motion - substantiated allegations of foreclosure fraud that implicates the florida attorney...

8/9/2019 Motion - Substantiated Allegations of Foreclosure Fraud That Implicates the Florida Attorney Generals Office and Th

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ICE LEGAL,P.A.1975SANSBURYS WAY,SUITE 104,WEST PALM BEACH,FL33411TELEPHONE (561)729-0530FACSIMILE (866)507-9888

IN THE CIRCUIT COURT FOR THE 7TH JUDICIAL CIRCUIT,

IN AND FOR VOLUSIA COUNTY, FLORIDA

WELLS FARGO BANK, NA,

Plaintiff,

vs.

GENERAL JURISDICTION

DIVISION

CASE NO.

2009 20298 CINS

DONALD W. NEEDHAM; THE UNKNOWNSPOUSE OF DONALD W. NEEDHAM;

BLAIR BERGSTROM; THE UNKNOWN

SPOUSE OF BLAIR BERGSTROM; ANY

AND ALL UNKNOWN PARTIESCLAIMING BY, THROUGH, UNDER, AND

AGAINST THE UNKNOWN NAMEDINDIVIDUAL DEFENDANT(S) WHO ARENOT KNOWN TO BE DEAD OR ALIVE,

WHETHER SAID UNKNOWN PARTIES

MAY CLAIM AN INTEREST AS SPOUSES,HEIRS, DEVISEES, GRANTEES. OR

OTHER CLAIMANTS; TENANT #l,

TENANT #2, TENANT #3, TENANT #4,

TENANT #5, TENANT #6, TENANT#7,TENANT #8 the names being fictitious to

account for parties in possession,

Defendants.

___________________________________/

Defendants, DONALD W. NEEDHAM and BLAIR BERGSTROM, file this

memorandum of law in opposition to Motion for Reconsideration/Rehearing on [the Cullaros]

Motion for Protective Order on the grounds that:

This Court heard and considered the Cullaros position because the Plaintiffsattorney represented he was authorized to speak for the Cullaros and their

attorney;

The Cullaros attorney never asked that the hearing be rescheduled toaccommodate a personal scheduling conflict;

DEFENDANTS, DONALD W.

NEEDHAM AND BLAIR

BERGSTROMS, MEMORANDUM

IN OPPOSITION TO MOTION FORRECONSIDERATION/REHEARING

ON NON-PARTIES MOTION FOR

PROTECTIVE ORDER


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1975SANSBURYS WAY,SUITE 104,WEST PALM BEACH,FL33411TELEPHONE (561)793-5658FACSIMILE (866)507-9888

The Defendants allegations of misconduct have a good faith basis; Other grounds as stated below.

I. Introduction and Background.This is a foreclosure action filed by WELLS FARGO BANK, NA (the BANK). The

BANK is represented by Florida Default Law Group, P.L. (FDLG). On behalf of the BANK

in this case, and on behalf of other clients in other cases, FDLG filed affidavits to establish that

the attorneys fees it was allegedly paid were reasonable. The affidavits purport to have been

executed by Lisa Cullaro, the appointed expert on attorneys fees. The notary who allegedly

administered the experts oath and vouched for her signature was Erin Cullaro, a former

employee of FDLG and now an Assistant Attorney General in the Economic Crimes Division of

the Office of the Attorney General.

The undersigned defense counsel set the depositions of Lisa and Erin Cullaro, starting

with the case ofThe Bank of New York Mellon Trust Co. NA v. Sanchez, Case No. 50 2008 CA

027182XXXX MB (Palm Beach County) (Sanchez). At first, neither FDLG nor the affiant,

opposed the deposition other than to demand that the expert witness be paid for her time.

Defense counsel readily agreed and sent FDLG a check for the expert witness fee.

FDLG then filed a motion for protective order arguing that the duces tecum requests in

the deposition notices were a fishing expedition.1

FDLG also filed objections to non-party

production, claiming that the Defendants routine requests for communications between the

attorney and the expert actually sought privileged and confidential information.2

1 Plaintiff's Motion for Protective Order, dated November 12, 2009 in Sanchez.

FDLG,

2 Plaintiffs Objection to Nonparty Production, November 10, 2009 in Sanchez.


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however, stated that Plaintiff would produce the witnesses after reasonable exhibits for their

depositions have been determined.3

Based on this unusual representation that FDLG controlled the witnesses deposition

attendance and that communications with them were privileged, Defense Counsel asked FDLG

whether it represented the witnesses as their attorney, to which FDLG responded that it did.

4

When Defense Counsel pointed out that such a relationship would be highly inappropriate and a

conflict of interest, FDLG responded upon further investigation, our firm does not represent the

Cullaros. FDLG further asserted it would be withdrawing the affidavit and [t]herefore, the

deposition will not be necessary.

5

FDLG then withdrew its affidavit in Sanchez and several

other cases, including this case.6

The Defendants maintained, however, that the depositions were still relevant because, if

the BANK had knowingly submitted affidavits that were false or unlawfully executed, it could

not escape the repercussions by simply withdrawing them. With Lisa Cullaro having been

withdrawn as an expert, Defendants subpoenaed both Cullaros for deposition as fact witnesses to

any litigation misconduct surrounding the affidavit.

The Cullaro witnesses then retained their own attorney, John J. Cullaro of the Cullaro

Law Firm, who filed a Motion for Protective Order on behalf of Cullaros.7

3

Plaintiff's Motion for Protective Order, dated November 12, 2009 in Sanchez, 5.

The witnesses argued

that FDLG had withdrawn the affidavitnot to obviate the depositionbut because it was no

4 Email exchange between FDLG and Defense Counsel, November 13, 2009 (Exhibit A).

5 Email exchange between FDLG and Defense Counsel, November 14 and 17, 2009 (Exhibit A).

6 Notice of Withdrawal of Affidavit as to Reasonable Attorneys Fees, December 10, 2009.

7 Motion for Protective Order, dated November 24, 2009.


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longer accurate with respect to the amount of attorneys fees that will be sought. As a result,

they argued, there was no legitimate purpose for their depositions.8

FDLG noticed the hearing on its Motion for Protective Order.

9By agreement, this notice

served to schedule the hearing on the motions for both FDLG and the Cullaros.10

MR. MANCILLA: Yes. And I also wanted to mention that John Cullaro, who is

representing the individuals, and he was unable to attend this hearing because his

wife has been recently diagnosed with cancer, so he's relying on papers that wefiled and asking that the Court accepts the argument on behalf of his client.

At the hearing,

only the FLDG attorney appeared, but he represented that he had authority to speak for the

Cullaros attorney:

11

After hearing argument on FDLGs motion, the Court specifically asked about the objections

raised by the Cullaros, which were then argued.

12After due consideration, the Court declined to

grant a protective order to stop the depositions.13

II. The Cullaros Arguments Were Presented and Considered at the Hearing.Unhappy with the Courts ruling, the Cullaros now ask for a second bite at the apple.

14

They begin by stating that their attorney, John Cullaro, was unable to attend the hearing due to

an unforeseen scheduling conflict with his wifes oncology appointment. As a result, Mr.

Cullaro requests that he be heard in this matter.15

8Id.

9Notice of Hearing, dated January 22, 2010.

10Email from John Cullaro, December 9, 2009 (Exhibit B).

11Transcript of Hearing Before the Honorable Robert K. Rouse, Jr., March 10, 2010 (Hrg.),

p. 6 (Exhibit C).

12 Hrg., pp. 15.16.

13 Hrg., p. 21.

14 Motion for Reconsideration/Rehearing on Non-Parties Motion for Protective Order, dated

March 19, 2010 (Rehearing Motion).

15Rehearing Motion, 1.


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While Defendants do not wish to appear unsympathetic, it bears repeating that Mr.

Cullaro was heard in this matterby way of the FLDG attorney he appointed to speak for him

and his clients. More importantly, FLDG set this hearing on behalf of Plaintiff and the Cullaros,

and Defendants had already agreed to reschedule the depositions until after the hearing. The

hearing, therefore could easily have been postponed had Mr. Cullaro simply made that request.

Instead, without ever mentioning Mr. Cullaros unavailability to Defense Counsel before

the hearing began, they proceeded with the hearing knowing that Defense Counsel would be

driving approximately 400 miles round trip to attend. (Notably, Mr. Cullaro does not state when

he learned of the conflicting oncology appointment.) It is entirely inappropriate that the Cullaros

would use this unfortunate personal circumstance as an excuse for re-argument when there was

no attempt to reschedule the hearing.

III. The Cullaros Promise Not to Provide Any More Expert or Notary Services isUnenforceable and Irrelevant.

Next, the Cullaros promise this Court that they have ceased providing any expert witness

or notary services to FDLG and have no intention to so in the future. 16

First, because this Court could never enforce such a promise, it is meaningless to the

analysis of whether Defendants should be denied discovery to which they are entitled. Second, a

promise to cease violating rules in the future does not relieve one of the consequences for having

violated rules in the past. If the Cullaros have done something improper in the execution of these

affidavits, the Courts inherent power and responsibility to protect the integrity of the judicial

system will support the imposition of sanctions. The Defendants must be permitted to conduct

discovery and, if evidence of misconduct exists, bring that evidence to the Court.

This, they claim,

should moot this Courts concern regarding their role in this litigation.

16 Rehearing Motion, 3.


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IV. Defense Counsels Allegations of Potential Misconduct Have a Good Faith Basis.The Cullaros accuse Defendants of taking enormous liberty with the facts and making

assertions that are beyond absurd and without basis in fact.17 Defendants, however, stated on

the record that they have compendiums of signatures for these two witnesses that are noticeably

different. Focusing just on Erin Cullaro,18

the sampling of her alleged signatures below,

demonstrate remarkable differences. And while, she proffers that she has abbreviated her

signature over the years, the sampling reveals that more than one abbreviated signature has

appeared over her signature line.

Erin Cullaro Signatures

17Id. at 7-8.

18 Despite the Cullaros statement otherwise, Defendants also question the authenticity of Lisa

Culloros signature and Defendants have amassed a similar collection of her documents allegedly

signed by her. Defendants believe, however, that maintaining some potential cross-examination

materials confidential until the deposition will encourage more reliable testimony. If requestedby the Court, the Defendants will not object to an in camera inspection of these materials.


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Furthermore, the so-called abusive and harassing Florida public records request19

to

Erin Cullaros employer, the Office of Attorney General, turned up a an April 30, 2008 affidavit

which Ms. Cullaro executed with this signature:

and an April 24, 2009 affidavit with this signature:

The public records request also revealed that Ms. Cullaro completed a Request for Approval of

Dual Employment in which she certified that her secondary job notarizing documents does not

create a conflict of interest (as specified in Chapter 112, Part III, Florida Statutes) nor the

appearance of impropriety (see Figure 1, below).

19The Cullaros also complain that, by serving Erin Cullaro at home rather than serving her

attorney, Defendants revealed her private home address to the public, and stripped her of herstatutory right as a law enforcement officer to keep such information confidential. When the

initial subpoenas were served, however, Erin Cullaro did not have an attorney. And whencounsel appeared for the Cullaros, he did not offer to accept service until December 22, 2009

after the next wave of subpoenas had already been sent to the process server. And even when

their attorney did offer to accept service, he did not mention the privacy issue. Finally, and more

importantly, the home address used in the subpoenas was obtained from a public source, so theallegation that it was Defendants who made the address public is without merit.


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Ms. Cullaros dual employment was limited to Mondays, Wednesdays and Fridays

between 7:00 p.m. to 7:15 p.m. Defendants proffer that they will show affidavits executed on

days other than those approved by the Office of the Attorney General and that travel records

suggest that Ms. Cullaro would have not been present in Florida on the date and time that an

affidavit was notarized. Contrary to the Cullaros accusations, therefore, Defendants do have a

good faith basis for questioning the authenticity of the signatures.

The argument that this Court has no jurisdiction to address pleadings or documents

filed in other circuit courts20


is specious. This Courts power to examine and weigh evidence of

Figure 1


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authenticity (or evidence disproving the authenticity) of signatures is not diminished in the least

by the fact that these affidavits have been presented in cases filed in other circuits. Indeed, if the

signatures are fraudulent, proof of the intent to defraud may well hinge on the fact that these

signatures were on documents used as summary judgment evidence in a court of law.

In any event, not all the signatures in Defendants collection are from affidavits.

Obviously, Defendants should be permitted to inquire as to the obvious differences in signatures

purporting to be that of the witnesses, regardless of where those signatures were made.

V. The Exceptional Circumstances Standard Does Not Apply to Fact Witnesses.Defendants need not show exceptional circumstances to depose fact witnesses

concerning potential fraud. The cases relied upon by the Cullaros21

VI. Both Erin and Lisa Cullaro Should be Deposed.

address discovery of

opinions from experts who will not testify at trial. Defendants, however, do not intend to ask

Lisa Cullaro about her opinions as to the reasonableness of the attorneys fee claimed by

Plaintiff. Instead, Defendants will be questioning the witnesses about the authenticity of their

signatures.

The Cullaros claim that Defendants contentions regarding the authenticity of signatures

were aimed only at Erin Cullaro, and as such, Lisa Cullaro should not be deposed.22

21Morgan v. Tracy, 604 So. 2d 15 (Fla. 4th DCA 1992); Forman v. Fink, 646 So. 2d 236 (Fla. 3d

DCA 1994).

To be clear,

Defendants contentions are aimed at the signatures of both witnesses. Moreover, Lisa Cullaro

has, in the past, served as a notary for Erin Cullaros signature (the reverse relationship on the



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affidavit filed in this case). Accordingly, as notaries, both witnesses should be able to attest to

the authenticity of the others signatures.

VII. The Depositions Are Intended to Establish the Who and The Why.Finally, the Cullaros comment that, if the signatures have been forged, Defendants have

not established who forged them or what the purpose would be. 23 Of course, the very purpose of

the discovery is to learn the answers to these questions. If Defendants had these answers, they

would not need discovery and would have already moved to dismiss the case as a sanction for

fraud on the court. Indeed, other clients of the undersigned have conducted discovery with

respect to affidavits filed by FLDG which revealed grounds for the imposition of sanctions.24

WHEREFORE, Defendants request that this Court deny the Cullaros Motion for

Reconsideration/Rehearing on Non-Parties Motion for Protective Order.

Dated: March 23, 2010.

23Id. 11.

24See e.g. Indymac Federal Bank FSB v. Machado, Case No. 50 2008 CA 037322XXXX MB

(Palm Beach County).

ICE LEGAL, P.A.Counsel for Defendant

1975 Sansburys Way, Suite 104West Palm Beach, FL 33411

Telephone: (561) 729-0530

Facsimile: (866) 507-9888

By:

THOMAS E. ICE

Florida Bar No. 0521655


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served by mail

this March 23, 2010 to all parties on the attached service list.

SERVICE LIST

Joseph Mancilla, Esq.

FLORIDA DEFAULT LAW GROUP, P.L.P.O. Box 25018

Tampa, FL 33622-5018

(813) 251-4766

Plaintiffs counsel

John J. Cullaro, Esq.

THE CULLARO LAW FIRM2701 W. Busch Blvd., Suite 210

Tampa, FL 33618

Cullaros counsel

ICE LEGAL, P.A.Counsel for Defendant

1975 Sansburys Way, Suite 104West Palm Beach, FL 33411

Telephone: (561) 729-0530

Facsimile: (866) 507-9888

By:

THOMAS E. ICE

Florida Bar No. 0521655


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EXHIBIT A


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EXHIBIT B


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EXHIBIT C


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