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Filing # 90706625 E-Filed 06/06/2019 03:48:27 PM
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT, IN AND FOR
PALM BEACH COUNTY, FLORIDA
6654 NW 27 AVENUE, LLC,
Case No: 2017CA13348 MB AD
Plaintiff,
Vv.
PINCUS CAPITAL LLC and MARK
BENUN,
Defendants.
/
NOTICE OF FILING DEPOSITION TRANSCRIPT
OF DEANA CLARK DATED JANUARY 28, 2019
The Defendant, PINCUS CAPITAL LLC and MARK BENUN, by and through the
undersigned counsel, hereby files this Notice of Filing Deposition Transcript of Deana Clark
dated January 28, 2019 to the Court as attached hereto.
CERTIFICATE OF SERVICE
THEREBY CERTIFY that a copy of the foregoing has been served this 6" day of June,
2019 via email upon Ronald M Gache Esq, Shapiro Fishman & Gache, 2424 N Federal Hwy,
Suite 360, Boca Raton, FL 33431, rgache@logs.com; and Scott A. Simon Esq.,
ssimon@logs.com.
SHIR LAW GROUP, P.A.
2295 N.W. Corporate Blvd. Suite 140
Boca Raton, Florida 33431
Phone: 561-999-5999
Fax: 561-893-0999
By: Stuart 0, Goberg, Eeg.,
Stuart J. Zoberg, Esq., Fla Bar No. 611891
szoberg@shirlawgroup.com
Service Email: Office@shirlawgroup.com
FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 06/06/2019 03:48:27 PMIn the Matter Of:
6654 NW 27 AVENUE vs PINCUS CAPITAL LLC
17CA13348 MB AH
DEANA M. CLARK
January 28, 2019
800.211.DEPO (3376)
EsquireSolutions.com
DEPOSITION SOLUTIONSDEANA M. CLARK January 28, 2019
6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 1
IN THE CIRCUIT COURT
OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 17CA13348 MB AH
6654 NW 27 AVENUE, LLC,
Plaintiff,
-vs-
PINCUS CAPITAL LLC, MARK BENUN,
an individual, et. al.,
Defendant.
DEPOSITION OF DEANA MARIE CLARK
Monday, January 28, 2019
10:55 - 12:55 p.m.
Shir Law Group, P.A.
2295 N.W. Corporate Boulevard, Suite 140
Boca Raton, Florida 33431
Reported By:
Christina Andrioff, Court Reporter
Notary Public, State of Florida
Boca Raton Office Job #J33616042
B ESQUIRE a00.241 DERO (3976)
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DEANA M. CLARK January 28, 2019
6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 2
APPEARANCES:
On behalf of the Plaintiff:
RONALD M. GACHE, ESQUIRE
SHAPIRO, FISHMAN & GACHE, LLP
2424 N. Federal Highway, Suite 360
Boca Raton, Florida 33431
On behalf of the Defendant:
STUART J. ZOBERG, ESQUIRE
SHIR LAW GROUP, P.A.
2295 NW Corporate Boulevard, Suite 140
Boca Raton, Florida 33431
Also Present:
MARK BENUN (via telephone)
Direct Examination by Mr. Zoberg Page 3
EXHIBITS
Exhibit No. 1 Page 18
Exhibit No. 2 Page 24
Exhibit No. 3 Page 32
Exhibit No. 4 Page 55
Exhibit No. 5 Page 63
Exhibit No. 6 Page 77
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DEANA M. CLARK January 28, 2019
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PROCEEDINGS
Deposition taken before Christina Andrioff,
Court Reporter and Notary Public in and for the
State of Florida at Large, in the above cause.
Thereupon,
(DEANA MARIE CLARK)
having been first duly sworn or affirmed, was examined
and testified as follows:
DIRECT EXAMINATION
BY MR. ZOBERG:
Q As you know, I am Stuart Zoberg, I
represent Mark Benun and also the entity. For
convenience, I am going to refer to this case as
Clark versus Benun. I know that is not the actual
title, you understand that you're under oath?
A I do.
Q If you lie, you're subject to penalties of
perjury?
A I do.
Q Are you prepared to answer my questions
today?
A Yes.
Q Is there anything distracting you or
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DEANA M. CLARK January 28, 2019
6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 4
preventing you from giving me your full attention?
A No.
Q Are you taking any medications that affect
your memory?
A No.
QO If you need a break, let me know; if you
don't understand one of my questions, let me know.
Have you ever been deposed before?
A Yes.
Q In what cases?
A This case and a divorce, well, the
previous case, not this case, previous case, 2015
case.
Q Other than cases with Mark Benun, have you
ever been deposed before?
A Once in a divorce.
Q Tell me everything you did to get ready
for this deposition.
A Reviewed some documents I had, I had a
meeting with my attorney last week.
Q Have you reviewed the pleadings in this
case?
A Yes.
Q What is your full name?
A Deana Marie Clark.
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DEANA M. CLARK January 28, 2019
6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 5
Q Spell it for the record.
A D-E-A-N-A M-A-R-I-E C-L-A-R-K.
Q Is there any other person or trust or
other entity that is a member of the Plaintiff?
MR. GACHE: Do you understand that?
BY MR. ZOBERG:
Q Are you the sole owner of the Plaintiff
entity?
MR. GACHE: LLC.
THE WITNESS: Yes.
BY MR. ZOBERG:
Where do you reside?
Boca Raton.
Address?
855 Berkley Street, Boca Raton 33487.
How long have you lived there?
Three years approximately.
What is your highest level of education?
High school, trade school.
What is your current employment?
r oO Fr 0 Fr OO FP OO FP ”O
Self-employed.
Q Describe it, the nature of the
self-employment.
A I am the owner of a medical spa, I do
laser technology, esthetic laser.
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DEANA M. CLARK
6654 NW 27 AVENUE vs PINCUS CAPITAL LLC
January 28, 2019
6
0
Pr Oo Fr 0 PO PO Pr 0 PO Fr CO PY
Q
Broken
A
Q
Are you closed on Mondays?
Yes.
How long have you been doing that?
Doing this particular business or general?
Both.
I was first licensed in 1994.
And this current business?
Seven years approximately.
Have you ever been arrested?
Yes.
What for?
DUI.
Anything else?
No.
Have you ever been convicted?
For DUI.
Also just to make this go a little faster,
I am going to refer to the home in Broken Sound at
6654 NW 27th Avenue as the home or the home in
Sound but we all know I am talking about the
house that you previously owned or your entity
previously owned but is currently owned by Mark
Benun or the trust he placed it in, okay?
Okay.
Do you remember when you first started
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DEANA M. CLARK January 28, 2019
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renting to my client?
A 2014 I believe, '13 possibly.
Q Do you remember how much the monthly rent
was?
A I believe twenty-four hundred a month.
Q Do you remember how much it went up to?
A I don't recall.
Q Twenty-nine ninety-five sound about right?
A Could be.
Q Did you know about my client's criminal
background when you first started renting to him?
A I did not.
Q When did you learn about it?
A After the first court case.
QO Are you talking about with my client?
A Correct. There was supposed to be a
background check done by Broken Sound Country Club
when I rented to your client, I assumed in that
background check they would have found any criminal
background so I did not do my own criminal
background. Also, he was brought to me by a
reputable broker had I known.
MR. GACHE: Just answer the
questions.
BY MR. ZOBERG:
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DEANA M. CLARK January 28, 2019
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Q In any case, you knew before this case
began and the current deal was made, correct?
MR. GACHE: What do you mean the
current deal, the settlement in '16?
MR. ZOBERG: The mortgage documents
that we're fighting over.
MR. GACHE: I want to be clear.
MR. ZOBERG: Correct?
THE WITNESS: Correct.
BY MR. ZOBERG:
Q Describe in your own words how this deal
came to be.
MR. GACHE: Object to the form of the
question, it calls for a narrative. Sometimes I
will object and you still answer anyway if you can.
THE WITNESS: Okay.
MR. GACHE: He is generally asking
you how did it come to be that you gave a note and
mortgage or you took back a note and mortgage.
THE WITNESS: You want from the
beginning?
BY MR. ZOBERG:
Q About a month before this happened to two
months before to when it was actually signed.
MR. GACHE: Same objection. Go
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DEANA M. CLARK January 28, 2019
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ahead.
THE WITNESS: Mr. Benun was a tenant,
I informed him I intended to sell the property. He
then told me he wanted to purchase the property and
we entered into an agreement to purchase. He never
purchased the property, this was in 2015 or '16, I
believe. Then through litigation, a settlement was
drawn up between my attorney and his attorneys that
after the eviction, to settle the eviction process,
to get him out of the property because he couldn't
close on the property we agreed to allow him to
purchase the property and I would hold the note for
him for fourteen months, that agreement was done
between Murdoch Weires & Newman. Mr. Gache was also
on the case, at that point, that was in September of
2017, '16, correct, 2016, that was to mature in
November of 2017, yes, that's correct.
BY MR. ZOBERG:
Q Did you review the correspondence between
myself and your lawyers at the time?
A Perhaps some of it, I don't know if all of
it.
Q Mr. Gache was also involved at that time
negotiating the mortgage, correct?
A Correct.
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DEANA M. CLARK January 28, 2019
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Q You recall at some point you saying this
is a mortgage, take it or leave it?
MR. GACHE: Object to the form.
THE WITNESS: We all agreed what the
mortgage would be.
BY MR. ZOBERG:
Q When you say we all agreed, isn't it true
that I tried to make certain changes to the mortgage
and your lawyer said take it or leave it, this is
the note?
MR. GACHE: Object to the form.
THE WITNESS: I don't recall.
BY MR. ZOBERG:
Q Would it surprise you to learn there is
Emails of your lawyers saying take it or leave it?
MR. GACHE: I will lodge a general
objection and also anything that we would have
discussed about how you settled the case would be
attorney/client privilege and you wouldn't have to
disclose that information. If he is saying is it a
fact that he and I had a conversation, the only way
you know that is from a conversation with me, you
wouldn't have to disclose that information.
MR. ZOBERG: That is not accurate, a
conversation between you and I is not protected
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DEANA M. CLARK January 28, 2019
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obviously. She is reading those Emails; obviously,
that is not protected.
MR. GACHE: My sharing anything with
her would be protected.
MR. ZOBERG: Correct, if she is
reading the Emails between us, that wouldn't be.
MR. GACHE: Ask her that question,
did you ever see Emails between me and you, you can
ask her that question, if she remembers.
BY MR. ZOBERG:
Q Did you ever see Emails between Ron and I
regarding essentially the terms of the loan were not
negotiable?
A I don't recall.
Q You don't recall one way or the other,
that could very well be the case?
A I was comfortable with the terms of what I
discussed at two seventy, fourteen month interest
only balloon at the end.
Q You know that the note has additional
terms; for example, a jury trial labor?
MR. GACHE: Object to the form, best
evidence would be the document if you want to show
it to her.
THE WITNESS: I am not sure of the
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DEANA M. CLARK January 28, 2019
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question.
BY MR. ZOBERG:
Q Would you have agreed to negotiate the
jury trial labor?
MR. GACHE: Object to the form.
THE WITNESS: You can object all you
want, if her testimony doesn't contradict it, it is
uncontested testimony. You can coach her all you
want, I don't care what her answer is, I just need
to get it on the record.
MR. GACHE: I am just objecting to
the form of the question, I am not coaching
anything. I am not providing any information, I am
going exactly what the rules say. If you want to
know my objection, you're calling for speculation,
you're asking would she have done something in a
certain situation, that is a completely
objectionable question.
MR. ZOBERG: The document doesn't
explain what might have been in negotiation. You
well know, one of the issues of a jury trial labor
is full, knowing and voluntary. The question is
does she remember; if the answer no, so be it and we
will move on. If the answer is yes, I want to know
what she remembers.
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DEANA M. CLARK January 28, 2019
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BY MR. ZOBERG:
Q Again, since you now see where this is
going, do you have any memory of your negotiations
of the terms of the note and mortgage?
A No.
QO Including specifically the jury trial
labor provision, same answer?
A I guess I hoped I wouldn't have to do that
because I hoped I was going to get paid.
Q Do you have any real estate background?
A Very little.
Q Do you have a real estate license?
A Inactive.
Q You have one?
A I have one, it's inactive.
Q How long has it been inactive for?
A Since 2011.
Q Have you looked into how much the house is
worth?
A No.
Q So I just want to be clear for the record
the story that you're now telling. Your claim is, I
want to understand because it is so absurd, that
from 2014 until now, we're fighting over a house --
You understand that part of the claim is that the
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DEANA M. CLARK January 28, 2019
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loan was usurious because the house wasn't worth
what you say it is worth, correct?
A I believe the house is worth what I say it
is worth.
Q Again, I get you believe, we all have
beliefs. There is no actual evidence to back up
that belief and your testimony is that
notwithstanding that you have been litigating over
this house for four years, you have a real estate
license inactive but you never checked?
A It is not my responsibility to do an
appraisal, it's the purchaser's responsibility to do
an appraisal.
Q You get that no rational person is going
to believe that, right?
MR. GACHE: Move to strike, this is a
deposition, this is not a place to lecture.
MR. ZOBERG: She does have an
obligation to tell the truth.
MR. GACHE: You don't get a chance to
lecture and talk at her, you need to ask questions,
this is a discovery deposition.
MR. ZOBERG: I am trying to find out
whether she is sticking to this ridiculous story.
MR. BENUN: (Inaudible).
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DEANA M. CLARK January 28, 2019
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MR. ZOBERG: Mark, I am going to drop
you off the line if you say things like that.
MR. GACHE: Again, just asking you to
be more professional, you're supposed to be asking
questions.
MR. ZOBERG: Mark, I know where the
line is, you don't so be quiet.
BY MR. ZOBERG:
Q As part of the answers to your
interrogatories, you testified that when you
originally approached Larry Shapiro, Lawrence
Shapiro, it was in part to sell the loan, correct?
A Correct.
Q Still you never looked into the value of
the house?
A I wasn't giving him another mortgage. At
that point, he was going to have to get financing
somewhere else.
Q If you're selling a loan, one of the
things you would normally try to pitch the loan with
is, hey, the house is worth X, the loan is worth Y,
you didn't do that either. You said, here is the
loan, I don't know what the house is worth, do you
want to buy it?
A Correct.
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DEANA M. CLARK January 28, 2019
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Q You claim, in your interrogatories, that
you believe the home is worth two seventy, where did
you get that number from?
A That's the number I wanted for the house.
Q Ever discuss this home with any real
estate agents over the four years that we have been
litigating these various cases?
A One real estate agent.
Q Did he or she comment about the value of
the home?
A That was when the home was listed by Mark
Benun for two eighty-nine and she told me she
thought she could get that for the house, that was
his broker.
Q What is her name?
A I don't recall.
Q I am going to have to take her deposition,
that is a flat out --
MR. GACHE: I haven't listed her.
MR. ZOBERG: It doesn't matter.
MR. GACHE: You can do whatever you
want, this is the whole point of waiting until the
last minute to take Deana.
MR. ZOBERG: It wasn't a last minute,
he didn't say we are going to have a cutoff until a
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DEANA M. CLARK January 28, 2019
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month and a half ago. I don't have any obligation
to depose her. We will deal with this but unless
she is going to retract that, I am going to take her
deposition or I will get an affidavit from her. I
could call her at trial, I don't need her
deposition.
MR. GACHE: You're talking out loud,
just take her deposition. I don't care about your
strategy.
BY MR. ZOBERG:
Q Are you planning to call any real estate
agents to testify at trial?
A No.
Q You're sticking by your testimony, you
never asked a realtor other than Mr. Benun's realtor
what this property is worth?
MR. GACHE: Object to the form of the
question.
THE WITNESS: There was one real
estate, his name was Ray Straub and I am not sure, I
don't think we ever discussed price of the home.
BY MR. ZOBERG:
Q Isn't it true you told Mr. Benun if he
paid cash you would take less?
A No.
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DEANA M. CLARK January 28, 2019
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Q Your testimony is that if he offered you
less than two seventy right away, you weren't going
to take less?
A No.
Q For the first several months of the loan,
he made all the payments, correct?
A Interest payments.
Q Okay, but yes, correct?
A Yes.
Q I don't agree with the characterization
but whatever. Yet still in October of 2016, you
told him you transferred the loan to Larry Shapiro,
correct?
MR. GACHE: Object to the form, that
was not October.
MR. ZOBERG: My bad, that's correct.
It says loan closing date, October, it was May 2017.
Do you recognize that document, I am showing her
what I am going to mark as Exhibit 1.
THE WITNESS: Yes.
(Whereupon, Exhibit No. 1 was marked
for identification.)
BY MR. ZOBERG:
Q Did you draft that document?
A I did.
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DEANA M. CLARK January 28, 2019
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Q Was it an accurate copy of the document
that you sent Mr. Benun on or around May 2017?
A It is.
Q On or around May 2017, he has paid all of
the payments yet you told him, I am transferring the
loan to Lawrence Shapiro, correct?
A Correct.
Q Why did you do that?
A He was harassing me, text messages,
phonecalls relentlessly trying to make a deal.
Q Something wrong with that?
A I wasn't willing to negotiate with him, my
price was my price.
Q In any case, you now claim this was a lie,
you never actually transferred it to Larry Shapiro,
correct?
A That's correct.
Q You understand if you don't say it is a
lie, your case gets dismissed, correct?
MR. GACHE: Object to the form.
MR. ZOBERG: You can still answer.
MR. GACHE: Calls for a legal
conclusion.
MR. ZOBERG: I am asking her what she
understands.
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DEANA M. CLARK January 28, 2019
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MR. GACHE: The understanding would
come from me, that is attorney/client privilege, you
don't have to answer that.
BY MR. ZOBERG:
Q Is he the only lawyer you know?
A It's a lie, that's all I can tell you, it
was a lie.
Q Isn't it true you told him if he didn't
pay, Shapiro would make sure he paid?
A That is not true.
Q Isn't it true you threatened him that a
gangster was going to make sure he paid?
A That is not true.
Q You never answered the question, you can
object if you want to object and instruct her not to
answer, you have that authority. You understand
that if you don't say that was a lie under Florida
law, this case gets dismissed, correct, without
going into things you may have learned from your
specific attorney?
A I understand I am not lying, it was a lie
at the time. I did not transfer the loan to Larry
Shapiro. At any time, I did not transfer the loan
to anyone at any time. I tried; trust me, I tried.
Q In all of your trying, nobody said, hey,
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DEANA M. CLARK January 28, 2019
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this house isn't worth what the loan is?
A No, everyone said Mark Benun is not
collectable.
Q Who cares if the value of the house is
more than the loan.
A Get in line.
Q The house comes first --
MR. GACHE: You're not asking any
questions, you're arguing.
MR. ZOBERG: No, now I am trying to
establish she is lying when she says she doesn't
know what the house is worth.
MR. GACHE: She said the house is
worth what she thinks it is worth. She didn't say
she doesn't know.
MR. ZOBERG: Even more absurd.
BY MR. ZOBERG:
Q In all your attempts to try and sell this
loan, did anyone say to you, the house is not worth
what the loan is?
A No.
Q You know that no one is going to believe
that -- Withdrawn.
MR. GACHE: Move to strike.
MR. ZOBERG: JI withdrew it, you don't
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DEANA M. CLARK January 28, 2019
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have to strike it.
MR. GACHE: You don't need to keep
making comments.
MR. ZOBERG: It is ridiculous.
MR. GACHE: This is a deposition,
just ask questions.
MR. ZOBERG: By the way, you still
haven't answered the question, which I am going to
ask again, either I get an answer or you can object
and instruct her not to answer.
MR. GACHE: Or she doesn't know.
MR. ZOBERG: That is also an answer
but she hasn't answered that either.
BY MR. ZOBERG:
Q Are you aware that if The Court doesn't
find that you are lying then and not now, this case
will be dismissed because you don't own the loan?
MR. GACHE: Object to the form, do
you understand what he is asking?
MR. ZOBERG: Probably wasn't the best
way to say it so I will rephrase it.
BY MR. ZOBERG:
Q At the time of the lawsuit, if Larry
Shapiro owned the loan, does this case get
dismissed?
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DEANA M. CLARK January 28, 2019
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A He never owned the loan.
Q That is not an answer to my question.
A I don't know, I am not a lawyer.
Q That's an answer, it's a baloney answer
but at least it's an answer.
MR. GACHE: Move to strike.
BY MR. ZOBERG:
Q You produced to me; actually, your lawyer
produced to me a series of bank statements from an
entity that is the Plaintiff's entity. I am going
to show them to you and mark them as Exhibit 2. I
probably should have brought a copy but since you
produced them to me, it is what it is. I am going
to give the court reporter a copy to mark as the
second exhibit. If you want another copy, I can
have it made. This is Composite Exhibit 2, it is
what you introduced to me as part of your No. 1 in
the request for production. I am also going to be
setting the objections you made to discovery on the
12th, we can deal with that after the depo. Might
as well put the first page, that is Ron Gache's or
someone's number in his office as Composite Exhibit
2. Do you recognize these documents?
MR. GACHE: These numbers mean we
produced them, okay.
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DEANA M. CLARK January 28, 2019
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THE WITNESS: Okay. Yes, they look
like my statements.
MR. GACHE: What is your question?
MR. ZOBERG: She is still flipping,
do you want me to ask?
THE WITNESS: I am making sure
nothing else got stuck in here.
MR. ZOBERG: It is always possible
with me; for the record, not intentionally. As you
can see from my scattering of papers, I am not the
most organized person in the world.
(Whereupon, Exhibit No. 2 was marked
for identification.)
BY MR. ZOBERG:
Q Do you recognize these documents?
A I do.
Q Did you give them to your lawyer to
produce to me as the bank statements for the 6654
entity?
A I did.
Q I flipped through them, it looks to me
like you stopped depositing the mortgage payments
around May of 2017.
MR. GACHE: That's not a question.
MR. ZOBERG: Is that correct?
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DEANA M. CLARK January 28, 2019
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THE WITNESS: No.
BY MR. ZOBERG:
Q Show me where the mortgage payments after
May of 2017 show up in those bank accounts.
A I closed the account because the bank was
so low, the balance, I was getting charged each
month.
Q That is not my question, that is not
accurate either. The documents, you have bank
statements here from what month to what month?
MR. GACHE: First one for the record
is September of '16 and the last one is for December
of '17, okay. So what is your question?
BY MR. ZOBERG:
Q How much were the mortgage payments in
this case?
A The interest payments were one thousand
four hundred ninety-eight dollars.
Q Month one, does that show up in your bank
account?
A Yes.
Q Month two, does that show up in your bank
account?
A November of '16, no.
Q No, it does not, he must have been late,
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DEANA M. CLARK January 28, 2019
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there were two deposits?
MR. GACHE: Hold on, let's answer the
question, you asked about November, was there a
deposit, the answer was no.
MR. ZOBERG: December is two.
BY MR. ZOBERG:
Q November, there are no payments; but
December, there are two payments, correct?
A Yes.
Q January?
A Yes.
Q February?
A Yes.
Q March?
A There were other deposits as well, yes.
Q I am not really interested in the other
deposits. April?
A No.
Q And now any time after April, all these
bank statements there that show any of these other
deposits going in?
A Not into this account.
Q The answer is no?
A No.
Q Now you got a choice, I asked you in
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DEANA M. CLARK January 28, 2019
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discovery, which you didn't object to and this is
what you produced for all the bank accounts this
money went into, did you not comply with my
discovery request or did the money not go into any
account of yours?
A It went into an account of mine, I would
have to check which one.
Q She is now admitting you didn't comply
with my discovery request, it is what it is.
Coincidence that the payments stopped into the
account you provided me the same time you purported
to assign the loan to Lawrence Shapiro?
MR. GACHE: Object to the form,
argumentative.
THE WITNESS: I don't understand the
question.
MR. ZOBERG: I am sure you don't.
BY MR. ZOBERG:
Q First of all, we started with this story
now that you lied then and are telling the truth
now, you won't answer me whether you understand that
if you lied now and telling the truth then, your
case gets dismissed but okay. You send my client an
assignment around May 1, 2017 that you sent the loan
to somebody else, correct?
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DEANA M. CLARK January 28, 2019
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MR. GACHE: Object to the form, that
is not what the document says, it is not called an
assignment.
MR. ZOBERG: Whatever, it's called a
sale of mortgage loan. I get it you are trying to
insert delays here to allow her to collect her
thoughts.
MR. GACHE: The document is what it
is.
BY MR. ZOBERG:
Q For the record, it's Exhibit 1, we will
just call it Exhibit 1. You send my client
Exhibit 1, I sold your loan to someone else,
correct?
A Correct.
Q I asked your lawyer, which he doesn't
object to, give me all the bank account statements
that show only the issue of the mortgage deposit,
are you aware of that?
MR. GACHE: Stop right there, (a)
object, that would be privilege, whatever I would
have told her you asked me for would be privileged
(b) if you have the request, we can break it out and
we can look and see if that is exactly how you
worded it and then we go from there, okay?
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DEANA M. CLARK January 28, 2019
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MR. ZOBERG: Sounds good.
Coincidentally, I do have the request, it's
fifty/fifty.
MR. GACHE: You have my response.
MR. ZOBERG: Your response actually
repeats the request. So the request is, assuming
you accurately copied it, copies of all bank account
statements for the last two years where the mortgage
payments were deposited, do I have that?
MR. GACHE: You have to ask.
MR. ZOBERG: I just did, do I have
that?
MR. GACHE: You have the
interrogatory answer that says she cashed the check
after April.
MR. ZOBERG: But the money had to go
somewhere unless she is cheating the IRS.
MR. GACHE: Are you telling me that
in order to cheat the IRS, if you don't put the
money in the bank, you cheated the IRS, doesn't it
matter what you put in the tax return?
MR. ZOBERG: I agree with you, I
asked that question, you objected. Thank you for
making my point, I am going to get her tax return,
that issue is going to be decided next week. Ron, I
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DEANA M. CLARK January 28, 2019
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am good, thank you.
MR. GACHE: However, you can ask
Deana, if she did deposit those monies after she got
the cash into a different bank account than MH, we
owe you copies of those deposits.
MR. ZOBERG: As we sit here today,
you have either --
MR. GACHE: This is the first time
you raised the issue.
MR. ZOBERG: I asked you for the bank
account and you gave me a document that doesn't
comply --
MR. GACHE: This is the first time
you are saying you think there are other accounts.
MR. ZOBERG: Only because she
testified to that. In any case, let's move on. We
are going to have this discussion in front of the
judge next week. I am asking for the tax returns
now.
MR. GACHE: You can ask for whatever
you want.
MR. ZOBERG: You objected, you said
irrelevant, you just now explained to me why it is
relevant because she might have claimed it anyway.
MR. GACHE: I am telling you that the
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DEANA M. CLARK January 28, 2019
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tax returns, other than those that indicate
potentially the income, that is if that issue thinks
that is something we have to prove. I don't agree
with you that has anything to do with the case,
where the money is deposited, who it went to, I
don't think it goes to any issue in the case.
MR. ZOBERG: It is reasonably
calculated to lead to admissible evidence.
MR. GACHE: The judge will decide.
BY MR. ZOBERG:
Q Did you deposit the mortgage payments into
any bank account?
A I am not sure if I deposited all of them
or not, they were cashed, the checks were cashed by
Lawrence Shapiro, he gave me the cash. Every dime I
got for that interest went to pay my previous
attorney.
Q Who sued you, by the way, for not paying
them, correct?
A I paid them.
Q They did sue you for non-payment, correct?
MR. GACHE: Objection, argumentative.
MR. ZOBERG: Withdrawn.
BY MR. ZOBERG:
Q We agree that after April or May of 2017,
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DEANA M. CLARK January 28, 2019
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which is also around the time you claimed you
assigned a loan but now claim you were lying about
it, the money stopped going into the corporate
account, correct?
A Correct.
Q Where did it go?
A It was cashed.
MR. GACHE: That's the question
you're asking, does she recollect a year and a half
ago what she did with the cash every month she
cashed it, that's the question.
THE WITNESS: I don't recall, it was
cashed, I don't recall.
BY MR. ZOBERG:
Q Do you know if you claimed this amount on
your taxes as interest income?
A I did.
MR. ZOBERG: I don't know if I marked
the request or his answers to the request; if not,
let me do it now.
MR. GACHE: It's a response, you can
mark it as Exhibit 3.
(Whereupon, Exhibit No. 3 was marked
for identification.)
BY MR. ZOBERG:
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DEANA M. CLARK January 28, 2019
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Q After May 2017 or April, I don't know the
exact month when it switched over, some time in
April or May of 2017, Mr. Benun started writing his
checks to Mr. Shapiro, correct?
A Correct.
QO When you say you cashed them; in fact,
Mr. Shapiro cashed them, correct?
A Correct.
Q And your story is what now?
MR. GACHE: That is not a question,
if you want to ask what happened after he cashed it.
MR. ZOBERG: That is what I was
asking in a somewhat incredulous fashion;
nevertheless, after he cashed them, what do you
claim happened next?
THE WITNESS: He gave me the cash.
BY MR. ZOBERG:
Q And why did Mr. Shapiro agree to do this?
A As a favor.
MR. GACHE: Give the cash or do the
whole note, do the cash because it wasn't his.
MR. ZOBERG: Now you're clearly
answering for her.
MR. GACHE: She would have told you
that.
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DEANA M. CLARK January 28, 2019
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MR. ZOBERG: It is not your question,
it is okay, I do it a little bit too but you clearly
just answered for her.
MR. GACHE: I thought you meant why
did he do you this favor, not why did he give her
the cash, it wasn't clear.
MR. ZOBERG: I am only doing it to
you because you did it to me, your job is to object,
no speaking objections.
MR. GACHE: I apologize, I
misunderstood.
MR. ZOBERG: Again, not your question
to answer, it doesn't matter whether you
misunderstand unless you want to object to it.
BY MR. ZOBERG:
Q Do you do any other business dealings with
Mr. Shapiro?
A No, this was not a business deal.
Q Are you romantically involved with
Mr. Shapiro?
A No.
Q Were you romantically involved with
Mr. Shapiro?
A No.
Q I want to understand this now because it
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DEANA M. CLARK January 28, 2019
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is so absurd, you claim that you're not romantically
involved with this person, you have no other
business dealings with this person but yet he agreed
to go to the bank, participate in your fraud and
give you money, that's your current testimony?
MR. GACHE: Object to the form, move
to strike.
THE WITNESS: I don't understand the
question.
BY MR. ZOBERG:
Q I am sure you don't. So I am trying to
just recap, it is really so unbelievable, your
testimony is you're not romantically involved with
Mr. Shapiro, correct?
A Correct.
Q You weren't romantically involved in the
past with Mr. Shapiro, correct?
A Correct.
Q You have no other business dealings with
him, correct?
A I have no business dealings with him
period.
Q Yet, you claim that he pretended to
purchase the loan with you, spent his time going to
the bank, participating in a fraud to give you money
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DEANA M. CLARK January 28, 2019
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as a favor, that's your testimony?
MR. GACHE: Move to strike the
characterization as there being a fraud committed.
MR. ZOBERG: There clearly is a fraud
committed, your argument is there is no damages but
there clearly was a fraud committed, there is no
question there was a fraud committed.
MR. GACHE: There is no fraud
committed here. She admitted she lied to your
client and the question is did he do this as a
favor, she can answer that question, that's the
essence of your question. This guy who you're not
romantically involved with, had no business dealings
did you this favor, that's your question, you don't
need to characterize it as fraud.
MR. ZOBERG: It is fraud.
MR. GACHE: She is not a lawyer.
MR. ZOBERG: I am okay but remember
when you complain about my depo, you did the same
thing.
BY MR. ZOBERG:
Q Moving along, that's my question, your
claim is despite the fact you weren't romantically
involved with him and had no business dealings at
all with him, he participated in a lie as a favor?
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DEANA M. CLARK January 28, 2019
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A Yes.
Q Why do you think he did that?
MR. GACHE: Object to the form.
THE WITNESS: I can't answer for him.
MR. ZOBERG: He gets to answer
tomorrow.
MR. GACHE: By the way, I can have
him here today, I told him to be ready at 2:00 if
you want him to come over.
MR. ZOBERG: We will think about it.
BY MR. ZOBERG:
Q How often do you see Mr. Shapiro?
A Currently now or then?
Q Either one, we will start with now.
A Never.
Q How often did you see him then?
A Once a month.
Q For what reason?
A To cash the check.
Q Again, this is so ridiculous, your
testimony is you never saw this guy, you weren't
romantically with him, you had no business dealings
with him, you saw him only once a month to cash the
check?
A Correct.
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DEANA M. CLARK January 28, 2019
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Q Did you have Email communications with
him?
A No.
Q So to recap --
MR. GACHE: Don't keep recapping,
come on.
BY MR. ZOBERG:
Q Did you have any text communications with
him?
A I don't recall.
Q So how did you convince him to participate
in this when you saw him so infrequently?
MR. GACHE: I need to stop for one
second, you're talking about now before they sent
the notice out, how did he get her to do it versus
after it was done how did they end up knowing when
to meet?
MR. ZOBERG: Right.
MR. GACHE: It's two separate areas.
MR. ZOBERG: I said then and now.
MR. GACHE: You made it very vague,
how did she convince him to do the deal?
MR. ZOBERG: Right, the lie.
THE WITNESS: So the person I was
romantically involved with knew Mr. Shapiro through
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DEANA M. CLARK January 28, 2019
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his brother-in-law and when I was trying to find
someone to buy the note, they thought perhaps
Mr. Shapiro would know someone that would be
interested in buying the note, that's how I met
Mr. Shapiro.
BY MR. ZOBERG:
Q Who were you romantically involved with?
A Kevin Kurlowski.
Q That would be another person that you
spoke about this note with, correct?
A It was my boyfriend.
Q Is he still your boyfriend?
A No.
Q Please spell his name for the record,
guess what, he now also violated --
MR. GACHE: Again, move to strike,
you can talk to your friends that someone owes you
money.
MR. ZOBERG: Clearly, it is going to
result in a new lawsuit and you can make that
argument later.
BY MR. ZOBERG:
Q Name and address of Kevin Kurlowski,
please.
A Kevin, K-E-V-I-N K-U-R-L-O-W-S-K-I, he
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DEANA M. CLARK January 28, 2019
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lives in Heather Hill, I don't know the exact
address.
Q What state?
A Boca Raton, Florida.
Q I am going to look it up at the property
appraiser; if it's there, I won't make an issue; if
not, you will have to give me an address.
MR. GACHE: She doesn't have to give
you an address that she doesn't know by heart.
MR. ZOBERG: She will when I raise it
with the judge, I am not going to make an issue out
of it if he owns the house.
MR. GACHE: Why do you need to do
this during the depo, this is something you can do
afterwards. She is here, ask her questions.
BY MR. ZOBERG:
Q Your testimony is you don't know the
address of the guy you were romantically involved
with, is that correct?
A Correct.
Q How long were you romantically involved
with him?
A Years, five years.
Q You don't know where he lives?
MR. GACHE: She knows how to get
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DEANA M. CLARK January 28, 2019
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there.
THE WITNESS: I know where he lives,
I drive there, I never mailed him anything I don't
believe.
MR. GACHE: Come on.
MR. ZOBERG: I agree, come on.
MR. GACHE: She doesn't know the
address.
BY MR. ZOBERG:
Q Spell his name, K-E-V-I-N --
MR. GACHE: She just did this.
THE WITNESS: K-U-R-L-O-W-S-K-I.
BY MR. ZOBERG:
Q Other then Kevin Kurlowski, Lawrence
Shapiro, Carlo Vaccarezza, is there anyone else you
spoke about this loan with?
My attorney.
No one else?
I don't understand the question.
Oo fr CO PF
You do and that's also a lie.
MR. GACHE: Objection, move to
strike, argumentative. I am going to have this
typed up pretty soon, you are going to see between
every question you make an argumentative comment.
MR. ZOBERG: Because your client is
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lying non-stop. I am going to file a motion for
fraud in the court also.
MR. GACHE: This is not your place to
be saying it, you don't say it to the witness.
MR. ZOBERG: I don't agree, I am
allowed to act incredulous when woppers are told.
BY MR. ZOBERG:
Q Leaving aside all of this, Kevin
Kurlowski, Lawrence Shapiro, Carlo Vaccarezza, did
you discuss this loan with anyone else other than
lawyers?
A What do you mean discuss the loan?
Q Did you advise people that you had a loan
with Mark Benun or whatever entity the Defendant is
with, anyone other then those three individuals?
A I don't recall.
Q Do you know where Mr. Shapiro lives?
A Somewhere in Delray.
Q Your testimony is he was a friend of your
boyfriend?
A Yes.
Q Do either of them have connections with
the mob?
A Not that I'm aware of.
Q That's a pretty evasive answer.
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DEANA M. CLARK January 28, 2019
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MR. GACHE: Object, if you want to
define what the mob is, we're not in a movie here.
What do you mean do they have a connection to the
mob?
MR. ZOBERG: Really, you don't know
what the mafia is, okay, fine.
MR. GACHE: No. You think there is
some organization where you can look up people that
are in the mafia, is that what you're saying?
MR. ZOBERG: The FBI thinks they know
who is in the mafia.
MR. GACHE: She's not the FBI.
MR. ZOBERG: She sent mobsters after
my client to collect a debt which is a basis for
punitive damages which is going to get allowed when
I file that motion.
BY MR. ZOBERG:
Q Do you know that Carlo Vaccarezza is
thought by the FBI to be in the mob?
MR. GACHE: Object to the form.
THE WITNESS: No.
BY MR. ZOBERG:
Q You don't know Carlo Vaccarezza is in the
mob, though he clearly is. We certainly don't know
your ex-boyfriend, possibly a mobster, don't know,
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DEANA M. CLARK January 28, 2019
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no way of knowing, right, and also who else Lawrence
Shapiro, do you know if any of them are in the mob?
MR. GACHE: Object to the form.
THE WITNESS: No.
BY MR. ZOBERG:
Q How do you know Carlo Vaccarezza?
A He owns a restaurant near my office.
Q That's how you know him? I just want to
understand your testimony, you started chatting with
a restaurant owner but no one else about this loan
and it just so happens the FBI thinks this
restaurant owner is in the mob, is that what you're
trying to get everyone to believe?
MR. GACHE: Object to the form,
assumes facts not in evidence. You can't keep
making statements.
BY MR. ZOBERG:
Q Are you aware that there are newspaper
articles that Carlo Vaccarezza was an associate of
John Gotti and was threatening judges and
prosecutors?
MR. GACHE: Objection.
THE WITNESS: No.
MR. GACHE: You're testifying to
things that are not --
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DEANA M. CLARK January 28, 2019
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MR. ZOBERG: That's not a proper
objection.
MR. GACHE: Assumes facts not in
evidence.
MR. ZOBERG: That is not an objection
for a deposition.
MR. GACHE: It's form, objection, I
can explain --
MR. ZOBERG: No, you can't unless I
ask you. You can say form, objection if you want,
she would still have to answer. I am letting you go
because I did it also, not that two wrongs make a
right; but, nevertheless, what you're also doing is
improper. Again, he can object to the form if he
wants.
MR. GACHE: Ask questions and not
make statement.
MR. ZOBERG: It is ridiculous.
BY MR. ZOBERG:
Q Correct me here if I am wrong, your
testimony is that Carlo Vaccarezza is not connected
to your boyfriend or your boyfriend's friend,
correct?
A Correct.
Q Carlo Vaccarezza is just some person that
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DEANA M. CLARK January 28, 2019
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you just happened to know because you went into a
restaurant that he owns, correct?
A Correct.
Q And yet you also said that except for your
boyfriend and this random restaurant owner, you
didn't discuss the loan with anyone else, correct?
A Correct.
Q You can make whatever form objection you
want, how often do you go to this restaurant?
A Couple of times a week.
Q Have you noticed any pictures of anyone in
the restaurant?
A Frank Sinatra.
Q Anyone else?
A No.
Q By the way, what is the name of this
restaurant?
A Frank & Dino's.
Q Where is it?
A It is in East Boca.
Q You noticed no other pictures on the wall
except for Frank Sinatra, that's your testimony?
A Yes.
Q Never Googled the guy?
A No.
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DEANA M. CLARK January 28, 2019
Preview
Filing # 90706625 E-Filed 06/06/2019 03:48:27 PM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA 6654 NW 27 AVENUE, LLC, Case No: 2017CA13348 MB AD Plaintiff, Vv. PINCUS CAPITAL LLC and MARK BENUN, Defendants. / NOTICE OF FILING DEPOSITION TRANSCRIPT OF DEANA CLARK DATED JANUARY 28, 2019 The Defendant, PINCUS CAPITAL LLC and MARK BENUN, by and through the undersigned counsel, hereby files this Notice of Filing Deposition Transcript of Deana Clark dated January 28, 2019 to the Court as attached hereto. CERTIFICATE OF SERVICE THEREBY CERTIFY that a copy of the foregoing has been served this 6" day of June, 2019 via email upon Ronald M Gache Esq, Shapiro Fishman & Gache, 2424 N Federal Hwy, Suite 360, Boca Raton, FL 33431, rgache@logs.com; and Scott A. Simon Esq., ssimon@logs.com. SHIR LAW GROUP, P.A. 2295 N.W. Corporate Blvd. Suite 140 Boca Raton, Florida 33431 Phone: 561-999-5999 Fax: 561-893-0999 By: Stuart 0, Goberg, Eeg., Stuart J. Zoberg, Esq., Fla Bar No. 611891 szoberg@shirlawgroup.com Service Email: Office@shirlawgroup.com FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 06/06/2019 03:48:27 PMIn the Matter Of: 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 17CA13348 MB AH DEANA M. CLARK January 28, 2019 800.211.DEPO (3376) EsquireSolutions.com DEPOSITION SOLUTIONSDEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 17CA13348 MB AH 6654 NW 27 AVENUE, LLC, Plaintiff, -vs- PINCUS CAPITAL LLC, MARK BENUN, an individual, et. al., Defendant. DEPOSITION OF DEANA MARIE CLARK Monday, January 28, 2019 10:55 - 12:55 p.m. Shir Law Group, P.A. 2295 N.W. Corporate Boulevard, Suite 140 Boca Raton, Florida 33431 Reported By: Christina Andrioff, Court Reporter Notary Public, State of Florida Boca Raton Office Job #J33616042 B ESQUIRE a00.241 DERO (3976) 2D" ckposition sonurions10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 2 APPEARANCES: On behalf of the Plaintiff: RONALD M. GACHE, ESQUIRE SHAPIRO, FISHMAN & GACHE, LLP 2424 N. Federal Highway, Suite 360 Boca Raton, Florida 33431 On behalf of the Defendant: STUART J. ZOBERG, ESQUIRE SHIR LAW GROUP, P.A. 2295 NW Corporate Boulevard, Suite 140 Boca Raton, Florida 33431 Also Present: MARK BENUN (via telephone) Direct Examination by Mr. Zoberg Page 3 EXHIBITS Exhibit No. 1 Page 18 Exhibit No. 2 Page 24 Exhibit No. 3 Page 32 Exhibit No. 4 Page 55 Exhibit No. 5 Page 63 Exhibit No. 6 Page 77 2 ESQUIRE 800.211.DEPO (3376) 2" Deposition soturions EsquireSolutions.comB WN oY An WwW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 3 PROCEEDINGS Deposition taken before Christina Andrioff, Court Reporter and Notary Public in and for the State of Florida at Large, in the above cause. Thereupon, (DEANA MARIE CLARK) having been first duly sworn or affirmed, was examined and testified as follows: DIRECT EXAMINATION BY MR. ZOBERG: Q As you know, I am Stuart Zoberg, I represent Mark Benun and also the entity. For convenience, I am going to refer to this case as Clark versus Benun. I know that is not the actual title, you understand that you're under oath? A I do. Q If you lie, you're subject to penalties of perjury? A I do. Q Are you prepared to answer my questions today? A Yes. Q Is there anything distracting you or 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 4 preventing you from giving me your full attention? A No. Q Are you taking any medications that affect your memory? A No. QO If you need a break, let me know; if you don't understand one of my questions, let me know. Have you ever been deposed before? A Yes. Q In what cases? A This case and a divorce, well, the previous case, not this case, previous case, 2015 case. Q Other than cases with Mark Benun, have you ever been deposed before? A Once in a divorce. Q Tell me everything you did to get ready for this deposition. A Reviewed some documents I had, I had a meeting with my attorney last week. Q Have you reviewed the pleadings in this case? A Yes. Q What is your full name? A Deana Marie Clark. 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 5 Q Spell it for the record. A D-E-A-N-A M-A-R-I-E C-L-A-R-K. Q Is there any other person or trust or other entity that is a member of the Plaintiff? MR. GACHE: Do you understand that? BY MR. ZOBERG: Q Are you the sole owner of the Plaintiff entity? MR. GACHE: LLC. THE WITNESS: Yes. BY MR. ZOBERG: Where do you reside? Boca Raton. Address? 855 Berkley Street, Boca Raton 33487. How long have you lived there? Three years approximately. What is your highest level of education? High school, trade school. What is your current employment? r oO Fr 0 Fr OO FP OO FP ”O Self-employed. Q Describe it, the nature of the self-employment. A I am the owner of a medical spa, I do laser technology, esthetic laser. 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC January 28, 2019 6 0 Pr Oo Fr 0 PO PO Pr 0 PO Fr CO PY Q Broken A Q Are you closed on Mondays? Yes. How long have you been doing that? Doing this particular business or general? Both. I was first licensed in 1994. And this current business? Seven years approximately. Have you ever been arrested? Yes. What for? DUI. Anything else? No. Have you ever been convicted? For DUI. Also just to make this go a little faster, I am going to refer to the home in Broken Sound at 6654 NW 27th Avenue as the home or the home in Sound but we all know I am talking about the house that you previously owned or your entity previously owned but is currently owned by Mark Benun or the trust he placed it in, okay? Okay. Do you remember when you first started 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 7 renting to my client? A 2014 I believe, '13 possibly. Q Do you remember how much the monthly rent was? A I believe twenty-four hundred a month. Q Do you remember how much it went up to? A I don't recall. Q Twenty-nine ninety-five sound about right? A Could be. Q Did you know about my client's criminal background when you first started renting to him? A I did not. Q When did you learn about it? A After the first court case. QO Are you talking about with my client? A Correct. There was supposed to be a background check done by Broken Sound Country Club when I rented to your client, I assumed in that background check they would have found any criminal background so I did not do my own criminal background. Also, he was brought to me by a reputable broker had I known. MR. GACHE: Just answer the questions. BY MR. ZOBERG: 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 8 Q In any case, you knew before this case began and the current deal was made, correct? MR. GACHE: What do you mean the current deal, the settlement in '16? MR. ZOBERG: The mortgage documents that we're fighting over. MR. GACHE: I want to be clear. MR. ZOBERG: Correct? THE WITNESS: Correct. BY MR. ZOBERG: Q Describe in your own words how this deal came to be. MR. GACHE: Object to the form of the question, it calls for a narrative. Sometimes I will object and you still answer anyway if you can. THE WITNESS: Okay. MR. GACHE: He is generally asking you how did it come to be that you gave a note and mortgage or you took back a note and mortgage. THE WITNESS: You want from the beginning? BY MR. ZOBERG: Q About a month before this happened to two months before to when it was actually signed. MR. GACHE: Same objection. Go 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 9 ahead. THE WITNESS: Mr. Benun was a tenant, I informed him I intended to sell the property. He then told me he wanted to purchase the property and we entered into an agreement to purchase. He never purchased the property, this was in 2015 or '16, I believe. Then through litigation, a settlement was drawn up between my attorney and his attorneys that after the eviction, to settle the eviction process, to get him out of the property because he couldn't close on the property we agreed to allow him to purchase the property and I would hold the note for him for fourteen months, that agreement was done between Murdoch Weires & Newman. Mr. Gache was also on the case, at that point, that was in September of 2017, '16, correct, 2016, that was to mature in November of 2017, yes, that's correct. BY MR. ZOBERG: Q Did you review the correspondence between myself and your lawyers at the time? A Perhaps some of it, I don't know if all of it. Q Mr. Gache was also involved at that time negotiating the mortgage, correct? A Correct. 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 10 Q You recall at some point you saying this is a mortgage, take it or leave it? MR. GACHE: Object to the form. THE WITNESS: We all agreed what the mortgage would be. BY MR. ZOBERG: Q When you say we all agreed, isn't it true that I tried to make certain changes to the mortgage and your lawyer said take it or leave it, this is the note? MR. GACHE: Object to the form. THE WITNESS: I don't recall. BY MR. ZOBERG: Q Would it surprise you to learn there is Emails of your lawyers saying take it or leave it? MR. GACHE: I will lodge a general objection and also anything that we would have discussed about how you settled the case would be attorney/client privilege and you wouldn't have to disclose that information. If he is saying is it a fact that he and I had a conversation, the only way you know that is from a conversation with me, you wouldn't have to disclose that information. MR. ZOBERG: That is not accurate, a conversation between you and I is not protected 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 11 obviously. She is reading those Emails; obviously, that is not protected. MR. GACHE: My sharing anything with her would be protected. MR. ZOBERG: Correct, if she is reading the Emails between us, that wouldn't be. MR. GACHE: Ask her that question, did you ever see Emails between me and you, you can ask her that question, if she remembers. BY MR. ZOBERG: Q Did you ever see Emails between Ron and I regarding essentially the terms of the loan were not negotiable? A I don't recall. Q You don't recall one way or the other, that could very well be the case? A I was comfortable with the terms of what I discussed at two seventy, fourteen month interest only balloon at the end. Q You know that the note has additional terms; for example, a jury trial labor? MR. GACHE: Object to the form, best evidence would be the document if you want to show it to her. THE WITNESS: I am not sure of the 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 12 question. BY MR. ZOBERG: Q Would you have agreed to negotiate the jury trial labor? MR. GACHE: Object to the form. THE WITNESS: You can object all you want, if her testimony doesn't contradict it, it is uncontested testimony. You can coach her all you want, I don't care what her answer is, I just need to get it on the record. MR. GACHE: I am just objecting to the form of the question, I am not coaching anything. I am not providing any information, I am going exactly what the rules say. If you want to know my objection, you're calling for speculation, you're asking would she have done something in a certain situation, that is a completely objectionable question. MR. ZOBERG: The document doesn't explain what might have been in negotiation. You well know, one of the issues of a jury trial labor is full, knowing and voluntary. The question is does she remember; if the answer no, so be it and we will move on. If the answer is yes, I want to know what she remembers. 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 13 BY MR. ZOBERG: Q Again, since you now see where this is going, do you have any memory of your negotiations of the terms of the note and mortgage? A No. QO Including specifically the jury trial labor provision, same answer? A I guess I hoped I wouldn't have to do that because I hoped I was going to get paid. Q Do you have any real estate background? A Very little. Q Do you have a real estate license? A Inactive. Q You have one? A I have one, it's inactive. Q How long has it been inactive for? A Since 2011. Q Have you looked into how much the house is worth? A No. Q So I just want to be clear for the record the story that you're now telling. Your claim is, I want to understand because it is so absurd, that from 2014 until now, we're fighting over a house -- You understand that part of the claim is that the 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 14 loan was usurious because the house wasn't worth what you say it is worth, correct? A I believe the house is worth what I say it is worth. Q Again, I get you believe, we all have beliefs. There is no actual evidence to back up that belief and your testimony is that notwithstanding that you have been litigating over this house for four years, you have a real estate license inactive but you never checked? A It is not my responsibility to do an appraisal, it's the purchaser's responsibility to do an appraisal. Q You get that no rational person is going to believe that, right? MR. GACHE: Move to strike, this is a deposition, this is not a place to lecture. MR. ZOBERG: She does have an obligation to tell the truth. MR. GACHE: You don't get a chance to lecture and talk at her, you need to ask questions, this is a discovery deposition. MR. ZOBERG: I am trying to find out whether she is sticking to this ridiculous story. MR. BENUN: (Inaudible). 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 15 MR. ZOBERG: Mark, I am going to drop you off the line if you say things like that. MR. GACHE: Again, just asking you to be more professional, you're supposed to be asking questions. MR. ZOBERG: Mark, I know where the line is, you don't so be quiet. BY MR. ZOBERG: Q As part of the answers to your interrogatories, you testified that when you originally approached Larry Shapiro, Lawrence Shapiro, it was in part to sell the loan, correct? A Correct. Q Still you never looked into the value of the house? A I wasn't giving him another mortgage. At that point, he was going to have to get financing somewhere else. Q If you're selling a loan, one of the things you would normally try to pitch the loan with is, hey, the house is worth X, the loan is worth Y, you didn't do that either. You said, here is the loan, I don't know what the house is worth, do you want to buy it? A Correct. 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 16 Q You claim, in your interrogatories, that you believe the home is worth two seventy, where did you get that number from? A That's the number I wanted for the house. Q Ever discuss this home with any real estate agents over the four years that we have been litigating these various cases? A One real estate agent. Q Did he or she comment about the value of the home? A That was when the home was listed by Mark Benun for two eighty-nine and she told me she thought she could get that for the house, that was his broker. Q What is her name? A I don't recall. Q I am going to have to take her deposition, that is a flat out -- MR. GACHE: I haven't listed her. MR. ZOBERG: It doesn't matter. MR. GACHE: You can do whatever you want, this is the whole point of waiting until the last minute to take Deana. MR. ZOBERG: It wasn't a last minute, he didn't say we are going to have a cutoff until a 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 17 month and a half ago. I don't have any obligation to depose her. We will deal with this but unless she is going to retract that, I am going to take her deposition or I will get an affidavit from her. I could call her at trial, I don't need her deposition. MR. GACHE: You're talking out loud, just take her deposition. I don't care about your strategy. BY MR. ZOBERG: Q Are you planning to call any real estate agents to testify at trial? A No. Q You're sticking by your testimony, you never asked a realtor other than Mr. Benun's realtor what this property is worth? MR. GACHE: Object to the form of the question. THE WITNESS: There was one real estate, his name was Ray Straub and I am not sure, I don't think we ever discussed price of the home. BY MR. ZOBERG: Q Isn't it true you told Mr. Benun if he paid cash you would take less? A No. 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 18 Q Your testimony is that if he offered you less than two seventy right away, you weren't going to take less? A No. Q For the first several months of the loan, he made all the payments, correct? A Interest payments. Q Okay, but yes, correct? A Yes. Q I don't agree with the characterization but whatever. Yet still in October of 2016, you told him you transferred the loan to Larry Shapiro, correct? MR. GACHE: Object to the form, that was not October. MR. ZOBERG: My bad, that's correct. It says loan closing date, October, it was May 2017. Do you recognize that document, I am showing her what I am going to mark as Exhibit 1. THE WITNESS: Yes. (Whereupon, Exhibit No. 1 was marked for identification.) BY MR. ZOBERG: Q Did you draft that document? A I did. 2 ESQUIRE 800.211.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 19 Q Was it an accurate copy of the document that you sent Mr. Benun on or around May 2017? A It is. Q On or around May 2017, he has paid all of the payments yet you told him, I am transferring the loan to Lawrence Shapiro, correct? A Correct. Q Why did you do that? A He was harassing me, text messages, phonecalls relentlessly trying to make a deal. Q Something wrong with that? A I wasn't willing to negotiate with him, my price was my price. Q In any case, you now claim this was a lie, you never actually transferred it to Larry Shapiro, correct? A That's correct. Q You understand if you don't say it is a lie, your case gets dismissed, correct? MR. GACHE: Object to the form. MR. ZOBERG: You can still answer. MR. GACHE: Calls for a legal conclusion. MR. ZOBERG: I am asking her what she understands. 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 20 MR. GACHE: The understanding would come from me, that is attorney/client privilege, you don't have to answer that. BY MR. ZOBERG: Q Is he the only lawyer you know? A It's a lie, that's all I can tell you, it was a lie. Q Isn't it true you told him if he didn't pay, Shapiro would make sure he paid? A That is not true. Q Isn't it true you threatened him that a gangster was going to make sure he paid? A That is not true. Q You never answered the question, you can object if you want to object and instruct her not to answer, you have that authority. You understand that if you don't say that was a lie under Florida law, this case gets dismissed, correct, without going into things you may have learned from your specific attorney? A I understand I am not lying, it was a lie at the time. I did not transfer the loan to Larry Shapiro. At any time, I did not transfer the loan to anyone at any time. I tried; trust me, I tried. Q In all of your trying, nobody said, hey, 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 21 this house isn't worth what the loan is? A No, everyone said Mark Benun is not collectable. Q Who cares if the value of the house is more than the loan. A Get in line. Q The house comes first -- MR. GACHE: You're not asking any questions, you're arguing. MR. ZOBERG: No, now I am trying to establish she is lying when she says she doesn't know what the house is worth. MR. GACHE: She said the house is worth what she thinks it is worth. She didn't say she doesn't know. MR. ZOBERG: Even more absurd. BY MR. ZOBERG: Q In all your attempts to try and sell this loan, did anyone say to you, the house is not worth what the loan is? A No. Q You know that no one is going to believe that -- Withdrawn. MR. GACHE: Move to strike. MR. ZOBERG: JI withdrew it, you don't 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 22 have to strike it. MR. GACHE: You don't need to keep making comments. MR. ZOBERG: It is ridiculous. MR. GACHE: This is a deposition, just ask questions. MR. ZOBERG: By the way, you still haven't answered the question, which I am going to ask again, either I get an answer or you can object and instruct her not to answer. MR. GACHE: Or she doesn't know. MR. ZOBERG: That is also an answer but she hasn't answered that either. BY MR. ZOBERG: Q Are you aware that if The Court doesn't find that you are lying then and not now, this case will be dismissed because you don't own the loan? MR. GACHE: Object to the form, do you understand what he is asking? MR. ZOBERG: Probably wasn't the best way to say it so I will rephrase it. BY MR. ZOBERG: Q At the time of the lawsuit, if Larry Shapiro owned the loan, does this case get dismissed? 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 23 A He never owned the loan. Q That is not an answer to my question. A I don't know, I am not a lawyer. Q That's an answer, it's a baloney answer but at least it's an answer. MR. GACHE: Move to strike. BY MR. ZOBERG: Q You produced to me; actually, your lawyer produced to me a series of bank statements from an entity that is the Plaintiff's entity. I am going to show them to you and mark them as Exhibit 2. I probably should have brought a copy but since you produced them to me, it is what it is. I am going to give the court reporter a copy to mark as the second exhibit. If you want another copy, I can have it made. This is Composite Exhibit 2, it is what you introduced to me as part of your No. 1 in the request for production. I am also going to be setting the objections you made to discovery on the 12th, we can deal with that after the depo. Might as well put the first page, that is Ron Gache's or someone's number in his office as Composite Exhibit 2. Do you recognize these documents? MR. GACHE: These numbers mean we produced them, okay. 2 ESQUIRE 800.211.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 24 THE WITNESS: Okay. Yes, they look like my statements. MR. GACHE: What is your question? MR. ZOBERG: She is still flipping, do you want me to ask? THE WITNESS: I am making sure nothing else got stuck in here. MR. ZOBERG: It is always possible with me; for the record, not intentionally. As you can see from my scattering of papers, I am not the most organized person in the world. (Whereupon, Exhibit No. 2 was marked for identification.) BY MR. ZOBERG: Q Do you recognize these documents? A I do. Q Did you give them to your lawyer to produce to me as the bank statements for the 6654 entity? A I did. Q I flipped through them, it looks to me like you stopped depositing the mortgage payments around May of 2017. MR. GACHE: That's not a question. MR. ZOBERG: Is that correct? 2 ESQUIRE 800.211.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 25 THE WITNESS: No. BY MR. ZOBERG: Q Show me where the mortgage payments after May of 2017 show up in those bank accounts. A I closed the account because the bank was so low, the balance, I was getting charged each month. Q That is not my question, that is not accurate either. The documents, you have bank statements here from what month to what month? MR. GACHE: First one for the record is September of '16 and the last one is for December of '17, okay. So what is your question? BY MR. ZOBERG: Q How much were the mortgage payments in this case? A The interest payments were one thousand four hundred ninety-eight dollars. Q Month one, does that show up in your bank account? A Yes. Q Month two, does that show up in your bank account? A November of '16, no. Q No, it does not, he must have been late, 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 26 there were two deposits? MR. GACHE: Hold on, let's answer the question, you asked about November, was there a deposit, the answer was no. MR. ZOBERG: December is two. BY MR. ZOBERG: Q November, there are no payments; but December, there are two payments, correct? A Yes. Q January? A Yes. Q February? A Yes. Q March? A There were other deposits as well, yes. Q I am not really interested in the other deposits. April? A No. Q And now any time after April, all these bank statements there that show any of these other deposits going in? A Not into this account. Q The answer is no? A No. Q Now you got a choice, I asked you in 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 27 discovery, which you didn't object to and this is what you produced for all the bank accounts this money went into, did you not comply with my discovery request or did the money not go into any account of yours? A It went into an account of mine, I would have to check which one. Q She is now admitting you didn't comply with my discovery request, it is what it is. Coincidence that the payments stopped into the account you provided me the same time you purported to assign the loan to Lawrence Shapiro? MR. GACHE: Object to the form, argumentative. THE WITNESS: I don't understand the question. MR. ZOBERG: I am sure you don't. BY MR. ZOBERG: Q First of all, we started with this story now that you lied then and are telling the truth now, you won't answer me whether you understand that if you lied now and telling the truth then, your case gets dismissed but okay. You send my client an assignment around May 1, 2017 that you sent the loan to somebody else, correct? 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 28 MR. GACHE: Object to the form, that is not what the document says, it is not called an assignment. MR. ZOBERG: Whatever, it's called a sale of mortgage loan. I get it you are trying to insert delays here to allow her to collect her thoughts. MR. GACHE: The document is what it is. BY MR. ZOBERG: Q For the record, it's Exhibit 1, we will just call it Exhibit 1. You send my client Exhibit 1, I sold your loan to someone else, correct? A Correct. Q I asked your lawyer, which he doesn't object to, give me all the bank account statements that show only the issue of the mortgage deposit, are you aware of that? MR. GACHE: Stop right there, (a) object, that would be privilege, whatever I would have told her you asked me for would be privileged (b) if you have the request, we can break it out and we can look and see if that is exactly how you worded it and then we go from there, okay? 2 ESQUIRE 800.211.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 29 MR. ZOBERG: Sounds good. Coincidentally, I do have the request, it's fifty/fifty. MR. GACHE: You have my response. MR. ZOBERG: Your response actually repeats the request. So the request is, assuming you accurately copied it, copies of all bank account statements for the last two years where the mortgage payments were deposited, do I have that? MR. GACHE: You have to ask. MR. ZOBERG: I just did, do I have that? MR. GACHE: You have the interrogatory answer that says she cashed the check after April. MR. ZOBERG: But the money had to go somewhere unless she is cheating the IRS. MR. GACHE: Are you telling me that in order to cheat the IRS, if you don't put the money in the bank, you cheated the IRS, doesn't it matter what you put in the tax return? MR. ZOBERG: I agree with you, I asked that question, you objected. Thank you for making my point, I am going to get her tax return, that issue is going to be decided next week. Ron, I 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 30 am good, thank you. MR. GACHE: However, you can ask Deana, if she did deposit those monies after she got the cash into a different bank account than MH, we owe you copies of those deposits. MR. ZOBERG: As we sit here today, you have either -- MR. GACHE: This is the first time you raised the issue. MR. ZOBERG: I asked you for the bank account and you gave me a document that doesn't comply -- MR. GACHE: This is the first time you are saying you think there are other accounts. MR. ZOBERG: Only because she testified to that. In any case, let's move on. We are going to have this discussion in front of the judge next week. I am asking for the tax returns now. MR. GACHE: You can ask for whatever you want. MR. ZOBERG: You objected, you said irrelevant, you just now explained to me why it is relevant because she might have claimed it anyway. MR. GACHE: I am telling you that the 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 31 tax returns, other than those that indicate potentially the income, that is if that issue thinks that is something we have to prove. I don't agree with you that has anything to do with the case, where the money is deposited, who it went to, I don't think it goes to any issue in the case. MR. ZOBERG: It is reasonably calculated to lead to admissible evidence. MR. GACHE: The judge will decide. BY MR. ZOBERG: Q Did you deposit the mortgage payments into any bank account? A I am not sure if I deposited all of them or not, they were cashed, the checks were cashed by Lawrence Shapiro, he gave me the cash. Every dime I got for that interest went to pay my previous attorney. Q Who sued you, by the way, for not paying them, correct? A I paid them. Q They did sue you for non-payment, correct? MR. GACHE: Objection, argumentative. MR. ZOBERG: Withdrawn. BY MR. ZOBERG: Q We agree that after April or May of 2017, 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 32 which is also around the time you claimed you assigned a loan but now claim you were lying about it, the money stopped going into the corporate account, correct? A Correct. Q Where did it go? A It was cashed. MR. GACHE: That's the question you're asking, does she recollect a year and a half ago what she did with the cash every month she cashed it, that's the question. THE WITNESS: I don't recall, it was cashed, I don't recall. BY MR. ZOBERG: Q Do you know if you claimed this amount on your taxes as interest income? A I did. MR. ZOBERG: I don't know if I marked the request or his answers to the request; if not, let me do it now. MR. GACHE: It's a response, you can mark it as Exhibit 3. (Whereupon, Exhibit No. 3 was marked for identification.) BY MR. ZOBERG: 2 ESQUIRE 800.211.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 33 Q After May 2017 or April, I don't know the exact month when it switched over, some time in April or May of 2017, Mr. Benun started writing his checks to Mr. Shapiro, correct? A Correct. QO When you say you cashed them; in fact, Mr. Shapiro cashed them, correct? A Correct. Q And your story is what now? MR. GACHE: That is not a question, if you want to ask what happened after he cashed it. MR. ZOBERG: That is what I was asking in a somewhat incredulous fashion; nevertheless, after he cashed them, what do you claim happened next? THE WITNESS: He gave me the cash. BY MR. ZOBERG: Q And why did Mr. Shapiro agree to do this? A As a favor. MR. GACHE: Give the cash or do the whole note, do the cash because it wasn't his. MR. ZOBERG: Now you're clearly answering for her. MR. GACHE: She would have told you that. 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 34 MR. ZOBERG: It is not your question, it is okay, I do it a little bit too but you clearly just answered for her. MR. GACHE: I thought you meant why did he do you this favor, not why did he give her the cash, it wasn't clear. MR. ZOBERG: I am only doing it to you because you did it to me, your job is to object, no speaking objections. MR. GACHE: I apologize, I misunderstood. MR. ZOBERG: Again, not your question to answer, it doesn't matter whether you misunderstand unless you want to object to it. BY MR. ZOBERG: Q Do you do any other business dealings with Mr. Shapiro? A No, this was not a business deal. Q Are you romantically involved with Mr. Shapiro? A No. Q Were you romantically involved with Mr. Shapiro? A No. Q I want to understand this now because it 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 35 is so absurd, you claim that you're not romantically involved with this person, you have no other business dealings with this person but yet he agreed to go to the bank, participate in your fraud and give you money, that's your current testimony? MR. GACHE: Object to the form, move to strike. THE WITNESS: I don't understand the question. BY MR. ZOBERG: Q I am sure you don't. So I am trying to just recap, it is really so unbelievable, your testimony is you're not romantically involved with Mr. Shapiro, correct? A Correct. Q You weren't romantically involved in the past with Mr. Shapiro, correct? A Correct. Q You have no other business dealings with him, correct? A I have no business dealings with him period. Q Yet, you claim that he pretended to purchase the loan with you, spent his time going to the bank, participating in a fraud to give you money 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 36 as a favor, that's your testimony? MR. GACHE: Move to strike the characterization as there being a fraud committed. MR. ZOBERG: There clearly is a fraud committed, your argument is there is no damages but there clearly was a fraud committed, there is no question there was a fraud committed. MR. GACHE: There is no fraud committed here. She admitted she lied to your client and the question is did he do this as a favor, she can answer that question, that's the essence of your question. This guy who you're not romantically involved with, had no business dealings did you this favor, that's your question, you don't need to characterize it as fraud. MR. ZOBERG: It is fraud. MR. GACHE: She is not a lawyer. MR. ZOBERG: I am okay but remember when you complain about my depo, you did the same thing. BY MR. ZOBERG: Q Moving along, that's my question, your claim is despite the fact you weren't romantically involved with him and had no business dealings at all with him, he participated in a lie as a favor? 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 37 A Yes. Q Why do you think he did that? MR. GACHE: Object to the form. THE WITNESS: I can't answer for him. MR. ZOBERG: He gets to answer tomorrow. MR. GACHE: By the way, I can have him here today, I told him to be ready at 2:00 if you want him to come over. MR. ZOBERG: We will think about it. BY MR. ZOBERG: Q How often do you see Mr. Shapiro? A Currently now or then? Q Either one, we will start with now. A Never. Q How often did you see him then? A Once a month. Q For what reason? A To cash the check. Q Again, this is so ridiculous, your testimony is you never saw this guy, you weren't romantically with him, you had no business dealings with him, you saw him only once a month to cash the check? A Correct. 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 38 Q Did you have Email communications with him? A No. Q So to recap -- MR. GACHE: Don't keep recapping, come on. BY MR. ZOBERG: Q Did you have any text communications with him? A I don't recall. Q So how did you convince him to participate in this when you saw him so infrequently? MR. GACHE: I need to stop for one second, you're talking about now before they sent the notice out, how did he get her to do it versus after it was done how did they end up knowing when to meet? MR. ZOBERG: Right. MR. GACHE: It's two separate areas. MR. ZOBERG: I said then and now. MR. GACHE: You made it very vague, how did she convince him to do the deal? MR. ZOBERG: Right, the lie. THE WITNESS: So the person I was romantically involved with knew Mr. Shapiro through 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 39 his brother-in-law and when I was trying to find someone to buy the note, they thought perhaps Mr. Shapiro would know someone that would be interested in buying the note, that's how I met Mr. Shapiro. BY MR. ZOBERG: Q Who were you romantically involved with? A Kevin Kurlowski. Q That would be another person that you spoke about this note with, correct? A It was my boyfriend. Q Is he still your boyfriend? A No. Q Please spell his name for the record, guess what, he now also violated -- MR. GACHE: Again, move to strike, you can talk to your friends that someone owes you money. MR. ZOBERG: Clearly, it is going to result in a new lawsuit and you can make that argument later. BY MR. ZOBERG: Q Name and address of Kevin Kurlowski, please. A Kevin, K-E-V-I-N K-U-R-L-O-W-S-K-I, he 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 40 lives in Heather Hill, I don't know the exact address. Q What state? A Boca Raton, Florida. Q I am going to look it up at the property appraiser; if it's there, I won't make an issue; if not, you will have to give me an address. MR. GACHE: She doesn't have to give you an address that she doesn't know by heart. MR. ZOBERG: She will when I raise it with the judge, I am not going to make an issue out of it if he owns the house. MR. GACHE: Why do you need to do this during the depo, this is something you can do afterwards. She is here, ask her questions. BY MR. ZOBERG: Q Your testimony is you don't know the address of the guy you were romantically involved with, is that correct? A Correct. Q How long were you romantically involved with him? A Years, five years. Q You don't know where he lives? MR. GACHE: She knows how to get 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 41 there. THE WITNESS: I know where he lives, I drive there, I never mailed him anything I don't believe. MR. GACHE: Come on. MR. ZOBERG: I agree, come on. MR. GACHE: She doesn't know the address. BY MR. ZOBERG: Q Spell his name, K-E-V-I-N -- MR. GACHE: She just did this. THE WITNESS: K-U-R-L-O-W-S-K-I. BY MR. ZOBERG: Q Other then Kevin Kurlowski, Lawrence Shapiro, Carlo Vaccarezza, is there anyone else you spoke about this loan with? My attorney. No one else? I don't understand the question. Oo fr CO PF You do and that's also a lie. MR. GACHE: Objection, move to strike, argumentative. I am going to have this typed up pretty soon, you are going to see between every question you make an argumentative comment. MR. ZOBERG: Because your client is 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 42 lying non-stop. I am going to file a motion for fraud in the court also. MR. GACHE: This is not your place to be saying it, you don't say it to the witness. MR. ZOBERG: I don't agree, I am allowed to act incredulous when woppers are told. BY MR. ZOBERG: Q Leaving aside all of this, Kevin Kurlowski, Lawrence Shapiro, Carlo Vaccarezza, did you discuss this loan with anyone else other than lawyers? A What do you mean discuss the loan? Q Did you advise people that you had a loan with Mark Benun or whatever entity the Defendant is with, anyone other then those three individuals? A I don't recall. Q Do you know where Mr. Shapiro lives? A Somewhere in Delray. Q Your testimony is he was a friend of your boyfriend? A Yes. Q Do either of them have connections with the mob? A Not that I'm aware of. Q That's a pretty evasive answer. 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 43 MR. GACHE: Object, if you want to define what the mob is, we're not in a movie here. What do you mean do they have a connection to the mob? MR. ZOBERG: Really, you don't know what the mafia is, okay, fine. MR. GACHE: No. You think there is some organization where you can look up people that are in the mafia, is that what you're saying? MR. ZOBERG: The FBI thinks they know who is in the mafia. MR. GACHE: She's not the FBI. MR. ZOBERG: She sent mobsters after my client to collect a debt which is a basis for punitive damages which is going to get allowed when I file that motion. BY MR. ZOBERG: Q Do you know that Carlo Vaccarezza is thought by the FBI to be in the mob? MR. GACHE: Object to the form. THE WITNESS: No. BY MR. ZOBERG: Q You don't know Carlo Vaccarezza is in the mob, though he clearly is. We certainly don't know your ex-boyfriend, possibly a mobster, don't know, 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 44 no way of knowing, right, and also who else Lawrence Shapiro, do you know if any of them are in the mob? MR. GACHE: Object to the form. THE WITNESS: No. BY MR. ZOBERG: Q How do you know Carlo Vaccarezza? A He owns a restaurant near my office. Q That's how you know him? I just want to understand your testimony, you started chatting with a restaurant owner but no one else about this loan and it just so happens the FBI thinks this restaurant owner is in the mob, is that what you're trying to get everyone to believe? MR. GACHE: Object to the form, assumes facts not in evidence. You can't keep making statements. BY MR. ZOBERG: Q Are you aware that there are newspaper articles that Carlo Vaccarezza was an associate of John Gotti and was threatening judges and prosecutors? MR. GACHE: Objection. THE WITNESS: No. MR. GACHE: You're testifying to things that are not -- 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 45 MR. ZOBERG: That's not a proper objection. MR. GACHE: Assumes facts not in evidence. MR. ZOBERG: That is not an objection for a deposition. MR. GACHE: It's form, objection, I can explain -- MR. ZOBERG: No, you can't unless I ask you. You can say form, objection if you want, she would still have to answer. I am letting you go because I did it also, not that two wrongs make a right; but, nevertheless, what you're also doing is improper. Again, he can object to the form if he wants. MR. GACHE: Ask questions and not make statement. MR. ZOBERG: It is ridiculous. BY MR. ZOBERG: Q Correct me here if I am wrong, your testimony is that Carlo Vaccarezza is not connected to your boyfriend or your boyfriend's friend, correct? A Correct. Q Carlo Vaccarezza is just some person that 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019 6654 NW 27 AVENUE vs PINCUS CAPITAL LLC 46 you just happened to know because you went into a restaurant that he owns, correct? A Correct. Q And yet you also said that except for your boyfriend and this random restaurant owner, you didn't discuss the loan with anyone else, correct? A Correct. Q You can make whatever form objection you want, how often do you go to this restaurant? A Couple of times a week. Q Have you noticed any pictures of anyone in the restaurant? A Frank Sinatra. Q Anyone else? A No. Q By the way, what is the name of this restaurant? A Frank & Dino's. Q Where is it? A It is in East Boca. Q You noticed no other pictures on the wall except for Frank Sinatra, that's your testimony? A Yes. Q Never Googled the guy? A No. 2 ESQUIRE 800.21 1.DEPO (3376) 2" Deposition soturions EsquireSolutions.comoY FD VW B WN FB 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEANA M. CLARK January 28, 2019