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

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

Document 339-3

Filed 01/31/2006

Page 1 of 16

Roy Agostini 11/22/2005

Camile Melonakis-Kurz, et a1 v. Heartland Home Finance, Inc.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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Camile Melonakis-Kurz,

VIDEOTAPED DEPOSITION OF ROY AGSTINI

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November 22, 2005 THE VIDEOGRAPHER: This is
Tuesday, November 22,2005, at 1 :04 p.m. The videotape operator is Nancy Donnelly representing Steffan & Stauffer. We are located at 411 Seventh Avenue, Suite

behalf of other
5 similarly situated

employees,
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Civil Action No. 03-MK-2485

Plaintiff,

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vs.
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1140, Pittsburgh, Pennsylvania 15219.
We are here to videotape the deposition of Roy Agostini to be used at time of trial or for any other reason in the United States District Court for the District of Colorado, civil action number 03-MK-2485. We have Camile Melanakis-Kurz individually and on behalf of other similarly situated employees, Plaintiff, versus Heartland Home Finance

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Heartland Home Finance,
Inc.,

Defendant.
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The Videotaped Deposition of ROY AGOSTINI

November 22, 2005 1:10p.m.

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Incorporated, Defendant.
Will counsel pleads identify themselves and whom they represent. MR. POCKRASS: Steve Pockrass

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representing Heartland Home Finance.
MS. HATFIELD: Beth Hatfeld representing Heartland Home Finance.
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APPEARANCES
ON BEHALF OF THE PLAINTIFF: Jill M. Novak, Attorney-at-Law NICHOLS, KASTER & ANDERSON, PLLP 4600 IDS Center

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MS. NOVAK: Jil Novack from
Nichols Kaster & Anderson representing the Plaintiff. THE VIDEOGRAPHER: The court

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reporter wil now administer the oath. COURT REPORTER: Raise your
right hand. Do you swear to tell the truth, the whole truth and nothing but the truth so help you God?

80 South 8th Street Minneapolis, Minnesota 55402 Telephone: 612.338.1919
Fax: 612.338.4878 Email: novak~nka.com

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THE WITNESS: I do. THE VIDEOGRAPHER: Please

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ON BEHALF OF THE DEFENDANT: Steven F. Pockrass, Esquire Beth Hatfeld, Attorney-at-Law ICE MILLER One American Square, Box 82001

Indianapolis, Indiana 46282 Telephone: 317.236.2100
Fax: 317.236.2219 Email: pockrass~icemiller.com Email: beth.hatfeld~icemiller.com

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proceed.
ROY AGOSTINI, a witness herein, having been first duly sworn, was examined and testified as follows: DIRECT-EXAMINATION BY MS. NOVAK: Q. State your for the record.
A. Q. A.

Roy A. Agostini.
Spell your last name?
A-G-O-S- T -I-N-I.

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Q.

Have you ever been deposed

before?
A. Q.

Yes. What was the nature of that'

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

Document 339-3

Filed 01/31/2006

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Roy Agostini 11/22/2005

Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.
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deposition? What was the lawsuit involving? A. It was an entertainment situation somewhere where I had worked
years ago.

Q. A.
Q. A.

Which branch did you work at? I worked at the Green Tree
That is here in Pittsburgh? Yes, it is. Did you work at that branch

Office in Foster Plaza.

Were you just a witness? I was a witness. Q. All right. i want to lay down some of the general rules we will be following during this deposition today. I'm going to be asking you a series of questions, then Opposing Counsel will have their turn to ask you a series of questions. Basically, what I need from
Q. A.

Q.

offce the whole time that you were employed as a loan offcer?
A.

Q.

Yes, I did. And what was your manager's

name?
A.

I had two managers. The first

manager I was in under who hired me, well the person who hired me was
actually Megan Deak. And then she sent me over to the other side of the office, there are two branches in Pittsburgh. And I started working there for a fellow by the name of Gil

you are just verbal responses, no nods,
or shakes of the head. The court reporter can't take down non-verbal

responses.
I ask that you just let me finish a question before you give me an

Camargo.

answer, that way the court reporter can
make a clean record of today's conversation. If you don't understand a question at any time or you need me to repeat it, just let me know. I will be

And then after Gilleft, Bruce Roberts.
Q. So you had about three managers, Megan, GiI?
Page 6

Q. A.

Okay.

Page 8

happy to do that for you. If you need a break at any time, just let us know.

Alii ask that if i have a question
pending that you just first answer it, and then we will take a break. Is
everything clear?

No, Megan Deak was the manager of the one Pittsburgh office, but I interviewed with her and she was
A.

interested in hiring me. Unfortunately

I had a problem and couldn't start quite
when she wanted. She filled the position, and I called her when i could start, and she told me to get a hold of Gil Camargo and that's what I did. So I went to work over there.
Q. So your managers when you worked as a loan offcer was Gil Camargo
and Bruce Roberts?

A.

It is.

Q. Are you on any medications today that would impair your ability to
testify truthfu IIy?

No. Q. Do you have any conditions that might impair your ability to testify
truthfu IIy?

A.

A. Q.

Correct.

A. Q. A. Q. A.
Q.

No. Okay. Did you work for

You understand this is a lawsuit about overtime compensation?
A. Q.

Heartland Home Finance?
Yes, I did. What was your job title? I was a loan officer. And do you recall your dates of

Yes.

What was your typical weekly schedule when you worked as a loan

offcer? What time did you come in the
morning, and what time did you leave?

employment? A. Yes,around June 17th through

April, that would have been 2003, until
April of 2004.

I was there prior to ten in the left right around seven, 7:30 in the evening.
A.
morning, and I

Q.

Was this Monday through Friday?

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Roy Agostini 11/22/2005

Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.
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Page II

Yes, it was. Also we worked an occasional, well, it was like an every
A.
other Saturday.

sheets when you worked there as a loan

offcer?
A.

We did fill in time sheets,

So you worked approximately two Saturdays per month? A. I did. Q. How many hours did you work on
Q.

yes.
Q. Were you given any instructions as to how you were to fill out the time

sheets?
A. Yes, we were to put down eight hours a day. Q. Even if you were working more than eight hours a day?
A.

Saturdays?
A. Q. A. Q.

Between four and five.
Were you required to come in on
Every other Saturday.

Saturdays?
Who told you you had to come in

That's what we were told.
Who told you that?

on Saturdays? A. First it was Gil Camargo, and then it was Bruce Roberts.
Q.

Q. A.

Gil Camargo and Bruce Roberts.

Q. Did they tell you why you were only supposed to put down eight hours a

Did they tell you why you had

day?
A.
Q.

to come in on Saturdays?
A.

That's what we were told to do,
Did you work more than eight

We needed to keep the office

that's what I did.

covered and we split it between the different people, the staff loan officers there.
Q.

Did you take a lunch break when

hours a day? A. I did work more than eight hours a day.
Q. Did you work more than 40 hours per week?
Page 10

you worked? A. Sometimes. Not always.

Page 12

Q. How long would you typically take a lunch when you did take a lunch

A.

i did work more than 40 hours a

week.
Q. Did you ever try to record more than eight hour per day on your time

break?
Approximately an hour. I would say 45 minutes to an hour.
A. Q. A.
Q.

sheet?
A.

Go ahead, I'm sorry?

No, I really didn't.

That's it. Would you take lunch once a

Did you ever try to record more than 40 hours per week on your time
Q.

week or more than once a week? A. i would try to get out at least twice. Q. Twice a week. And the days
that you didn't take a lunch, did you

sheet?
A.

No, they told me what to do,

and i kind of went along what i was told. I, of course, understood what the situation was about. i wasn't into
making any problems or aggravation, so I did what i was told.
Q. What do you mean that you kind of understood what situation was about? A. You know, i felt that it was not right that we didn't put down our

just work through lunch or eat at your

desk?
A.

Usually I had a snack at the

desk.
Q. Did you ever leave any, to go anywhere and pick something up and bring it back to the offce? A. No, because I live a great

correct time but that's what they wanted
and that's what i complied with. So I complied.
Q. Did you ever complain to your managers about being able to only record eight hours per day?

distance away from town. So it really

wasn't, you know. It didn't behoove me
to go out. Q. Okay. And did you use time

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Document 339-3

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Roy Agostini 11/22/2005

Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.
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whatever I was doing the referrals. The

Q.

Did Heartland teach you how to

thing about referrals is they were pretty much sure to close.
Q. Were there referrals from other Heartland customers or self-sourced? A. Q.
No, these were self.sourced,

do that procedure? A. Part of it they did. Yes.
They did. Q. When you were taking the application, or you were talking about different products with a lead, how did you know what products to talk about? A. You know, that is, that is actually based on a lot of things.

these were friends, family.
So what would you do when you

got a lead? A. i would, of course we did the origination. And we'd would fill out
1003, which is the application. Get

That was based on the fact, first of
all, you had to know what the circumstances were of the customer, so you had to obviously appease that

whatever documentation sent out to the company that, out to the customer that needed to be done. After that, it

customer and do what you needed to do
to satisfy his needs. The other thing was, of course, what the availability of product was from our company. And the longer I was there the more it progressed into something that was

would go into, docs ran, an appraisal was ordered, title was ordered, everything was turned over at that point to our processor in the offce. And
our processor would send everything into underwriting at the company at Heartland.
Did you have the final approval on whether or not the loan would, did you have the final, you know, decisionQ.
Page 26

sellable.
Q. So, did you just offer Heartland products then? A. There was a point in time when

that is all we were allowed to offer.
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making ability in regards to whether or not a loan would be approved? A. No. Q. Did, who does that, underwriting?
A. Q.

I guess. More or less.
Q. Did you ever use a Heartland product matrix to help you figure out which product to offer the customer? A. I really didn't believe in

Underwriting, yeah, correct. Okay. And how did you know how

that. Once I spoke with the customer, that was pretty much decided. It wasn't

to start a loan and finish a loan? Did you follow any policies or procedures?

so much, there were times we didn't have
a product that would fit, you know, the

Well, there's a certain way that you go about it, of course. The
A.

person's needs, so, the customer's
needs. So we were at a loss sometimes because of their credit scores, sometimes because of their employment record, I mean, there are so many factors that come into that that it's impossible to sit here and say, well, we had this and this fit that and that

first thing you have to do is get an application, which i did. Then we order title and appraisal, which would be the
next step. And, you know, there was a procedure that you followed, but it is

just a normal step-by-step that has to be done.
Q. A.

fit. It wasn't quite that way. I am
currently in the, back in the mortgage business. And we actually have two lenders, Freddie Mac and Fannie Mae. And they control the entire business. You know, so you have Fannie Mae lenders, and all of them have certain guidelines and regulations. And you

Was this a Heartland procedure?
No, I would say, I would say

that every mortgage company and bank
would follow that same procedure. I don't think that that was something that

Heartland did. I would say that was a
normal procedure of doing business.

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Roy Agostini 11/22/2005

Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.
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have Freddie Mac, and they all have their guidelines.
Sure. Did you ever use a rate sheet that was provided by Heartland?
Q.

A. Q.

That is what I did. Would you say you spent 100

A.

Sure.

Q. Did you ever have to get

percent of your time working inside the branch office? A. I did. Q. Did you ever work from home?
A. I would do some work from home in the evenings if, yeah, I would, if I had calls that had to be made at night, and that was the only time I could reach my customer, yes, i did. I

approval from your manager in regard to a customer's application?
A. If Heartland, we went through a process at Heartland we had to first submit our deal to Heartland. An there

was a time whenever we could broker it out to another company. But our process
was so long at gettng it through, because underwriting at Heartland was so slow, at times it was intolerable. And the problem was we were not allowed to

called from home.
Q. And in the hours estimate you gave us of working approximately 52 to

57 hours? A. That does not include anything
that I did at home.
Q. A.
Okay. Okay.

call underwriting at Heartland and find
out where we were on the deaL. And

And I could not give you an

that was difficult. i would not deal with a company today in terms of a lender that would not let me talk to an
underwriter to get my processing, to get the underwriting completed.
Q.

hour on how many hours I did that at home because. Q. Sure.
A. Q.

It is too long ago.
Sure. Did you charge

So everything would have to go
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origination fees

on the loans?
Page 32

through Heartland, and if Heartland rejected it, then you were free to take it to another lender, is that right?
A. At certain times during the time period that I worked there, there

No. Q. You didn't charge any origination fees?
A. A.
I'm sorry, origination fees,

yes.
Q. How did you know what fee to charge, did you pick from a range of fees, like a minimum and a maximum fee?
A.

were times that we could and times that
we couldn't. Q. So there were times that everything had to go through Heartland
and then you weren't allowed to take it

Well, origination fee, there is

to another lender? A. That's correct.
Okay, and then there were times that everything had to go through Heartland and then you could take it to
Q.
another lender?

by law a section, 32, which tells you that you cannot go above a certain
percentage on a loan. So, we always had to contend with that law, of course. It was, it was a discretionary situation in terms of what was good for the customer, and what the customer would, would put the loan through for

A.

That's correct.

Q. You talked a little bit about some of your self-source leads. How did you get those leads? A. Well, they were friends, family,

you.
Okay. Our rates at Heartland, I thought by comparison, and I'm talking
Q. A.

acquaintances.
How much time, did you spend a majority of your time working inside the
Q.

about interest rates, were always a
little bit higher than everyone else's. And I noticed at times that we had to give up some of the money that we could

branch offce when you worked there?

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Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.
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and-a-half? A. Yes, if these were conforming loans, and the person had really good credit, chances are we were already

received. I got a glass ornament as
welL. I remember that, so there was a glass ornament, a coat that I got one

trying to beat somebody in process at a bank or another institution, so we were
cuttng our fees. Yes, that's basically what would be going on at that point.
Q. Now you also mentioned appraisals being listed on there. Would you always use the same appraiser for -A. No, it fluctuated, whoever was

time. I think I got a couple hundred
dollar bils, too, if I'm not mistaken. I could be wrong on the hundred dollar

bils, but I think that was, it was something that you guys gave whenever you gave us one of these.
Q. And so those were all evidence of your success as -A.
Exactly. And i kept a few of

available.
Q. A.
Q.

How did you decide which

those things. But other than the rest

appraisers to use?
By who was available.
Did you have certain ones that

you thought were better or worse than others? A. No, actually, I didn't. i just used who was available. They are all licensed and certified by the State of Pennsylvania so that wasn't my problem.
So when you started at Heartland, we talked about the fact that
Q.
Page 46

of it, and as I said, I kept this one because it said, new guy going to be great. And I thought, gee, that is kind of very uplifting and I need something to up lift me at this point so..
Q. Well, tell me what it was that you think made you a great loan officer? A. I don't think I was ever a great loan officer, but I think that, having purchased property and working

around property, as I have through my
Page 48

you'd interviewed with Megan, you went to work for Gil, would you have kept any sort of calendars or journals or anything like that that might document any of your activities either when you got hired -A. You know what, if I did, I have

life, and being an investor, and a landlord, I think that is pretty much what taught me. I think, I don't want

to take away from Heartland, but i think
it was my life's experiences that made me better than anything else. And i was

a pretty decent employment agent and
entertainment agent through my time long before I started with Heartland. So I had a good gift of gab. i was never really intimidated with people, or by people. And I just think it showed

since gotten rid of them. Because i
really don't have any, i didn't have any
reason to maintain them once I left.

So, I you know, do I think there is anything around? No, i don't.
Q. Would you have gotten rid of those before or after joining the

through. I think there is some expertise you can't be taught, you pick
it up through life.
Q. Now, were you purchasing properties while you were employed by

lawsuit? A. Probably before. i saw no reason to keep them. I kept a few trinkets, this, and i got a jacket for being in the top 13 in the country, in the company, I should say. And i think i had a couple of these, I'm not real sure. I don't remember. But I did

Heartland? A. No, not at that time. Q. Was that something that you had
done prior to working at Heartland?
A.

Correct, prior.

find this one, you know, one of those,
which means I made the Baker's Dozen or 13. I'm trying to think of what else I

Q. And what about being a landlord, did you -A.

I had been a landlord prior to

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Roy Agostini 11/22/2005

Camille Melonakis-Kurz, et al v. Heartland Home Finance, Inc.
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this, well, this is actually dated June 17th of 2003.
Okay, which document are you looking at right now? Does it have an exhibit number?
Q.
A.

Do you think it's possible that Bob Janda brought that in on July 14th? And you got the checks then?
Q. A.

No, no, because the checks are

dated July 31st. Okay? Excuse me,
7/28. So if the checks are dated 7/28, I don't think he would have brought them

I'm looking at my employment

agreement.
MS. NOVAK: What he brought with him today. THE WITNESS: This is what I

in on 7/4, right?
Q. Do you think, what it looks like there is where you've got a $500 check but in addition you got $1,000

brought with me. MR. POCKRASS: Why don't we
go ahead and mark that one?

check?
A. That is because they didn't have me on payroll for quite a while. Q. Okay, so, is it your understanding though, that by getting the

MS. NOVAK: Mark this one. THE WITNESS: I say, you
know, we've got maybe three or four of these that we signed. And this may be something else that i signed. MS. NOVAK: We will have him mark it as an exhibit to talk about it.

$1,000 check and the $500 check, that they were covering all of the pay periods from which you started working?
A. I believe, well, no, they didn't, not all of them. But they

THE WITNESS: Sure. (WHEREUPON, Exhibit 6 was marked for
identification. )

covered, they covered what we agreed on.
And that's what we agreed on. There was

THE WITNESS: Let me take a
look at something else, because i can't
Page 54

time in May that I worked that I was
not paid and I was not covered.
Page 56

remember. This is not right.
EXAMINATION

And this doesn't go back and cover May. This would cover June and July.
Q. A.

BY MR. POCKRASS: Q. Which exhibit are you marking? A. I am marking the Exhibit 2

And when you say --

As I say, this is showing 7/4.

where it says earnings statement. And I'm looking here and it is saying that paint department 212, it's giving me checks of 7/31, 2003, dated 7/28 for 500, and then check date 7/31/2003, a check for a thousand. Okay. That's

Now my memory isn't that great. I can't remember all of this. But if I'm looking at dates, and this is what they

are saying the pay periods were, and
that seems to make sense, if you figure it all and divvy it down, you are looking at a six-week process here, and if you look at what I signed whenever I started, which was June the 17th or 14th, that would have taken in June, and the one pay period in June, and two pay

probably our discrepancy in the dates on
the contract.
Q. A.

Okay, so --

In other words, they actually had not paid me, and they brought me in a pay which I wouldn't have got on the

periods in July. So that would have you up-to-date on that.
Q. Okay, when you say this is what you agreed to, who was it that you had an agreement with? A. With Bob Janda and Gil Camargo. Q. And what was it that was said in reaching this agreement? A. I would be satisfied if they

31st of July, that is when it was dated.
This probably came in in August when I was probably highly irritated that I couldn't get paid up until that point. I believe Bob Janda brought these in, and it was at that point that I probably signed some of this other documentation.

would pay me for that particular time.

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period was, I don't remember, but you guys have to have a record of that.
Q. So you don't remember when it was you had this conversation with him?

at that time. I think there may have been one or two others that left at that

time. I can't remember, but I would say
there were at least three to maybe five

A. Q.

No, I don't.

What did he say to you during this conversation, if anything, about

people that left when Gilleft. Okay?
O.
A.

And why did this exodus occur?

what hours to record? A. Well, there was a conversation about that, but you know, whenever we started putting the time down. But I would lay a dollar to a doughnut that I did not sign a time sheet all the way through the better part of July.
Q. So you have this conversation with Gil, he says, you need to start signing these time sheets on the back of the door?
A.

i have no idea, I wasn't privy to any of that, i didn't know. They
left, and that was it.

So, when Bruce took over, which
I'm going to say had to be somewhere between the 15th and the 25th of August, and I, you know, you have to understand, I'm not going to be accurate on these dates and times because I can't remember. My memory isn't that good. So, you can't get into dates and times. But I would say it had to be in that particular time, and I know that he started hiring people, and I know that

Right.

When was it, you had said that there was a conversation, another conversation that took place, is that right?
Q. A.

the subject came up several times about
fill this in, do this, do that, this is what we want, this is how we want it.
Q.
Page 66

Yeah, like I said, I really did

not know about the time sheet thing.

Okay.
Page 68

It was on the back of the door of the manager's office, and it was always against the wall, so you really, actually it opened into windows, a wall and windows. And I feel quite stupid about that, but I really didn't know

A.

And the reason was because there

were people that were hired, so that's
why i remember that as being an issue.
Q.

So when, let me ask you this,

do you remember when Gilleft, did the
people leave at the point when Gilleft,

about it. And when I did start filing
out the time sheets, he said, we're

or did they wait until after Bruce
became the manager and then they left?

going to fill it out like this, this,
and this, and that was it, and that is

when I got the 40 hours a week at whatever that day was, and that
conversation, I can't tell you. I can

No, actually, I think, Sean and Shane left almost immediately with Gil, and as far as the other guys, i don't
A.

know. During a month period of time.
Q. When you said that you had a conversation with Gil and he said, i think what you said was he said, we are going to fill it out like this, this, and this?

tell you that that's when it happened
and that was it. And I really was not, how can I say this, I was not offended, I didn't find it a problem, I felt that it was something that the company had a reason for doing, and i followed the procedure that he asked me to follow. Now, if you get into it with Bruce, it

Right. I was talking about we were going to put down eight hours a
A.

became a lot more. When Gilleft, there was an exodus at the offce. There
were, I know Shane left at that time, a fellow by the name of Sean left

day, five days a week, and this is what i expect from you. You guys need to

come in, we have to have the office
covered on Saturdays, so whoever is

here, and available has to be in. And

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we had to take turns. And that is what we did, so it worked out to like an every other Saturday.
Q.

So were there other people

credit pulls, you get to work over. Okay? And that was important. You know, all of this business is hinged on numbers. You know, the more, the more

present during this conversation with GiI?

credit pulls you pull, the more money
you have a chance of making.
Q. So, if you had a day where you got three credit pulls earlier in the day --

I really don't remember that. It wasn't a meeting of sorts, it was
A.

probably one-on-one.
Q. So, do you think that this is a separate conversation from the point when he pointed out to you the time sheets

A.

No, I was hungry, that was a

big difference for me, I had gone through a divorce. I needed money, lots
of it, and I needed lots more than I was making there. So I, that didn't

exist?
A.
Q. A.

I think it was.
A separate conversation?

I think it was, yes, because I think I, it was getting reprimanded for not signing the sheets at that point. And I said well, hell, nobody told me about them, I'm not a mind reader, you know, you have to put them out there where you can see them. You can't hide

kind of work for me. I know where you are going with that, you are saying,
well, if you got your three credit pulls, you probably took life easy. No.

Three credit pulls was what the company,
that was part of their policy, they felt if you had three credit pulls, you would probably do okay. Personally, if I

them behind a door expect me to know what's going on.
Q.

could have more credit pulls than that, I did. This particular week that you
are looking at, 15 loans, if I went
Page 70
Page 72

Did he move them out from

behind the door?
A.

through this whole deal in this

No, they stayed behind the door.
What about when Bruce was there?

particular pipeline, let me just do it
for just a moment and see what I did

They stayed behind the door. They were on the back of the manager's
offce door.

Q. A.

close, if you are interested.
Sure. I'm going to say offhand because I can't, I know i closed Ohrman, I think
Q. A.

Q. And did Gil tell you, did he tell you a specific time that you were supposed to write in as your, the time that you came in and the time that you left? A. Actually, when I first started

I closed Bosco. Out of these 15 people,
I probably closed four of them. Give

you an idea of what went on. The
competition was so, so, so competitive

at that point, and our deal was, our rates were always a litte higher on the
interest. So, in order to close four deals, which didn't get done probably in

there Gil said, I want you to be in

between nine and ten in the morning, no
later than ten, and I want you to work to at least seven because here, and was his reasoning. Whatever you don't get a hold of in terms of the leads, the people, the customers, if you didn't get them in the daytime, that meant they were working so you had to try to get them in the evening. And if you didn't

this month at all, you had to have a
big pipeline.

Q. And you mentioned that earlier that you felt that Heartland's interest

rate was a little higher than most? A. It was. It was higher, it was

always higher than the competition of an eighth, a quarter.
Q.
A.

What do you do to --

get them and you didn't get your three

Overcome that?

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Page 75

Q.

Exactly.

any loans unti September.
Q. A.

A. You sell like hell, or you cut your origination fees. And I don't know if that is the right answer, but it seemed to work, so I did it. Q. And how did you decide how much

Okay. And-According to this. Now, I

don't remember. But looks like I had a had a real dead, down period at that
point.
Q.

to cut your origination fees?

It looks like in September of

Well, it depended on how bad you needed to cover your draw and how much money you wanted to make. And I didn't really like being in debt to anybody, so I tried to cover my draws and make as much money for everybody as I could.
A.

2003 you closed one, but then you had
what looks like a huge period in October of 2003.
A.

You mean that we closed some
Right, that you or the loan
loans?

things?
Q.
A.
offcer closing several

Were there other types of fees that you could either add, or could you look to, to try to get something on the yield spread to try to increase what you
Q.

Right, that's true.

brought in? A. Well, on conforming, we were already working with a higher interest rate so there wasn't a whole lot to get on yield spread. And as I recall, we

Q. And then in November you closed one, is that right? A. It looks that way, yes. Q. And in December, January, and February, it doesn't look like -A.

Nothing. That could well be,

no problem.

got, just for bringing it to the
company, I thing which were gettng 25
..

Q. And then in March, it looks like you had another big month again.
A.
Page 74

Right.
Page 76

bips, and I remember they canceled that

after a while. So.
Q. i would like to, since we were talking about how much you closed. A. Yeah, I can't remember. Q. Okay.
A.

Was there a reason why the numbers would sort of go up and down like that?
Q. A. Yeah, I think at that, I don't really want to get into that, I think that is really unfair on everybody concerned, but I think there were times

Not enough.
That is always the case, right?

Q. A.
Q.

Not enough.

that our, we were pullng what they called second chance leads a lot. Our
office was not gettng very good leads. And a lot of our leads were being rehashed and rehashed and rehashed and rehashed. And do I think some of it was my fault? Sure. You know. If i would have been out on the street pushing and maybe doing some more

Take a look at that. MS. NOVAK: I'm going to renew our request for the production of

the documents that were used, the
underlying documents used to make this

compilation. i also want to reserve my
right to recall this witness should we find out that the compilation is not reliable or inaccurate. EXAMINATION BY MR. POCKRASS: Q. Okay, if you take a look at this document, do you know, did you close any loans in July or August of

referral business, it would have been,
it would have been better. But as I

look at this, you know, let me see.
There's three or four referrals in all of that deal that is there right now.
Q. Okay, which three or four do you believe are referrals?
A.

i'

2003?
A.

Well, now you are really going

No, I didn't. i didn't close

to tax my mind. i mean, you really

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Page 83

to reach for this customer?
A.

That's what he wanted to, what

of a situation where there was a rate that was being floated or something like

he wanted to payoff, was whatever his
debts were. It says, plus cash back

that?
A. Q. A.

Who did we do Pitts through?

from borrower. Okay. That's what, that's what he wanted to achieve, that is what we did. We handled his problem.
And would you have people who would have different types of needs than
Q.

Pitts was a Heartland. It was a Heartland deaL. Yeah. I'm having a problem reading this, my

vision isn't so good, and it is really small and fine for me. You mean, why

say, for example, this person wanted to
consolidate debts? A. Right. Q. And so you found a way to meet that type of a need? A. Exactly. Q. Were there other types of needs that people would tell you they had when they talked with you on the phone? A. It was always about money. It

did we make this much money on this deal, and we didn't make this much money
on the Dietrichy's deal?
Q. No, I'm not asking you that, as much as, it seems to me that you've got, if you look at the fees divided by the loan, and the percentages are very, very, different for each loan. And here you've got one where the fees are listed

was always about getting their problems
handled, and their problems were all

at 0.57 percent. A. Actually no, the fees look like

they are two percent on this, right?
Q. A. Q. A.
Page 82

different, exactly. I don't remember
doing any two loans that I thought that they, the situation was similar,

On Pitts? I would say. 0.57.

Here you go, it says, loan
Page 84

everybody had a different credit score,
a different everything. So..
Did you have to individualize things then to meet their needs?
Q. A.

origination fee 2.4, and it looks like
two percent, it was two percent, it was

two points.
Why did I take -- i took oneand-a-half to two percent on almost everything i ran except whatever I got in yield spread on the back. And that was, you know, not, the yield spread was
Q. A.
All right.

Obviously.

Q. Let me ask you about the Pitts loan on here. I wanted to ask you about that, it says, the total fees on that were 0.57 percent. But it says --

THE VIDEOGRAPHER: Zero point what, sir?
Q. 0.57 percent discount, but then it also says, discount points of 3,325? A. Okay. Q. Can you tell me? A. Origination fee was $400. Q. Can you tell me why you would have structured that loan that way? A. I don't remember. i really

not really very, very much. A point,
point-and- a-half and two points on a

loan at the time we were doing this with
good credit, and if Heartland took it, it had to be A-1 credit they weren't doing B, C, or sub prime. So, that would have been why it wouldn't have been any higher than that, but two percent was probably a good fee for it.
Q. Did you buy down the rate on this one? A. I really can't see. Yeah, we

can't tell you how I, why i did what I did at the time. I did whatever worked

or made things happen.
You can take a look, there is the HUD for the Pitts case, I'm wondering too whether this is any sort
Q.

did.
Q. A.

And what exactly --

That is what we put, that's

what we did, we bought down the rate

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Page III

paper, how many of my deals went outside the company?
Looks like you had, I'm looking at it, I'm seeing 11 Heartland deals and
Q.

there was ever more than two of us there
at a time. Q. Now how many loan offcers worked in your branch?

two National City Bank deals. A. Okay, there you go. Q. Two of those. I'm also seeing
two Heartland deals that are nonconforming deals. i think one is Pitts who we talked about before?
A. Q. A.

It depended on when. I would say there were probably seven, eight, nine, and maybe as little as five.
A. Q. But you think no more than two at a time on Saturdays? A. I'm sure of that. Q. Now on Saturdays, were there set hours to work? A. Ten to two. Q. Was there any sort of a lunch on Saturdays? You mentioned Craig Caste line earlier, do you know what Craig's job title is with Heartland? A. No. I thought he was the

Right.
The other one is Siegist.

Siegist. i don't, you know, i

don't remember. Let me see if it says
it up on top because... Most of the stuff that went through Heartland that I laid my hands on that went through pretty quick, the scores were high, the income was good, and it was a good loan. And it went through quickly. Okay. And that was it. I don't mean it went through underwriting quickly, i mean it went through. You got your deaL. But I could also remember, if you want to get technical, that it
Page 110

president.
Q. I would like you to take a look at what has been marked as Exhibit 7, and just so that we've got it clear for the record, Exhibit 7 has document

numbers DEF 11439 through DEF 11460. If
you look at the bottom of the first
Page 112

seemed to me, and this is something
that's out of my league and that i

four pages, are those your initials on the bottom of each of those?
A.

shouldn't bring up.
THE VIDEOGRAPHER: We will now go off the record.

Yes, they are.

(WHEREUPON, Recess taken.) THE VIDEOGRAPHER: This is
the beginning of tape three. We are now

Q. And then on page five in paragraph 11, there's some marked, there is, looks like pen marks around the paragraph 11. Are those marks that you

made?
A.

back on the record. Please proceed.
EXAMINATION BY MR. POCKRASS:
Q. Can you tell me when you worked on Satwdays whether there were certain
loan offcers

Yes, they are.

Q. And there's a, is that, are those your initials at paragraph 11 as well? A. Q.

Yes, they are.
And what does that signify with

with whom you regularly

worked? A. That's a good question. I

respect.
A. i told them I wasn't, I wasn't trained like i was supposed to be trained, and i wasn't going to pay for any reimbursement for anything, because

believe there were, there was different
all the time. There was a fellow by the name of Devo, which I don't remember

his last name, that was there a couple of times. And Dave was there a couple
of times.
Q.

when I first started there with Gill
received a book. It was a training manuaL. And it was the only one that he had on his side that I'm aware of. And he grabbed it and he handed it to me and he said, go read this. Well, on

Do you remember Dave's last

name?
A.

No, I don't. i don't believe

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response?
A. Q.

This is very similar.
What is it that you think Bruce

Heartland employees? A. No.

actually said? A. Pretty much, you like working here? This is what we do. Bruce and I

are friends, you know, I may have heard
those words, you know, this is what we

are doing, this is how we do it. Get
with the program. That was sufficient, and I shut my mouth and went on to the next.
Have you and Bruce ever discussed this lawsuit?
Q. A.

Who worked at? No, there are not. Q. What about talking about this lawsuit with other than your attorneys and other, if you are married, other than a spouse, is there anybody else who you have discussed this lawsuit with?
Q.
A.

A.

Not really. I don't remember

anything that comes to mind of anybody

that was, that there was anything that went on.
Q. Do you still keep in contact with any former Heartland employees? A. Q. A.

Not really.

Q. Well, there are some things that you have talked about with regard to

No, I don't, well, no, I don't.
Other than Bruce?

this lawsuit? A. Maybe way back when we left

Correct.
MR. POCKRASS: Could you mark

Heartland, but I don't think anything really much since then.
Q.

that please.
(WHEREUPON, Exhibit 9 was marked for
identification. )

What did you say when you left

Heartland? A. Pretty much what I already told you.
Page 134

EXAMINATION BY MR. POCKRASS: Q. I want you to take a look at

Page 136

Well, it was, it would have been the same rhetoric that we have discussed. I just don't remember it

Q. A.

i don't remember any --

what has been marked as Exhibit 9. We had talked previously about your
completing time sheets. Are these the

types of time sheets you were talking

being a major issue, a big point of
conversation. I

about?
A. Q.

left Heartland, he left Heartland, went somewhere else, and then I went with him later and, i mean, that

Yes, they are.

Just so the record is clear, Exhibit 9, in the bottom right-hand

wasn't a bone of contention. And
Heartland wasn't a bone of contention
after I left.

corner is run from DEF 14109 to 14164.
I would like you to take a look at the first entry there, it says week of 6/23/03, do you see that on page one of
the exhibit?

Q. A. Q. A.

Do you still work with Bruce?

I work with Bruce.
Do you work for Bruce?

I work with Bruce.

A. Mm-hmm. Q. And can you identify for me
whether there are entries on each of those days for you? Just on that first

So he is not your manager? He is the manager. Q. All right. Are there other former Heartland employees? A. No. Q. Let me just make sure, i know you are anticipating my question, let me make sure that you are answering the question I was asking. i was going to ask if there were any other former
Q. A.

page.
A.
Right. Yes.

Q. Where is there an entry on Monday for you? A. Q. A.

That's wrong, okay, no, I'm not
What about on Tuesday?

on that day.

That doesn't mean I wasn't

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there. That just means I didn't sign
in.
I'm just asking you if there is an entry for you?
Q. A.

is the time out that you are listing

there?
A.

6:40.

Q.

No, there isn't. What about, look at the very

Is there a reason why that doesn't add up to exactly eight hours?
Q. A. Q.
of

No. Once again, I don't know.
Let's look at the second page

first page, 14109. Do you see the part
for Tuesday? Third name down, is that

this exhibit. Marked DEF 14110, and

you?
A. Q.

That's me.
Okay. And it looks to me like

the second entry down on Friday. Do you see it says, Roy, it's got time in

10:30, but no time out, no total hours,
no employee signature?
A.

it is saying 10:20 to 6:45. A. Right.
Q. A. Q.

Right.

Does that add up to exactly

eight hours?

Q. Is there a reason why you didn't fill that in?

Eight and a quarter.

A.

Just didn't do it. Just

Is there a reason why you didn't do it so that it added up to

forgot.
Q. And for that Saturday, I see Roy, and I thought you said the hours were nine to two?
A.

exactly eight hours? A. I'm not sure. Because this is

so long ago. What may have happened
was, I was working a different, I was

Ten to two.

going to work a Saturday, or I may, and
I don't know why I'm not in on the Monday either, it wasn't because I was
Page 138

Q. Ten to two. Is there a reason why you filled in 11 to two on that

Saturday? A. Maybe that is what time I got
Page i 40

sick. I may not have just written
myself in. Q. What about Wednesday? The one,
two, three, fourth entry down, is that

there.
Q. Let's look at the next page of this exhibit, DEF 14111. 6/30 i see your name at the bottom, it says, Roy, and then it says off?
A.

you?
A. Q.

Yes.

Correct.
Do you know why you were off

Is there a reason why you didn't sign on that day?
A.

Q. A.

that day?
Don't know. All right. And then for Q. Tuesday, 7/1, is that your name and signature with the 10:30 to 6:30 entry? A. What day are you on?
Q. A.

I signed. Oh, you mean, well
I see that you put in --

..
Q.
A.

No, I didn't always sign, it was just kind of, true. I don't know why.
If yoù look at the entry for Thursday, looks like the third one down is you?
Q. A. Q.

Tuesday,7/1?
Yes.

Uh.huh.

And on each of the entries where it says, Roy, is that your handwriting, did you actually write in your name on the side? A. I believe so. Q. And it looks like the time in you've listed as 10:15. And then what

Q. Wednesday, 7/2, is that you from 10:25 to 6:30? A. Yes. Q. And then, Thursday, 7/3, you have written 10 o'clock to 5:30, is that

you?
A. Q. A.

That's me.
Is that your signature?

Q.

That is. And is there a reason why you

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have that only add up to only 7 and a half hours?
A.

I took a half an hour for

It depends on if I had a couple, I may not have gone in at alL. It's possible.
A. Q.

lunch.
Q. You didn't work on the 4th of July, did you?

Okay. And would you have been

working for eight hours on in-home personal visits?
A.

No. Let's take a look at page DEF 14113. Is that your entry for 7/7from 10:35 to 6:05?
A.

It depends on where I was

Q.

driving to. If I was driving far, then
it wasn't, a couple times I went to Erie.
Q. How many in-home personal visits did you do while you were employed? A. I tried to do very few. I really did. I hated them. But it was something we had to do, and I did them when i had to. So, you know it is very hard for me to go back and remember all of these things, because we are talking about a long time ago.

A. Q.

Yes.

And is there a reason why you only recorded 7.4 hours that day?
A.

I'm not sure, but i think that

was at the time that we were being told to do the eight hours a day, and it seems to be about that time. And then
if i was going to work the weekend, the Saturday, it would be more than that.

So that is what we were puttng down, or
i put down. Q. Okay. Let's take a look at the

next page, DEF 14114. You see where that says July 11th, and 12th? A. Uh-huh.
Page 142

Q. Is there, I know you said you hated doing these. Would you have done less than five, do you think, during the entire -A. No, I did more than five.
Q.

Less than ten?
Page 144

Q. A.

And entry for July 12th, did

you work on that Saturday?

No, it doesn't look like i did. All right. Let's take a look Q. at the next page, DEF 14115. On the entry for Wednesday, July 16th. It
says, Roy off. A. Okay. Q. Do you know why you were off that day? A. No, i don't.
Q.
On the next

I tried, no, i did more than that. i just, I would say i probably went out about 20, 25 times, but i
A.

really tried to stay in the office as
much as i could.

Q.Okay. On the next page, DEF
entry for Friday, 7/18, is there a reason why you didn't have it add up to eight hours on that day? A. No. Q. If you look at the next page, 14116. The DEF 14117. The entry for Friday, is there a reason why your name doesn't appear there?

entry, DEF 14116,

the next page.
A. Oh, you know, there were times that what happened on those, some of those days, was I might have been out

A.

Where are you at?

picking up a, doing a, we sometimes had
to do what we called an in-home personal visit. Q. Okay. A. When we did those, then I may not have, you know, depending on where it was, maybe i wasn't in the office.
Q.

Q. The page is marked DEF 14117. I'm looking at the Friday entry and I

don't see your name there. And i don't see your name on the Saturday entry. A. You know what, i probably didn't

put it in. 7/18?
It's, no, you are on a different page. A. i don't have a -Q.

Would you have spent the entire

day?

MS. NOVAK: He is on the

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right page, 14117, right?

illness or death in the family?

THE WITNESS: No, I don't
have a 14117.

A. I said if there was, there was,
and it was totally possible. And that's true. Probably because I went to the

MS. NOVAK: No, he doesn't
have 14117.

funeral on the Wednesday.
Q. Let's look at 14120. Do you

THE WITNESS: Let me look at
yours.
MS. NOVAK: I don't have one

see that Friday entry?

A. Where are we at?
Q. The one is DEF 14120.

either.

MR. POCKRASS: Nobody has a
141177 Let me see whether it is possible that those two pages are out of

A. Yes.

Q. Entry for Friday, you've got
seven hours, is that your signature?
A. Right.

order.
THE WITNESS: Yeah, there it

Q. On the weekly total, it says,
23 hours, is that your signature there?
A. That's mine.

is. It's the page after.
EXAMINATION

BY MR. POCKRASS:

Q. On DEF 14121, is there a reason
why all those don't add up to eight

there's, your name is not appearing on Friday or
Q. On 14117, you see how

hours?
A. Probably was working a Saturday

Saturday?
A. Yes.

that week.
Q. Okay, DEF 14122? Does that

Q. And for the weekly total, it
says, 34 total hours, are those your initials there where it says employee

show you working that Saturday?

A. No, but it didn't show anybody
in, chances are I didn't write it down
Page 146 Page 148

signature?

A. No.

Q. Whose signature? A. I don't know, they're not mine.
Q. Do you know whether you worked

that Friday or Saturday?

A. I can't tell you, I don't remember. Q. On DEF 14118. There are
entries that don't add up to eight hours, is there a reason for that?

because that was something that happened on occasion because that door was locked. And we didn't have entry into the office on Saturdays, so it is very possible that I didn't sign in. And I didn't do it maybe the Monday either, so that happened on occasion too.
Q. And what do you mean by you

didn't have entry into the offce on

Saturdays?
A. That door could be locked I

A. I don't know. I guess I just put that in there.
says open 7/28, 7/30 you were off

Q. Let's look at DEF 14119. It for a

couldn't get in because on the back of the door was where these were, where

they were hung.
Q. On the weekly total for that
week, it says, 39 hours for you, is that your signature there?

death in the family?
A. Right.
Q. What was that?

A. Death in the family.
Q. Were you, but you worked, you were off on Monday you worked on Tuesday and you were off on Wednesday?
A. Right.

A. Yes, it is.
Q. Let's skip to page DEF 14125.

If you take a look at the entry for Wednesday, 8/20, that doesn't add up to

Q. And was there a reason why I
had asked you earlier about whether there were other things, whether family

eight hours. Is there a reason for that?
A. I may have donean in-home

deal, I'm not sure.

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