sold this loan to this trust? A. Q. Yes, sir. Okay. And what is your basis for that
are -- well, let me go back. When began this deposition, we discussed a number of documents that you felt you were not comfortable to testify about, correct? A. Q. Yes, sir. Okay. And then before we began this, we
discussed this Exhibit 4, the pooling and servicing agreement, and you stated that this was a document that you were comfortable testifying about, correct? A. Q. Yes, sir. Okay. And can you tell me the basis for your
comfort level in testifying about this document? MR. ALFIERI: Q. Objection, form.
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to testify about this document? A. It's the document that governs how American
Home Mortgage services the loan. Q. Okay. And we'll get to that in a minute. Is
there any other thing about this document that you feel comfortable testifying about? A. Q. No, sir. Okay. So if it was, in fact, the case that
Greenwich Capital Acceptance, Inc., conveyed the loan to this trust, would that be different than your understanding? MR. ALFIERI: Q. know. A. Q. I don't know, sir. Okay. Did you just tell me that you believe Objection, form.
that the loan was conveyed by American Brokers Conduit to the trust? A. Q. Yes, sir. And so if it was conveyed by any entity other
than American Brokers Conduit, that would be different than what your understanding is; is that correct? A. Q. Yes, sir. Okay. But it's also your testimony that this
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servicing of this loan; is that right? A. Q. Yes, sir. Okay. In your review of this trust
agreement, have you seen any other place in the agreement whereby the loans are conveyed to this trust? A. Q. No, sir. Have you seen any mention of American Brokers
Conduit in this agreement? A. Q. No, sir. Okay. Have you seen any mention of American
Home Mortgage Servicing, Inc., in this agreement? A. Q. A. Q. Yes, sir. Okay. Page 6. Wait. Before we talk about that, when did Tell me where.
American Home Mortgage Servicing, Inc., come into existence? A. The present company came into existence in
April of 2008. Q. Okay. And I'm sorry. Let's go back to the What's the date of the
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in the upper right-hand corner, page 6? A. Q. No. This is -- I'm sorry, page 11 of 221. And that's Bates label number
Eleven, okay.
00639; is that right? A. Q. Yes, sir. Okay. Okay. And I'm -- I'm looking at the
definition here for an entity called American Home Mortgage Servicing is the name in quotes? A. Q. Yes, sir. Correct. And it states American Home
Mortgage Servicing, Inc. and its successors and assigns in its capacity as servicer of the American Home Mortgage loans. A. Q. A. Is that what you see?
That's what I see, yes, sir. Okay. What entity was that?
2006 that was servicing the loan. Q. A. Q. How do you know that? That's what the document says. Okay. Now, you've testified that the company
you work for has only been in existence since 2008; is that right? A. Q. Yes, sir. Okay. Are you aware of the company -- of a
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the company you work for? A. Q. Yes, sir. Okay. And what were the dates of that
company's existence? A. Q. I don't know, sir. Okay. And how did you come to be -- other
than the fact that it's printed in this document in front of us, how did you come to be aware of the existence of this other company? A. That was the company that serviced the loans
and that I worked for in 2006. Q. In 2006 you also worked for American Home
Mortgage Servicing, Inc. A. Q. A. Q. Yes, sir. Okay. But it was a different entity?
It was a different entity, yes, sir. Okay. How -- what's the difference between
the two entities? A. Q. A. Q. A. Q. I can't answer that question, sir. Okay. That's -- no. Was the logo the same for the old entity? No, sir. Okay. Do you know whether management has
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A. Q. A. Q.
No, sir. No, it hasn't? No, I do not know. Okay. And do you know where the current
entity is incorporated? A. Q. No, sir, I do not know. Did you know where the former entity was
American Home Mortgage Servicing, Inc., listed on this document is not the same American Home Mortgage Servicing, Inc., that you worked for today? A. No, sir, it is not. MR. BARTHOLOW: as an exhibit. Q. Did we already mark this
I think we did.
(BY MR. BARTHOLOW) I'm going to ask you to I'd like you to turn
to Bates label page 00620 and take a look at the signature at the very bottom of the page. recognize that signature? A. Q. Robert Hardman. Okay. And do you actually recognize that Do you
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Q. A.
signature. Q. I hope. Well, certainly it's not the same signature, But looking at the two, do they look similar?
Just on your untrained -- I know you're not an expert -- or I assume you're not a handwriting expert. Are you? A. Q. A. Q. No, sir, I am not a handwriting expert. To your untrained eye, do they look similar? They look similar, yes, sir. Okay. And do you know Mr. Hardman
personally? A. Q. Yes. Okay. And what is -- in terms of your -HG LITIGATION SERVICES HGLITIGATION.COM
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your -- and he works in the same office where you work; is that correct? A. Q. A. Q. before? A. Q. A. Q. okay. Yes, sir. About how often do you speak with him? Couple times a week. Okay. So you speak with him on -- well, He works in the same building, yes, sir. Is he on the same floor? No, sir. Okay. And have you ever spoken with him
business-related conversations, do they tend to relate to anything in particular? MR. ALFIERI: A. Objection, form.
to say -- I'm not trying to be ridiculous here -- that every conversation is unique? MR. ALFIERI: A. Not every one, no.
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Q.
particular types of conversations that you have that are recurring in terms of subject matter? MR. ALFIERI: A. Q. No, sir. (BY MR. BARTHOLOW) Okay. Have you spoken Objection, form.
with Mr. Hardman about this case prior to today? A. Q. No, sir. Okay. And have you ever seen him sign his
name before? MR. ALFIERI: A. Q. No, sir. (BY MR. BARTHOLOW) Okay. And I'm going to -Objection, form.
I'm going to restate the question for the record. Have you ever seen Robert Hardman sign his name to any document? A. Q. No, sir. Okay. And would it be accurate to say that
you work for Mr. Hardman? A. Q. A. No, sir, it is not accurate. Okay. And what department does he work in?
responsibilities are?
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Objection, form.
me what loss recovery means? A. Q. No, sir. I do not know his responsibilities.
you are aware, has AHMSI ever been in possession of the note in this case? A. Q. A. No, sir. Okay. And are you certain of that? But to my knowledge prior to this
No, sir.
case, AHMSI has never been in possession of this note. Q. Okay. Have you reviewed the note at issue in
this case? A. Q. Yes, sir. Okay. What did your review of the note in
this case consistent of? A. Q. read? A. The date, the lenders, the endorsement the Physically looking at it and reading. Okay. What in particular did you look at or
signatures.
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Q.
the original with the blue ink signatures on it? A. It was the original. Whether the signatures
were blue ink or not, I don't remember. Q. Okay. That's fair enough. But they were ink
signatures, as best as you can tell? A. Q. Yes, they were ink signatures, yes, sir. And my recollection from conversations we've
had before is that part of your job involves communicating with the entities that are custodians of documents; is that correct? A. Q. Yes, sir. And it is my understanding that Deutsche Bank
is who you believe to be the custodian of the documents in this case; is that right? A. Q. Yes, sir. Okay. In this case did you personally
request the production of the note in this case? A. Q. Explain production. Did you communicate personally with Deutsche
Bank in order to request release of the original note to AHMSI? A. No, sir, I did not communicate with Deutsche
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______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________
I, ROGER KISTLER have read the foregoing deposition and hereby affix my signature that same is true and correct, except as noted above.
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Before me, ______________________, on this day personally appeared ROGER KISTLER known to me (or proved to me under oath or through _____________________) (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that they executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this _____ day of ______________, 2010.
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IN RE:
) )
LATITIA TROUTMAN
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Debtors.
I, Cinnamon Boyle, Certified Shorthand Reporter in and for the State of Texas, hereby certify to the following: That the witness, ROGER KISTLER, was duly sworn by the officer and that the transcript of the oral deposition is a true record of the testimony given by the witness; That the deposition was submitted on _________________, 2010 to the witness or to the attorney for the witness for examination, signature and return to me by ________________, 2010; That the amount of time used by each party at the
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deposition is as follows: THEODORE O. BARTHOLOW, III - 00:53 MARK ALFIERI - 00:00 That pursuant to information given to the deposition officer at the time said testimony was taken, the following includes counsel for all parties of record: FOR THE PLAINTIFFS: THEODORE O. BARTHOLOW, III ARMSTRONG KELLETT BARTHOLOW P.C. 11300 North Central Expressway Suite 301 Dallas, Texas 75243 (214)696-9000 thad@akbpc.com FOR MOVANT AMERICAN HOME MORTGAGE SERVICING, INC.: MARK ALFIERI HERMES SARGENT BATES 901 Main Street Suite 5200 Dallas, Texas 75202 (214)749-6534 mark.alfieri@hsblaw.com I further certify that I am neither counsel for, related to, nor employed by any of the parties or attorneys in the action in which this proceeding was taken, and further that I am not financially or otherwise interested in the outcome of the action.
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_______________________________
6
Expiration Date: December 31, 2011 Firm No. Dallas: 69 Houston: 373
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1-888-656-DEPO
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