Preview
FILED: NEW YORK COUNTY CLERK 08/04/2022 12:56 PM INDEX NO. 650337/2013
NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022
Warren 4/2/21 Tr.
FILED: NEW YORK COUNTY CLERK 08/04/2022 12:56 PM INDEX NO. 650337/2013
NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
IN RE: PART 60 RMBS PUTBACK LITIGATION
_______________________________________
NOMURA ASSET ACCEPTANCE Index No.
CORPORATION ALTERNATIVE LOAN 777000/2015
TRUST, SERIES 2006-S3, by HSBC
BANK USA, NATIONAL ASSOCIATION,
in its capacity as Trustee
pursuant to a Pooling and IAS Part 60
Servicing Agreement, dated as
of July 1, 2006,
Plaintiff,
-against-
NOMURA CREDIT & CAPITAL, INC.,
Defendant.
_______________________________________
NOMURA CREDIT & CAPITAL, INC.,
Third-Party Plaintiff,
-against-
WELLS FARGO BANK, N.A., and
OCWEN LOAN SERVICING, LLC,
Third-Party Defendants.
_______________________________________
VOLUME II
VIDEOTAPED REMOTE DEPOSITION OF
SAMUEL WARREN
Friday, April 2, 2021
9:02 a.m. Eastern Daylight Time
Reported by:
GRETA H. DUCKETT, CCR, RPR, CRR, CVR-S, RVR-M-S
JOB NO.: SY1384
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NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022
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1 (Caption continued) 1 (Caption continued)
2 HSBC BANK USA, NATIONAL Index No. 2 NOMURA ASSET ACCEPTANCE Index No.
CORPORATION ALTERNATIVE 653390/2012
ASSOCIATION, in its capacity 650337/2013 3 LOAN TRUST, SERIES 2006-S4,
3 as Trustee of Nomura Home Equity by HSBC BANK USA, NATIONAL IAS Part 60
Loan, Inc., Asset Backed IAS Part 60 4 ASSOCIATION, solely in its
4 Certificates, Series 2007-2, capacity as Trustee,
by HSBC BANK USA, National 5 Plaintiff,
5 Association, as Trustee, 6 -against-
7 NOMURA CREDIT & CAPITAL, INC.,
Plaintiff, Defendant.
6 8 _____________________________________
-against- 9 NOMURA CREDIT & CAPITAL, INC.,
7 Third-Party Plaintiff,
NOMURA CREDIT & CAPITAL, INC., 10
8 Defendant. -against-
11
____________________________________ WELLS FARGO BANK, N.A., and
9 12 OCWEN LOAN SERVICING, LLC,
NOMURA CREDIT & CAPITAL, INC., Third-Party Defendants.
10 Third-Party Plaintiff, 13 ______________________________________
11 -against- 14 NOMURA HOME EQUITY LOAN, INC., Index No.
SERIES 2006-FM2, pursuant to a
653783/2012
12 WELLS FARGO BANK, N.A., and OCWEN 15 Pooling and Servicing Agreement,
LOAN SERVICING, LLC, dated as of October 1, 2006, by
13 Third-Party Defendants. 16 HSBC BANK USA, NATIONAL IAS Part 60
_____________________________________ ASSOCIATION, solely in its
14 17 capacity as the Trustee,
15 (Caption continued next page) Plaintiff,
18 -against-
16 19 NOMURA CREDIT & CAPITAL, INC.,
17 Third-Party Defendant.
18 20 ____________________________________
19 21 NOMURA CREDIT & CAPITAL, INC.,
20 Third-Party Plaintiff,
21 22 -against-
23 WELLS FARGO BANK, N.A., and OCWEN
22 LOAN SERVICING, LLC,
23 24 Third-Party Defendant.
24 ____________________________________
25 25 (Caption continued next page)
Page 250 Page 252
1 (Caption continued) 1 (Caption continued)
2 NOMURA ASSET ACCEPTANCE Index No. 2 NOMURA HOME EQUITY LOAN, INC., Index No.
CORPORATION ALTERNATIVE LOAN 652619/2012 SERIES 2007-3, pursuant to a651124/2013
3 TRUST, SERIES 2006-S3, by HSBC 3 Pooling and Servicing Agreement,
BANK USA, NATIONAL ASSOCIATION, dated as of April 1, 2007, by
4 in its capacity as Trustee
IAS Part 60 4 HSBC BANK USA, NATIONAL IAS Part 60
pursuant to a Pooling and ASSOCIATION, solely in its
5 Servicing Agreement, dated as 5 capacity as Trustee,
of July 1, 2006, Plaintiff,
6 Plaintiff, 6
-against- -against-
7 7
NOMURA CREDIT & CAPITAL, INC., NOMURA CREDIT & CAPITAL, INC.,
8 Defendant. 8 Third-Party Defendant.
______________________________________ _____________________________________
9 9
10 NOMURA CREDIT & CAPITAL, INC., NOMURA CREDIT & CAPITAL, INC.,
Third-Party Plaintiff, 10 Third-Party Plaintiff,
11 -against- 11 -against-
12 WELLS FARGO BANK, N.A., and OCWEN LOAN 12 WELLS FARGO BANK, N.A., and OCWEN
SERVICING, LLC, LOAN SERVICING, LLC,
13 Third-Party Defendants. 13 Third-Party Defendant.
______________________________________ _____________________________________
14 14
15 (Caption continued next page) 15
16 16
17 17
18 18
19 19
20 20
21 21
22 22
23 23
24 24
25 25
2 (Pages 249 to 252)
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1 1 APPEARANCES
2 2 CONTINUED
3 3
4 4 ON BEHALF OF HSBC BANK USA, NATIONAL
5 ASSOCIATION, AS TRUSTEE:
5
6 April 2, 2021
6 MCKOOL SMITH
7 9:02 a.m. Eastern Daylight Time 7 BY: LAWRENCE STIERHOFF, ESQ.
8 8 One Manhattan West
9 Videotaped remote deposition of 9 395 9th Avenue, 50th Floor
10 SAMUEL WARREN, before Greta H. Duckett, CCR, 10 New York, New York 10001
11 RPR, CRR, CVR-S, RVR-M-S. 11 PHONE: (212)402-9400
12 12 EMAIL: lstierhoff@mckoolsmith.com
13 13
14 14 ON BEHALF OF THE THIRD-PARTY DEFENDANT
15 WELLS FARGO BANK, N.A.:
16 15
17 16 JONES DAY
18 17 BY: JOHN PAUL PUTNEY, ESQ.
19 18 500 Grant Street, Suite 4500
19 Pittsburgh, Pennsylvania 15219-2514
20
20 PHONE: (412)391-3939
21 21 EMAIL: jputney@jonesday.com
22 22
23 23
24 24
25 25
Page 254 Page 256
1 APPEARANCES 1 APPEARANCES
2 CONTINUED
2 3
3 4 ON BEHALF OF THE THIRD-PARTY DEFENDANT
OCWEN LOAN SERVICING:
4 ON BEHALF OF NOMURA CREDIT & CAPITAL, INC.: 5
5 6
6 CONSTANTINE CANNON LLP CHELNEY LAW GROUP
7
7 BY: JOEL CHERNOV, ESQ. BY: STAN CHELNEY, ESQ.
8 BY: AMIANNA STOVALL, ESQ. 8
BY: PHILIPP SMAYLOVSKY, ESQ.
9 BY: MATTHEW MOORE, ESQ. 9
10 335 Madison Avenue, 9th Floor 28 Liberty Street, 6th Floor
10
11 New York, New York 10017 New York, New York 10005
12 PHONE: (212)350-2700 11
PHONE: (212)653-0022
13 EMAIL: jchernov@constantinecannon.com 12
14 EMAIL: astovall@constantinecannon.com EMAIL: stan@chelneylaw.com
15 EMAIL: mmoore@constantinecannon.com 13
EMAIL: philipp@chelneylaw.com
16 -and- 14
17 SHEARMAN & STERLING 15
ALSO PRESENT:
18 BY: SHICHU "SUZIE" JING, ESQ. 16
19 599 Lexington Avenue 17
Raghib Page, videographer
20 New York, New York 10022 18
21 PHONE: (212)848-4000 19
EMAIL: suzie.jing@shearman.com
20
22 21
23 22
24 23
24
25 25
3 (Pages 253 to 256)
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1 INDEX 1 THE VIDEOGRAPHER: We're now
2 2 on the record. Today's date is
3 EXAMINATION INDEX 3 April 2nd, 2021, and the time is
4 4 9:02 a.m. Eastern Standard Time.
5 SAMUEL WARREN 5 This is the video deposition of
6 BY MS. STOVALL 260 6 Samuel Warren in the matter of
7 7 Nomura Credit Capital,
8 8 Incorporated, versus Wells Fargo
9 9 Bank and Ocwen Loan Servicing, LLC,
10 10 filed in the Supreme Court of the
11 11 State of New York, County of New
12 12 York.
13 13 This deposition is taking
14 14 place via web videoconference with
15 15 all participants attending remotely
16 16 due to the COVID-19 pandemic. My
17 17 name is Raghib Page. I'm the
18 18 videographer representing
19 19 TransPerfect.
20 20 Would counsel on the
21 21 conference please identify yourself
22 22 and state whom you're representing,
23 23 beginning with the questioning
24 24 attorney.
25 25 ///
Page 258 Page 260
1 EXHIBIT INDEX 1 (Counsel stated appearances
for the record.)
2
3 HOUNSELL
2
4 EXHIBIT 17 1/6/2021 Amended Expert 436 3 THE VIDEOGRAPHER: Our court
Reply Report of Bruce 4 reporter today is Greta Duckett,
Kenneth Hounsell
representing TransPerfect, as well.
5
6
5
LENDEZ 6 The court reporter will now swear
7 7 in the witness.
EXHIBIT 34 1/13/2021 Amended Expert 361
8 Reply Report of Anthony M.
8 SAMUEL WARREN,
Lendez 9 the witness, having first been duly
9 10 sworn to speak the truth, the whole truth and
LYS
10
11 EXHIBIT 8 2/12/2021 Amended Reply 374
11 nothing but the truth, testified as follows:
Expert Report of Jerry A. 12 EXAMINATION
12 Hausman 13 BY MS. STOVALL:
13
WARREN
14 Q. Good morning again, Mr. Warren.
14 15 A. Good morning.
EXHIBIT 5 1/31/2020 Expert Report of308 16 Q. Yesterday, with respect to your --
15 Samuel Warren in Series 2007-3 17 you testified that your work, as it pertains to
16 EXHIBIT 6 Exhibit 9 to the 265
Declaration of Jeremy M. 18 repurchase demands based on R&W breaches -- and
17 Amar-Dolan 19 putting aside your expert work -- you testified
18
19
20 that you were part of a working group in a
20 21 capacity that was centered around analyzing
21 22 specific loan-level attributes and
22 23 macroeconomic factors as of a given point in
23
24 24 time. Is that the full scope of your work
25 25 outside of your expert work as it pertains to
4 (Pages 257 to 260)
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1 repurchase demands based on R&W breaches? 1 demands typically originate, in your
2 A. Just to clarify that that was -- I 2 experience?
3 don't know if you said singular "group" or 3 MR. CHELNEY: Objection.
4 plural "groups," but I was -- 4 A. Well, having seen numerous
5 Q. I meant to say "plural." 5 repurchase demands, I have seen repurchase -- I
6 A. Okay. It was plural, and it was 6 have seen repurchase-related requests from
7 work that was provided on behalf of numerous 7 investors. I have seen repurchase demands from
8 clients. And the nature -- 8 trustees.
9 (Simultaneous speakers.) 9 Q. Have you finished your answer?
10 A. I'm sorry. 10 A. I'm still thinking.
11 (Simultaneous speakers.) 11 Q. Okay.
12 Q. You go, Mr. Warren. 12 A. I believe, in my experience, the
13 A. It was plural. I performed work 13 majority have been from those two parties.
14 reviewing loan-level characteristics and 14 However, I have seen many over a long number of
15 forecasting cash flows at a specific point in 15 years. So I'm not sure that that's complete.
16 time for a number of clients as it related to 16 But the majority were from those two types of
17 potential repurchase analyses. Yes. 17 parties.
18 Q. And do you know what -- what point 18 Q. Have you ever seen a repurchase
19 in time you started that work and when you -- 19 demand from a servicer?
20 and are you continuing that work, or is that 20 A. I am not sure if I have seen a
21 concluded? 21 repurchase demand from a servicer.
22 A. That work was during the course of 22 Q. Okay. And yesterday, when you
23 the years after the financial crisis and 23 undertook this work in these working groups
24 continued for a number of years. At this 24 regarding repurchase demands, you said you
25 point, in recent years, I have continued to 25 looked at specific loan-level attributes and
Page 262 Page 264
1 perform many loan-level analyses and forecasts 1 macroeconomic factors as of given points in
2 as of a specific point in time. But typically, 2 time. Can you identify or -- what loan-level
3 they would be in the context of an expert 3 attributes you were looking at in the context
4 engagement or completely away from disputes and 4 of your work?
5 in the context of capital markets advisory or 5 MR. CHELNEY: Objection.
6 valuation services. 6 A. In the context of the analysis
7 Q. Was the work done on behalf of RMBS 7 specific to that type of work, it would
8 investors? 8 oftentimes be centered around those loans
9 A. At times, clients may have had 9 allegations to the extent that there were. And
10 roles that included that of being an investor. 10 depending upon the time period in question,
11 Q. Have you ever done any of that work 11 factors that would be considered might be an
12 on behalf of a servicer? 12 appropriately calculated home price index
13 MR. CHELNEY: Objection. 13 loan-to-value ratio. It might include FICO
14 A. The type of work that I have 14 score, among others.
15 described was in -- and my understanding is it 15 Q. Okay. And what did you look at in
16 was in defense of potential claims or analyses 16 terms of macroeconomic factors?
17 in pursuit of potential claims. And the roles 17 A. Well, home prices, among others.
18 that these institutions played were that of 18 Q. Anything else that you can think
19 originator, sponsor, and investor, is my 19 of?
20 understanding. 20 A. Expected mortgage rates or overall
21 Q. Have you ever seen the underlying 21 interest rates.
22 repurchase demand? 22 Q. Were you ever making determinations
23 A. I have seen many repurchase demands 23 as -- on a loan-level basis, whether loans were
24 over the course of my career. 24 subject to material breaches?
25 Q. From whom did those repurchase 25 A. As discussed somewhat yesterday, my
5 (Pages 261 to 264)
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NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022
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1 role has been to calculate at a loan level for 1 securitized in the 2006 to 2007 time frame?
2 a given as-of date or specific point in time 2 A. I don't recall the exact issue
3 the expected future cash flows for loans with 3 dates of all the trusts as I sit here.My
4 various attributes and determine valuation 4 recollection is they were securitized in the --
5 based on those forecasted cash flows. And my 5 what I would call "the pre-crisis era."
6 understanding is that this information, at 6 Q. Do you have any reason to believe
7 times, can be used to determine a value or a 7 that industry practices or understandings, with
8 change in value and, at times, could be a 8 respect to the issues you opine on from an
9 component of the analysis. However, in my 9 industry perspective in that report, were
10 experience, that analysis is part of the value 10 different as applied to those trusts versus the
11 question. However, my understanding is there 11 Nomura trusts that we are dealing with today?
12 are other questions related to that analysis. 12 MR. CHELNEY: Object to form.
13 Q. And is that what you were doing in 13 A. The analysis put forward in the
14 connection with the NCUB versus Wells Fargo 14 report that you're referencing was specific to
15 matter? We looked at your report yesterday in 15 those loans and those trusts and specifically
16 that matter. We marked it as Warren Exhibit 6. 16 rebutting a third prong of another expert, as
17 (Warren Exhibit 6 was 17 put forward. To the extent that you're asking
18 previously marked for 18 about a third prong in this case, an analysis
19 identification.) 19 would have to be performed or a report put
20 MR. CHELNEY: Objection. 20 forward to have enough information to consider
21 A. As previously discussed, but for 21 that hypothetical.
22 your benefit, the -- it does say "NCUB," but 22 Q. I actually understood your answer
23 it's also called "NCUA" in other places. 23 the first time you gave it, Mr. Warren. But
24 Q. It is.I noticed that yesterday. 24 what I'm asking you is that: The time frame
25 A. It can get confusing. So for the 25 that you're talking about -- the period that
Page 266 Page 268
1 sake of clarity, NCUA report or NCUA/NCUB that 1 you're talking about with respect to the RMBS
2 we discussed -- 2 industry in that report, is it the same time
3 (Brief interruption.) 3 period that the trusts were securitized in --
4 A. For the sake of clarity, the report 4 Nomura trusts were securitized?
5 that we discussed yesterday that was NCUA or 5 MR. CHELNEY: Objection.
6 NCUB, the analysis performed there was specific 6 Asked and answered.
7 to the loans at issue in that matter and the 7 A. Well, as I previously stated, I
8 trust at issue and the nature of the claims at 8 don't remember the exact issue dates of the
9 issue in that matter. And that analysis was 9 trust in that matter. My recollection is that
10 specifically focused on a rebuttal to another 10 they were pre-crisis. I understand that these
11 expert, and the other expert's, I guess, 11 five trusts are also pre-crisis. There are
12 organization of his proposed MAE calculation. 12 different periods within the pre-crisis era.
13 And an aspect of that was what he 13 Certain loans are different, even if they were
14 called "the third prong." And the third prong 14 issued in the same -- in the same month.
15 of that analysis included a determination 15 They're different types of loans in the
16 related to whether there was an adverse impact 16 non-agency mortgage universe. There are prime
17 to a loan's value or the related 17 and there are subprime, and there are Alt-B and
18 certificateholders and secondly, whether that 18 there are option ARMs, and there are a number
19 adverse implication to value was material. And 19 of different types of ones. So considerations
20 my analysis was rebutting that prong of that 20 need to account for the type of loan, the exact
21 expert based on those loans and those trusts at 21 time frame, and loan-level attributes.
22 that time. It was a very specific analysis 22 And secondly, there were a number
23 that was narrowly intended to rebut an aspect 23 of dates in that analysis, and some of those
24 of another expert. 24 were at different points of time after the
25 Q. Were the trusts in that case 25 issue date. And those would likely vary to the
6 (Pages 265 to 268)
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NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022
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1 extent there was another analysis as well. My 1 factor.
2 point is, there are a number of factors that I 2 Q. How is that a factor insofar as
3 considered specifically in that report, which 3 giving notice under PSA 2.03(d) is concerned
4 was specific to that analysis. And to the 4 for repurchase purposes?
5 extent that you're asking if an analysis like 5 MR. CHELNEY: Objection.
6 that might be -- might lead to similar 6 A. Section 2.03, in my experience, is
7 conclusions in the context of these trusts, my 7 a section in the PSA which outlines
8 point is there were many, many different 8 responsibilities and remedies amongst parties.
9 factors considered specifically for that 9 Q. Right. And one of those parties is
10 analysis for those loans and for those trusts. 10 a servicer, right? So in giving notice
11 And one would need to consider those to the 11 pursuant to 2.03(d), are you saying that a
12 extent that they were applying a similar 12 servicer has to do a forecasted cash flow
13 analysis for a similar purpose to another 13 analysis prior to -- on a loan prior to giving
14 trust. 14 notice?
15 Q. So is it your position that 15 MR. CHELNEY: Objection.
16 industry professionals treated underlying 16 A. Are you asking about opinions
17 breaches of reps and warranties differently 17 related to a certain report? Or are you asking
18 with respect to prime loans versus subprime 18 questions related to --
19 loans? 19 Q. I'm just asking a question.
20 A. I believe that that 20 MR. CHELNEY: The same
21 mischaracterizes what I said, and that is not 21 objection.
22 true. 22 A. So just to clarify, this is not a
23 Q. Well, if you could just answer that 23 question related to my report.
24 question, then, and clarify for me, that would 24 Q. It's a question related to the
25 be great. Do you believe that industry 25 opinions that you've offered in this case with
Page 270 Page 272
1 professionals treated underlying breaches of 1 respect to repurchase notice in connection with
2 reps and warranties differently with respect to 2 the repurchase protocol.
3 prime loans versus subprime loans? 3 So, Mr. Warren, is it fair to say
4 A. I have -- are we still talking 4 that servicers, under provisions like 2.03(d)
5 about the report that you -- 5 that we've seen in the NHELI 2007-3 PSA,
6 Q. No. I just want you to answer that 6 servicers have an obligation to give notice of
7 question. There's no reference to the report 7 a material R&W breach upon discovery? Do you
8 in that question. 8 agree?
9 A. I thought you were talking about 9 MR. CHELNEY: Objection.
10 the report. Do you mind repeating the 10 A. My opinion, as it relates to this
11 question. 11 report in this matter, is that Hausman has
12 Q. Sure. Is it your position that 12 shown no evidence that there was a breach and
13 industry professionals treated underlying 13 has continuously denied breaches, as has
14 breaches of reps and warranties differently 14 Nomura, and has provided no evidence that
15 with respect to prime loans versus subprime 15 Ocwen, as servicer, became aware of any breach.
16 loans? 16 And because of that, the foundation of its
17 MR. CHELNEY: Objection. 17 prompt-notice claim is baseless.
18 A. It is my position that, in my 18 Q. Are you finished?
19 experience, 17-plus years in the mortgage 19 A. Yes.
20 finance industry, that analytical and 20 Q. Okay. I didn't ask anything about
21 forecasted cash flow analyses are used in the 21 Professor Hausman's reports or your thoughts
22 context of evaluating aspects of loans' value. 22 about it. What I asked, simply, is that would
23 And in the context of determining value or 23 you agree that under 2.03(d), the repurchase
24 changes in value, considerations such as 24 protocol in the NHELI 2007-3 PSA, would you
25 whether a loan is prime or subprime would be a 25 agree that servicers have an obligation to give
7 (Pages 269 to 272)
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1 notice of a material R&W breach upon discovery? 1 typically include servicer responsibilities?
2 That's all. 2 MR. CHELNEY: Objection.
3 MR. CHELNEY: Objection. 3 A. Bringing to bear my market
4 BY MS. STOVALL: 4 experience, having been a party to PSAs and
5 Q. -- question? 5 negotiated them and bring a general
6 A. My understanding, as a business 6 understanding of their expectations around the
7 person who has worked on and negotiated PSAs 7 responsibilities of servicers to adhere to the
8 and having served as a party to PSAs, is that 8 responsibilities as outlined in Section 3 of a
9 2.03 -- 2.03 has provisions which, upon 9 PSA and to do so in the -- for
Preview
FILED: NEW YORK COUNTY CLERK 08/04/2022 12:56 PM INDEX NO. 650337/2013 NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022 Warren 4/2/21 Tr. FILED: NEW YORK COUNTY CLERK 08/04/2022 12:56 PM INDEX NO. 650337/2013 NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022 Page 248 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: PART 60 RMBS PUTBACK LITIGATION _______________________________________ NOMURA ASSET ACCEPTANCE Index No. CORPORATION ALTERNATIVE LOAN 777000/2015 TRUST, SERIES 2006-S3, by HSBC BANK USA, NATIONAL ASSOCIATION, in its capacity as Trustee pursuant to a Pooling and IAS Part 60 Servicing Agreement, dated as of July 1, 2006, Plaintiff, -against- NOMURA CREDIT & CAPITAL, INC., Defendant. _______________________________________ NOMURA CREDIT & CAPITAL, INC., Third-Party Plaintiff, -against- WELLS FARGO BANK, N.A., and OCWEN LOAN SERVICING, LLC, Third-Party Defendants. _______________________________________ VOLUME II VIDEOTAPED REMOTE DEPOSITION OF SAMUEL WARREN Friday, April 2, 2021 9:02 a.m. Eastern Daylight Time Reported by: GRETA H. DUCKETT, CCR, RPR, CRR, CVR-S, RVR-M-S JOB NO.: SY1384 TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com FILED: NEW YORK COUNTY CLERK 08/04/2022 12:56 PM INDEX NO. 650337/2013 NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022 Page 249 Page 251 1 (Caption continued) 1 (Caption continued) 2 HSBC BANK USA, NATIONAL Index No. 2 NOMURA ASSET ACCEPTANCE Index No. CORPORATION ALTERNATIVE 653390/2012 ASSOCIATION, in its capacity 650337/2013 3 LOAN TRUST, SERIES 2006-S4, 3 as Trustee of Nomura Home Equity by HSBC BANK USA, NATIONAL IAS Part 60 Loan, Inc., Asset Backed IAS Part 60 4 ASSOCIATION, solely in its 4 Certificates, Series 2007-2, capacity as Trustee, by HSBC BANK USA, National 5 Plaintiff, 5 Association, as Trustee, 6 -against- 7 NOMURA CREDIT & CAPITAL, INC., Plaintiff, Defendant. 6 8 _____________________________________ -against- 9 NOMURA CREDIT & CAPITAL, INC., 7 Third-Party Plaintiff, NOMURA CREDIT & CAPITAL, INC., 10 8 Defendant. -against- 11 ____________________________________ WELLS FARGO BANK, N.A., and 9 12 OCWEN LOAN SERVICING, LLC, NOMURA CREDIT & CAPITAL, INC., Third-Party Defendants. 10 Third-Party Plaintiff, 13 ______________________________________ 11 -against- 14 NOMURA HOME EQUITY LOAN, INC., Index No. SERIES 2006-FM2, pursuant to a 653783/2012 12 WELLS FARGO BANK, N.A., and OCWEN 15 Pooling and Servicing Agreement, LOAN SERVICING, LLC, dated as of October 1, 2006, by 13 Third-Party Defendants. 16 HSBC BANK USA, NATIONAL IAS Part 60 _____________________________________ ASSOCIATION, solely in its 14 17 capacity as the Trustee, 15 (Caption continued next page) Plaintiff, 18 -against- 16 19 NOMURA CREDIT & CAPITAL, INC., 17 Third-Party Defendant. 18 20 ____________________________________ 19 21 NOMURA CREDIT & CAPITAL, INC., 20 Third-Party Plaintiff, 21 22 -against- 23 WELLS FARGO BANK, N.A., and OCWEN 22 LOAN SERVICING, LLC, 23 24 Third-Party Defendant. 24 ____________________________________ 25 25 (Caption continued next page) Page 250 Page 252 1 (Caption continued) 1 (Caption continued) 2 NOMURA ASSET ACCEPTANCE Index No. 2 NOMURA HOME EQUITY LOAN, INC., Index No. CORPORATION ALTERNATIVE LOAN 652619/2012 SERIES 2007-3, pursuant to a651124/2013 3 TRUST, SERIES 2006-S3, by HSBC 3 Pooling and Servicing Agreement, BANK USA, NATIONAL ASSOCIATION, dated as of April 1, 2007, by 4 in its capacity as Trustee IAS Part 60 4 HSBC BANK USA, NATIONAL IAS Part 60 pursuant to a Pooling and ASSOCIATION, solely in its 5 Servicing Agreement, dated as 5 capacity as Trustee, of July 1, 2006, Plaintiff, 6 Plaintiff, 6 -against- -against- 7 7 NOMURA CREDIT & CAPITAL, INC., NOMURA CREDIT & CAPITAL, INC., 8 Defendant. 8 Third-Party Defendant. ______________________________________ _____________________________________ 9 9 10 NOMURA CREDIT & CAPITAL, INC., NOMURA CREDIT & CAPITAL, INC., Third-Party Plaintiff, 10 Third-Party Plaintiff, 11 -against- 11 -against- 12 WELLS FARGO BANK, N.A., and OCWEN LOAN 12 WELLS FARGO BANK, N.A., and OCWEN SERVICING, LLC, LOAN SERVICING, LLC, 13 Third-Party Defendants. 13 Third-Party Defendant. ______________________________________ _____________________________________ 14 14 15 (Caption continued next page) 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 2 (Pages 249 to 252) TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com FILED: NEW YORK COUNTY CLERK 08/04/2022 12:56 PM INDEX NO. 650337/2013 NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022 Page 253 Page 255 1 1 APPEARANCES 2 2 CONTINUED 3 3 4 4 ON BEHALF OF HSBC BANK USA, NATIONAL 5 ASSOCIATION, AS TRUSTEE: 5 6 April 2, 2021 6 MCKOOL SMITH 7 9:02 a.m. Eastern Daylight Time 7 BY: LAWRENCE STIERHOFF, ESQ. 8 8 One Manhattan West 9 Videotaped remote deposition of 9 395 9th Avenue, 50th Floor 10 SAMUEL WARREN, before Greta H. Duckett, CCR, 10 New York, New York 10001 11 RPR, CRR, CVR-S, RVR-M-S. 11 PHONE: (212)402-9400 12 12 EMAIL: lstierhoff@mckoolsmith.com 13 13 14 14 ON BEHALF OF THE THIRD-PARTY DEFENDANT 15 WELLS FARGO BANK, N.A.: 16 15 17 16 JONES DAY 18 17 BY: JOHN PAUL PUTNEY, ESQ. 19 18 500 Grant Street, Suite 4500 19 Pittsburgh, Pennsylvania 15219-2514 20 20 PHONE: (412)391-3939 21 21 EMAIL: jputney@jonesday.com 22 22 23 23 24 24 25 25 Page 254 Page 256 1 APPEARANCES 1 APPEARANCES 2 CONTINUED 2 3 3 4 ON BEHALF OF THE THIRD-PARTY DEFENDANT OCWEN LOAN SERVICING: 4 ON BEHALF OF NOMURA CREDIT & CAPITAL, INC.: 5 5 6 6 CONSTANTINE CANNON LLP CHELNEY LAW GROUP 7 7 BY: JOEL CHERNOV, ESQ. BY: STAN CHELNEY, ESQ. 8 BY: AMIANNA STOVALL, ESQ. 8 BY: PHILIPP SMAYLOVSKY, ESQ. 9 BY: MATTHEW MOORE, ESQ. 9 10 335 Madison Avenue, 9th Floor 28 Liberty Street, 6th Floor 10 11 New York, New York 10017 New York, New York 10005 12 PHONE: (212)350-2700 11 PHONE: (212)653-0022 13 EMAIL: jchernov@constantinecannon.com 12 14 EMAIL: astovall@constantinecannon.com EMAIL: stan@chelneylaw.com 15 EMAIL: mmoore@constantinecannon.com 13 EMAIL: philipp@chelneylaw.com 16 -and- 14 17 SHEARMAN & STERLING 15 ALSO PRESENT: 18 BY: SHICHU "SUZIE" JING, ESQ. 16 19 599 Lexington Avenue 17 Raghib Page, videographer 20 New York, New York 10022 18 21 PHONE: (212)848-4000 19 EMAIL: suzie.jing@shearman.com 20 22 21 23 22 24 23 24 25 25 3 (Pages 253 to 256) TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com FILED: NEW YORK COUNTY CLERK 08/04/2022 12:56 PM INDEX NO. 650337/2013 NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022 Page 257 Page 259 1 INDEX 1 THE VIDEOGRAPHER: We're now 2 2 on the record. Today's date is 3 EXAMINATION INDEX 3 April 2nd, 2021, and the time is 4 4 9:02 a.m. Eastern Standard Time. 5 SAMUEL WARREN 5 This is the video deposition of 6 BY MS. STOVALL 260 6 Samuel Warren in the matter of 7 7 Nomura Credit Capital, 8 8 Incorporated, versus Wells Fargo 9 9 Bank and Ocwen Loan Servicing, LLC, 10 10 filed in the Supreme Court of the 11 11 State of New York, County of New 12 12 York. 13 13 This deposition is taking 14 14 place via web videoconference with 15 15 all participants attending remotely 16 16 due to the COVID-19 pandemic. My 17 17 name is Raghib Page. I'm the 18 18 videographer representing 19 19 TransPerfect. 20 20 Would counsel on the 21 21 conference please identify yourself 22 22 and state whom you're representing, 23 23 beginning with the questioning 24 24 attorney. 25 25 /// Page 258 Page 260 1 EXHIBIT INDEX 1 (Counsel stated appearances for the record.) 2 3 HOUNSELL 2 4 EXHIBIT 17 1/6/2021 Amended Expert 436 3 THE VIDEOGRAPHER: Our court Reply Report of Bruce 4 reporter today is Greta Duckett, Kenneth Hounsell representing TransPerfect, as well. 5 6 5 LENDEZ 6 The court reporter will now swear 7 7 in the witness. EXHIBIT 34 1/13/2021 Amended Expert 361 8 Reply Report of Anthony M. 8 SAMUEL WARREN, Lendez 9 the witness, having first been duly 9 10 sworn to speak the truth, the whole truth and LYS 10 11 EXHIBIT 8 2/12/2021 Amended Reply 374 11 nothing but the truth, testified as follows: Expert Report of Jerry A. 12 EXAMINATION 12 Hausman 13 BY MS. STOVALL: 13 WARREN 14 Q. Good morning again, Mr. Warren. 14 15 A. Good morning. EXHIBIT 5 1/31/2020 Expert Report of308 16 Q. Yesterday, with respect to your -- 15 Samuel Warren in Series 2007-3 17 you testified that your work, as it pertains to 16 EXHIBIT 6 Exhibit 9 to the 265 Declaration of Jeremy M. 18 repurchase demands based on R&W breaches -- and 17 Amar-Dolan 19 putting aside your expert work -- you testified 18 19 20 that you were part of a working group in a 20 21 capacity that was centered around analyzing 21 22 specific loan-level attributes and 22 23 macroeconomic factors as of a given point in 23 24 24 time. Is that the full scope of your work 25 25 outside of your expert work as it pertains to 4 (Pages 257 to 260) TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com FILED: NEW YORK COUNTY CLERK 08/04/2022 12:56 PM INDEX NO. 650337/2013 NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022 Page 261 Page 263 1 repurchase demands based on R&W breaches? 1 demands typically originate, in your 2 A. Just to clarify that that was -- I 2 experience? 3 don't know if you said singular "group" or 3 MR. CHELNEY: Objection. 4 plural "groups," but I was -- 4 A. Well, having seen numerous 5 Q. I meant to say "plural." 5 repurchase demands, I have seen repurchase -- I 6 A. Okay. It was plural, and it was 6 have seen repurchase-related requests from 7 work that was provided on behalf of numerous 7 investors. I have seen repurchase demands from 8 clients. And the nature -- 8 trustees. 9 (Simultaneous speakers.) 9 Q. Have you finished your answer? 10 A. I'm sorry. 10 A. I'm still thinking. 11 (Simultaneous speakers.) 11 Q. Okay. 12 Q. You go, Mr. Warren. 12 A. I believe, in my experience, the 13 A. It was plural. I performed work 13 majority have been from those two parties. 14 reviewing loan-level characteristics and 14 However, I have seen many over a long number of 15 forecasting cash flows at a specific point in 15 years. So I'm not sure that that's complete. 16 time for a number of clients as it related to 16 But the majority were from those two types of 17 potential repurchase analyses. Yes. 17 parties. 18 Q. And do you know what -- what point 18 Q. Have you ever seen a repurchase 19 in time you started that work and when you -- 19 demand from a servicer? 20 and are you continuing that work, or is that 20 A. I am not sure if I have seen a 21 concluded? 21 repurchase demand from a servicer. 22 A. That work was during the course of 22 Q. Okay. And yesterday, when you 23 the years after the financial crisis and 23 undertook this work in these working groups 24 continued for a number of years. At this 24 regarding repurchase demands, you said you 25 point, in recent years, I have continued to 25 looked at specific loan-level attributes and Page 262 Page 264 1 perform many loan-level analyses and forecasts 1 macroeconomic factors as of given points in 2 as of a specific point in time. But typically, 2 time. Can you identify or -- what loan-level 3 they would be in the context of an expert 3 attributes you were looking at in the context 4 engagement or completely away from disputes and 4 of your work? 5 in the context of capital markets advisory or 5 MR. CHELNEY: Objection. 6 valuation services. 6 A. In the context of the analysis 7 Q. Was the work done on behalf of RMBS 7 specific to that type of work, it would 8 investors? 8 oftentimes be centered around those loans 9 A. At times, clients may have had 9 allegations to the extent that there were. And 10 roles that included that of being an investor. 10 depending upon the time period in question, 11 Q. Have you ever done any of that work 11 factors that would be considered might be an 12 on behalf of a servicer? 12 appropriately calculated home price index 13 MR. CHELNEY: Objection. 13 loan-to-value ratio. It might include FICO 14 A. The type of work that I have 14 score, among others. 15 described was in -- and my understanding is it 15 Q. Okay. And what did you look at in 16 was in defense of potential claims or analyses 16 terms of macroeconomic factors? 17 in pursuit of potential claims. And the roles 17 A. Well, home prices, among others. 18 that these institutions played were that of 18 Q. Anything else that you can think 19 originator, sponsor, and investor, is my 19 of? 20 understanding. 20 A. Expected mortgage rates or overall 21 Q. Have you ever seen the underlying 21 interest rates. 22 repurchase demand? 22 Q. Were you ever making determinations 23 A. I have seen many repurchase demands 23 as -- on a loan-level basis, whether loans were 24 over the course of my career. 24 subject to material breaches? 25 Q. From whom did those repurchase 25 A. As discussed somewhat yesterday, my 5 (Pages 261 to 264) TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com FILED: NEW YORK COUNTY CLERK 08/04/2022 12:56 PM INDEX NO. 650337/2013 NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022 Page 265 Page 267 1 role has been to calculate at a loan level for 1 securitized in the 2006 to 2007 time frame? 2 a given as-of date or specific point in time 2 A. I don't recall the exact issue 3 the expected future cash flows for loans with 3 dates of all the trusts as I sit here.My 4 various attributes and determine valuation 4 recollection is they were securitized in the -- 5 based on those forecasted cash flows. And my 5 what I would call "the pre-crisis era." 6 understanding is that this information, at 6 Q. Do you have any reason to believe 7 times, can be used to determine a value or a 7 that industry practices or understandings, with 8 change in value and, at times, could be a 8 respect to the issues you opine on from an 9 component of the analysis. However, in my 9 industry perspective in that report, were 10 experience, that analysis is part of the value 10 different as applied to those trusts versus the 11 question. However, my understanding is there 11 Nomura trusts that we are dealing with today? 12 are other questions related to that analysis. 12 MR. CHELNEY: Object to form. 13 Q. And is that what you were doing in 13 A. The analysis put forward in the 14 connection with the NCUB versus Wells Fargo 14 report that you're referencing was specific to 15 matter? We looked at your report yesterday in 15 those loans and those trusts and specifically 16 that matter. We marked it as Warren Exhibit 6. 16 rebutting a third prong of another expert, as 17 (Warren Exhibit 6 was 17 put forward. To the extent that you're asking 18 previously marked for 18 about a third prong in this case, an analysis 19 identification.) 19 would have to be performed or a report put 20 MR. CHELNEY: Objection. 20 forward to have enough information to consider 21 A. As previously discussed, but for 21 that hypothetical. 22 your benefit, the -- it does say "NCUB," but 22 Q. I actually understood your answer 23 it's also called "NCUA" in other places. 23 the first time you gave it, Mr. Warren. But 24 Q. It is.I noticed that yesterday. 24 what I'm asking you is that: The time frame 25 A. It can get confusing. So for the 25 that you're talking about -- the period that Page 266 Page 268 1 sake of clarity, NCUA report or NCUA/NCUB that 1 you're talking about with respect to the RMBS 2 we discussed -- 2 industry in that report, is it the same time 3 (Brief interruption.) 3 period that the trusts were securitized in -- 4 A. For the sake of clarity, the report 4 Nomura trusts were securitized? 5 that we discussed yesterday that was NCUA or 5 MR. CHELNEY: Objection. 6 NCUB, the analysis performed there was specific 6 Asked and answered. 7 to the loans at issue in that matter and the 7 A. Well, as I previously stated, I 8 trust at issue and the nature of the claims at 8 don't remember the exact issue dates of the 9 issue in that matter. And that analysis was 9 trust in that matter. My recollection is that 10 specifically focused on a rebuttal to another 10 they were pre-crisis. I understand that these 11 expert, and the other expert's, I guess, 11 five trusts are also pre-crisis. There are 12 organization of his proposed MAE calculation. 12 different periods within the pre-crisis era. 13 And an aspect of that was what he 13 Certain loans are different, even if they were 14 called "the third prong." And the third prong 14 issued in the same -- in the same month. 15 of that analysis included a determination 15 They're different types of loans in the 16 related to whether there was an adverse impact 16 non-agency mortgage universe. There are prime 17 to a loan's value or the related 17 and there are subprime, and there are Alt-B and 18 certificateholders and secondly, whether that 18 there are option ARMs, and there are a number 19 adverse implication to value was material. And 19 of different types of ones. So considerations 20 my analysis was rebutting that prong of that 20 need to account for the type of loan, the exact 21 expert based on those loans and those trusts at 21 time frame, and loan-level attributes. 22 that time. It was a very specific analysis 22 And secondly, there were a number 23 that was narrowly intended to rebut an aspect 23 of dates in that analysis, and some of those 24 of another expert. 24 were at different points of time after the 25 Q. Were the trusts in that case 25 issue date. And those would likely vary to the 6 (Pages 265 to 268) TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com FILED: NEW YORK COUNTY CLERK 08/04/2022 12:56 PM INDEX NO. 650337/2013 NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022 Page 269 Page 271 1 extent there was another analysis as well. My 1 factor. 2 point is, there are a number of factors that I 2 Q. How is that a factor insofar as 3 considered specifically in that report, which 3 giving notice under PSA 2.03(d) is concerned 4 was specific to that analysis. And to the 4 for repurchase purposes? 5 extent that you're asking if an analysis like 5 MR. CHELNEY: Objection. 6 that might be -- might lead to similar 6 A. Section 2.03, in my experience, is 7 conclusions in the context of these trusts, my 7 a section in the PSA which outlines 8 point is there were many, many different 8 responsibilities and remedies amongst parties. 9 factors considered specifically for that 9 Q. Right. And one of those parties is 10 analysis for those loans and for those trusts. 10 a servicer, right? So in giving notice 11 And one would need to consider those to the 11 pursuant to 2.03(d), are you saying that a 12 extent that they were applying a similar 12 servicer has to do a forecasted cash flow 13 analysis for a similar purpose to another 13 analysis prior to -- on a loan prior to giving 14 trust. 14 notice? 15 Q. So is it your position that 15 MR. CHELNEY: Objection. 16 industry professionals treated underlying 16 A. Are you asking about opinions 17 breaches of reps and warranties differently 17 related to a certain report? Or are you asking 18 with respect to prime loans versus subprime 18 questions related to -- 19 loans? 19 Q. I'm just asking a question. 20 A. I believe that that 20 MR. CHELNEY: The same 21 mischaracterizes what I said, and that is not 21 objection. 22 true. 22 A. So just to clarify, this is not a 23 Q. Well, if you could just answer that 23 question related to my report. 24 question, then, and clarify for me, that would 24 Q. It's a question related to the 25 be great. Do you believe that industry 25 opinions that you've offered in this case with Page 270 Page 272 1 professionals treated underlying breaches of 1 respect to repurchase notice in connection with 2 reps and warranties differently with respect to 2 the repurchase protocol. 3 prime loans versus subprime loans? 3 So, Mr. Warren, is it fair to say 4 A. I have -- are we still talking 4 that servicers, under provisions like 2.03(d) 5 about the report that you -- 5 that we've seen in the NHELI 2007-3 PSA, 6 Q. No. I just want you to answer that 6 servicers have an obligation to give notice of 7 question. There's no reference to the report 7 a material R&W breach upon discovery? Do you 8 in that question. 8 agree? 9 A. I thought you were talking about 9 MR. CHELNEY: Objection. 10 the report. Do you mind repeating the 10 A. My opinion, as it relates to this 11 question. 11 report in this matter, is that Hausman has 12 Q. Sure. Is it your position that 12 shown no evidence that there was a breach and 13 industry professionals treated underlying 13 has continuously denied breaches, as has 14 breaches of reps and warranties differently 14 Nomura, and has provided no evidence that 15 with respect to prime loans versus subprime 15 Ocwen, as servicer, became aware of any breach. 16 loans? 16 And because of that, the foundation of its 17 MR. CHELNEY: Objection. 17 prompt-notice claim is baseless. 18 A. It is my position that, in my 18 Q. Are you finished? 19 experience, 17-plus years in the mortgage 19 A. Yes. 20 finance industry, that analytical and 20 Q. Okay. I didn't ask anything about 21 forecasted cash flow analyses are used in the 21 Professor Hausman's reports or your thoughts 22 context of evaluating aspects of loans' value. 22 about it. What I asked, simply, is that would 23 And in the context of determining value or 23 you agree that under 2.03(d), the repurchase 24 changes in value, considerations such as 24 protocol in the NHELI 2007-3 PSA, would you 25 whether a loan is prime or subprime would be a 25 agree that servicers have an obligation to give 7 (Pages 269 to 272) TransPerfect Legal Solutions 212-400-8845 - Depo@TransPerfect.com FILED: NEW YORK COUNTY CLERK 08/04/2022 12:56 PM INDEX NO. 650337/2013 NYSCEF DOC. NO. 1831 RECEIVED NYSCEF: 08/04/2022 Page 273 Page 275 1 notice of a material R&W breach upon discovery? 1 typically include servicer responsibilities? 2 That's all. 2 MR. CHELNEY: Objection. 3 MR. CHELNEY: Objection. 3 A. Bringing to bear my market 4 BY MS. STOVALL: 4 experience, having been a party to PSAs and 5 Q. -- question? 5 negotiated them and bring a general 6 A. My understanding, as a business 6 understanding of their expectations around the 7 person who has worked on and negotiated PSAs 7 responsibilities of servicers to adhere to the 8 and having served as a party to PSAs, is that 8 responsibilities as outlined in Section 3 of a 9 2.03 -- 2.03 has provisions which, upon 9 PSA and to do so in the -- for