Preview
Filing # 94382066 E-Filed 08/19/2019 02:18:39 PM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR ORANGE
COUNTY, FLORIDA
CASE NO. 48-2017-CA-003984-O
MTGLQ INVESTORS, L.P.
Plaintiff,
Vv.
RICHARD BAIR, ET AL.
Defendants.
PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION
FOR PROTECTIVE ORDER FROM DEPOSITION OF NON-CORPORATE
REPRESENTATIVE AND FOR SANCTIONS
Comes Now the Plaintiff, MTGLQ INVESTORS, L.P., by and through the undersigned
counsel, and for its Reply to Defendant’s Opposition to Plaintiff’s Motion for Protective Order
from Deposition of Non-Corporate Representative and for Sanctions, states as follows:
1 This is a mortgage foreclosure proceeding, filed May 3, 2017.
2. On or about November 28, 2018, Defendant requested to take the deposition of Mhari
Holtzclaw, an employee of the Plaintiff, who executed the Affidavit as to the Amounts Due and
Owing.
3 Contrary to Defendant’s assertion the deposition was not coordinated. Defendant
originally reached out to the Plaintiff regarding the deposition on November 28, 2018, and
Plaintiff responded the same day. Plaintiff did not agree to the deposition of employee Mhari
Holtzclaw. In fact, Plaintiff requested the scope of the deposition and informed Defendant that
the individual sought was not a corporate representative. This response was ignored by the
395170006
Defendant. Indeed, Plaintiffs responses to Defendant’s request for deposition have mysteriously
disappeared from their memo in opposition; a complete email chain between the parties is
attached hereto as Exhibit A.
4 Further, on November 28, 2018, Plaintiff asked Defendant to file a Notice of Intent to
Subpoena to avoid undue surprise. However, Defendant waited until the 11" hour to actually
attempt to subpoena Mhari Holtzclaw, filing a notice of deposition on January 28", 2019 for a
January 29", 2019 deposition.
5 Defendant next mischaracterizes South Carolina’s subpoena Rule of Civil Procedure
Rule 45. “A subpoena for attendance at a deposition shall issue from the court for the county
designated by the notice of deposition as the county in which the deposition is to be taken.”
South Carolina Rule of Civil Procedure Rule 45. In the instant case, Defendant did not issue the
subpoena out of the South Carolina Court in the County where the deposition was to occur.
Instead, Defendant merely issued the subpoena out of the Orange County Court in Florida,
violation of the Florida Foreign Depositions Act. In fact, there is no evidence that the Defendant
attempted or even served the deponent Mhari Holtzclaw with a copy of the subpoena.
6 Lastly, Mhari Holtzclaw is a non-party and has not been designated as a corporate
representative. The attempted deposition of her is in violation of Florida Rules of Civil
Procedure 1.310 and Rule 1.140, regarding subpoenas of non-party witnesses.
7
The deposition ofa non-party witness is subject to Rule 1.410, Florida Rules of Civil
Procedure, requiring a subpoena of the non-party witness and that such non-party witness “may
be required to attend an examination only in the county wherein the person resides or is
employed...” As Mahri Holtzclaw is not a resident of Florida or indeed Orange County Florida,
any subpoena for her is therefore subject to Florida’s Uniform Foreign Depositions Law.
395170006
8 Defendant’s actions and failure to respond following Plaintiff’s good faith calls and
attempts to resolve the matter have let Plaintiff with no other choice but to respond to the
improper Notice of Deposition by filing a Motion for Protective Order.
WHEREFORE, Plaintiff moves for a protective order in accordance with Rule
1.280(c)(1), Florida Rules of Civil Procedure, and prays this court grant Plaintiff’s Motion so
that the non-party shall not be required to provide their deposition without compliance with the
rules, and awarding Plaintiff such other and further protections an relief as are necessary to
secure orderly discovery and to avoid harassment, oppression and delay as just and proper.
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished by U.S. Mail or Email on this 4 day of
peons’ , 2019 to:
UNKNOWN SPOUSE OF RICHARD BAIR
1349 ARLINGTON ST
ORLANDO, FL 32805-1310
GIANCARLO RIVERA, ESQ. (OPPOSING COUNSEL FOR BAIR, RICHARD)
270 SW NATURA AVE.
DEERFIELD BEACH, FL 33441
SERV549@LEGALBRAINS.COM
eXL Legal, PLLC
Designated Email Address: efiling@exllegal.com
12425 28th Street North, Suite 200
St. Petersburg, FL 33716
Telephone No. (727) 536-4911
Attorney for the Plaintiff
By: oe
Anna Judd Rosenberg
Florida Bar #101551
395170006
Rosannie Morgan
From: Joshua Vaal
Sent: Monday, January 28, 2019 4:20 PM
To: Rosannie Morgan
Subject: FW: Bair, Richard ATS. MTGLQ Investors, L.P.; File: 395170006
Joshua Vaal
Extension 520
From: Joshua Vaal
Sent: Thursday, December 20, 2018 1:59 PM
To: Alexandra Wagener
Cc: Rosannie Morgan
Subject: RE: Bair, Richard ATS, MTGLQ Investors, L.P.; File: 395170006
Good afternoon,
Rosannie Morgan, Esq. responded with the below email on 11/28/18.
From: Rosannie Morgan
Sent: Wednesday, November 28, 2018 10:31 AM
To: Alexandra Wagener
Cc: Joshua Vaal
Subject: RE: Bair, Richard ATS. MTGLQ Investors, L.P.; File: 395170006
Good Morning,
Please advise regarding the scope for the deposition of each of the individuals listed below. Additionally, as they are
merely employees of our client's servicer and not the corporate representatives, we ask that you file the notice of intent
to subpoena them so that we may review the scope of the depositions and advise accordingly.
Rosie
Thank you,
Joshua Vaal
Joshua Vaal
Extension 520
From: Alexandra Wagener [mailto:adwagener@legalbrains.com]
Sent: Thursday, December 20, 2018 1:54 PM
To: Joshua Vaal
Subject: FW: Bair, Richard ATS. MTGLQ Investors, L.P.; File: 395170006
Following up on below, | will be setting this shortly.
EXHIBIT sie
Very truly yours,
Alexandra Wagener
Legal Administrator & Deposition Coordinator
THE TICKTIN
LAW ACGROUP
Y
“The lawyers want
tween yeu a anid your
prol
The Ticktin Law Group
270 SW Natura Avenue | Deerfield Beach, Florida 33441
Phone: (954) 570-6757 | General Email: Adwagener@LegalBrains.com |
From: Alexandra Wagener
Sent: Friday, November 30, 2018 10:46 AM
To: ‘Joshua Vaal’
Subject: RE: Bair, Richard ATS. MTGLQ Investors, L.P.; File: 395170006
Good morning,
1am following up on the e-mail below. Any updates?
Thank you.
Very truly yours,
Alexandra Wagener
Legal Administrator & Deposition Coordinator
THE TICKTIN
LAW 8GROUP
100
“The lawyers you want
betweebcras
The Ticktin Law Group, PLLC
270 SW Natura Avenue | Deerfield Beach, Florida 33441
Phone: (954) 570-6757 | General Email: Adwagener@LegalBrains.com|
From: Joshua Vaal [mailto:ivaal@exllegal.com’
Sent: Wednesday, November 28, 2018 10:15 AM
To: Alexandra Wagener
Cc: Rosannie Morgan
Subject: RE: Bair, Richard ATS. MTGLQ Investors, L.P.; File: 395170006
Good morning,
We are checking with our client and will get back to you when we receive a response.
Thank you,
Joshua Vaal
Joshua Vaal
Litigation Supervisor
eXL. Legal
12425 28th St North, Ste. 200
St. Petersburg, FL 33716-1826
(727) 536-4911 Extension 520
Pursuant to the Fair Debt Collection Practices Act, you are advised that this office may be deemed to be a debt
collector and any information obtained may be used for that purpose.
NOTICE REGARDING DESIGNATED EMAIL ADDRESS FOR SERVICE
The email address from which this email was sent is for correspondence only. It has not been designated for service of
documents and pleadings and any attempted service to this address will be considered a nullity. The designated address
for service to eXL Legal is: efiling@exlleqal.com.
NOTICE OF CONFIDENTIALITY
This E-mail message and its attachments (if any) are intended solely for the use of the addressee hereof, In addition, this
message and the attachments (if any) may contain information that is confidential, privileged and exempt from disclosure
under applicable law. If you are not the intended recipient of this message, you are prohibited from reading, disclosing,
reproducing, distributing, disseminating or otherwise using this transmission. Delivery of this message to any person
other than the intended recipient is not intended to waive any right or privilege. If you have received this message in
error, please promptly notify the sender by reply E-mail and immediately delete this message from your system.
From: Alexandra Wagener ‘{mallto:adwagener@legalbrains.com]
Sent: Wednesday, November 28, 2018 9:11 AM
To: Rosannie Morgan
Subject: Bair, Richard ATS. MTGLQ Investors, L.P.
Good morning,
Please be advised that we are contacting you to mutually coordinate the following depositions:
. Deponent: Mharl Holtzclaw -Location: Greenville, South Carolina — Date: January 29" 2019
. Deponent: Elizabeth Gault -Location: Sreenville,
Greenville, south
South Carolina
Carolina — Date: January 30" 2019
If we fail to hear from your office within 48 hours with confirmation of the deposition date, or with the offer of alternate
proposed deposition dates, we will take your non-response as an acceptance of the deposition date and we will proceed
with noticing the deposition to occur on the provided date of our choosing. Please let me know if you have any
questions or concerns. | look forward to hearing from your office as soon as possible,
Thank you.
Very truly yours,
Alexandra Wagener
Legal Administrator & Deposition Coordinator
THE TICKTIN
LAW GROUP
“The lawyers you want
uuand your
between
prol tte ms,
The Ticktin Law Group, PLLC
270 SW Natura Avenue | Deerfield Beach, Florida 33441
Phone: (954) 570-6757 | General Email: Adwagener@LegalBrains.com|
Rosannie Morgan
From: Rosannie Morgan
Sent: Wednesday, November 28, 2018 10:31 AM
To: Alexandra Wagener
ce: Joshua Vaal
Subject: RE: Bair, Richard ATS. MTGLQ Investors, L.P.; File: 395170006
Good Morning,
Please advise regarding the scope for the deposition of each of the individuals listed below. Additionally, as they are
merely employees of our client's servicer and not the corporate representatives, we ask that you file the notice of intent
to subpoena them so that we may review the scope of the depositions and advise accordingly.
Sincerely,
Rosannie Morgan
Extension 501
pe . ene se
From: Alexandra Wagener [mailto:adwagener@legalbrains.com]
Sent: Wednesday, November 28, 2018 9:11 AM
To: Rosannie Morgan
Subject: Bair, Richard ATS. MTGLQ Investors, L.P.
Good morning,
Please be advised that we are contacting you to mutually coordinate the following depositions:
. Deponent: Mhari Holtzclaw -Location: Greenville, South Carolina — Date: January 29" 2019
. Deponent: Elizabeth Gault -Location: Greenville, South Carolina — Date: January 30" 2019
.
If we fail to hear from your office within 48 hours with confirmation of the deposition date, or with the offer of alternate
proposed deposition dates, we will take your non-response as an acceptance of the deposition date and we will proceed
with noticing the deposition to occur on the provided date of our choosing. Please let me know if you have any
questions or concerns. | look forward to hearing from your office as soon as possible.
Thank you.
Very truly yours,
Alexandra Wagener
Legal Administrator & Deposition Coordinator
THE TICKTIN
LAW stGROUP
HP
“The lawyers you want
tween id your
prot
The Ticktin Law Group, PLLC
270 SW Natura Avenue | Deerfield Beach, Florida 33441
Phone: (954) 570-6757 | General Email: Adwagener@LegalBrains.com |
Preview
Filing # 94382066 E-Filed 08/19/2019 02:18:39 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO. 48-2017-CA-003984-O MTGLQ INVESTORS, L.P. Plaintiff, Vv. RICHARD BAIR, ET AL. Defendants. PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR PROTECTIVE ORDER FROM DEPOSITION OF NON-CORPORATE REPRESENTATIVE AND FOR SANCTIONS Comes Now the Plaintiff, MTGLQ INVESTORS, L.P., by and through the undersigned counsel, and for its Reply to Defendant’s Opposition to Plaintiff’s Motion for Protective Order from Deposition of Non-Corporate Representative and for Sanctions, states as follows: 1 This is a mortgage foreclosure proceeding, filed May 3, 2017. 2. On or about November 28, 2018, Defendant requested to take the deposition of Mhari Holtzclaw, an employee of the Plaintiff, who executed the Affidavit as to the Amounts Due and Owing. 3 Contrary to Defendant’s assertion the deposition was not coordinated. Defendant originally reached out to the Plaintiff regarding the deposition on November 28, 2018, and Plaintiff responded the same day. Plaintiff did not agree to the deposition of employee Mhari Holtzclaw. In fact, Plaintiff requested the scope of the deposition and informed Defendant that the individual sought was not a corporate representative. This response was ignored by the 395170006 Defendant. Indeed, Plaintiffs responses to Defendant’s request for deposition have mysteriously disappeared from their memo in opposition; a complete email chain between the parties is attached hereto as Exhibit A. 4 Further, on November 28, 2018, Plaintiff asked Defendant to file a Notice of Intent to Subpoena to avoid undue surprise. However, Defendant waited until the 11" hour to actually attempt to subpoena Mhari Holtzclaw, filing a notice of deposition on January 28", 2019 for a January 29", 2019 deposition. 5 Defendant next mischaracterizes South Carolina’s subpoena Rule of Civil Procedure Rule 45. “A subpoena for attendance at a deposition shall issue from the court for the county designated by the notice of deposition as the county in which the deposition is to be taken.” South Carolina Rule of Civil Procedure Rule 45. In the instant case, Defendant did not issue the subpoena out of the South Carolina Court in the County where the deposition was to occur. Instead, Defendant merely issued the subpoena out of the Orange County Court in Florida, violation of the Florida Foreign Depositions Act. In fact, there is no evidence that the Defendant attempted or even served the deponent Mhari Holtzclaw with a copy of the subpoena. 6 Lastly, Mhari Holtzclaw is a non-party and has not been designated as a corporate representative. The attempted deposition of her is in violation of Florida Rules of Civil Procedure 1.310 and Rule 1.140, regarding subpoenas of non-party witnesses. 7 The deposition ofa non-party witness is subject to Rule 1.410, Florida Rules of Civil Procedure, requiring a subpoena of the non-party witness and that such non-party witness “may be required to attend an examination only in the county wherein the person resides or is employed...” As Mahri Holtzclaw is not a resident of Florida or indeed Orange County Florida, any subpoena for her is therefore subject to Florida’s Uniform Foreign Depositions Law. 395170006 8 Defendant’s actions and failure to respond following Plaintiff’s good faith calls and attempts to resolve the matter have let Plaintiff with no other choice but to respond to the improper Notice of Deposition by filing a Motion for Protective Order. WHEREFORE, Plaintiff moves for a protective order in accordance with Rule 1.280(c)(1), Florida Rules of Civil Procedure, and prays this court grant Plaintiff’s Motion so that the non-party shall not be required to provide their deposition without compliance with the rules, and awarding Plaintiff such other and further protections an relief as are necessary to secure orderly discovery and to avoid harassment, oppression and delay as just and proper. CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished by U.S. Mail or Email on this 4 day of peons’ , 2019 to: UNKNOWN SPOUSE OF RICHARD BAIR 1349 ARLINGTON ST ORLANDO, FL 32805-1310 GIANCARLO RIVERA, ESQ. (OPPOSING COUNSEL FOR BAIR, RICHARD) 270 SW NATURA AVE. DEERFIELD BEACH, FL 33441 SERV549@LEGALBRAINS.COM eXL Legal, PLLC Designated Email Address: efiling@exllegal.com 12425 28th Street North, Suite 200 St. Petersburg, FL 33716 Telephone No. (727) 536-4911 Attorney for the Plaintiff By: oe Anna Judd Rosenberg Florida Bar #101551 395170006 Rosannie Morgan From: Joshua Vaal Sent: Monday, January 28, 2019 4:20 PM To: Rosannie Morgan Subject: FW: Bair, Richard ATS. MTGLQ Investors, L.P.; File: 395170006 Joshua Vaal Extension 520 From: Joshua Vaal Sent: Thursday, December 20, 2018 1:59 PM To: Alexandra Wagener Cc: Rosannie Morgan Subject: RE: Bair, Richard ATS, MTGLQ Investors, L.P.; File: 395170006 Good afternoon, Rosannie Morgan, Esq. responded with the below email on 11/28/18. From: Rosannie Morgan Sent: Wednesday, November 28, 2018 10:31 AM To: Alexandra Wagener Cc: Joshua Vaal Subject: RE: Bair, Richard ATS. MTGLQ Investors, L.P.; File: 395170006 Good Morning, Please advise regarding the scope for the deposition of each of the individuals listed below. Additionally, as they are merely employees of our client's servicer and not the corporate representatives, we ask that you file the notice of intent to subpoena them so that we may review the scope of the depositions and advise accordingly. Rosie Thank you, Joshua Vaal Joshua Vaal Extension 520 From: Alexandra Wagener [mailto:adwagener@legalbrains.com] Sent: Thursday, December 20, 2018 1:54 PM To: Joshua Vaal Subject: FW: Bair, Richard ATS. MTGLQ Investors, L.P.; File: 395170006 Following up on below, | will be setting this shortly. EXHIBIT sie Very truly yours, Alexandra Wagener Legal Administrator & Deposition Coordinator THE TICKTIN LAW ACGROUP Y “The lawyers want tween yeu a anid your prol The Ticktin Law Group 270 SW Natura Avenue | Deerfield Beach, Florida 33441 Phone: (954) 570-6757 | General Email: Adwagener@LegalBrains.com | From: Alexandra Wagener Sent: Friday, November 30, 2018 10:46 AM To: ‘Joshua Vaal’ Subject: RE: Bair, Richard ATS. MTGLQ Investors, L.P.; File: 395170006 Good morning, 1am following up on the e-mail below. Any updates? Thank you. Very truly yours, Alexandra Wagener Legal Administrator & Deposition Coordinator THE TICKTIN LAW 8GROUP 100 “The lawyers you want betweebcras The Ticktin Law Group, PLLC 270 SW Natura Avenue | Deerfield Beach, Florida 33441 Phone: (954) 570-6757 | General Email: Adwagener@LegalBrains.com| From: Joshua Vaal [mailto:ivaal@exllegal.com’ Sent: Wednesday, November 28, 2018 10:15 AM To: Alexandra Wagener Cc: Rosannie Morgan Subject: RE: Bair, Richard ATS. MTGLQ Investors, L.P.; File: 395170006 Good morning, We are checking with our client and will get back to you when we receive a response. Thank you, Joshua Vaal Joshua Vaal Litigation Supervisor eXL. Legal 12425 28th St North, Ste. 200 St. Petersburg, FL 33716-1826 (727) 536-4911 Extension 520 Pursuant to the Fair Debt Collection Practices Act, you are advised that this office may be deemed to be a debt collector and any information obtained may be used for that purpose. NOTICE REGARDING DESIGNATED EMAIL ADDRESS FOR SERVICE The email address from which this email was sent is for correspondence only. It has not been designated for service of documents and pleadings and any attempted service to this address will be considered a nullity. The designated address for service to eXL Legal is: efiling@exlleqal.com. NOTICE OF CONFIDENTIALITY This E-mail message and its attachments (if any) are intended solely for the use of the addressee hereof, In addition, this message and the attachments (if any) may contain information that is confidential, privileged and exempt from disclosure under applicable law. If you are not the intended recipient of this message, you are prohibited from reading, disclosing, reproducing, distributing, disseminating or otherwise using this transmission. Delivery of this message to any person other than the intended recipient is not intended to waive any right or privilege. If you have received this message in error, please promptly notify the sender by reply E-mail and immediately delete this message from your system. From: Alexandra Wagener ‘{mallto:adwagener@legalbrains.com] Sent: Wednesday, November 28, 2018 9:11 AM To: Rosannie Morgan Subject: Bair, Richard ATS. MTGLQ Investors, L.P. Good morning, Please be advised that we are contacting you to mutually coordinate the following depositions: . Deponent: Mharl Holtzclaw -Location: Greenville, South Carolina — Date: January 29" 2019 . Deponent: Elizabeth Gault -Location: Sreenville, Greenville, south South Carolina Carolina — Date: January 30" 2019 If we fail to hear from your office within 48 hours with confirmation of the deposition date, or with the offer of alternate proposed deposition dates, we will take your non-response as an acceptance of the deposition date and we will proceed with noticing the deposition to occur on the provided date of our choosing. Please let me know if you have any questions or concerns. | look forward to hearing from your office as soon as possible, Thank you. Very truly yours, Alexandra Wagener Legal Administrator & Deposition Coordinator THE TICKTIN LAW GROUP “The lawyers you want uuand your between prol tte ms, The Ticktin Law Group, PLLC 270 SW Natura Avenue | Deerfield Beach, Florida 33441 Phone: (954) 570-6757 | General Email: Adwagener@LegalBrains.com| Rosannie Morgan From: Rosannie Morgan Sent: Wednesday, November 28, 2018 10:31 AM To: Alexandra Wagener ce: Joshua Vaal Subject: RE: Bair, Richard ATS. MTGLQ Investors, L.P.; File: 395170006 Good Morning, Please advise regarding the scope for the deposition of each of the individuals listed below. Additionally, as they are merely employees of our client's servicer and not the corporate representatives, we ask that you file the notice of intent to subpoena them so that we may review the scope of the depositions and advise accordingly. Sincerely, Rosannie Morgan Extension 501 pe . ene se From: Alexandra Wagener [mailto:adwagener@legalbrains.com] Sent: Wednesday, November 28, 2018 9:11 AM To: Rosannie Morgan Subject: Bair, Richard ATS. MTGLQ Investors, L.P. Good morning, Please be advised that we are contacting you to mutually coordinate the following depositions: . Deponent: Mhari Holtzclaw -Location: Greenville, South Carolina — Date: January 29" 2019 . Deponent: Elizabeth Gault -Location: Greenville, South Carolina — Date: January 30" 2019 . If we fail to hear from your office within 48 hours with confirmation of the deposition date, or with the offer of alternate proposed deposition dates, we will take your non-response as an acceptance of the deposition date and we will proceed with noticing the deposition to occur on the provided date of our choosing. Please let me know if you have any questions or concerns. | look forward to hearing from your office as soon as possible. Thank you. Very truly yours, Alexandra Wagener Legal Administrator & Deposition Coordinator THE TICKTIN LAW stGROUP HP “The lawyers you want tween id your prot The Ticktin Law Group, PLLC 270 SW Natura Avenue | Deerfield Beach, Florida 33441 Phone: (954) 570-6757 | General Email: Adwagener@LegalBrains.com |