Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).

txt 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BUXBAUM REPORTING (561) 523-8308 Palm Beach County Courthouse 205 North Dixie Highway West Palm Beach, Florida Tuesday, May 29, 2012 8:45 a.m. - 9:25 a.m. ------PROCEEDINGS BEFORE THE HONORABLE ROBERT B. COLTON _______ and LYNN E. SZYMONIAK, et. al. Defendants. _____________________________________/ DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEES FOR THE CERTIFICATE HOLDERS OF SOUNDVIEW HOME LOAN TRUST 2006-OPT2, ASSET BACKED CERTIFICATES, SERIES 2006-OPT2, Plaintiff, IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO: 50-2008CA 022258XXXMB

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Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).txt 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BUXBAUM REPORTING (561) 523-8308 THE CULLEN LAW FIRM 2090 Palm Beach Lakes Boulevard, Ste. 500 West Palm Beach, Florida 33401 (561) 640-9191 BY: Mark A. Cullen, Esquire Appearing on behalf of the Defendant: AKERMAN, SENTERFITT 222 Lakeview Avenue, Suite 400 West Palm Beach, Florida 33401 (561) 671-3626 BY: Victor R. Berman, Esquire Appearing on behalf of the Plaintiff: APPEARANCES:

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Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).txt 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Szymoniak. P R O C E E D I N G S - - Deutsche Bank versus Lynn

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Lynn Szymoniak's Motion to Compel

Responses to Defendant's First Request for Production. MR. BERMAN: Good morning, Your Honor. Victor

Berman of Akerman Senterfitt. MR. CULLEN: Good morning. Mark Cullen on

behalf of Ms. Szymoniak, with our motion -MR. BERMAN: THE COURT: Opposing motion, Your Honor. Okay. Go ahead. This is your

Motion, right, on behalf of Lynn. MR. CULLEN: THE COURT: MR. CULLEN: version of it. Yes, Your Honor. Okay. I put in a short and dirty

If you look at the ABC tab, and

pull those out, A is the excerpt from the Complaint, which says that they're asking for attorney's fees and litigation costs. I didn't

give you the whole Complaint, Your Honor, because this is really the issue. They've asked for

attorney's fees and litigation costs. B is our request for the timesheets in one; and then in two, the retainer agreement for BUXBAUM REPORTING (561) 523-8308

Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).txt 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Marshall Watson firm. And then the same thing

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for the current firm in three and four -timesheets; and then, four, is the retainer. THE COURT: MR. CULLEN: Okay. And then C is the objections by

Akerman Senterfitt. THE COURT: MR. CULLEN: As to theirs only. No. They responded because Marshall Watson is out But they

Marshall Watson are out.

and Akerman Senterfitt took over.

responded to all four of them saying it's irrelevant; it's attorney-client privileged; it's work-product, et cetera. Today, though we've noticed this some time ago, Mr. Berman gave me his response to our Motion to Compel and has cited a case from 1982 -or '92 -MR. BERMAN: MR. CULLEN: '92. '92, thank you -- which is long

after I probably got out of law school; that's true -- but, nonetheless, says that the time entries may not be relevant with regard to attorney's fees, disputes prior to final judgment. That's an estate case which has its own rules and regulations and such. BUXBAUM REPORTING (561) 523-8308

Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).txt 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We have attached the Finol case, which says that it is a relevant issue in litigation, and I would ask at this time, Your Honor, that -- and part of the reason I want this on behalf of my client is to make an assessment as to how to resolve this case. Because if indeed they have a

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valid claim for attorney's fees, I need to address that with my client. I can't do that at this

point; forcing me to take this matter all the way to final judgment, and that's very unnecessary. If I can get the retainer agreement seeing what they're billing; have some idea of what it is. To address Mr. Berman's concern, we can

subject it to a confidentiality agreement; that does not present a problem. address this with my client. And I'll tell you another reason why I need it, Your Honor. We asked for a pay-off figure And under the federal But I need it so I can

under the service agreement.

law, they're supposed to give us the attorney's fees and the costs. February they did. The

attorney's fees were something less than two thousand, and the costs were something less than two thousand as well. Now that Ms. Szymoniak has the funds and BUXBAUM REPORTING (561) 523-8308

Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).txt 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would like to pay it off, as of this point, we made another request for a more current date, May 31st, I believe. And the response we got back from the

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servicer's attorney is, Well, that's going to be resolved by negotiation or by the Court. So we don't have that information -THE COURT: negotiation? MR. CULLEN: costs. MR. BERMAN: MR. CULLEN: They're not liquidated. So all of a sudden, we can't even The attorney's fees and the What is going to be resolved by

do the next step which we want to do, which is pay the money to get this case resolved, because they're withholding because of attorney's fees and costs. So it is relevant to this controversy, Your Honor, and I would ask the Court to allow us to have that information. MR. BERMAN: Thank you. The It seeks

Your Honor, if I may.

discovery that is sought is irrelevant.

privileged and protective information and serves no legitimate purpose. Those issues regarding

settlement are not germane to this proceeding right now. The authority cited -- and we did file an BUXBAUM REPORTING (561) 523-8308

Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).txt 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 opposition, Your Honor -- this is a UMC hearing, but we wanted to file an opposition. case, Your Honor, that's attached. There is a

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Mr. Cullen and

I submitted it with a packet that we believe is right on point, and it talks about these very circumstances, Your Honor. And it holds -- in that case, the District Court of Appeal quashed an Order Compelling Discovery under similar circumstances. And the reasoning was, that discovery concerning attorney's fees should be deferred under normal circumstances until the Court has determined entitlement. And the rationale for that -- and

this is a Ransburg decision, Your Honor; page 51 is the pertinent cites. The rationale for that is

it's a general rule that's recognized by the Florida Supreme Court in the Stockman versus Downs case, that a claim for attorney's fees must be pled. Just because you plead a claim for attorney's fees in a Complaint does not mean that information regarding those attorney's fees are discoverable before it becomes relevant to the case. And in the Ransburg case, the Court

concluded that discovery concerning the attorney's BUXBAUM REPORTING (561) 523-8308

Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).txt 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fees should be deferred. It also concluded that a

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standard allegation requesting attorney's fees in the civil action -- and we're citing page 51, Your Honor, that case -- does not immediately establish relevancy of issues relating to amount of awardable attorney's fees, so long as those issues can be severed for subsequent resolution. And that's the

case with a foreclosure like this, Your Honor. This is a contested foreclosure action. The issue of attorney's fees -- the amount of attorney's fees -- is not relevant right now until there is a prevailing party. So the cases that

Mr. Cullen cited to deal with post-judgment issues, or one of the cases he cited, Your Honor, actually is against him. That case also in -- the Olds -THE COURT: MR. BERMAN: THE COURT: Okay. Sure. Let's get to the bottom line. That's Let me ask you this.

Does your client want it paid off or not? the bottom line.

Does Deutsche Bank want all their

money to pay it off? MR. BERMAN: Honor. THE COURT: What do you mean, subject to Subject to negotiation, Your

BUXBAUM REPORTING (561) 523-8308

Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).txt 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 negotiations? I don't understand that. Well, Your Honor -You tell me -- are you in the

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MR. BERMAN: THE COURT:

position to be able to tell Lynn Szymoniak how much the pay-off figure is and everybody goes home? MR. BERMAN: THE COURT: MR. BERMAN: Not right now, Your Honor, no. Why not? Because there are fees that they

incur, may be incurred in the future, and there are fees that -THE COURT: How long is it going to take you

to find out what they're willing to accept, to pay it all off? call? MR. BERMAN: Honor. No. Longer than that, Your There are How long is it going to take? A phone

I'd be happy to go through it.

certain things -THE COURT: through it? What do you mean, you have to go

You got to call up somebody and say, How much is

"Look, I want to pay off my mortgage. the pay-off figure?" forever to do that? MR. BERMAN:

You mean to tell me it takes

Your Honor, he's not just asking

for the totalities. THE COURT: Yes, he is. He wants to know the

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Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).txt 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 total thing. What are you willing to accept now? Well, Your Honor, if that's all

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MR. BERMAN:

that he's asking -THE COURT: MR. BERMAN: THE COURT: That's what he's asking. No, Your Honor, the discovery -Hey, look. That's what he's

asking for; all right.

How long is it going to

take you to make a phone call to find out what, Deutsche Bank, do you want? MR. BERMAN: Honor -THE COURT: MR. BERMAN: That's what he's asking. Your Honor, in the discovery, Well, if it's just a figure, Your

he's asking for retainer agreements; he's asking for billing -THE COURT: it, okay? MR. BERMAN: THE COURT: MR. BERMAN: THE COURT: But -Uh-uh. I'm sorry. I'm going to deny the Motion, but I know, I can read it. I've heard

I'm going to order that you contact him within five days as to a total figure as to attorney's fees, costs, and everything else so the poor man can say, "Look, I'm going to write you a check and get out BUXBAUM REPORTING (561) 523-8308

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Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).txt 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the case." MR. BERMAN: THE COURT: Okay. That's what he's asking for. And

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if it's much more than two thousand -- much more than two thousand, because we already know he's at two thousand. MR. BERMAN: two thousand. THE COURT: I said much more. We know the Your Honor, it'll be more than

bottom line is two thousand.

So I am going to deny

that, but I'm also going to order, "Plaintiff shall advise Defendant total pay-off figure, including all fees and costs." That's what you're looking for. MR. CULLEN: THE COURT: Yes. I know. That's what he wants. He

could care less what your timesheet was; he could care less what your retainer agreement was. And you're absolutely right. stage of the game those are privileged communications. He just wants a total figure, At this

including all fees and costs, within seven days. MR. BERMAN: clarify. Your Honor, if I may just

Mr. Cullen mentioned something, subject This case, Your Honor, has

to confidentiality.

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Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).txt 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been in the media and -MR. CULLEN: We're not getting the retainer

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agreement; we're getting -THE COURT: MR. CULLEN: THE COURT: MR. BERMAN: confidentiality. MR. CULLEN: MR. BERMAN: With regard to the -Your Honor, can we have that the Just used for purposes of Oh, she's the whistle blower. Yes, she is. Yeah, she's got millions. But, Your Honor, this calls for

figure be confidential?

the litigation or settlement. THE COURT: Well, if it's for settlement,

that's confidential. MR. BERMAN: MR. CULLEN: Okay. Thank you, Your Honor.

You're going to give us a pay-off

figure, according to the federal law, which has that information in it. MR. BERMAN: issue than -THE COURT: Okay. "Plaintiff shall advise Your Honor, that's a different

Defendant's total pay-off figure, including all fees and costs, within seven days. MR. CULLEN: THE COURT: Thank you, Your Honor. And that should do it, right?

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Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).txt 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BUXBAUM REPORTING (561) 523-8308 MR. CULLEN: THE COURT: Thank you. What do you mean? Everybody knows

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she had $28 million dollars or whatever it was. What's so confidential about that. If it's

confidential, you just heard me tell it. MR. CULLEN: THE COURT: and done with. hold-up was. MR. BERMAN: MR. CULLEN: Thank you, Your Honor. I agree. Thank you, judge. Get it resolved, guys; get it over You know what the attorney's fees

(Hearing concluded at 9:25 a.m.)

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Hearing.Transcript.5.6.12 - Motion to Compel 1st RTP (1).txt 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BUXBAUM REPORTING (561) 523-8308 ________________________________ RHONDA L. BUXBAUM Certified Shorthand Reporter IN WITNESS WHEREOF, I have hereunto set my hand this 6th June of May, 2012. I, RHONDA L. BUXBAUM, Certified Shorthand Reporter, do hereby certify that I was authorized to and did report the foregoing proceedings at the time and place herein stated, and that the foregoing is a true and correct transcription of my stenotype notes taken during said proceedings. STATE OF FLORIDA COUNTY OF PALM BEACH ) ) C E R T I F I C A T E

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