Free Brief in Support of Motion - District Court of Colorado - Colorado

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

Document 339-41

Filed 01/31/2006

Page 1 of 3

Paul Ziemak 11/8/2005 Camile Melonakis-Kurz, et al v. Heartland Horne Finance, Inc.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

PAUL ZIEMAK DEPOSITION INDEX
EXAMINATION BY:
PAGE NO.
4

CAMILLE MELONAKIS-KURZ, )

etc, et ai', )
)

MS. FISHER .................... MR. CARR ....................
MS. FISHER

20

Plaintiffs, )
vs.

HEARTLAND HOME FINANCE, )

) MR CARR
) Case No. 03-CV-2485 ) (MSKIPAC)

90
94

INC. om..,",) ~ (Q ¡p \~ .
THE DEPOSITION OF PAUL ZIEMAK EXHIBIT NO.
TUESDAY, NOVEMBER 8,2005

PAGE NO.

18
The videotaped deposition of PAUL ZIEMAK, called by the Plaintiffs for examination pursuant to the Federal Rules of Civil Procedure, taken before me, the undersigned, Darlene Vance, Registered Professional Reporter and Notary Public within and for the State of Ohio, taken at the

DEFENDANT'S EXHIBIT
1

PAGE NO.

.................... ....................
....................

39

offices of Cady Reporting Services, 1225
Illuminating Building, Cleveland, Ohio, commencing

2
3

45
83
Page 4

at 10:44 a.m" the day and date above set forth.

APPEARANCES:

1 VIDEO TECHNICIAN: We're on the
2 record at 10:44:28.

3 PAUL ZIEMAK
On behalf of the Plaintiffs:

4 of lawful age, called by the Plaintiffs for 5 examination pursuant to the Federal Rules of Civil 6 Procedure, having been first duly sworn, as
7 hereinafter certified, was examined and testified

Michele R. Fisher, Esq.
Nichols, Kaster & Anderson, PLLP 4644 IDS Center Minneapolis, Minnesota 55402-2242

8 as follows:

9 EXAMINATION OF PAUL ZIEMAK
10 BY MS. FISHER:

11 Q Mr. Ziemak, would you please state your name

12 for the record?
On behalf of the Defendant:
David J. Carr, Esq. Eileen P. Huff, Esq. Ice Miller One American Square, Box 82001 Indianapolis, Indiana 46282-0200
13 A Paul Ziemak.

14 Q Mr. Ziemak, what is your current address?

15 A 4820 Ridge Road, Granger Township, Ohio. 16 Q Have you ever had your deposition taken before?
17 A No. 18 Q What I'm going to do is ask you several 19 questions, and you'll respond with answers to 20 my questions. If at any point you don't 21 understand what I'm asking you, just make sure
22 you let me know

ALSO PRESENT:
Greg Erickson, Videographer Don Flynn

and I'LL try and rephrase so

23 you understand it. Okay?

24 A Sure.
25 Q After I ask you some questions, my questions

1 (Pages 1 to 4)

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

Document 339-41

Filed 01/31/2006

Page 2 of 3

Paul Ziemak 11/8/2005 Camile Melonakis-Kurz, et al v. Heartland Horne Finance, Inc.
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Page 27
1 in the Navy. I've just always been very

1 A They--

2 Q -- and they were a lead that had been provided
3 to you?

2 analyticaL. I can look at something and make

3 sense of it very easily.
4 Q And that was an asset to you that you found
5 helpful in your job at Heartland?

4 A There were two types of .. well, there were
5 three types. There were some people who would
6 call in, either word of mouth, maybe looking on

6 A Yes. There were.. as an example, there were
7 people who would write up deals that would .8 the customer couldn't possibly resist, because

7 the Internet, the phone book. Those people,

8 obviously, had the most.. how would you put 9 this? Maybe not the most immediate need, but
10 the most immediate desire to do something

9 they were so good; but without doing the math

10 properly, you'd find out this product doesn't

11 because they called me.
12 The second group of leads would come from

11 exist, because you're sellng something so
12 good. I always made mine realistic. I'm not 13 going to tell the customer they can have

13 the Internet, and a number of those were kids
14 playing around or people just playing with you.

14 something and then they can switch at the last
15 minute. 16 Q Well, that would require you to do some

15 But the ones that were accurate, again, they
16 were people who contacted us because they

17 wanted to get something done.

17 analysis, then?

18 The majority of leads were from
19 telemarketing, which started as cold calls, and

18 MS. FISHER:
19

Objection,

20 they..
21 Q I'm sorry. Go ahead.

vague.

20
21

A A lot of the mathematics or calculations are
analysis. You're analyzing the ..1 think the cost of money. You're not going to give the customer money at a price below what it's sellng for.
Q And this is something that you're doing?
Page 28

22 A .. they may not have had a knowledge or they
23 didn't know ahead of time that they needed to 24 do something. It might have turned on a switch

25 in them that and said, hey, maybe we should do
Page 26
1 something or talk to someone.
2 But, to me, the direct calls and the
3 Internet leads were initiated by the customer

22 23 24 25

1 AYes.
2 Q In a sense, it's a value that you're adding to
3 the whole process?

4 and I always felt they were more likely to want
5 to do something.

6 Q Now, this telemarketing, this was not
7 telemarketing that was done by you, it was done

4 A Well, yeah, I'm .. I guess to put it bluntly, I 5 am the expert, they're the people who are 6 coming to an expert for help, and I'm giving
7 them the value added because they cannot do

8 by some other entity?

8 this for themself.
9 Q Now, the -- you said you had two managers, you
10 had Judy and Bil?

9 A It was done by a company called Active Response 10 Marketing. i don't know if it's an arm's 11 length company or partial ownership. It's 12 related to Heartland. And they had a team of
13 telemarketers who did produce a large number of

11 A Judy was the manager, she was promoted to ..
12 I'm not sure if it was senior vice president or 13 executive vice president. I don't recall.

14 leads, and they were all across the spectrum
15 from poor credit to people who had excellent

14 MS. FISHER: Mr. Ziemak,
15 make sure you're listening to his question and 16 only answering his question.

16 credit and large houses. You had a good 17 sampling of society.
18 Q You talked about how you had a good head for 19 numbers. Tell me a little bit about your
20 background, your educational background.

17 MR. CARR: I'm going to
18 object to you interjecting to my testimony -19 my witness' -- it's not my witness, and he can 20 testify and if I'm not happy with how he's 21 answering the question, I'LL interject. But I 22 don't want you to interrupt him when he's 23 giving a response. It's totally inappropriate.

21 A I have a BA in marketing from Case Western
22 Reserve. I have taken some postgraduate

23 courses in, actually, in anthropology. It's a

24 personal interest. i took some postgraduate
25 through the University of Nebraska, when I was

24 MS. FISHER: I'LL state
25 what I feel is needed.

7 (Pages 25 to 28)

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

Document 339-41

Filed 01/31/2006

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Paul Ziemak 11/8/2005 Camille Melonakis-Kurz, et al v. Heartland Horne Finance, Inc.
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Page 79
1

to be able to give him some feedback.
Q And if somebody testified that the door was
locked all day on Saturday, you would say that
was incorrect?

A -- having one. Q Sorry. I didn't mean to interrupt you. A That's okay.

2

2
3

3

4
5

4
5 6 7 8 9 10
11

Q Do you recall anyone wearing a T-shirt saying
"HMB is here to say"?

A I know from my personal experience between 8:00
in the morning and 2:00 in the afternoon, the door was unlocked. I know of only one.. one

6
7

A Quite frankly, no, I don't. It doesn't mean
there weren't any, it means I didn't see it. Q And I apologize if I got this wrong, but I thought I heard you testify that you worked about maybe one Saturday a month or was it more frequently than that?

8
9

occasion when they were, i think, paving or
sealing the parking lot, something along those

10
11

lines, or closing the parking lot for a parade,
one of those things, they closed the building.

12
13

But as far as key to the building, my key did
not work on the outside door, i don't know

12 13 14 15 16 17 18 19

A One to two, normally. And as far as time
sheets, there weren't always time sheets up on a Saturday. Sometimes they were taken down

14 15 16 17 18 19

whether anyone else's. Q Right. That was not my question. My question
was -- had to do with whether the door was
locked on Saturday and you said in you

Fridays. Q When you would -- changing the subject here.
When you would lock a loan, would you lock it that day or would the lock be out 30 days or --

experience it was not locked?

20
21

A I never had any problem getting in in those hours.
Q With respect to the payroll sheets --

A You would lock it that day for a 30.day period,
unless you saw rates were trending down, you

20
21

l"

22 23 24 25

A These?
Q Yeah -- I think you testified to the fact that that was your handwriting on there. Is it
possible that was Judy Englehard's?

may take a gamble and wait another day to lock 22 it. That would usually be the manager's call. 23 Q Would you go to the manager for that, to ask
24 25
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for input on that call?

A Yes. My feeling is they had the experience to
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1

A Well, this first one i know was Judy
Englehard's handwriting.

1

2
3

2
3

see the way the markets were going. Q When your customers came to you, is it fair to
say that there were three things that they were -- you were looking to provide to them: Cash flow, number one; or bigger savings, number two; or a cash out, number three?

Q And then the follow-up ones --

4
5

A She may have had -- okay. For instance, I know
this is hers, because, again, this is one of my
early

4
5 6

6 7 8
9

ones. And there may have been a time

10
11

when my handwriting was so bad that she rewrote it with me. But that's.. the further ones were my writing. Q Okay. The T-shirt, is it possible the T-shirt
said, "HMB is here to stay"?

7
8 9

A i suppose that's reasonable, but there were
people who might want to buy a house. That's

another option. I think those are reasonable.
Q Did you ever have any conversations with Craig Caste/ine?

10
11

12 13 14 15 16 17 18 19

A I recall seeing one saying "it's all about the money." It may have said it on the other side,
there may have been other T-shirts, i don't know. Q What was the color of the shirt, do you remember that?

A Black with green lettering. I'm not saying
there was only one specific T-shirt. Q Who did you see wearing the T-shirt that you described?

20
21

12 13 14 15 16 17 18 19 20
21

A Yes, that's the man. Okay, yes. That's the
name. Go on. MS. FISHER:
that didn't come up earlier.

The last name

Q Craig Casteline. Okay. So the Craig we were
talking about earlier is Craig Casteline?

A Yes.
Q Did you ever talk to anyone in payroll about

your hours or about your pay situation?

A Well, again, the name escapes me, but there was
lady in our office that assembled the pay sheets, if I remember right. I can't remember her name. Long hair, glasses. I may have
asked her a question, something

22 23 24 25

A Some of the managers and above. I believe Judy had one. I'm prett sure Don had one. Others,
I can't recall --

22

23
24 25

Q Do you --

got turned in

20 (Pages 77 to 80)