Free Response to Motion - District Court of Colorado - Colorado

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

Document 345-9

Filed 02/16/2006

Page 1 of 14

Michael B. Clark 10/12/2005 Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

Page 1

1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

2
3

* * *

5 Plaintiffs,
6

4 CAMILLE MELONAKIS-KURZ, et al.,

vs.

CASE NO. 03-MK-21185

7 HEARTLAND HOME FINANCE, INC.,

8 Defendant.
9

* * *
Deposition of MICHAEL B. CLARK,

10

11 Plaintiff herein, called by the Defendant for

12 cross-examination pursuant to the Rules of Civil
13 Procedure, taken before me, Monica K. Hissong, a

14 Notary Public in and for the State of Ohio, at the
15 offices of Mike Mobley Reporting, 312 Walnut

16 Street, Suite 1600, Cincinnati, Ohio, on
17 Wednesday, October 12, 2005, at 8:38 o'clock a.m.
18

* * *

19 20 21
22

23
24

25

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

Document 345-9

Filed 02/16/2006

Page 2 of 14

Michael B. Clark 10/12/2005 Camile Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

1

truthfully today?
A.
Q.

Page 7

2
3
4

No.

Okay.

What

date s

were you

5 6
7
8

employed well, first of all, let me ask you, were you employed by Heartland Home Finance? A. Yes. What dates? Q.
A.

I believe May 20 through sometime

9 in August.
10 11
12
Q.

A.
Q.

Of what year? Of '02.

Okay. All of the questions I will

13 be asking you today will involve that time
14 period of your employment at Heartlandr unless
15
I specify otherwise.

So if I'm asking you

16 questions, we can assume it was from May 20 of

17 2002 through -- I believe your ending date of
18 employment was August 20 of 2002.
19
A.
Q.

Sure.
Does tha t sound right to you?

20 21
22

A.
Q.

Yes.

Okay. Let's take a look at your

23 application for employment. Have you ever seen

24 this document before?
25
A.

Yes.

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

Document 345-9

Filed 02/16/2006

Page 3 of 14

Michael B. Clark 10/12/2005 Camile Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

Page 26

1 can you be a little more -2
3
4

A.
Q.

Sure.
-- specific?

A.

What I mean by work on leads iS go

5 through my leads, see which ones are currently

6 active, which ones are kind of back-burner
7 deals which, you know, which means someone that

8 may be interested on down the road but not
9

right at the moment. And I would plan

I

10 used to have a tickle file, what I called it,
11 and I would set up based on that file, you
12 know, kind of a hot person, a warm person, and
13
a cold person.

And I would go through my leads

14 at that time. A lot of times, I would go
15 through recycled leads, too, which is maybe

16 someone that another person couldn't contact,
1 7 so they would give me, you know, stacks of

18 recycled leads to call to see if maybe there

19 was some interest there.
20
22
Q.

Okay. Where did your leads
I always got my leads from my

21 generally come from?
A.

23 manager, Jim Westbeld.
24
Q.

Did you -- where did you do your

25 work, was it always in the office or was it

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

Document 345-9

Filed 02/16/2006

Page 4 of 14

Michael B. Clark 10/12/2005 Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

Page 27

1 also other places?
2 3

A.
Q.

In the office.
Always in your -- always in the

4 office?
5

A.

Yeah, unless I was at a loan

6 closing, you know, I would go to someone' s
7

house.

But ninety-nine percent of the time, it

8 was in the office.
9

Q.

Okay.

Describe sort of in general
Did you

10

what your typical day would be like.
A.

11 keep track of your hours in any way?
12 13

We had a time sheet towards the
Wha t Jim

end that they had us fill out.

14 Westbeld told us to do in a meeting was to 15 to make it easier was just to -- because he
16 basically said that they weren't going to pay

17 us overtime anyway, so put down forty hours.

18 So I think my time sheets, if you
19 look at them, are probably identical, except
20
for the date.

He told us just to copy the time

21 sheets, and that's pretty much what we did.

22 It's what I did, anyway.
23
24
Q.

Okay.

When did Jim say that?

A.

He said that during a meeting when

25 they first brought about the time sheets, which

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

Document 345-9

Filed 02/16/2006

Page 5 of 14

Michael B. Clark 10/12/2005 Camile Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

Page 81

1

A.
Q.

Excl usi ve, meaning?
Well, okay, that's a bad question.

2

3 You are telling me that not counting lunchtime,

4 you worked fifty to fifty-five hours a week?
5 6

A.
Q.

Tha t 's correct.

Okay.

Tell me about the training

7 you received, if any, when you started working

8 at Heartland Home Finance.
9

A.
Q.

There was no training.

10

Okay.

You did not receive any

11 training, correct?
12
A.
Q.
I did not.

13

And at the time you started

14 working at Heartland Home Finance, would you

15 say you were an experienced loan officer?
16
17

A.
Q.

Yes.
Did you think you needed training

18 when you started at Heartland Home Finance?
19
A.
Q.

No.
How many years had you
prior to

20

21 starting at Heartland Home Finance, how many

22 years had you acted or worked as a loan

23 officer?
24
A.
Q.

Approximately six or so.
Six or so years?

25

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

Document 345-9

Filed 02/16/2006

Page 6 of 14

Michael B. Clark 10/12/2005 Camile Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

Page 82

1

A.
Q.

(Nods head up and down. )

2 3
4

I need an out loud answer.

A.
Q.

Yes. Okay.

So you

already
when you

knew how

to

5 6
7

do

the job of loan officer
A.
Q.

started?

Yes, I did.
And did you think you knew how to

8 do it well?
9

A.
Q.

Yes.
Did you work fairly independently

10

11 as a loan officer when you first started at
12 Heartland Home Finance?
13
MS. FISHER:

Objection, vague.

14 BY MS. WIELENBERG:
15
Q.

You can answer.

16
17

A.
Q.

Define independently.
Well, did you -- okay.

Let -- did

18 you consul t wi th your manager when you were

19 doing a loan?
20 21
A.
Q.

Yes, always.

Okay. Why don't you describe the 22 process for me from start to finish what you 23 would do in your role as a loan officer?
24
A.

Okay.

Our manager, my manager,

25 would give me leads to call, which I would

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

Document 345-9

Filed 02/16/2006

Page 7 of 14

Michael B. Clark 10/12/2005 Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

Page 88

1 what product might be appropriate for a

2 customer's needs?
3
4

A.
Q.

I didn't.

You didn't think about it at all

5 before you took it to Jim?
6
7

A.
Q.

No.

Okay. As an experienced loan

8 officer with SiX years of experience acting as

9 a loan officer, you did not think about what
10 product would best meet the customer's needs?
11
12

A.

Not until I discussed it with my
I didn't see credit until then.

manager.
Q.

13
14

Okay. At any
Tha t makes ita factor.

A.
Q.

15

At any point during the process,

16 did you think about what product would best
1 7 meet the customer's needs?
18

A.

At any point during the process?

19 Yes, sure.
20 21
Q.

When?
After I had a determination from

A.

22 Jim and after I actually looked at the file
23 myself, the file being the application with the

24 credi t report.
25
Q.

Okay. And what was the thought

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

Document 345-9

Filed 02/16/2006

Page 8 of 14

Michael B. Clark 10/12/2005 Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

Page 89

1 proce s s that you wen t through?
2

A.

I would -- I would look to see if

3 there were any -- any benefi ts that we were
4

missing.

For example, if they had a -- maybe a

5 small bill that we should be paying, you know,

6 I would maybe think about paying that off or
7 something that would get the biggest benefi t

8 for them.
9

Q.

Okay.

Is that an important part

10 of your job to be successful as a loan officer,
11 to be able to help the customer get the best
12

product for their needs?
A.
Q.

13
14

Yes.
And

did you think that was part of

15

the job and the service that you offered?
A.
Q.

16
17 18

Yes.

19

Is that something that you were particularly good at? A. Sure.
Q.

20
22

And is that something you had done

21 throughout your career as a loan officer?
A.

Yes, I always try to give the

23 biggest benefit to my customers.
24
MS. FISHER:
THE WITNESS:

Do you need a break?

25

No.

I want to get it

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

Document 345-9

Filed 02/16/2006

Page 9 of 14

Michael B. Clark 10/12/2005 Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

1 fixed, nothing like that?
2

Page 106

A.

No, because I pretty much went

3 with what -- you know, what they -- what Jim
4 told me to go wi th. And a lot of the times, he
5

was right.

You know, it worked for them.

So I

6 think that he had, you know, the benefi t of the

7 customer in mind as well and, obviously, the
8

compensation for the company as well.

But

9

he -- he -- he did a good job, I think.

So I

10 trusted his judgment.
11
Q.

Okay.

When you would talk to the

12 client about a particular product, were you

13 trying to sell the loan to the customer?
14

A.
Q.

Sure.
And what kind of techniques did

15

16 you use to sell a loan?
17

A.

My technique is that if I offer

18 them something that's going to benefit them and 19 they understand the benefits, nine times out of

20 ten, they are going to except it.
21
Q.

So would you explain the benefits

22 to the customer?
23
24
A.
Q.

Yes.
And answer any questions they may

25 have?

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

Document 345-9

Filed 02/16/2006

Page 10 of 14

Michael B. Clark 10/12/2005 Camile Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

Page 107

1

A.
Q ~

Yes.
Generally, was it -- did you have

2

3 a pretty easy time explaining the benefits and

4 convincing the customer of a particular

5 product, or was it difficult to explain that to
6 them?
7
8

A.

I didn't have any difficulty

explaining it to them.

There were occasions

9 that they didn't like what I had to offer,
10 which I would, in turn, go back to my manager
11 and get -- you know, we would look at it from a
12 different angle and offer them something else.
13
Q.

Okay.

When you were having a

14 discussion wi th a customer and they didn't like

15 what you were initially offering, did you try
16 to gather more information from them at that

17 time?
18

A.
Q.

Yes.
And would you try to determine

19

20 what it was about the ini tial offer they didn't

21 like?
22
A.
Q.

Yes.
And did you try to determine what

23

24 else they had in mind?
25
A.

Yes.

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

Document 345-9

Filed 02/16/2006

Page 11 of 14

Michael B. Clark 10/12/2005 Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

Page 108

1

Q.

What other information would you

2 gather from them?
3

A.

I would ask them what they didn't

4 like about my offer, why -- you know, if they
5 fel t my closing fees were too high, which
6

was -- you know, sometimes that happened.

I

7 would ask them compared to what? And I would
8 try to really just find out what their hot 9 button was, you know, what it was that they

10 were exactly looking for.
11
Q.

Would you ever suggest to them

12 alternative products that may be available to

13 meet their needs? A. At any time, yeah, sure I did. 14
15
Q.

What was your percentage of

16 closing a loan once you had somebody in the

17 discussion stage where you were offering
18 something to them, how often would you be

19 successful in actually obtaining a loan?
20
A.
I don't recall exact percentages.

21 I would say most of the time, once you have
22 someone send documents with W-2s and paystubs

23 and important information like that, then you
24 have, you know, somewha t of a commi tment out of

25 them that, you know, there is some kind of a

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

Document 345-9

Filed 02/16/2006

Page 12 of 14

Michael B. Clark 10/12/2005 Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

Page 109

1 point or a -- or some kind of evidence that
2

they are interested, at least.

And then, like

3 I said, if you offer them something that there 4 iS a benefit to them and they see the benefit
5 make sense to them then, you know, why wouldn't

6 they do it?
7

Q.

So would you work pretty hard to

8 find something to meet the customer's needs

9 once you had them at that stage?
10 11
A.
Q.

Sure, yeah.

Were there some pretty big

12 differences between the different options that
13 were available to customers?
14
MS. FISHER:
THE WITNESS:
Obj ection, vague.

15

Yes, there are many

16 differences.
1 7 BY MS. WIELENBERG:
18
Q.

Can you just explain some of the

19 biggest differences between the products?
20
22
A.

Well, there are products that are

21 variable, where the interest rate changes on a

monthly basis.

There are products that are

23 fixed, where they stay the same and constant
24
throughout the entirety of the loan.

There are

25 products that go halfway and they have to pay

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

Document 345-9

Filed 02/16/2006

Page 13 of 14

Michael B. Clark 10/12/2005 Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

Page 110

1

them off in full.

I mean, there are hundreds

2 of different products available, and each one
3 has its own li t tle pros and cons and their own

4 little perks and benefits.
5

Q.

Okay.

So to be able to determine

6 which one would best meet the needs of the
7 customers, you would need to consider what the

8 pros and cons were and the variations between

9 the hundreds of products, correct?

10 MS. FISHER: Object, to the extent
11 that it would misstate his testimony that he is
12

making those decisions.
THE WITNESS:

You can go ahead and

13 answer.
14

Okay.

What was the --

15 could you rephrase that or ask it again, please?
16
MS. WIELENBERG:

Can you actually

17 read it back? And we will note that the same
18 objection stands to the same questions.

19 (Question read.)
20
22
THE WITNESS:

Correct.

21 BY MS. WIELENBERG:
Q.

Would you assist the customer in

23 completing the loan application?
24
A.
Q.

Sure.
Would you ever go visi t the

25

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

Document 345-9

Filed 02/16/2006

Page 14 of 14

Michael B. Clark 10/12/2005 Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.

Page 164

1

A.
Q.

Sure.
Based on what?

2 3

A.

Based on what was told to me

4 during the ini tial interview, and I think there
5 may have been something in the employee 6 handbook about production goals.
7

Q.

Okay.

What was said during the

8 initial interview about that?
9

A.

I believe Jim told me that they

10 expected us to do -- I don't recall the exact
11 number, maybe a minimum of two loans per month

12 to keep a seat there. And if that required,

13 you know, working -- I don't recall his exact
14

words.

But, you know, whatever it took

15 basically to get the job done is what we had to

16 do .
17
Q.

Okay.

How many hours do you think

18 it would take to close two loans per month?
19
A.

I gue s sit depends on the

20 situation since each loan is different, each 21 loan officer handles things differently, works
22
at a different pace.

Of course, you have to

23 take into consideration the quality of the
24 worki too, which I try to, you know, do a good,
25
quali ty job.

I don't know, at least forty, I