Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

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Filed 02/20/2006

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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO CASE NO. 03-cv-02485 MSK-PAC Camille Melonakis-Kurz, individually and on behalf of other similarly situated employees, Plaintiff, v. Heartland Home Finance, Inc., Defendant.

AFFIDAVIT OF MICHELE R. FISHER RELATING TO DECERTIFICATION ________________________________________________________________________ 1. My name is Michele R. Fisher and I am one of the attorneys representing the

Plaintiffs in the above-captioned matter. 2. Plaintiffs are 957 loan officers who worked for Defendant Heartland Home

Finance ("Defendant") at its approximately 67 branch offices in 31 states. 3. I was one of the attorneys who handled England v. New Century, 370 F.Supp.2d

504 (M.D. La. 2005). That case was different from this case in that some loan officers were paid overtime compensation and others were not. 4. Plaintiffs' claims during the three year statute range from $38.63 to $57,951.70

exclusive of liquidated damages and attorneys' fees and costs. 5. Attached are true and correct copies of the following: Excerpts from deposition transcript of Donald Flynn dated April 8, 2004; Excerpts from deposition transcript of Donald Flynn dated August 17, 2005;

Exhibit 1 Exhibit 2

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Exhibit 3

Excerpts from deposition transcript of Thomas Beck dated August 17, 2005; Excerpts from deposition transcript of Jay Dunsing dated January 6, 2006; Excerpts from deposition transcript of Rachelle Schuster dated April 8, 2004; Excerpts from deposition transcript of Rachelle Schuster Ott dated August 22, 2005; Excerpts from deposition of Eric Jerold regarding contacts with Plaintiffs' firm. Declarations from 205 individuals and transcripts from 24 individuals setting forth Defendant's practice of falsifying timesheets; Transcripts Agostini at 10-11, 35-36, 86-89, 130-32 Alawan at 31-33, 39 Berman at 9-13, 63-64, 140-42 Clark at 27-29, 38-40, 64-65 Cousino at 9-13, 15-16, 26-29 Dary at 10-11 Donahoo at 79-81 DiBlasi at 39-40, 47-48 Fleck at 20-23 Gaddis at 10-12 Gleason at 15-16, 30-31, 36-37, 135-36, 155-58 Gunn at 8-11, 37-41 Horton at 52-54, 58-60, 62-63 Howard at 38-43, 52-53 Johnson at 7-8, 34-35, 37-38, 83-84 Kirkland (manager) at 8, 23-25, 27, 32, 103-04, 112-13 Lambros at 10-12, 79-85 Miles at 7-12, 31-32, 46, 48-49 Provost at 13-18, 53-58 Reynolds (manager) at 16, 37-41, 64, 102-03 Roddy at 11-14, 34-35 Rodriguez at 26-28, 40-42 Schwiderson at 31-32, 64-67, 72 Ziemack at 87

Exhibit 4 Exhibit 5

Exhibit 6

Exhibit 7

Exhibit 8

Exhibit 9

46 Declarations and 18 transcripts from Plaintiffs and managers setting forth examples of complaints to upper management about Defendant's unlawful overtime practices:

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Transcripts Agostini at 33-34,91, 130-32 Alawan at 20-21, 40-42 Berman at 140-42 Bias at 35-36 Cousino at 15-16 Dary at 42-44, 68 Donahoo at 84-86, 104 Gaddis at 8-9 Gleason at 22-23, 37-39, 48, 136, 145-46 Gunn at 8-11, 13, 18-19, 40-42, 46-47 Hines at 107 Janda (manager) at 6, 42-43 Jerold (manager) at 5-6, 10-15 Johnson at 7-9, 38-39, 83-85 Kirkland (manager) at 8, 23-25, 27, 32, 103-04. 112-13. Lambros at 16-18 Roddy at 11-14, 36-42, 44-46, 50-53, 69-70 Ziemack at 10-13, 84 Exhibit 10 Defendant's standard Employment Agreement containing loan officer job description; Additional documents evidencing overtime hours worked; Excerpts from deposition transcript of Regional Manager Bob Janda; Memorandum dated October 17, 2001 stating that loans may only be submitted to Heartland Banking or Interfirst Wholesale Mortgage Lending; Heartland Home Finance "The Basics" document setting forth how to perform loan officer job; 5 Declarations and 4 transcripts from managers stating they were instructed by corporate to either falsify timesheets or not pay overtime for hours worked: Transcripts Jerold at 5-6, 10-15, 26 Kirkland at 8, 112-13 Pusey at 5, 12-19, 30-31 Reynolds at 16-17, 37-41, 64, 68-69, 102-03

Exhibit 11 Exhibit 12 Exhibit 13

Exhibit 14

Exhibit 15

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Exhibit 16

Production goals documents, and warnings and termination notices for failing to produce; Email from defense counsel dated November 17, 2005 setting forth July 31, 2002 as date that Defendant changed its compensation plan for loan officers; Excerpts from deposition transcripts of managers regarding production goals: Heath at 24, 27 Notaro at 29-30

Exhibit 17

Exhibit 18

Exhibit 19

Excerpts from deposition transcripts of 10 managers stating their loan officers either worked or may have worked overtime hours. Benson (rough draft) at 4, 10, 14-15 Block at 13, 27 Flynn, Patrick at 6-8, 13 Heath at 6-7, 27 Jerold at 5-6, 8-9 Kopronica at 6, 8-11, 58-59 Notaro at 5-6, 9-10 Pusey at 5, 24-25 Reynolds at 16, 65, 68 Westbeld at 6, 10

Exhibit 20

Excerpts from the deposition transcripts of 38 Plaintiffs from 27 branches stating they worked more than 40 hours per week: Accetta at 37 Agostini at 21-22 Artis at 20-21 Berman at 9 Bias at 54 Clark at 77 Cousino at 7 Dary at 7 DiBlasi at 25 Dinkel at 17 Donahoo at 95 Fleck at 10 Gaddis at 5 Gleason at 18 Gunn at 5-6

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Hines at 46 Horton at 42 Howard at 50-51 Johnson at 5-6 Lambros at 6 Legree at 7 Liphard at 7 Luttke at 9-10 Melonakis-Kurz at 34-35 Miles at 6 Provost at 10 Reynolds at 74-76 Roberts at 129-30 Roddy at 7 Rodriguez at 21-22 Rohrer at 63 Sandifer at 64 Schwiderson at 68-69 Seelig at 6 Sweet at 13 Thomas at 28 Williams at 21 Ziemack at 6 Exhibit 21 Declarations from 315 Plaintiffs from 61 branch offices stating they worked overtime hours (some of these reflect a different case caption because they were obtained relating to the McClain et. al. v. Heartland Home Finance minimum wage case in which the Plaintiffs to this case are also participating); Casas v. Conseco, 2002 WL 507059 (D. Minn. Mar. 31, 2002); and Excerpts from deposition transcripts relating to job duties for the following Plaintiffs: Accetta Agostini Alawan Artis Berman Bias Clark Cousino Dary DiBlasi Dinkel

Exhibit 22 Exhibit 23

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Donahoo Fleck Gaddis Gleason Gunn Hines Horton Johnson Kirkland Lambros Legree Liphard Luttke Melonakis-Kurz Miles Provost Reynolds Roberts Roddy Rodriquez Rohrer Sandifer Schwiderson Sweet Thomas Williams Ziemack

FURTHER AFFIANT SAYETH NOT. Dated: 2.20.06 s/Michele R. Fisher Michele R. Fisher

Subscribed and sworn to before me this 20th day of February 2006. s/Amy Johnson Notary Public

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