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Volume I Pages 1 to 65 Exhibits 1 to 5 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS - - - - - - - - - - - - - - - - -x : In Re: : PATRICIA L. STARR, : Debtor : - - - - - - - - - - - - - - - : Chapter 13 : No. 09-41903-JBR PATRICIA L. STARR, : Plaintiff, : : vs. : : Adv. Pro. BANK OF AMERICA CORPORATION : No. 09-04122-JBR ASSIGNEE AND/OR SUCCESSOR IN : INTEREST TO COUNTRYWIDE HOME : LOANS, INC., COUNTRYWIDE HOME : LOANS, INC., and BANK OF NEW : YORK MELLON, : Defendants. : : - - - - - - - - - - - - - - - - -x DEPOSITION OF THE BANK OF NEW YORK MELLON, through its designee RENEE D. HERTZLER, a witness called on behalf of Patricia L. Starr, taken pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, before Jane M. Williamson, Registered Merit Reporter and Notary Public in and for the Commonwealth of Massachusetts, at the Offices of Doris O. Wong Associates, Inc., 50 Franklin Street, Boston, Massachusetts, on Friday, February 19, 2010, commencing at 2:08 p.m. PRESENT: Nickless, Phillips and O'Connor, P.C. (by James L. O'Connor, Jr., Esq.) 625 Main Street, Fitchburg, MA 01420, for the Plaintiff Patricia L. Starr. (Continued on next page)

PRESENT: (Continued) Goodwin Procter LLP (by Catalina E. Azuero, Esq.) Exchange Place, Boston, MA 02109, for the Defendants.

* * * * *

1 2 WITNESS 3 4 5 6 BY MS. AZUERO 7 8 9 RENEE D. HERTZLER BY MR. O'CONNOR

I N D E X DIRECT CROSS REDIRECT RECROSS

4 54

60

* * * * 10 E X H I B I T S 11 NO. 12 1 13 14 15 16 17 3 18 19 20 21 22 23 24 * * * * 4 5 Document entitled "Interest Only Adjustable Rate Note" Affidavit of Renee Hertzler Document entitled "Response to Debtor's Objection to the Proof of Claim of Bank of New York" 29 35 44 2 2A 2B Notice of Deposition of Bank of New York Mellon Proof of Claim Power of Attorney Document entitled "Corporate Resolution" 9 10 11 17 DESCRIPTION PAGE

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P R O C E E D I N G S RENEE D. HERTZLER a witness called for examination by counsel for Patricia L. Starr, having been satisfactorily identified by the production of her driver's license and being first duly sworn by the Notary Public, was examined and testified as follows: DIRECT EXAMINATION BY MR. O'CONNOR: Q. Good afternoon, ma'am. Could you please

state your name and your business address. A. Renee Hertzler, 7105 Corporate Drive,

Plano, Texas. Q. A. Q. And who is your employer, ma'am? Bank of America. Bank of America. Is that the complete name

of your employer? A. I work in the home loan servicing -- Bank

of America Home Loan Servicing. Q. Is it Bank of America Corporation or is it

a subsidiary of Bank of America? A. Yes, it's a subsidiary -- well, it's Bank

of America Home Loan Servicing, which is part of Bank of America.

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Q.

And Bank of America Home Loan Servicing, is

that the complete name of your employer? A. Q. Yes. My name is Jim O'Connor, and I represent

Patricia Starr, who is the debtor in this Chapter 13 bankruptcy, as well as the plaintiff in the adversary proceeding. I'm going to take your deposition today. If I ask you a question, I'm going to ask you to respond verbally. If you want the question repeated, we can repeat the question for you. If at any time you want to take a break, just ask to take a break. As long as there's no question pending, we'll be happy to accommodate. As far as stipulations are concerned, we're going to waive -- reserve all objections until the time of trial? MS. AZUERO: That's fine. MR. O'CONNOR: And do you want to have an opportunity to have your client read the transcript? MS. AZUERO: I do. We're waiving all except for objections to form, right? MR. O'CONNOR: Correct. And you'll make arrangements with the reporter to get a transcript?

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MS. AZUERO: I will. Since we're putting her forward as the 30(b)(6) for Bank of New York for specific topics and for Bank of America for specific topics, I just want to be clear when you're asking her questions, however you want to do it, but I want to know -- or she needs to know if she's answering personally or as the representative for Bank of New York or as the representative for Bank of America. MR. O'CONNOR: We'll address that when we come to it. BY MR. O'CONNOR: Q. So is there anything that you want me to

clarify at this time? A. Q. I don't think so. If you could briefly just summarize your

educational background. A. Q. A. Q. school? A. Q. A. 1985. And how old are you, ma'am? 42. I'm a high school graduate. And any education beyond high school? Minimal college. I didn't graduate. What year did you graduate from high

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 '09.

Q.

Are you taking any medications today or is

there any condition that would cause you difficulty in answering questions? A. I'm taking antibiotics, but I would not

have any difficulty answering questions. Q. Then you're physically prepared to go

forward with the deposition? A. Q. before? A. Q. A. Q. A. Q. A. Yes. How many times? One. Where was that? Dallas, Texas. And when was that? The deposition was in I believe July of Yes. Have you ever testified at a deposition

Q.

And was that in connection with your

employment? Were you testifying on behalf of your employer or was it for a personal matter? A. Q. It was for employment. And was it on behalf of Bank of America

Home Loan Servicing?

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A. Q.

Countrywide Home Loans. Countrywide, all right. Are you also employed by Countrywide?

A. Q.

No. And why was it in July of '09 you were

testifying on behalf of Countrywide? A. It was a lawsuit from the time I worked for

Countrywide. Q. A. Q. A. Q. A. Q. A. Q. Have you testified in court before? Yes. How many times? Once. When was that? July of '09. And was that the same proceeding? Yes. The Countrywide matter. We're going to start with the Bank of New York Mellon 30(b)(6) deposition. MS. AZUERO: I just want to be clear that she won't be testifying as to Topics 3 or 5. MR. O'CONNOR: Do you want to mark this as the first exhibit.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q.

(Document marked as Exhibit 1 for identification) If you could just take a moment and take a

look at the document that's been marked as Exhibit 1. A. Q. A. Q. A. Q. A. Q. Okay. (Witness reviews document) Okay. Have you seen that document before? No. This is the first time you've seen it? Yes. You've had an opportunity to read it? Yes. Do you consent to testify today on behalf

of Bank of New York Mellon concerning the topics set forth on that notice, other than as your counselor has indicated Topics No. 3 and 5? A. Q. Yes. Did you speak with anyone today in

preparation of your testimony? A. Q. A. Q. A. Yes. Who did you speak with? My attorney. And who is that? Catalina Azuero.

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Q.

And other than your attorney, did you speak

with anyone else? A. Q. No. When did you first learn that you'd be

testifying at this deposition? A. November. Q. Have you looked at any documents in Roughly, I want to say, sometime in

preparation for your testimony today? A. Q. A. Yes. What documents did you look at? I looked at assignments, an affidavit,

mortgage note, Proof of Claim. Q. A. Q. A. And when did you look at those documents? I looked at them today. Was that the first time you looked at them? I briefly looked at them when I originally

received them, which was probably around the time that I found out about this. MR. O'CONNOR: I'll mark that as No. 2. (Document marked as Exhibit 2 for identification) Q. The document that's been handed to you

marked as No. 2, is that the Proof of Claim in this

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case? A. Q. Yes, it is. Now, if you look at the first page, fourth

column down, where it states the name of creditor, do you see that? A. Q. Yes. Is that the party on whose behalf you're

testifying today? A. Q. Yes. And are you testifying on behalf of that

party pursuant to a Power of Attorney? A. Q. Yes. I'm going to hand you a document and ask

you if that's the Power of Attorney that you've made reference to. A. Yes, it is. MR. O'CONNOR: Why don't we just mark this one as 2A. (Document marked as Exhibit 2A for identification) MS. AZUERO: She's also testifying pursuant to Power of Attorney and because Bank of New York has chosen her to designate under the Federal Rules of Procedure.

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Q.

The document marked as 2A is the Power of

Attorney that you referred to. Does your name appear on that Power of Attorney? A. Q. No. Do you know if that Power of Attorney has

been recorded anywhere in the Commonwealth of Massachusetts? A. Q. Can you repeat that, please. Yes. Do you know if that Power of Attorney

has been recorded anywhere in the Commonwealth of Massachusetts? A. Q. I don't know. You don't know if it's been recorded at any

Registry of Deeds in Massachusetts? A. Q. No, I don't. Do you know if it's been recorded with the

Secretary of State for the Commonwealth of Massachusetts? A. Q. I don't know. If you find out that it has, will you be

willing to let us know? A. Q. I'll let my attorney know. If you look at the first page, line Item

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No. 5, about three-quarters of the way down, "Total amount of claim at the time case filed." Do you see that? A. Q. Yes. And in the middle of the page to the right,

do you see an amount? A. Q. correct? A. Q. is? A. Yes. That's the principal balance, the That's correct. Do you know what the basis for that amount Yes, I do. In the amount of $176,645.19; is that

interest, escrow shortage, foreclosure fees and costs, property inspections and uncollected late charges. Q. A. Q. A. Q. Owed to whom? Owed to Bank of New York. The party identified as "the creditor"? That's correct. Now, if you turn towards the second to the

last page of the Proof of Claim, where it says "Assignment of Mortgage," do you see that? A. Yes.

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Q.

Where it says, "This assignment has an

effective date of May 12, 2008." Do you see that? A. Q. Yes. Now, is the party for whom you're

testifying today identified on that page? A. Q. A. York. Q. A. Could you read it in its entirety. "The Bank of New York as Trustee, for the Yes. Where is it identified? In the second paragraph, the Bank of New

Benefit of the Certificateholders CWABS Inc., Asset-Backed Securities" -- I'm sorry, "Certificates, Series 2007-5ES, Series 2007-5 ('Assignee') all Assignor's right, title and interest in and to the following:" Q. So that's the party that is identified on

that page as the "assignee"? A. Q. Yes. And that's the party for whom you're

testifying today? MS. AZUERO: Objection. Q. You can answer. Is that the party for whom you are

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testifying today? MS. AZUERO: You can answer. A. Q. Yes. And is that the party that's the creditor

on the first page of the Proof of Claim? A. Yes. MS. AZUERO: Objection. A. 2007-5ES. Q. A. Q. And what does the exception mean? I don't know. Now, if you look on that May 12 assignment, Yes, with the exception of the Series

the second to the last page, about two-thirds of the way down you'll see the name "Kimberly Dawson"? A. Q. A. Q. A. Q. Yes. Do you know who Kimberly Dawson is? Yes. Who is she? She's a vice president at Bank of America. Did you speak with her today -- I'm sorry,

strike that. Have you spoken to her in connection with this matter? A. No.

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Q.

When was the last time you spoke with

Kimberly Dawson? A. Q. I don't remember. Are you prepared to testify today

concerning her authority to execute this assignment? A. Q. Yes. And what is it you know about her authority

to execute the assignment? A. Q. A. I know she has a resolution for MERS. And what does the resolution say? It indicates that she has the ability to

act on their behalf. Q. A. Q. Does it identify her personally? Not that I'm aware of. So how do you know that it provides her

with the authority to act on its behalf? A. I read it; that we're able to act as an

agent for them. Q. A. Q. A. When did you read it? I read it today. Is this a copy of what you read? Yes. MR. O'CONNOR: Let's mark that as 2B.

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(Document marked as Exhibit 2B for identification) The document that is marked as 2B,

"Corporate Resolution," is that the document you were just referring to? A. Q. Yes. And does Kimberly Dawson's name appear

anywhere on that document? A. Q. No. And today was the first time you had ever

seen that document? A. Q. A. Q. A. Q. Yes. Do you recognize Ms. Dawson's signature? Yes, I do. How do you recognize it? I've seen it before. You have, okay. Were you present on the date that she signed the May 5, '09 assignment? A. Q. No, I did not see her sign it. Do you know if a notice of that May 5, '09

assignment was ever sent to Patricia Starr? A. Q. I don't know. Now, if you would please turn to the last

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page of the Proof of Claim. And it's a document labeled as "Assignment of Mortgage." Do you see that? A. Q. see that? A. Q. Yes. And is the party on whose behalf you're Yes, I do. It's dated as of July 10 of '09. Do you

testifying today identified on this assignment of mortgage? A. Q. A. Yes. Where is that party identified? It's identified in the first paragraph, the

Bank of New York. Q. The party identified as "assignor," is that

who you're testifying for today? A. Q. Yes. Are you testifying today on behalf of the

party identified as "assignee" in the second paragraph? A. Q. Yes. Yes, you are, okay. And is the party identified as "assignor" identical to the party identified as "assignee"?

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A.

No. MS. AZUERO: I'm going to object as to the

legal structure of the Bank of New York. It's not something that she is supposed to testify to. MR. O'CONNOR: I don't think that was my question. MS. AZUERO: That's what your question is going to. Q. Is the party identified on the Assignment

of Mortgage dated July 10 of '09, the party identified as the "assignor," is that the creditor in this case? A. Q. Yes. Is the party identified on that assignment

as the "assignee," is that the creditor in this case? A. Let me correct myself, please. The

assignor is not the creditor, but the assignee is the creditor. Q. A. Q. Okay. Are you certain about that? Yes. So the assignor, the party identified as

the "assignor" on the July 10, '09 assignment is the party that's identified as the "creditor" on Page 1

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of the Proof of Claim. Is that your testimony? A. Yes. MS. AZUERO: That was not her testimony. She corrected herself. A. Claim. Q. The assignee is identified. Let's make The assignee is identified on the Proof of

sure we get this clear. Page 1 of the Proof of Claim identifies a creditor. Do you see that? A. Q. Yes. And the party identified as the "creditor,"

is that the same party that's identified as an "assignee" on the July 10th assignment? A. Q. A. Yes. Or "assignor"? The assignee on the assignment is the

creditor, which is outlined on Page 2 of the Proof of Claim. Q. All right. Do you know why the assignment on July 10th of '09 was executed? A. Q. Yes. Why?

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A.

It was to correct the assignment that

Kimberly Dawson had executed, because there was an error in how the creditor's name was outlined in the assignment. Q. What was the error on the Kimberly Dawson

May 5th assignment? A. Q. A. Q. It outlined Series 2007-5ES. It identified that party as the assignee? Yes. So the May 5, '09 assignment identified the

wrong assignee; is that correct? A. Assignor -- I'm sorry, let me correct

myself. Assignee. Q. Do you want to just clarify what the error

was on the May 5, '09 assignment. A. Yes. On the assignee, it indicated "Series

2007-5ES," which was incorrect. Q. The assignee identified on the May 5, '09

assignment was incorrect. A. Q. Correct. And the July 10 assignment -- July 10 of

'09 corrected that by identifying the correct assignee? A. Correct.

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Q.

And the assignee identified on the July

10th, '09 assignment is the creditor on Page 1 of the Proof of Claim. A. Q. Correct. Now, you are the person who signed the July

10, '09 assignment; is that correct? A. Q. Yes. And that's your signature -- if you look at

the last page of the Proof of Claim, the assignment dated July 10, '09, that is your signature, "Renee Hertzler, Vice President," correct? A. Q. of '09? A. Q. I don't remember. You don't remember. Do you remember where you were when you signed this document? A. Q. A. Q. A. Not specifically. Do you have an office? Yes. Where is your office located? It's located at 7105 Corporate Drive in Yes. And did you sign this document on July 10th

Plano, Texas.

23

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Q. A.

And how long has that been your office? I've been in that office since February of

Q. work? A. Q. A. Q.

And do you travel in connection with your

Generally, no. But occasionally you do? Yes. And do you travel so much that you wouldn't

necessarily recall where you traveled to in July of '09? A. Q. Correct. So in July of '09, as you testify here

today, do you recall any of the places that you reported for work during that month? A. Well, I know I reported to the 7105

Corporate Drive, and I would have signed this there. It's just I may not have signed it in my office. Q. Oh, okay. But if you signed it, you signed

it in Plano, Texas? A. Q. A. Q. Yes. In the building where you work? Correct. But you don't remember if you signed it on

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July 10. A. Q. '09? A. Q. '09? A. Q. A. Q. No. No, you don't remember or No, you didn't? I don't remember when I signed it. But there was one assignment that was I don't remember. Do you remember if you signed it in June of I don't remember. Do you remember if you signed it in July of

signed, according to this document, on May 5th of '09 by Kimberly Dawson, correct? A. I don't know if she specifically signed it

that day, but this is the assignment that she signed. Q. of '09? A. Q. A. Q. I don't. And you don't know where she signed it. I don't know. And you don't know if anybody was present You don't know if she signed it on May 5th

when she signed it. A. I don't know.

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Q.

Well, do you remember if anybody was

present when you signed the document, the July 10th assignment? A. Q. A. Q. A. I don't know. Do you sign a lot of these documents? Yes. How many do you sign in a day? I don't know specifically in a day.

Sometimes I may not get any, and some days I might get a lot. Q. A. month. Q. A. Q. Per month. Yes. What's the procedure that you use to sign What's "a lot"? The last I heard, roughly 7 or 8,000 per

them? Do you sign them as a batch? Do you sign them as they pass your desk? How does that work? A. Most of the time I sign them in batch.

Every once in a while I'll sign one or two here or there. Q. And when you sign them, is there generally

somebody present with you? A. Generally, no.

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Q.

Now, the July 10, '09 assignment contains a

jurat just below your signature. Do you see that? A. Q. see that? A. Q. A. Q. Yes. Do you know who Sandra Rivers is? Yes. When was the last time you spoke with Yes. And it appears to be Sandra Rivers. Do you

Sandra Rivers? A. I generally don't speak to her. I just

know of her. Q. Do you know if she recognizes your

signature? A. Q. A. Yes, she does. How do you know that? She works in the Document Execution Team.

And they are trained to familiarize themselves with our signatures. Q. A. Q. A. Q. They're trained? Yes. How are they trained? I don't know. Well, how do you know that they're trained?

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A. Q. A. Q. A. Q.

That's what I've been told. Who told you that? The Document Execution Team. Is there a name? David Perez. So as you're testifying here today, was

Sandra Rivers present when you signed the July 10, '09 assignment? A. Q. No. She was not. And you signed it "Renee Hertzler, Vice President." Do you see that? A. Q. Yes. Why did you put "Vice President" next to

your name? A. The Document Execution Team actually stamps

that on there for us. Q. after? A. Q. Before. So when you signed it, your name appeared Do they do that before you sign it or

below you, with the title "Vice President." A. Q. Correct. And the entity just above your name, that

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is the assignor; is that correct? A. Q. Yes. On July 10th of '09, were you a vice

president of that entity? A. Q. A. Yes. You were. Let me correct myself. I'm a Vice

President of Bank of America. Q. A. Q. But Bank of America is not the assignor. Correct. Bank of New York Mellon, formerly known as

the Bank of New York as Trustee, is the assignor? A. Q. Correct. On July 10th of '09, were you a vice

president of the Bank of New York Mellon, formerly known as the Bank of New York as Trustee? A. Q. entity? A. Q. No. But when you signed it, it clearly No. Have you ever been a vice president of that

identified the Bank of New York Mellon, formerly known as the Bank of New York as Trustee, as the party for whom you were signing; is that correct?

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A. Q.

Correct. And it clearly identified you as its vice

president, correct? A. Yes. MR. O'CONNOR: This is going to be 3. (Document marked as Exhibit 3 for identification) Q. The document that's been handed to you

marked as Exhibit 3, if you could just take a look at that, please. A. Q. A. Q. (Witness reviews document) Have you had a chance to look at it? Briefly. Is that the same promissory note that is

part of the Proof of Claim filed in this case? A. Q. A. Q. page? A. Q. A. Q. Yes, it is. And it's in the amount of 152,500? Yes. And it's signed by Patricia Starr, the Yes. It's a copy? Yes. It's dated February 23, 2007 on the front

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debtor? A. Q. Yes, it is. And that note is payable to Countrywide

Home Loans, correct? A. Q. correct? A. Q. Correct. And the document that was marked as Exhibit Correct. It's not payable to the Bank of New York,

3, the last page, contains something that's missing from the note that was attached to the Proof of Claim. Do you see that? A. Q. corner. A. Q. Okay. Do you see that? MS. AZUERO: I'm just going to object that this is not part of the supporting documents of the Proof of Claim. MR. O'CONNOR: I understand. Q. A. Do you know who Michele Sjolander is? I don't. MS. AZUERO: Again, I'm just going to be (Witness reviews document) I'll just point you to the bottom right

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clear, she would now be answering on behalf of herself and not on behalf of the Bank of New York. This isn't part of the documents in the 30(b)(6) notice. Q. Has Bank of New York Mellon ever had

possession of the original of this promissory note? A. Q. A. Q. I don't know. You don't know? I don't know. And again, do you know who Michele

Sjolander is? A. Q. A. No. Do you know when she signed this? I don't -MS. AZUERO: I'm going to object. Again, this isn't within her testimony as the Bank of New York deponent. She can answer for herself. MR. O'CONNOR: I'm not sure I agree. MS. AZUERO: I'm just putting on the record this is not within the deposition notice. Q. Do you know what the location of the

original promissory note was on July 15 of 2009? A. it. From my understanding, Bank of New York had

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Q. A. Q. A. Q. A.

Why is it your understanding? That's what I was told. Who told you? My attorney. Did anyone else tell you that? No. MS. AZUERO: I'm going to ask for a brief

break. MR. O'CONNOR: Let's take a break. (Recess taken from to 2:45 to 2:53) MR. O'CONNOR: The topics on this 30(b)(6) deposition include the location and chain of possession and custody of the promissory note and mortgage that are the basis of the claim in this matter. Is Ms. Hertzler prepared to testify concerning the location of the promissory notes? MS. AZUERO: Yes. BY MR. O'CONNOR: Q. On July 15, 2009, where was the original

promissory note attached to the Proof of Claim located? A. From my understanding, Bank of New York had

custody of it.

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Q. A. Q. A. Q. A. Q. A. Q. memory? A. Q.

Where did Bank of New York have custody? In their storage facility. Where is that facility located? I don't recall. You don't recall or you don't know? I don't recall. But you knew at one time? I think so. What would you need to do to refresh your

Go back and look at some documentation. Why didn't you look at that documentation

before you came here today? A. Q. I did, but I don't remember. You did, but you don't remember. When did you look at it? A. Q. A. Q. A. office. Q. Boston? Your attorney's office. Right here in This morning. Where is it? I don't have it with me. Where is it? It's back at the office, my attorney's

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A. Q.

Uh-hum. Do you want to take a break at some point,

go look at it and then come back? MS. AZUERO: I can have Erin fax to me the location. We don't have the exact address. We do have the location. Q. But Ms. Hertzler was looking at documents. Do the documents that you were looking at have the address? MS. AZUERO: It was an email I sent her with the location. I didn't get the exact address. Q. A. Q. New York? A. Q. I don't know if they specifically own it. All right. Is it in the United States? A. Q. A. Yes. Is it in Texas? I don't believe that was the state that it Do you know who owns the storage facility? No, I don't. Do you know whether it's owned by Bank of

was located it. Q. A. Do you know who Sharon Mason is? No, that name doesn't sound familiar.

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Q. A. remember. Q.

Have you ever spoken with her? I don't believe so. If I did, I don't

Now, you filed an affidavit in this case.

Do you recall that? A. Yes. MR. O'CONNOR: Would you mark that as the next exhibit. (Document marked as Exhibit 4 for identification) Q. filed? A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Yes. Exhibit 4, correct? That's correct. And that's your signature on the bottom? Yes. Do you recall who prepared this affidavit? It was sent to us by Shawn Masterson. Who is Shawn Masterson? He's the attorney, bankruptcy attorney. Do you believe he prepared this? I don't know. It came from his office. Did it go directly to you? Is that a copy of the affidavit that you

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A. Q. A.

No. Who did it go to before you? Actually, I take that back. I recall that

he sent it through email to myself and Sandra Rivers. Q. A. Q. Do you recall when? I don't remember specifically. And Sandra Rivers is the person who

notarized your signature on the July 10th assignment? A. Q. Right. Do you know if anyone else was provided

with this affidavit? A. Q. A. Yes. Who? I had forwarded it to David Perez. And I

don't know if I forwarded it to anybody else. Q. A. And who is David Perez? He's a manager over at the Document

Execution Team. Q. A. Q. A. Is he your boss? Is he your supervisor? No. Who is your supervisor? Jeannette Grodsky.

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Q. A. Q.

And how long has she been your supervisor? Since February of 2007. Do you know if Ms. Grodsky was provided

with a copy of this affidavit? A. Q. A. Q. A. Q. A. Q. read it? A. I typically don't read them because of the I don't believe so. And you signed this affidavit. Correct. Did you read it before you signed it? No. You did not. No. Is there a particular reason why you didn't

volume that we sign. And we have the Power of Attorney and also the Corporate Resolution. So part of the process is that we don't read them before we sign them. Q. A. Q. A. Q. A. You don't read them, meaning affidavits? Documents. Documents. Correct. Any documents. Correct. We have a team of people who

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screen them for us and prepare them for us to sign. Q. So you're in the habit of signing documents

without reading them. A. Q. A. Q. That's correct. Including this affidavit. That's correct. And you see this affidavit was signed under

oath. Do you see that? A. Q. Yes, I do see that. Would you read out loud the first paragraph

of the affidavit. A. "That I am the Vice President of The Bank

of New York Mellon, formerly known as the Bank of New York as Trustee, for the Benefit of the Certificateholders, CWABS, Inc., Asset-Backed Certificates, Series 2007-5ES, Series 2007-5." Q. A. Is that statement true? No, but I have the Power of Attorney as a

vice president. Q. A. So it's false? I'm a vice president of Bank of America,

but I have the Power of Attorney -Q. I didn't ask you if you had a Power of

Attorney. The statement in Paragraph 1 is you're a

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vice president of the Bank of New York Mellon. And I'm asking you if that statement was true. A. York. Q. Have you ever been a vice president of the No, I'm not a vice president of Bank of New

Bank of New York? A. Q. A. Q. A. Q. A. No. So it was false when you signed it. Yes. And it's always been false. Correct. Would you read out loud Paragraph 2. "That as a vice president of The Bank of

New York Mellon, formerly known as the Bank of New York as Trustee, for the Benefit of the Certificateholders CWABS, Inc., Asset-Backed Certificates, Series 2007-5ES, Series 2007-5, I am, among other things, authorized to execute assignments of mortgages." Q. it? A. New York. Q. Has it ever been true? No, I'm not a vice president of the Bank of And was that statement true when you signed

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A. Q. A. Q. A.

No, I've never worked for them. It's always been false. Correct. And would you read out loud Paragraph 4. "That the jurat on the Assignment should

have indicated that I was a Vice-President of The Bank of New York Mellon, formerly known as The Bank of New York as Trustee, for the Benefit of the Certificateholders, CWABS, Inc., Asset-Backed Certificates, Series 2007-5ES, Series 2007-5." Q. A. Q. A. Q. A. Q. Was that statement true when you signed it? No. It's never been true? That's right. It's always been false. That's right. Did you know why you were signing this

affidavit? A. Q. A. Yes. What was your understanding? The assignment that I signed prior had a

mistake in it, in the jurat. It said that I was a vice president of MERS, and so the attorney was making an attempt to correct that problem.

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Q.

And in attempting to correct that problem,

the affidavit contained at least three false statements, right? MS. AZUERO: Objection. She can't know what the attorney was trying to do. A. I'm not an attorney, and I'm not trained on

how to word these documents. Q. But you don't need to be an attorney to

know the truth, right? A. Q. Attorney. You don't need to be an attorney to know truth from false, correct? A. That's correct, but I don't know how to Right. But I have Power of Attorney -I didn't ask you about the Power of

word the documents. Q. A. You don't know how to word the truth? Well, since I had Power of Attorney for

Bank of New York, I don't know the proper way to word the documents for the Power of Attorney. Q. Well, does it say anywhere in your

affidavit "Power of Attorney"? A. Q. No. And were you prevented in any way from

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inserting into this affidavit the words "Power of Attorney"? A. No. MS. AZUERO: Jim, she's already told you she didn't read -Q. Did you know that this document was going

to be filed in the U.S. Bankruptcy Court? A. Q. No. Do you see at the very top of the document

where it says "United States Bankruptcy Court, District of Massachusetts"? A. Q. Yes. Did that give you any indication that it

was going to be filed in a bankruptcy case? A. Q. A. Q. I didn't look at it when I signed it -You did not look at it at all? -- so I didn't know at the time. Let me just go back to the Proof of Claim

for a minute in your July 10th assignment. So where you signed that document as a vice president of the Bank of New York Mellon, that was false, correct? A. Q. Correct. And how many other documents have you

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signed in the capacity as a vice president of the Bank of New York Mellon? A. Q. A. I don't know. More than one? Yes -- well, I don't know. I don't know

how many documents I've signed. Q. But have you signed other documents as a

vice president for the Bank of New York Mellon? A. Q. A. Q. I don't know specifically. Maybe yes, maybe no? Correct. Do you know if any other documents that

you've signed as a vice president of Bank of New York Mellon have been filed in public court proceedings? A. Q. I don't know. Do you know if they were signed and

attested to under oath? A. Q. I don't know. Do you know if they were filed in any

Registries of Deeds? A. I don't know. MR. O'CONNOR: Let's take a break. (Recess taken from 3:06 to 3:13)

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BY MR. O'CONNOR: Q. So the copy of the promissory note that

contains the stamp of Michele Sjolander, I just want to clarify, do you know when that stamp appeared on the original of this promissory note, ma'am? A. I don't. MR. O'CONNOR: The next document is the "Response to Debtor's Objection to the Proof of Claim of Bank of New York." If you could mark that, please. (Document marked as Exhibit 5 for identification) MS. AZUERO: I'm going to object that it's beyond the scope, so she can't answer on behalf of Bank of New York. MR. O'CONNOR: She can answer if she knows. MS. AZUERO: She can answer on behalf of herself. MR. O'CONNOR: I don't have a copy of this. This is a document marked as Exhibit 5. I'm going to ask if you can read the yellow highlighted portion of Paragraph 8. A. "Creditor admits that the jurat indicates

that the assignment was signed by an officer of MERS

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as nominee for Countrywide Home Loans, but that this was obviously a typographical error, as the assignment was clearly executed by Renee Hertzler as Vice President of The Bank of New York Mellon, formerly known as The Bank of New York Mellon as Trustee." Q. What you just read is false; isn't that

correct, Ma'am? MS. AZUERO: I'm going to again clarify your answer is on behalf of yourself, not the bank. A. Q. A. Q. That's correct. It's false. Right. And with regard to your affidavit, do you

know if this affidavit has ever been amended? A. I don't know if it's been done yet, but I

know that it's going to be done. Q. A. Q. A. Q. A. Q. How do you know that? That's what I was told. Who told you that? My attorney's office. And which attorney is that? Catalina Azuero. Do you have an attorney representing you

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individually in connection with this matter? A. Q. No, not personally. Have you spoken -- strike that. Do you want to have an attorney representing you? MS. AZUERO: I'm going to again be clear that this is on her behalf and not on behalf of the Bank of New York. Q. Just to be clear, Ms. Azuero represents the

defendants in the case. She doesn't represent you. Do you want to have an attorney representing your own personal interests? A. Q. I don't know. You don't know? MS. AZUERO: I'm going to object. This is beyond anything in the deposition. It's not relevant. You're putting her on the spot. A. Q. Do I need to? I'm asking you if you want a lawyer to

represent you personally. A. Q. Not at this time. Okay. The second page of your affidavit,

could you just turn to that, please. A. (Witness complies)

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Q.

Was George McMillan present when you signed

that affidavit? A. Q. No. He wasn't. Was anyone present when you

signed it? A. Q. A. Myra. Q. A. Q. A. Q. Is that a co-worker? Yes. She works in my building. But George McMillan wasn't present? That is correct. Even though it says, On October 9, 2009, Yes. Who? A lady by the name of I believe it's Julia

you personally appeared before -- he personally appeared before you. It says, "On October 9, '09, personally appeared before me, the above-named Renee Hertzler..." That isn't true? A. No, he wasn't there. MR. O'CONNOR: I want to suspend and then return to the issue of the address of that storage facility. MS. AZUERO: You want to suspend the entire deposition?

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MR. O'CONNOR: I want to suspend with regard to the 30(b)(6) of Bank of New York. MS. AZUERO: As to just that particular -you're going to suspend the entire deposition even though she can answer any other question you have? MR. O'CONNOR: I'm going to move on to the Bank of America -MS. AZUERO: She's only testifying on behalf of Questions 11 and 12. We have another witness -MR. O'CONNOR: You have another witness? MS. AZUERO: We do. I want to be clear, so the only thing that you want to know is the address. You want to ask her about the address. Because she's here to testify on everything else, and we're not going to bring her back. MR. O'CONNOR: I want to ask her about the address, and I want to ask her about the owner of the address and when it was there and the location of the note and where the note went from, from point to point. MS. AZUERO: She knows that it went from Countrywide Home Loans storage to Bank of New York

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storage.

She can testify to that.

She doesn't have

the exact addresses, but those things are answering your question. the deposition. MR. O'CONNOR: information. MS. AZUERO: We will provide it to you, and I want to know that I don't think it's worth suspending

you can ask her about the process, which she can testify to, and that it is in the storage facilities. But the exact addresses are not the

only answers that she can possibly give in response to your questions and to suspend the deposition. MR. O'CONNOR: Let's take another break.

(Discussion off the record) BY MR. O'CONNOR: Q. So Ms. Hertzler, you don't know where the

original promissory note was, other than in a storage facility on July 15th of '09? A. Q. That is correct. And you don't know where that storage

facility was located? A. Q. A. Well, California. Oh, now you say it's California. Yeah, that's what we discussed.

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Q. facility? A. Q.

And do you know who owned that storage

I don't. So you don't know if Bank of New York

Mellon owned that facility? A. Q. That's correct. And you don't know if Bank of New York

Mellon leased space in that facility? A. Q. I don't know. And you understand that that was one of the

topics of today's deposition? MS. AZUERO: I'm going to object and

reiterate that she's provided you with the location of the storage facility -MR. O'CONNOR: MS. AZUERO: objection? MR. O'CONNOR: MS. AZUERO: Go ahead. Thank you. And I will -Can I please finish my

I'm going to say that she provided you with the location of the facility of Bank of New York. The ownership of the facility is irrelevant. long as Bank of New York uses it to store its documents, whether it owns it or leases it, it's not As

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relevant.

It doesn't matter.

It's not relevant to

the location or the possession of Bank of New York. Lots of people put things where they rent them -whether they own or rent them. I'm going to say that she's provided you with the location of the note. And I will also say

we will provide you with additional information as follow-up information, not as any sort of admission that this isn't sufficient information as we've collected it. MR. O'CONNOR: And I will say on the record

that testifying that it was in a storage facility on July 15th of '09 is insufficient; that I am reserving my right to suspend and recall the witness, because I want to know who owned the facility. facility. facility. I want to know the address of the I want to know when it arrived at that I want to know for how long it stayed in

that facility. MS. AZUERO: until we pulled it. MR. O'CONNOR: MS. AZUERO: know. Are you testifying? No, but you said you wanted to It was in that facility up

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MR. O'CONNOR: MS. AZUERO: we provided it to you. it.

Who pulled it? Bank of America pulled it, and You know that. You've seen

We gave it to you on February -- whatever the At

date of Patricia Starr's deposition was.

Patricia Starr's deposition I provided you the collateral note for your inspection. MR. O'CONNOR: MS. AZUERO: MR. O'CONNOR: America's possession. MS. AZUERO: No, it was not. Bank of Bank of America pulled it? Yes. So it was in Bank of

America has authority to pull documents on behalf of Bank of New York. MR. O'CONNOR: All right. Again, for the They were

record, I have additional questions. identified in the topics. insufficient.

And these responses are

So I will suspend at this point in time. If between now and the end of the day the information becomes available, I'd be more than happy to reopen and try to resolve these questions. But I'm not satisfied that the deponent has been properly prepared and is a suitable witness for

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purposes of this deposition. MS. AZUERO: For purposes of all the topics of the deposition or for Topic No. 2? MR. O'CONNOR: Of the topics that were just mentioned. MS. AZUERO: That's purely Topic No. 2. Are you objecting to any of the other topics? MR. O'CONNOR: No. MS. AZUERO: Do you only want additional information on Topic No. 2? MR. O'CONNOR: Again, I don't know what will happen and what the questions that I want to ask would lead to. I don't know what the responses would lead to. You've indicated that you want to ask some rehabilitative questions. I don't know where you're going with those questions, so I'm not limiting it to No. 2. It appears to be that the issue is the ownership of that storage facility and the travel of the note, but I'm not going to limit myself to those topics. That's all I'm going to say on the record, because the purpose of this is not for attorneys to

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make statements on the record. You want to ask some rehabilitative questions; go right ahead. If between now and the end of business today we can get the information and we can resolve this, that would be fine, but I've said all I'm going to say on this. MR. O'CONNOR: I would like to ask Renee a few questions. I'd like to go off the record first, so I can prepare myself. (Recess taken from 3:29 to 3:36) CROSS EXAMINATION BY MS. AZUERO: Q. My name is Catalina Azuero. I represent

The Bank of America and Bank of New York as Trustee. I'm just going to ask you a few questions about the documents we went over today. Actually, let me show you these copies. I'm going to direct your attention to Exhibit 4. This is your affidavit that you signed. A. Q. Uh-hum. Was this affidavit -- did it come through

Shawn Masterson, the outside counsel's office, or did it come through your Document Execution Team? A. It originally came through Shawn

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Masterson's office, to our Document Execution Team. Q. Do you know if they verified it before they

gave it to you? A. Typically, they do. The normal process is

when documents come in, there's a spreadsheet that was prepared by our procurement team, and in conjunction with our legal department, to determine what entities were able to sign on behalf of, as an agent. And the Document Execution Team, their protocol is to review that spreadsheet to determine if we're authorized to sign. And if we are, then they'll prepare the documents for us to execute. If not, they will reach out to the legal department for validation on whether we can sign or not. And if they're unsure, then they'll contact the investor. Q. So that's when you're preparing documents

for a signature, such as like an assignment. A. Q. Correct. That's the standard protocol. But if it's this affidavit, which was just

sort of -- which was sort of a clarification, this was sent to you and to the Document Execution Team. Did Shawn send it to both; do you know? A. It was sent to myself and Sandra Rivers.

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Q.

So it was sent directly to you -- was the

reason that it was also sent to Sandra Rivers was because there was an affidavit for her as well? A. Q. this? A. Yes. It was because a correction needed to Yes. Were you told why you were having to sign

take place. Q. And you trusted the attorney to sign -- or

to word the document however that he saw fit? A. Q. Absolutely. Did you think that when you were signing

it, that there would be any misrepresentations in it? A. Q. No, I did not. And was there any strange circumstances

around the day that you signed it? A. Yes. I was on vacation, and I was called

in to sign this document. Q. So did you do it in the normal course of

your workday? A. sign. Q. To your knowledge, when Shawn sent it to No, this was an abnormal document for me to

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you, this didn't go through the normal process of verification, because it wasn't the sort of document that you would need to verify, like, Yes, I have authority; No, I don't have authority. A. Q. That's correct. I'm going to go back to Exhibit 2. It's a

Proof of Claim. And if you could go to the last page. This is the Assignment of Mortgage. When this would come in, who would receive it, typically? A. Typically, this would go directly to the

Document Execution Team. Q. And the Document Execution Team, did they

keep track of entities for which they have a Power of Attorney? A. Yes, there's that spreadsheet that I

mentioned. Q. And do you rely upon them to verify all the

kind of assertions within the legal documents that you sign? A. Q. Yes, absolutely. And when you signed this as vice

president -- you are a vice president of Bank of America; is that correct?

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A. Q.

That's correct. And when you signed it, that was your

understanding; that you were signing it as vice president of Bank of America? A. Q. That is correct. Notwithstanding the fact that it says

something otherwise? A. Q. That's correct. And when you signed this, you were

comfortable with the idea that you had the power to sign on behalf of the Bank of New York because you had the Power of Attorney? A. That's correct. MR. O'CONNOR: I'm going to object to the form of the question. Q. And you were comfortable that -- let me go

back, then. Did this assignment come in through the normal screening process at Bank of America? A. Q. Yes. So when you signed it, to your knowledge,

it had been screened by the Document Execution Team? A. Q. Yes. But the Document Execution Team does

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occasionally make mistakes? A. Q. It's possible. So even though there is an indication here

that, for instance, there's a series number that's incorrect, that those kind of accidents -- mistakes do happen? A. Q. Yes. But the power that you have to sign on

behalf of Bank of New York still exists? A. Q. Yes. And then my final question has to do with

the notarization process. Are you familiar with it? A. Q. Yes. Do the notaries -- strike that. Are the notaries familiar with the vice presidents of Bank of America's signatures? A. Q. A. Q. Yes. Are they familiar with you personally? Yes. Are they familiar generally with the vice

presidents of Bank of America? A. Q. Yes. Are they aware of when they are signing

documents -- or that they are signing documents?

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A. Q.

Yes. Does Bank of America have a system in place

where the notaries sign -- notarize documents for which they're familiar with the people who sign them? A. Yes. MS. AZUERO: I think those are all my questions. REDIRECT EXAMINATION BY MR. O'CONNOR: Q. Ms. Azuero just asked you a question about

the system that the notaries have concerning familiarity with the signatures? A. Q. Yes. How is it that you had knowledge of that?

Have you seen that system? A. Q. that? A. Just from talking to the Document Execution No. Personally, no. So how is it that you have knowledge of

Team management. Q. And who in the Document Execution Team

management has told you this? A. David Perez.

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Q. A. Q. A. Q. A. Q.

Anyone else? No. When did he tell you this? I don't remember. Was it recently? Maybe a month or two ago. And was there a particular reason that that

topic arose? A. Yes. I just wanted to get a better

understanding of the process. Q. A. Q. America? A. Q. Yes. Do you get it in a paper form or is it And why was that? For my deposition. And do you receive a paycheck from Bank of

electronic? A. Q. stub? A. We get an electronic notification where we It's electronic. Do you get any kind of paper form? Like a

can go and look at it online. Q. paycheck? Does it identify who is paying the

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A.

You know, I don't recall. I don't look at

Q. A. Q. A. Q.

Do you receive a W-2? Yes. And do you read the W-2? Briefly. Have you ever received a paycheck or a W-2

from the Bank of New York? A. Q. No. But you receive a paycheck and a W-2 from

the Bank of America? A. Q. That's correct. You testified that the affidavit -- I

believe you testified -- or you were asked if it was an abnormal document to sign. Do you recall that? A. Q. A. Yes. What do you mean by "abnormal"? It didn't go through the normal channels,

through the Document Execution Team. It was something that I was on vacation, and I was called to the office to come in and sign it, so that the attorney could record it. Q. So it was an unusual event to have to go

into the office?

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A. Q.

That's correct. And despite the fact that it was an unusual

event, you still chose not to read it very closely? A. That's correct. MR. O'CONNOR: Nothing further, subject to my earlier comments. MS. AZUERO: And to be clear, we will not be bringing Renee back to the extent Mr. O'Connor has questions. As we've stated, we have asked him to finish the questioning here today. (Whereupon, the deposition was suspended at 3:45 p.m.)

64

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 _______________ Notary Public

C E R T I F I C A T E I, RENEE D. HERTZLER, do hereby certify that I have read the foregoing transcript of my testimony, and further certify that said transcript (with/without) suggested corrections is a true and accurate record of said testimony. Dated at __________, this ____ day of ________, 2010.

_____________________

* * * * *

On this ____ day of ______________, 2010, before me, the undersigned Notary Public, personally appeared _____________________________ and proved to me through satisfactory evidence of identification, which was ______________________, to be the person whose name is signed above.

My commission expires: _____________________

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COMMONWEALTH OF MASSACHUSETTS) SUFFOLK, SS. )

I, Jane M. Williamson, CRR and Notary Public in and for the Commonwealth of Massachusetts, do hereby certify that there came before me on the 19th day of February, 2010, at 2:08 p.m., the person hereinbefore named, who was by me duly sworn to testify to the truth and nothing but the truth of her knowledge touching and concerning the matters in controversy in this cause; that she was thereupon examined upon her oath, and her examination reduced to typewriting under my direction; and that the deposition is a true record of the testimony given by the witness. I further certify that I am neither attorney or counsel for, nor related to or employed by, any attorney or counsel employed by the parties hereto or financially interested in the action. In witness whereof, I have hereunto set my hand and affixed my notarial seal this 10th day of March, 2010.

Notary Public Commission expires 2/28/2014

D I S C L A I M E R This transcript in any format is a confidential communication between Doris O. Wong Associates, Inc., a professional court reporting firm, and the parties to this matter and their counsel. Any reproduction or distribution of this transcript without the express permission of the parties is a violation of this confidentiality. To fulfill any request to the court reporter for an additional copy or copies from persons or entities without standing in this matter will require the consent of the parties and/or counsel and/or a court order for such delivery.