Preview
NNH-CV14-6048487-S
THE BANK OF NEW YORK MELLON : SUPERIOR COURT
v. :
ACHYUT M. TOPE, ET AL : MARCH 7, 2024
PRACTICE BOOK § 13-14 MOTION FOR SANCTIONS
The defendant propounded discovery requests on the plaintiff in February 2023,
in order that the defendant could be properly informed as to the testimony and
documents that the plaintiff would rely upon at the remand hearing ordered by
Connecticut Supreme Court to adjudicate the plaintiff’s claim to standing as a non-
holder of the subject mortgage note. By agreement of the parties, the plaintiff was to
produce a corporate designee witness, together with documents responsive to the
defendant’s document production requests, on or before December 27, 2023. Instead of
timely producing the requested documents and testimony, the plaintiff withheld specific,
material items that had been requested until the eve of the March 7, 2024 remand
hearing, dropping large and complex documents upon the defendant at the 11th hour,
effectively preventing the defendant from properly reviewing and analyzing the same.
Pursuant to Practice Book § 13-14(b), the defendant seeks sanctions for said
discovery abuses, to include the following: (a) the costs of this motion; (b) an order
preventing the plaintiff from offering into evidence documents that were not timely
Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514
produced; (c) a dismissal of this action; and/or (d) a continuance of the 3/7/24 remand
hearing.
I. FACTUAL/PROCEDURAL BACKGROUND
By decision of the Connecticut Supreme Court released on December 20, 2022,
the Court reversed the judgment entered in favor of the plaintiff and remanded this case
for an evidentiary hearing on the issue of the plaintiff’s standing to prosecute this
foreclosure action. Bank of N.Y. Mellon v. Tope, 345 Conn. 662 (2022). Shortly
thereafter, in February 2023, the defendant issued discovery requests upon the plaintiff
by means of a corporate designee deposition notice, which also requested the
production of documents pursuant to P.B. § 13-27. (Ex. A). Said document production
request included the following:
All documents relating to Bank of New York Mellon’s “claimed
interest in the note,” J.E. Robert Co. v. Signature Props., LLC, 309
Conn. 307, 327 n.18 (2013), including, but not limited to, all
documents evidencing any and all transfers and/or assignments
of the Mortgage Note and/or the Mortgage Deed that are of the
subject of this action and any and all Trust documents related to
ownership of the Mortgage Note and Deed that are the subject of
this Action …
The plaintiff initially resisted said discovery efforts with a Motion for Protective
Order (216.00). But after the Connecticut Supreme Court issued a decision in August
2023 that specifically approved the defendant’s discovery requests (a case involving the
same counsel litigating this matter), plaintiff’s counsel dropped its Motion for Protective
Order and agreed to produce the requested discovery. See, JPMorgan Chase Bank v.
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Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514
Lakner, 347 Conn. 476 (2023)(“Under these circumstances, we conclude that the trial
court abused its discretion in granting MTGLQ's motion for a protective order, denying
the defendant access to MTGLQ's mortgage file related to the defendant's loan.”).
Consequently, by agreement of the parties, the plaintiff produced its corporate designee
witness, Brian Shields, for a deposition on December 27, 2023. (Shields’ Tr.; Ex. B).
At the Shields’ deposition, the witness was specifically questioned about existing
Trust Agreements, Pooling & Servicing Agreements and Powers of Attorney that may
be relevant to the plaintiff’s claims to standing. As of said 12/27/23 deposition, the
plaintiff had over a year from the Supreme Court’s remand order to put together the
evidence it intended to rely upon in support of its claim to standing. Notwithstanding
said extended period of time to put together its evidence on standing and produce the
same in advance of the 12/27/23 deposition, the plaintiff has waited to the eve of the
scheduled remand hearing to produce the following exhibits: Pl. Exhibit 6 – Trust
Assignment and Assumption Agreement; Pl. Exhibit 8 – Power of Attorney; Pl. Exhibit 9
– Pooling and Servicing Agreement; Pl. Exhibit 10 – Request for Power of Attorney.
These documents could have and should have been produced prior to the
12/27/23 deposition, so that the defendant had ample time to review the same and to
question the plaintiff’s designated witness concerning the same. Instead, the plaintiff
has inexplicably held back such documents until the eve of the remand hearing. The
defendant specifically questioned the plaintiff’s witness about these types of documents
at the 12/27/23 deposition.
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Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514
The plaintiff’s witness was asked about whether there is a Pooling and Servicing
Agreement that governs the subject mortgage note, and he professed ignorance of the
same:
Q So is there a pooling and servicing agreement that governs how the
Tope mortgage loan is handled, to your knowledge?
A I haven't seen one for this file.
Q Okay. If you were -- so do you know whether or not there is one that
exists for the Tope loan, a pooling and servicing agreement?
A If there is, I haven't pulled it.
Q So are you saying you don't know if one exists or simply that you
haven't looked at it yourself?
A I haven't looked at one myself.
Q And do you know whether one exists?
A I don't know.
(Ex. B; p. 26).
The plaintiff’s witness was also asked about whether there are powers of
attorney that govern the subject mortgage note, and he again professed ignorance of
the same:
Q Do you know whether or not there are powers of attorney for the different
mortgage servicers that you've identified?
A I don't know.
Id. at p. 56.
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Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514
The plaintiff’s witness was also asked about whether there are Trust Agreements
that govern the subject mortgage note, and he stated that he had never seen the Trust
Agreement:
Q And so to your knowledge, is there a trust agreement that governs the Tope
mortgage loan as being part of a trust?
A Yes.
Q Okay. And have you seen that trust agreement?
A The agreement, no.
Id. at p. 27.
Only after the deposition of the plaintiff’s corporate designee witness was
completed did the plaintiff disclose a lengthy and complex agreement concerning the
plaintiff’s purported acquisition of the relevant Trust. (225.00; Ex. B). And on the day
before the March 7, 2024 remand hearing, the plaintiff has disclosed for the first time in
this 2014 case – the following documents:
Pl. Exhibit 6 – Trust Assignment and Assumption Agreement
Pl. Exhibit 8 – Power of Attorney
Pl. Exhibit 9 – Pooling and Servicing Agreement
Pl. Exhibit 10 – Letter Request for Powers of Attorney
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Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514
II. DISCUSSION
The Connecticut Supreme Court found that this Court committed error in
concluding that the plaintiff was the holder of the mortgage note when initiating this
foreclosure action.
The note in the present case had a special endorsement to
JPMorgan Chase Bank, as trustee. Therefore, the plaintiff is not
the holder of the note. Accordingly, the plaintiff can enforce the
note only if it can demonstrate that it is a nonholder in
possession of the note with the rights of a holder.
Bank of N.Y. Mellon v. Tope, supra, 345 Conn. at 681. The Court then cited to its
seminal holding of J.E. Robert Co. v. Signature Props., LLC, 309 Conn. 307 (2013), in
describing the duty and burden that a plaintiff bears to establish its standing to
prosecute a foreclosure as a non-holder of the mortgage note.
As this court has recognized, [w]ith respect to the plaintiff's ultimate
burden, however, we note our agreement with other courts that have
recognized that [i]t is a fundamental precept of the law to expect a
foreclosing party to actually be in possession of its claimed interest in
the note, and have the proper supporting documentation in hand when
filing suit, showing the history of the note, so the defendant is duly
apprised of the rights of the plaintiff. . . .
Bank of N.Y. Mellon v. Tope, supra, 345 Conn. at 681-682, citing and quoting J.E.
Robert Co. v. Signature Properties, LLC, supra, 309 Conn. 325-26 n.18. Before this
action was filed in 2014, the J.E. Robert Co. holding made it crystal clear that the
plaintiff, as a non-holder, had the duty to have all of its paperwork “in hand” when
initiating this lawsuit.
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Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514
Not only did the plaintiff utterly fail to have its paperwork in order when initiating
this action, but moreover, said failure persisted for more than a year following the
Supreme Court remanding this case for an evidentiary hearing on the plaintiff’s standing
deficiencies. Again, at the time of the defendant taking the deposition of the plaintiff’s
corporate designee witness on 12/27/23 (over a year after the Supreme Court’s remand
order), the plaintiff still had not pooled together the supporting documents it now
purports to rely upon to establish standing. Not only did the 2013 JE Roberts holding
firmly establish the plaintiff’s duty to have its documents in order when it initiated this
action in 2014, the Court also discussed in detail the type of documents that would
typically establish that a non-holder has standing to prosecute a foreclosure action,
where a securitized mortgage is involved. The Court specifically discussed the role that
Trust agreements, pooling and servicing agreements and powers of attorney can play
when it comes to the issue of a non-holder’s standing to pursue foreclosure. Id. at 317-
331.
Again, the defendant’s discovery request specifically cited to the JE Roberts
holding in making clear the type of documents the defendant was seeking on the issue
of standing.
All documents relating to Bank of New York Mellon’s “claimed
interest in the note,” J.E. Robert Co. v. Signature Props., LLC, 309
Conn. 307, 327 n.18 (2013), including, but not limited to, all
documents evidencing any and all transfers and/or assignments
of the Mortgage Note and/or the Mortgage Deed that are of the
subject of this action and any and all Trust documents related to
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Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514
ownership of the Mortgage Note and Deed that are the subject of
this Action …
(Exhibit A). The plaintiff was required to have these documents in its possession when
initiating this action in 2014, and there can be no excuse for the plaintiff’s failure to have
its documents in order by the time of the 12/27/23 deposition – over one year
following the Supreme Court’s remand order!
A number of the plaintiff’s filings reference the case of Bank of N.Y. v. Bell, which
does involve nearly the same non-holder standing issue as present here. One of
Connecticut’s most prominent jurists, Judge Robert Satter (deceased), had the following
to say about the complexity of the plaintiff’s standing argument and the documents
relied upon to establish standing.
All this litigation plaintiff argues, can be obviated by J.P. Morgan
Chase simply endorsing the note to Bank of New York. Then Bank
of New York can bring a new foreclosure action based on it, not
only having the original note, but it being endorsed to it. Its
standing will be clear and not be grounded on the extremely
complicated transaction between J.P. Morgan Chase and plaintiff,
which is the reason for the extended litigation in this case. The
judicial economy realized by such a step constitutes adequate
cause for plaintiff to withdraw this action.
Bank of N.Y. v. Bell, 2011 Conn. Super. LEXIS 42, *9, 2011 WL 383843, Superior Court
of Connecticut, Judicial District of Hartford At Hartford (January 4, 2011)(Emphasis
added). In Bank of N.Y. v. Bell, the same plaintiff as present here decided to withdraw
its foreclosure action, rather than respond to discovery that would require it to produce
sufficient documentation to support its standing claim.
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Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514
Bank of N.Y. v. Bell provides the proper template for the resolution of this case –
the case should be withdrawn or dismissed due to the plaintiff’s failure and refusal to
come forward with timely and proper document discovery to support its standing claim.
Judge Satter’s description of the documents at issue – “extremely complicated
transaction between J.P. Morgan Chase and plaintiff” – establishes why these
complicated documents cannot be dumped upon the defendant and the Court at the last
minute.
The plaintiff’s conduct in withholding complex documents until the eve of the
remand hearing should not be countenanced and is the proper object of a sanctions
motion.
Such a "cat and mouse" game was properly not condoned by the
trial court. The rules of discovery are designed to make a "'trial
less a game of blindman's bluff and more a fair contest with the
basic issues and facts disclosed to the fullest practical extent.'"
Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106, (1984). For all of the
foregoing reasons, the defendant’s Motion for Sanctions should be granted, including an
award of the costs for this Motion and either a dismissal of this action or the rejection of
the plaintiff’s untimely discovery documents. Alternatively, the remand hearing should
be continued, so that the defendant may properly investigate the plaintiff’s untimely
disclosures.
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Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514
DEFENDANT
ACHYUT M. TOPE,
By /s/ Thomas P. Willcutts
Thomas P. Willcutts. Esq
Willcutts & Habib LLC
100 Pearl Street; 14 th Fl
Hartford, CT 06103
Juris # 302886
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Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514
CERTIFICATION
I hereby certify that a copy of the attached has been served in accordance with
the applicable Rules of Practice and/or Procedure on March 7, 2024 on:
Jeffrey M. Knickerbocker
BROCK AND SCOTT PLLC
270 Farmington Ave., Suite 151
Farmington, CT 06032
Jeffrey.Knickerbocker@brockandscott.com
By /s/ Thomas P. Willcutts
Thomas P. Willcutts
Juris No. 302886
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Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514
EXHIBIT A
NNH-CV14-6048487-S
THE BANK OF NEW YORK MELLON : SUPERIOR COURT
J.D. AT NEW HAVEN
v. :
ACHYUT M. TOPE, ET AL : FEBRUARY 23, 2023
NOTICE OF DEPOSITION
Pursuant to Practice Book §§ 13-26 through 13-33, notice is hereby given that
Defendant Achyut Tope shall take a deposition before Cassian Reporting, Court
Reporters, or other competent authority, at the law offices of Willcutts & Habib, 100
Pearl Street; 14th Fl; Hartford, Connecticut, or by video-conferencing, on April 25, 2023
at 10:00 a.m. of the following deponent or deponents:
The Plaintiff, THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW
YORK, AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE
FOR STRUCTURED ASSET MORTGAGE INVESTMENTS II INC. BEAR
STEARNS ALT-A TRUST, MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2004-3 (“Bank of New York Mellon”), is hereby commanded to
designate and to produce one or more officers, directors, managing agents, or
other persons to testify as to the following subjects:
(1) The Records maintained by or on behalf of Bank of New York Mellon in
connection with the subject Action.
(2) The Plaintiff’s “claimed interest in the note,” including the “supporting
documentation … showing the history of the note.” J.E. Robert Co. v. Signature
Props., LLC, 309 Conn. 307, 325 n.18 (2013).
Notice is also given, in accordance with Practice Book § 13-27(g) and Practice Book §§
13-9 through 13-11, that the Deponent is to bring the following to the deposition:
1) Bank of New York Mellon’s complete mortgage file, whether in electronic or
paper form, relating to the Mortgage Note and Deed that are the subject of this
Action, whether or not said documents are in the direct possession of Bank of
New York Mellon or in the possession of Bank of New York Mellon’s mortgage
servicer, including but not limited to:
(A) All Correspondence to or from the Defendant;
(B) All documents relating to Bank of New York Mellon’s “claimed interest in the
note,” J.E. Robert Co. v. Signature Props., LLC, 309 Conn. 307, 327 n.18 (2013),
including, but not limited to, all documents evidencing any and all transfers
and/or assignments of the Mortgage Note and/or the Mortgage Deed that are of
the subject of this action and any and all Trust documents related to ownership of
the Mortgage Note and Deed that are the subject of this Action;
(C) All Documents evidencing any transfer of the original Mortgage Note.
(D) All Documents the Plaintiff intends to rely upon to support the allegations of
the Complaint.
The oral examination will continue from day to day until completed.
DEFENDANT,
By /s/ Thomas P. Willcutts
Thomas P. Willcutts
100 Pearl Street; 14th Fl
Hartford, CT 06103
Juris # 302886
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EXHIBIT B
12/27/2023 Brian Shields, Bank of New York Mellon Page: 1
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DOCKET NO: NNH-CV14-6048487-S : SUPERIOR COURT
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THE BANK OF NEW YORK MELLON : J.D. OF NEW HAVEN
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VS. : AT NEW HAVEN
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ACHYUT M. TOPE, ET AL. : DECEMBER 27, 2023
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11 VIDEOCONFERENCE
DEPOSITION OF: BRIAN SHIELDS
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DATE: DECEMBER 27, 2023
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WITNESS LOCATION: LAKE ZURICH, IL
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22 CASSIAN REPORTING, LLC
Capitol Place
23 21 Oak Street, Suite 307 | Hartford, Connecticut 06106
(860) 595-7462
24 scheduling@cassianreporting.com
Reporter: Tiffany V. Pratt, CSR #128
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Job No. 20170 Cassian Reporting, LLC (860) 595-7462
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2 APPEARANCES: (All appeared via videoconference)
3
REPRESENTING THE PLAINTIFF:
4
Brock and Scott, PLLC
5 270 Farmington Avenue
Suite 151
6 Farminton, CT 06032
401-217-8701
7 jeffrey.knickerbocker@brockandscott.com
By: Jeffrey Knickerbocker, Esq.
8
9 REPRESENTING THE DEFENDANT:
10 Willcutts & Habib, LLC
14th Floor
11 100 Pearl Street
Hartford, CT 06103
12 860-249-7071
tpw@willcutts.com
13 By: Thomas P. Willcutts, Esq.
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LOCATION OF WITNESS/PLACE OF DEPOSITION:
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Lake Zurich, IL
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3 S T I P U L A T I O N S
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5 IT IS STIPULATED by the attorneys for the parties
6 that each party reserves the right to make specific
7 objections in open court to each and every question asked
8 and the answers given thereto by the witness, reserving
9 the right to move to strike out where applicable, except
10 as to such objections as are directed to the form of the
11 question.
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13 IT IS STIPULATED and agreed between counsel for the
14 parties that the proof of the authority of the Notary
15 Public before whom this deposition is taken is waived.
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17 IT IS FURTHER STIPULATED and agreed that the reading
18 and signing of this deposition is not waived and any
19 defects in the Notice are waived.
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1 TABLE OF CONTENTS
2 WITNESS: PAGE:
3 Brian Shields
4 Direct by Mr. Willcutts ......................... 5
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PLAINTIFF'S EXHIBITS
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EXHIBIT: PAGE:
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Exhibit 2 Open-End Mortgage Deed ................. 5
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Exhibit 4 Computershare Mortgage Trust Doc, Bear . 31
9 Stearns ALT A 2004-3
10 Exhibit 5 Loan Schedule .......................... 41
11 Exhibit 3 Corporate Assignment of Mortgage ....... 44
12 Exhibit 1 Fixed/Adustable Rate Note .............. 45
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DEFENDANT'S EXHIBITS
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EXHIBIT: PAGE:
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Exhibit A Re-Notice of Deposition ................ 18
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Job No. 20170 Cassian Reporting, LLC (860) 595-7462
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1 (Deposition commenced: 1:10 p.m.)
2 BRIAN SHIELDS, called as a
3 witness, having been first duly sworn by
4 a Notary Public in and for the State of Connecticut,
5 was examined and testified as follows:
6 D I R E C T E X A M I N A T I O N
7 BY MR. WILLCUTTS:
8 Q Mr. Shields, if you'll just state your name and
9 address for the record?
10 A Yes. My name is Brian Shields. My address is
11 1 Corporate Drive, Suite 360, Lake Zurich, Illinois,
12 60047.
13 Q For the record, I'm Attorney Thomas Willcutts.
14 I represent defendant Achyut Tope in this case, and we're
15 here to take your deposition. Is that your
16 understanding?
17 A Yes.
18 Q Okay. And by whom are you employed,
19 Mr. Shields?
20 A Dovenmuehle Mortgage, Incorporated.
21 (Off the record briefly.)
22 BY MR. WILLCUTTS:
23 Q Okay. So, Mr. Shields, how long have you worked
24 for Dovenmuehle?
25 A About 8 1/2 years.
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1 Q And have you ever had your deposition taken
2 before?
3 A No.
4 Q Have you ever testified in court?
5 A Yes.
6 Q Approximately how many times during your employ
7 at Dovenmuehle?
8 A Eight.
9 Q So Mr. Shields, this deposition, it's a little
10 different from testifying in court, but in some respects
11 it's the same. A couple things I'd like you to keep in
12 mind as we take your deposition today.
13 First, in normal polite conversation, if you
14 understand what I'm trying to get at, you might jump in
15 and give me the answer before I finished my question. I'd
16 like you to refrain as best you can from doing that today
17 for a couple reasons; one, so my questions should be
18 complete for the record; and, two, it's tough for the
19 court reporter if two of us are speaking at the same time.
20 So if you'll let me finish the question before you start
21 your answer. And if for any reason you don't understand
22 my question, you can just let me know that, that you're
23 not sure you understand it. I'll try to determine the
24 cause of the misunderstanding and get that corrected. And
25 if you need a take a break, we would ask that you finish
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1 the question that's pending and just let us know, and no
2 problem, if you need to take a break for any reason.
3 Are you -- where you're at today, are you
4 alone?
5 A Yes.
6 Q All right. So, anyway, you said you've worked
7 for Dovenmuehle for about 8 1/2 years and that you're
8 currently located in Illinois. First just some general
9 background on your yourself before we get into the case.
10 Where did you grow up?
11 A In Illinois.
12 Q Okay. And what town is that?
13 A Hainesville.
14 Q I'm sorry?
15 A I'm sorry. I grew up in Hainesville.
16 Q All right. And how far did you go in school?
17 A Where I went to school you're asking me?
18 Q Yes. How far did your education go? What's the
19 highest degree that you received?
20 A I have a master's.
21 Q Okay. And master's from where?
22 A Eastern Illinois University.
23 Q What year did you get the master's?
24 A 2012.
25 Q Okay. What is your master's in?
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1 A It was an MBA.
2 Q Now, what about college? Where did you go to
3 college undergraduate?
4 A I went to Eastern Illinois University.
5 Q Okay. And so your master's was in 2012. When
6 was your undergraduate degree?
7 A 2011.
8 Q So what was your first full-time employment,
9 Mr. Shields?
10 A It would have been through Robert Half at a law
11 firm.
12 Q What is the second word there? You said Robert
13 something.
14 A Robert Half. It's a recruiting firm who placed
15 me there.
16 Q Okay. Half, can you spell that?
17 A I think it's H-a-l-f-e, possibly.
18 Q Okay. And, I'm sorry, that was a law firm or a
19 recruiting firm?
20 A A recruiting firm placed me there.
21 Q So Robert Halfe is a law firm?
22 A No. That's the recruiting firm.
23 Q Okay. And so you say they placed you somewhere.
24 Where did they place you?
25 A So that was with Fisher & Shapiro.
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1 Q And that's a law firm?
2 A Correct.
3 Q And where are they located?
4 A I worked in Bannockburn, Illinois.
5 Q How long did you work for the law firm?
6 A That might have been about a six-, seven-month
7 role.
8 Q Okay. And what was your position there?
9 A I was enter judgment processor.
10 Q Was that in connection with foreclosure
11 actions?
12 A Yes, it was.
13 Q How many states were covered by the work you
14 performed?
15 A I only did work for one state.
16 Q Illinois?
17 A Illinois, correct.
18 Q What was your reason for leaving the law firm?
19 A The contract position I had there ended.
20 Q What was your next full-time employment?
21 A So that would have been up through Kelly
22 Services, and I did work at a bank for them.
23 Q Okay. And, I'm sorry, Kelly Services, is that
24 temporary services, temporary employment?
25 A That was, yes.
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1 Q So you worked for Kelly, and they would place
2 you at different temporary positions?
3 A Yes.
4 Q Okay. And were those positions at law firms, or
5 did you work for -- you mentioned a bank. What type of
6 employers did you have while you were at Kelly?
7 A The bank was the only one that I did with them.
8 Q And was there a department within the bank that
9 you worked?
10 A So I don't know. It wasn't a specific
11 department I was put in, but I essentially handled
12 ensuring adequate documentation was present for each
13 type of account that I was reviewing.
14 Q And that also was an Illinois bank?
15 A It was in Illinois, yes.
16 Q All right. So after that employment through
17 Kelly Services, what was your next full-time employment?
18 A That was -- I came to Dovenmuehle after that.
19 Q What year was that?
20 A 2015.
21 Q And when you joined Dovenmuehle, what was your
22 job position?
23 A I was a judgment representative.
24 Q Can you explain for us what duties a judgment
25 representative had at Dovenmuehle?
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1 A As a judgment representative I would work on
2 foreclosure cases in judicial states. And from the
3 service part of the process, I would work with the local
4 counsel to ensure that the borrower was served, that
5 affidavits were prepared, motions were filed essentially
6 leading to the judgment being entered in that case.
7 Q Okay. And you indicate that these services you
8 performed were for judicial states; is that right?
9 A In that position, yes.
10 Q Okay. And so that -- you described your initial
11 position with Dovenmuehle. How long did you have that
12 position?
13 A Maybe seven months or so.
14 Q Why don't you just take me chronologically from
15 that first position which you've described and that lasted
16 seven months. Go chronologically and tell me the
17 different positions you've had at Dovenmuehle including
18 the basic duties you had at each position.
19 A Okay. So after the judgment representative,
20 I became a sales representative. That essentially
21 handled -- that included both judicial and non-judicial
22 states, and it just handled the process of bringing the
23 properties to the foreclosure sale once the sale date was
24 set, which included ordering valuations, coordinating
25 bidding amounts with the clients, ensuring everything was
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1 in order for those properties to go.
2 After that I was a team lead on the sales and
3 judgment team. So that essentially entailed working with
4 the sales and judgment representatives just to ensure that
5 all their loans were moving appropriately and that
6 everything was in good order on the files that we had.
7 After that I became a default litigation
8 specialist. That essentially entails managing a portfolio
9 of contested foreclosure cases where you work with local
10 counsel to resolve those contested matters on the files,
11 prevent any future contested matters from arising on those
12 files, responding to borrower correspondence if anything
13 does come in in writing on those files and other files as
14 well.
15 And then after that, I briefly left that
16 position to be in the client audit support department.
17 That essentially involved responding to requests when
18 clients requested, or other entities, requested
19 information on our files. And I would go through the
20 loans that they needed that information on to provide it
21 to them.
22 And then after that I came back to the default
23 litigation specialist role.
24 Q Okay. So you went through the different
25 positions. What you did not include was a general time
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1 period for these different stages.
2 A Sorry. So for the sales representative, that
3 would have been probably late 2015 to maybe April or May
4 of 2016. I did the team lead role from April or May of
5 2016 to the end of November 2018. I did the default
6 litigation specialist the first time from roughly
7 December 2018 to May, I think it was maybe mid 2021. And
8 then back at the end of 2021, December 2021, I went back
9 to the default litigation specialist role where I'm
10 currently at right now.
11 Q Okay. I'm sorry, what is the first -- I didn't
12 catch the first word, the something specialist role?
13 A Default litigation specialist.
14 Q Default, you said?
15 A Correct, yes.
16 Q Okay. Default litigation. So does that cover
17 only certain types of litigation?
18 A So the litigation that would specifically
19 include would be in foreclosure actions, specifically
20 loans that are being contested.
21 Q So what's the significance of the word default?
22 A Just that the loans are in default.
23 Q That's a description of the loan? It's not a
24 description of the litigation?
25 A Right.
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1 Q So you work on loans in default that are in
2 contested litigation?
3 A Correct.
4 Q And approximately how many states do you cover
5 in that role?
6 A In theory it would be any state that has one,
7 but most of my loans are in two states.
8 Q In which states?
9 A That would be New York and Florida.
10 Q Most of your cases are New York and Florida.
11 Okay. And so what -- is there anything specific that
12 brings you to Connecticut for this case?
13 A Yes, just the style happens to be in the
14 portfolio of loans that I have.
15 Q I'm sorry, the what is in the portfolio?
16 A This loan is in my portfolio of loans that I'm
17 in charge of.
18 Q When you say a portfolio of loans, how is a
19 portfolio defined?
20 A That's just what my workload is, the loans that
21 are assigned to me for management.
22 Q So when you say this particular loan, the Tope
23 loan, is in your portfolio, does that mean it's attached
24 to a specific trust that your work covers?
25 A So that's not why I have this loan. I might
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1 have it because this one's assigned to me.
2 Q And how does that happen? How is it that loans
3 get assigned within Dovenmuehle, if you know?
4 A So as it pertains to the department I'm in, when
5 a -- it's deemed that an answer or other contested
6 pleading is filed, essentially the supervisor reviews
7 that, and it's just assigned to one of the representatives
8 in the department.
9 Q Okay. Can you tell us when Dovenmuehle became
10 involved with the Tope loan which is the subject of this
11 case?
12 A So we would have taken servicing of that over on
13 December 1, 2018.
14 Q And what, if you know, was the catalyst for
15 Dovenmuehle becoming involved in this loan at that time,
16 December 1 of 2018?
17 A We became the new servicer for that loan, for
18 all -- for more than one loan, but this one in particular
19 was in that --
20 Q So Dovenmuehle took over the servicing of a
21 group of mortgage loans that happened to include this loan
22 around that time?
23 A Correct.
24 Q So your taking over wasn't particular to this
25 loan? It was that this loan was in a group of other
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1 loans, and you took over the group; is that accurate?
2 A As Dovenmuehle took over the group you mean?
3 Q Yes. In other words, your involvement with the
4 Tope loan is not specific to this loan; it's that it was
5 included in a group of loans that Dovenmuehle took over?
6 A Correct, yes. So for the loans that transferred
7 to us, this loan was included in those.
8 Q Do you know why this transfer of loans that
9 included the Tope loan, why this transfer to Dovenmuehle
10 occurred when it did in 2018?
11 MR. KNICKERBOCKER: Objection as to
12 form.
13 THE WITNESS: I don't know.
14 BY MR. WILLCUTTS:
15 Q I'm sorry, I don't know if we got your answer,
16 Mr. Shields.
17 A So I don't know specifically why they were
18 transferred to us.
19 Q Okay. And, Mr. Shields, when is the first time
20 you became involved with the Tope loan?
21 A I believe I had it back the first time I was in
22 the department in 2018, but I know when I came back in
23 2021 that this loan was in my portfolio for sure.
24 Q When was the first time your attention was drawn
25 to this specific loan, if you recall?
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1 A I don't remember specifically.
2 Q Do you know what year that would have been?
3 A When I first ever saw this loan?
4 Q When you first became involved with this loan,
5 when you had any interaction with it.
6 A Probably 2021.
7 Q And do you know the reason for your interacting
8 with this? Do you recall the reason for your interacting
9 on this loan?
10 A Apart from the -- well, the loans are my --
11 inventory in my portfolio. So I would be interacting with
12 the firm on that one and managing the process on it.
13 Q Now, do you recall that this mortgage was
14 subject to a judicial appeal?
15 A I do know there was an appeal, yes.
16 Q Okay. And at some point that appellate process
17 came to an end. Is that your understanding?
18 A Yes, that's correct.
19 Q Okay. And tell us what your understanding is as
20 to the outcome of that appellate process, if you have one.
21 A I don't fully know.
22 Q Okay. So do you have some understanding as to
23 when that appellate process came to an end?
24 A I believe sometime last year in 2022 or maybe
25 early '23.
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1 Q Before the appellate process came to an end, did
2 you have -- was there any work that you were called upon
3 to do with respect to this loan?
4 A Apart from following up regarding the status of
5 the appeal, where it was going, no.
6 Q So before the appellate process came to an end,
7 your involvement was limited to staying on top of the case
8 status with counsel?
9 A Yes.
10 MR. WILLCUTTS: Okay. If we could
11 bring up Defendant's Exhibit 1 on the screen,
12 that would be great.
13 (Defendant's Exhibit A presented.)
14 BY MR. WILLCUTTS:
15 Q Mr. Shields, I have on the screen what's been
16 marked as Defendant's Exhibit A, which is entitled
17 Re-Notice of Deposition dated December 22nd. Have you
18 seen this document before?
19 A Can you scroll down so I can -- yes, I have seen
20 this.
21 Q Okay. So what this does is it identifies
22 subject matter that we intended to cover today and we
23 asked that you be prepared for. One is the records
24 maintained by or on behalf of the plaintiff in this case,
25 which is Bank of New York Mellon, and the other is the
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1 plaintiff's claimed interest in the note including
2 supporting documentation. And then also there's a
3 separate request for various documents which I have up
4 there now. Have you reviewed this request for
5 documents?
6 A Yes, I have.
7 Q All right. So tell me what documents you
8 reviewed in preparing to give testimony today, if you
9 could.
10 A Yes, so I -- so in general, the note, mortgage,
11 assignment, mortgage, the mortgage loan schedule, the deal
12 sheet. That's the sum of what I would have gone through
13 for this case.
14 Q Okay. And you understand -- so the subject
15 matter includes -- well, all right. Hold on just a
16 second.
17 So in terms of one of the subjects is records
18 maintained by Bank of New York Mellon, do you know what
19 records Bank of New York Mellon has in connection with
20 this particular loan?
21 MR. KNICKERBOCKER: Objection as to
22 form.
23 THE WITNESS: So you mean in terms
24 of like any additional stuff besides like the
25 loan documents that they would have?
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1 BY MR. WILLCUTTS:
2 Q Right. So in the request to produce documents,
3 it starts off by asking for Bank of New York Mellon's
4 complete mortgage file. Does the phrase "mortgage file"
5 have some meaning to you when you think of --
6 A Well, at --
7 Q Go ahead.
8 A So, yes, at least in terms of the mortgage file,
9 that to me would mean the main loan docs like the note,
10 the mortgages -- sorry, mortgage and then assignments of
11 mortgage that would be present.
12 Q Okay. What about the mortgage servicers who
13 have had involvement with this loan? Do you know the
14 history on that, the various mortgage servicers who dealt
15 with the Tope mortgage loan?
16 MR. KNICKERBOCKER: Objection as to
17 form.
18 THE WITNESS: Yes. So the servicers
19 that would have had this would be that -- at
20 origination, HSBC would have been the servicer
21 of the loan. In about May of 2013, pHH would
22 have been handling the servicing aspects of
23 the loan.
Preview
NNH-CV14-6048487-S THE BANK OF NEW YORK MELLON : SUPERIOR COURT v. : ACHYUT M. TOPE, ET AL : MARCH 7, 2024 PRACTICE BOOK § 13-14 MOTION FOR SANCTIONS The defendant propounded discovery requests on the plaintiff in February 2023, in order that the defendant could be properly informed as to the testimony and documents that the plaintiff would rely upon at the remand hearing ordered by Connecticut Supreme Court to adjudicate the plaintiff’s claim to standing as a non- holder of the subject mortgage note. By agreement of the parties, the plaintiff was to produce a corporate designee witness, together with documents responsive to the defendant’s document production requests, on or before December 27, 2023. Instead of timely producing the requested documents and testimony, the plaintiff withheld specific, material items that had been requested until the eve of the March 7, 2024 remand hearing, dropping large and complex documents upon the defendant at the 11th hour, effectively preventing the defendant from properly reviewing and analyzing the same. Pursuant to Practice Book § 13-14(b), the defendant seeks sanctions for said discovery abuses, to include the following: (a) the costs of this motion; (b) an order preventing the plaintiff from offering into evidence documents that were not timely Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514 produced; (c) a dismissal of this action; and/or (d) a continuance of the 3/7/24 remand hearing. I. FACTUAL/PROCEDURAL BACKGROUND By decision of the Connecticut Supreme Court released on December 20, 2022, the Court reversed the judgment entered in favor of the plaintiff and remanded this case for an evidentiary hearing on the issue of the plaintiff’s standing to prosecute this foreclosure action. Bank of N.Y. Mellon v. Tope, 345 Conn. 662 (2022). Shortly thereafter, in February 2023, the defendant issued discovery requests upon the plaintiff by means of a corporate designee deposition notice, which also requested the production of documents pursuant to P.B. § 13-27. (Ex. A). Said document production request included the following: All documents relating to Bank of New York Mellon’s “claimed interest in the note,” J.E. Robert Co. v. Signature Props., LLC, 309 Conn. 307, 327 n.18 (2013), including, but not limited to, all documents evidencing any and all transfers and/or assignments of the Mortgage Note and/or the Mortgage Deed that are of the subject of this action and any and all Trust documents related to ownership of the Mortgage Note and Deed that are the subject of this Action … The plaintiff initially resisted said discovery efforts with a Motion for Protective Order (216.00). But after the Connecticut Supreme Court issued a decision in August 2023 that specifically approved the defendant’s discovery requests (a case involving the same counsel litigating this matter), plaintiff’s counsel dropped its Motion for Protective Order and agreed to produce the requested discovery. See, JPMorgan Chase Bank v. -2- Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514 Lakner, 347 Conn. 476 (2023)(“Under these circumstances, we conclude that the trial court abused its discretion in granting MTGLQ's motion for a protective order, denying the defendant access to MTGLQ's mortgage file related to the defendant's loan.”). Consequently, by agreement of the parties, the plaintiff produced its corporate designee witness, Brian Shields, for a deposition on December 27, 2023. (Shields’ Tr.; Ex. B). At the Shields’ deposition, the witness was specifically questioned about existing Trust Agreements, Pooling & Servicing Agreements and Powers of Attorney that may be relevant to the plaintiff’s claims to standing. As of said 12/27/23 deposition, the plaintiff had over a year from the Supreme Court’s remand order to put together the evidence it intended to rely upon in support of its claim to standing. Notwithstanding said extended period of time to put together its evidence on standing and produce the same in advance of the 12/27/23 deposition, the plaintiff has waited to the eve of the scheduled remand hearing to produce the following exhibits: Pl. Exhibit 6 – Trust Assignment and Assumption Agreement; Pl. Exhibit 8 – Power of Attorney; Pl. Exhibit 9 – Pooling and Servicing Agreement; Pl. Exhibit 10 – Request for Power of Attorney. These documents could have and should have been produced prior to the 12/27/23 deposition, so that the defendant had ample time to review the same and to question the plaintiff’s designated witness concerning the same. Instead, the plaintiff has inexplicably held back such documents until the eve of the remand hearing. The defendant specifically questioned the plaintiff’s witness about these types of documents at the 12/27/23 deposition. -3- Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514 The plaintiff’s witness was asked about whether there is a Pooling and Servicing Agreement that governs the subject mortgage note, and he professed ignorance of the same: Q So is there a pooling and servicing agreement that governs how the Tope mortgage loan is handled, to your knowledge? A I haven't seen one for this file. Q Okay. If you were -- so do you know whether or not there is one that exists for the Tope loan, a pooling and servicing agreement? A If there is, I haven't pulled it. Q So are you saying you don't know if one exists or simply that you haven't looked at it yourself? A I haven't looked at one myself. Q And do you know whether one exists? A I don't know. (Ex. B; p. 26). The plaintiff’s witness was also asked about whether there are powers of attorney that govern the subject mortgage note, and he again professed ignorance of the same: Q Do you know whether or not there are powers of attorney for the different mortgage servicers that you've identified? A I don't know. Id. at p. 56. -4- Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514 The plaintiff’s witness was also asked about whether there are Trust Agreements that govern the subject mortgage note, and he stated that he had never seen the Trust Agreement: Q And so to your knowledge, is there a trust agreement that governs the Tope mortgage loan as being part of a trust? A Yes. Q Okay. And have you seen that trust agreement? A The agreement, no. Id. at p. 27. Only after the deposition of the plaintiff’s corporate designee witness was completed did the plaintiff disclose a lengthy and complex agreement concerning the plaintiff’s purported acquisition of the relevant Trust. (225.00; Ex. B). And on the day before the March 7, 2024 remand hearing, the plaintiff has disclosed for the first time in this 2014 case – the following documents: Pl. Exhibit 6 – Trust Assignment and Assumption Agreement Pl. Exhibit 8 – Power of Attorney Pl. Exhibit 9 – Pooling and Servicing Agreement Pl. Exhibit 10 – Letter Request for Powers of Attorney -5- Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514 II. DISCUSSION The Connecticut Supreme Court found that this Court committed error in concluding that the plaintiff was the holder of the mortgage note when initiating this foreclosure action. The note in the present case had a special endorsement to JPMorgan Chase Bank, as trustee. Therefore, the plaintiff is not the holder of the note. Accordingly, the plaintiff can enforce the note only if it can demonstrate that it is a nonholder in possession of the note with the rights of a holder. Bank of N.Y. Mellon v. Tope, supra, 345 Conn. at 681. The Court then cited to its seminal holding of J.E. Robert Co. v. Signature Props., LLC, 309 Conn. 307 (2013), in describing the duty and burden that a plaintiff bears to establish its standing to prosecute a foreclosure as a non-holder of the mortgage note. As this court has recognized, [w]ith respect to the plaintiff's ultimate burden, however, we note our agreement with other courts that have recognized that [i]t is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit, showing the history of the note, so the defendant is duly apprised of the rights of the plaintiff. . . . Bank of N.Y. Mellon v. Tope, supra, 345 Conn. at 681-682, citing and quoting J.E. Robert Co. v. Signature Properties, LLC, supra, 309 Conn. 325-26 n.18. Before this action was filed in 2014, the J.E. Robert Co. holding made it crystal clear that the plaintiff, as a non-holder, had the duty to have all of its paperwork “in hand” when initiating this lawsuit. -6- Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514 Not only did the plaintiff utterly fail to have its paperwork in order when initiating this action, but moreover, said failure persisted for more than a year following the Supreme Court remanding this case for an evidentiary hearing on the plaintiff’s standing deficiencies. Again, at the time of the defendant taking the deposition of the plaintiff’s corporate designee witness on 12/27/23 (over a year after the Supreme Court’s remand order), the plaintiff still had not pooled together the supporting documents it now purports to rely upon to establish standing. Not only did the 2013 JE Roberts holding firmly establish the plaintiff’s duty to have its documents in order when it initiated this action in 2014, the Court also discussed in detail the type of documents that would typically establish that a non-holder has standing to prosecute a foreclosure action, where a securitized mortgage is involved. The Court specifically discussed the role that Trust agreements, pooling and servicing agreements and powers of attorney can play when it comes to the issue of a non-holder’s standing to pursue foreclosure. Id. at 317- 331. Again, the defendant’s discovery request specifically cited to the JE Roberts holding in making clear the type of documents the defendant was seeking on the issue of standing. All documents relating to Bank of New York Mellon’s “claimed interest in the note,” J.E. Robert Co. v. Signature Props., LLC, 309 Conn. 307, 327 n.18 (2013), including, but not limited to, all documents evidencing any and all transfers and/or assignments of the Mortgage Note and/or the Mortgage Deed that are of the subject of this action and any and all Trust documents related to -7- Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514 ownership of the Mortgage Note and Deed that are the subject of this Action … (Exhibit A). The plaintiff was required to have these documents in its possession when initiating this action in 2014, and there can be no excuse for the plaintiff’s failure to have its documents in order by the time of the 12/27/23 deposition – over one year following the Supreme Court’s remand order! A number of the plaintiff’s filings reference the case of Bank of N.Y. v. Bell, which does involve nearly the same non-holder standing issue as present here. One of Connecticut’s most prominent jurists, Judge Robert Satter (deceased), had the following to say about the complexity of the plaintiff’s standing argument and the documents relied upon to establish standing. All this litigation plaintiff argues, can be obviated by J.P. Morgan Chase simply endorsing the note to Bank of New York. Then Bank of New York can bring a new foreclosure action based on it, not only having the original note, but it being endorsed to it. Its standing will be clear and not be grounded on the extremely complicated transaction between J.P. Morgan Chase and plaintiff, which is the reason for the extended litigation in this case. The judicial economy realized by such a step constitutes adequate cause for plaintiff to withdraw this action. Bank of N.Y. v. Bell, 2011 Conn. Super. LEXIS 42, *9, 2011 WL 383843, Superior Court of Connecticut, Judicial District of Hartford At Hartford (January 4, 2011)(Emphasis added). In Bank of N.Y. v. Bell, the same plaintiff as present here decided to withdraw its foreclosure action, rather than respond to discovery that would require it to produce sufficient documentation to support its standing claim. -8- Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514 Bank of N.Y. v. Bell provides the proper template for the resolution of this case – the case should be withdrawn or dismissed due to the plaintiff’s failure and refusal to come forward with timely and proper document discovery to support its standing claim. Judge Satter’s description of the documents at issue – “extremely complicated transaction between J.P. Morgan Chase and plaintiff” – establishes why these complicated documents cannot be dumped upon the defendant and the Court at the last minute. The plaintiff’s conduct in withholding complex documents until the eve of the remand hearing should not be countenanced and is the proper object of a sanctions motion. Such a "cat and mouse" game was properly not condoned by the trial court. The rules of discovery are designed to make a "'trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.'" Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106, (1984). For all of the foregoing reasons, the defendant’s Motion for Sanctions should be granted, including an award of the costs for this Motion and either a dismissal of this action or the rejection of the plaintiff’s untimely discovery documents. Alternatively, the remand hearing should be continued, so that the defendant may properly investigate the plaintiff’s untimely disclosures. -9- Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514 DEFENDANT ACHYUT M. TOPE, By /s/ Thomas P. Willcutts Thomas P. Willcutts. Esq Willcutts & Habib LLC 100 Pearl Street; 14 th Fl Hartford, CT 06103 Juris # 302886 - 10 - Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514 CERTIFICATION I hereby certify that a copy of the attached has been served in accordance with the applicable Rules of Practice and/or Procedure on March 7, 2024 on: Jeffrey M. Knickerbocker BROCK AND SCOTT PLLC 270 Farmington Ave., Suite 151 Farmington, CT 06032 Jeffrey.Knickerbocker@brockandscott.com By /s/ Thomas P. Willcutts Thomas P. Willcutts Juris No. 302886 - 11 - Willcutts & Habib LLC • Attorneys at Law • 100 Pearl Street, 14th Floor • Hartford, CT 06103 • (860) 249-7071 • Juris # 440514 EXHIBIT A NNH-CV14-6048487-S THE BANK OF NEW YORK MELLON : SUPERIOR COURT J.D. AT NEW HAVEN v. : ACHYUT M. TOPE, ET AL : FEBRUARY 23, 2023 NOTICE OF DEPOSITION Pursuant to Practice Book §§ 13-26 through 13-33, notice is hereby given that Defendant Achyut Tope shall take a deposition before Cassian Reporting, Court Reporters, or other competent authority, at the law offices of Willcutts & Habib, 100 Pearl Street; 14th Fl; Hartford, Connecticut, or by video-conferencing, on April 25, 2023 at 10:00 a.m. of the following deponent or deponents: The Plaintiff, THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR STRUCTURED ASSET MORTGAGE INVESTMENTS II INC. BEAR STEARNS ALT-A TRUST, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-3 (“Bank of New York Mellon”), is hereby commanded to designate and to produce one or more officers, directors, managing agents, or other persons to testify as to the following subjects: (1) The Records maintained by or on behalf of Bank of New York Mellon in connection with the subject Action. (2) The Plaintiff’s “claimed interest in the note,” including the “supporting documentation … showing the history of the note.” J.E. Robert Co. v. Signature Props., LLC, 309 Conn. 307, 325 n.18 (2013). Notice is also given, in accordance with Practice Book § 13-27(g) and Practice Book §§ 13-9 through 13-11, that the Deponent is to bring the following to the deposition: 1) Bank of New York Mellon’s complete mortgage file, whether in electronic or paper form, relating to the Mortgage Note and Deed that are the subject of this Action, whether or not said documents are in the direct possession of Bank of New York Mellon or in the possession of Bank of New York Mellon’s mortgage servicer, including but not limited to: (A) All Correspondence to or from the Defendant; (B) All documents relating to Bank of New York Mellon’s “claimed interest in the note,” J.E. Robert Co. v. Signature Props., LLC, 309 Conn. 307, 327 n.18 (2013), including, but not limited to, all documents evidencing any and all transfers and/or assignments of the Mortgage Note and/or the Mortgage Deed that are of the subject of this action and any and all Trust documents related to ownership of the Mortgage Note and Deed that are the subject of this Action; (C) All Documents evidencing any transfer of the original Mortgage Note. (D) All Documents the Plaintiff intends to rely upon to support the allegations of the Complaint. The oral examination will continue from day to day until completed. DEFENDANT, By /s/ Thomas P. Willcutts Thomas P. Willcutts 100 Pearl Street; 14th Fl Hartford, CT 06103 Juris # 302886 -2- EXHIBIT B 12/27/2023 Brian Shields, Bank of New York Mellon Page: 1 1 2 3 DOCKET NO: NNH-CV14-6048487-S : SUPERIOR COURT 4 THE BANK OF NEW YORK MELLON : J.D. OF NEW HAVEN 5 VS. : AT NEW HAVEN 6 ACHYUT M. TOPE, ET AL. : DECEMBER 27, 2023 7 8 9 10 11 VIDEOCONFERENCE DEPOSITION OF: BRIAN SHIELDS 12 DATE: DECEMBER 27, 2023 13 WITNESS LOCATION: LAKE ZURICH, IL 14 15 16 17 18 19 20 21 22 CASSIAN REPORTING, LLC Capitol Place 23 21 Oak Street, Suite 307 | Hartford, Connecticut 06106 (860) 595-7462 24 scheduling@cassianreporting.com Reporter: Tiffany V. Pratt, CSR #128 25 Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 2 1 2 APPEARANCES: (All appeared via videoconference) 3 REPRESENTING THE PLAINTIFF: 4 Brock and Scott, PLLC 5 270 Farmington Avenue Suite 151 6 Farminton, CT 06032 401-217-8701 7 jeffrey.knickerbocker@brockandscott.com By: Jeffrey Knickerbocker, Esq. 8 9 REPRESENTING THE DEFENDANT: 10 Willcutts & Habib, LLC 14th Floor 11 100 Pearl Street Hartford, CT 06103 12 860-249-7071 tpw@willcutts.com 13 By: Thomas P. Willcutts, Esq. 14 LOCATION OF WITNESS/PLACE OF DEPOSITION: 15 Lake Zurich, IL 16 17 18 19 20 21 22 23 24 25 Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 3 1 2 3 S T I P U L A T I O N S 4 5 IT IS STIPULATED by the attorneys for the parties 6 that each party reserves the right to make specific 7 objections in open court to each and every question asked 8 and the answers given thereto by the witness, reserving 9 the right to move to strike out where applicable, except 10 as to such objections as are directed to the form of the 11 question. 12 13 IT IS STIPULATED and agreed between counsel for the 14 parties that the proof of the authority of the Notary 15 Public before whom this deposition is taken is waived. 16 17 IT IS FURTHER STIPULATED and agreed that the reading 18 and signing of this deposition is not waived and any 19 defects in the Notice are waived. 20 21 22 23 24 25 Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 4 1 TABLE OF CONTENTS 2 WITNESS: PAGE: 3 Brian Shields 4 Direct by Mr. Willcutts ......................... 5 5 PLAINTIFF'S EXHIBITS 6 EXHIBIT: PAGE: 7 Exhibit 2 Open-End Mortgage Deed ................. 5 8 Exhibit 4 Computershare Mortgage Trust Doc, Bear . 31 9 Stearns ALT A 2004-3 10 Exhibit 5 Loan Schedule .......................... 41 11 Exhibit 3 Corporate Assignment of Mortgage ....... 44 12 Exhibit 1 Fixed/Adustable Rate Note .............. 45 13 DEFENDANT'S EXHIBITS 14 EXHIBIT: PAGE: 15 Exhibit A Re-Notice of Deposition ................ 18 16 17 18 19 20 21 22 23 24 25 Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 5 1 (Deposition commenced: 1:10 p.m.) 2 BRIAN SHIELDS, called as a 3 witness, having been first duly sworn by 4 a Notary Public in and for the State of Connecticut, 5 was examined and testified as follows: 6 D I R E C T E X A M I N A T I O N 7 BY MR. WILLCUTTS: 8 Q Mr. Shields, if you'll just state your name and 9 address for the record? 10 A Yes. My name is Brian Shields. My address is 11 1 Corporate Drive, Suite 360, Lake Zurich, Illinois, 12 60047. 13 Q For the record, I'm Attorney Thomas Willcutts. 14 I represent defendant Achyut Tope in this case, and we're 15 here to take your deposition. Is that your 16 understanding? 17 A Yes. 18 Q Okay. And by whom are you employed, 19 Mr. Shields? 20 A Dovenmuehle Mortgage, Incorporated. 21 (Off the record briefly.) 22 BY MR. WILLCUTTS: 23 Q Okay. So, Mr. Shields, how long have you worked 24 for Dovenmuehle? 25 A About 8 1/2 years. Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 6 1 Q And have you ever had your deposition taken 2 before? 3 A No. 4 Q Have you ever testified in court? 5 A Yes. 6 Q Approximately how many times during your employ 7 at Dovenmuehle? 8 A Eight. 9 Q So Mr. Shields, this deposition, it's a little 10 different from testifying in court, but in some respects 11 it's the same. A couple things I'd like you to keep in 12 mind as we take your deposition today. 13 First, in normal polite conversation, if you 14 understand what I'm trying to get at, you might jump in 15 and give me the answer before I finished my question. I'd 16 like you to refrain as best you can from doing that today 17 for a couple reasons; one, so my questions should be 18 complete for the record; and, two, it's tough for the 19 court reporter if two of us are speaking at the same time. 20 So if you'll let me finish the question before you start 21 your answer. And if for any reason you don't understand 22 my question, you can just let me know that, that you're 23 not sure you understand it. I'll try to determine the 24 cause of the misunderstanding and get that corrected. And 25 if you need a take a break, we would ask that you finish Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 7 1 the question that's pending and just let us know, and no 2 problem, if you need to take a break for any reason. 3 Are you -- where you're at today, are you 4 alone? 5 A Yes. 6 Q All right. So, anyway, you said you've worked 7 for Dovenmuehle for about 8 1/2 years and that you're 8 currently located in Illinois. First just some general 9 background on your yourself before we get into the case. 10 Where did you grow up? 11 A In Illinois. 12 Q Okay. And what town is that? 13 A Hainesville. 14 Q I'm sorry? 15 A I'm sorry. I grew up in Hainesville. 16 Q All right. And how far did you go in school? 17 A Where I went to school you're asking me? 18 Q Yes. How far did your education go? What's the 19 highest degree that you received? 20 A I have a master's. 21 Q Okay. And master's from where? 22 A Eastern Illinois University. 23 Q What year did you get the master's? 24 A 2012. 25 Q Okay. What is your master's in? Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 8 1 A It was an MBA. 2 Q Now, what about college? Where did you go to 3 college undergraduate? 4 A I went to Eastern Illinois University. 5 Q Okay. And so your master's was in 2012. When 6 was your undergraduate degree? 7 A 2011. 8 Q So what was your first full-time employment, 9 Mr. Shields? 10 A It would have been through Robert Half at a law 11 firm. 12 Q What is the second word there? You said Robert 13 something. 14 A Robert Half. It's a recruiting firm who placed 15 me there. 16 Q Okay. Half, can you spell that? 17 A I think it's H-a-l-f-e, possibly. 18 Q Okay. And, I'm sorry, that was a law firm or a 19 recruiting firm? 20 A A recruiting firm placed me there. 21 Q So Robert Halfe is a law firm? 22 A No. That's the recruiting firm. 23 Q Okay. And so you say they placed you somewhere. 24 Where did they place you? 25 A So that was with Fisher & Shapiro. Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 9 1 Q And that's a law firm? 2 A Correct. 3 Q And where are they located? 4 A I worked in Bannockburn, Illinois. 5 Q How long did you work for the law firm? 6 A That might have been about a six-, seven-month 7 role. 8 Q Okay. And what was your position there? 9 A I was enter judgment processor. 10 Q Was that in connection with foreclosure 11 actions? 12 A Yes, it was. 13 Q How many states were covered by the work you 14 performed? 15 A I only did work for one state. 16 Q Illinois? 17 A Illinois, correct. 18 Q What was your reason for leaving the law firm? 19 A The contract position I had there ended. 20 Q What was your next full-time employment? 21 A So that would have been up through Kelly 22 Services, and I did work at a bank for them. 23 Q Okay. And, I'm sorry, Kelly Services, is that 24 temporary services, temporary employment? 25 A That was, yes. Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 10 1 Q So you worked for Kelly, and they would place 2 you at different temporary positions? 3 A Yes. 4 Q Okay. And were those positions at law firms, or 5 did you work for -- you mentioned a bank. What type of 6 employers did you have while you were at Kelly? 7 A The bank was the only one that I did with them. 8 Q And was there a department within the bank that 9 you worked? 10 A So I don't know. It wasn't a specific 11 department I was put in, but I essentially handled 12 ensuring adequate documentation was present for each 13 type of account that I was reviewing. 14 Q And that also was an Illinois bank? 15 A It was in Illinois, yes. 16 Q All right. So after that employment through 17 Kelly Services, what was your next full-time employment? 18 A That was -- I came to Dovenmuehle after that. 19 Q What year was that? 20 A 2015. 21 Q And when you joined Dovenmuehle, what was your 22 job position? 23 A I was a judgment representative. 24 Q Can you explain for us what duties a judgment 25 representative had at Dovenmuehle? Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 11 1 A As a judgment representative I would work on 2 foreclosure cases in judicial states. And from the 3 service part of the process, I would work with the local 4 counsel to ensure that the borrower was served, that 5 affidavits were prepared, motions were filed essentially 6 leading to the judgment being entered in that case. 7 Q Okay. And you indicate that these services you 8 performed were for judicial states; is that right? 9 A In that position, yes. 10 Q Okay. And so that -- you described your initial 11 position with Dovenmuehle. How long did you have that 12 position? 13 A Maybe seven months or so. 14 Q Why don't you just take me chronologically from 15 that first position which you've described and that lasted 16 seven months. Go chronologically and tell me the 17 different positions you've had at Dovenmuehle including 18 the basic duties you had at each position. 19 A Okay. So after the judgment representative, 20 I became a sales representative. That essentially 21 handled -- that included both judicial and non-judicial 22 states, and it just handled the process of bringing the 23 properties to the foreclosure sale once the sale date was 24 set, which included ordering valuations, coordinating 25 bidding amounts with the clients, ensuring everything was Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 12 1 in order for those properties to go. 2 After that I was a team lead on the sales and 3 judgment team. So that essentially entailed working with 4 the sales and judgment representatives just to ensure that 5 all their loans were moving appropriately and that 6 everything was in good order on the files that we had. 7 After that I became a default litigation 8 specialist. That essentially entails managing a portfolio 9 of contested foreclosure cases where you work with local 10 counsel to resolve those contested matters on the files, 11 prevent any future contested matters from arising on those 12 files, responding to borrower correspondence if anything 13 does come in in writing on those files and other files as 14 well. 15 And then after that, I briefly left that 16 position to be in the client audit support department. 17 That essentially involved responding to requests when 18 clients requested, or other entities, requested 19 information on our files. And I would go through the 20 loans that they needed that information on to provide it 21 to them. 22 And then after that I came back to the default 23 litigation specialist role. 24 Q Okay. So you went through the different 25 positions. What you did not include was a general time Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 13 1 period for these different stages. 2 A Sorry. So for the sales representative, that 3 would have been probably late 2015 to maybe April or May 4 of 2016. I did the team lead role from April or May of 5 2016 to the end of November 2018. I did the default 6 litigation specialist the first time from roughly 7 December 2018 to May, I think it was maybe mid 2021. And 8 then back at the end of 2021, December 2021, I went back 9 to the default litigation specialist role where I'm 10 currently at right now. 11 Q Okay. I'm sorry, what is the first -- I didn't 12 catch the first word, the something specialist role? 13 A Default litigation specialist. 14 Q Default, you said? 15 A Correct, yes. 16 Q Okay. Default litigation. So does that cover 17 only certain types of litigation? 18 A So the litigation that would specifically 19 include would be in foreclosure actions, specifically 20 loans that are being contested. 21 Q So what's the significance of the word default? 22 A Just that the loans are in default. 23 Q That's a description of the loan? It's not a 24 description of the litigation? 25 A Right. Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 14 1 Q So you work on loans in default that are in 2 contested litigation? 3 A Correct. 4 Q And approximately how many states do you cover 5 in that role? 6 A In theory it would be any state that has one, 7 but most of my loans are in two states. 8 Q In which states? 9 A That would be New York and Florida. 10 Q Most of your cases are New York and Florida. 11 Okay. And so what -- is there anything specific that 12 brings you to Connecticut for this case? 13 A Yes, just the style happens to be in the 14 portfolio of loans that I have. 15 Q I'm sorry, the what is in the portfolio? 16 A This loan is in my portfolio of loans that I'm 17 in charge of. 18 Q When you say a portfolio of loans, how is a 19 portfolio defined? 20 A That's just what my workload is, the loans that 21 are assigned to me for management. 22 Q So when you say this particular loan, the Tope 23 loan, is in your portfolio, does that mean it's attached 24 to a specific trust that your work covers? 25 A So that's not why I have this loan. I might Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 15 1 have it because this one's assigned to me. 2 Q And how does that happen? How is it that loans 3 get assigned within Dovenmuehle, if you know? 4 A So as it pertains to the department I'm in, when 5 a -- it's deemed that an answer or other contested 6 pleading is filed, essentially the supervisor reviews 7 that, and it's just assigned to one of the representatives 8 in the department. 9 Q Okay. Can you tell us when Dovenmuehle became 10 involved with the Tope loan which is the subject of this 11 case? 12 A So we would have taken servicing of that over on 13 December 1, 2018. 14 Q And what, if you know, was the catalyst for 15 Dovenmuehle becoming involved in this loan at that time, 16 December 1 of 2018? 17 A We became the new servicer for that loan, for 18 all -- for more than one loan, but this one in particular 19 was in that -- 20 Q So Dovenmuehle took over the servicing of a 21 group of mortgage loans that happened to include this loan 22 around that time? 23 A Correct. 24 Q So your taking over wasn't particular to this 25 loan? It was that this loan was in a group of other Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 16 1 loans, and you took over the group; is that accurate? 2 A As Dovenmuehle took over the group you mean? 3 Q Yes. In other words, your involvement with the 4 Tope loan is not specific to this loan; it's that it was 5 included in a group of loans that Dovenmuehle took over? 6 A Correct, yes. So for the loans that transferred 7 to us, this loan was included in those. 8 Q Do you know why this transfer of loans that 9 included the Tope loan, why this transfer to Dovenmuehle 10 occurred when it did in 2018? 11 MR. KNICKERBOCKER: Objection as to 12 form. 13 THE WITNESS: I don't know. 14 BY MR. WILLCUTTS: 15 Q I'm sorry, I don't know if we got your answer, 16 Mr. Shields. 17 A So I don't know specifically why they were 18 transferred to us. 19 Q Okay. And, Mr. Shields, when is the first time 20 you became involved with the Tope loan? 21 A I believe I had it back the first time I was in 22 the department in 2018, but I know when I came back in 23 2021 that this loan was in my portfolio for sure. 24 Q When was the first time your attention was drawn 25 to this specific loan, if you recall? Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 17 1 A I don't remember specifically. 2 Q Do you know what year that would have been? 3 A When I first ever saw this loan? 4 Q When you first became involved with this loan, 5 when you had any interaction with it. 6 A Probably 2021. 7 Q And do you know the reason for your interacting 8 with this? Do you recall the reason for your interacting 9 on this loan? 10 A Apart from the -- well, the loans are my -- 11 inventory in my portfolio. So I would be interacting with 12 the firm on that one and managing the process on it. 13 Q Now, do you recall that this mortgage was 14 subject to a judicial appeal? 15 A I do know there was an appeal, yes. 16 Q Okay. And at some point that appellate process 17 came to an end. Is that your understanding? 18 A Yes, that's correct. 19 Q Okay. And tell us what your understanding is as 20 to the outcome of that appellate process, if you have one. 21 A I don't fully know. 22 Q Okay. So do you have some understanding as to 23 when that appellate process came to an end? 24 A I believe sometime last year in 2022 or maybe 25 early '23. Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 18 1 Q Before the appellate process came to an end, did 2 you have -- was there any work that you were called upon 3 to do with respect to this loan? 4 A Apart from following up regarding the status of 5 the appeal, where it was going, no. 6 Q So before the appellate process came to an end, 7 your involvement was limited to staying on top of the case 8 status with counsel? 9 A Yes. 10 MR. WILLCUTTS: Okay. If we could 11 bring up Defendant's Exhibit 1 on the screen, 12 that would be great. 13 (Defendant's Exhibit A presented.) 14 BY MR. WILLCUTTS: 15 Q Mr. Shields, I have on the screen what's been 16 marked as Defendant's Exhibit A, which is entitled 17 Re-Notice of Deposition dated December 22nd. Have you 18 seen this document before? 19 A Can you scroll down so I can -- yes, I have seen 20 this. 21 Q Okay. So what this does is it identifies 22 subject matter that we intended to cover today and we 23 asked that you be prepared for. One is the records 24 maintained by or on behalf of the plaintiff in this case, 25 which is Bank of New York Mellon, and the other is the Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 19 1 plaintiff's claimed interest in the note including 2 supporting documentation. And then also there's a 3 separate request for various documents which I have up 4 there now. Have you reviewed this request for 5 documents? 6 A Yes, I have. 7 Q All right. So tell me what documents you 8 reviewed in preparing to give testimony today, if you 9 could. 10 A Yes, so I -- so in general, the note, mortgage, 11 assignment, mortgage, the mortgage loan schedule, the deal 12 sheet. That's the sum of what I would have gone through 13 for this case. 14 Q Okay. And you understand -- so the subject 15 matter includes -- well, all right. Hold on just a 16 second. 17 So in terms of one of the subjects is records 18 maintained by Bank of New York Mellon, do you know what 19 records Bank of New York Mellon has in connection with 20 this particular loan? 21 MR. KNICKERBOCKER: Objection as to 22 form. 23 THE WITNESS: So you mean in terms 24 of like any additional stuff besides like the 25 loan documents that they would have? Job No. 20170 Cassian Reporting, LLC (860) 595-7462 scheduling@cassianreporting.com 12/27/2023 Brian Shields, Bank of New York Mellon Page: 20 1 BY MR. WILLCUTTS: 2 Q Right. So in the request to produce documents, 3 it starts off by asking for Bank of New York Mellon's 4 complete mortgage file. Does the phrase "mortgage file" 5 have some meaning to you when you think of -- 6 A Well, at -- 7 Q Go ahead. 8 A So, yes, at least in terms of the mortgage file, 9 that to me would mean the main loan docs like the note, 10 the mortgages -- sorry, mortgage and then assignments of 11 mortgage that would be present. 12 Q Okay. What about the mortgage servicers who 13 have had involvement with this loan? Do you know the 14 history on that, the various mortgage servicers who dealt 15 with the Tope mortgage loan? 16 MR. KNICKERBOCKER: Objection as to 17 form. 18 THE WITNESS: Yes. So the servicers 19 that would have had this would be that -- at 20 origination, HSBC would have been the servicer 21 of the loan. In about May of 2013, pHH would 22 have been handling the servicing aspects of 23 the loan.