Motion - Substantiated Allegations of Foreclosure Fraud That Implicates The Florida Attorney General's Office and The Florida Default Law Group

IN THE CIRCUIT COURT FOR THE 7TH JUDICIAL CIRCUIT,
IN AND FOR VOLUSIA COUNTY, FLORIDA
WELLS FARGO BANK, NA, GENERAL JURISDICTION

DIVISION
Plaintiff,
CASE NO.
vs. 2009 20298 CINS
DONALD W. NEEDHAM; THE UNKNOWN

SPOUSE OF DONALD W. NEEDHAM;
BLAIR BERGSTROM; THE UNKNOWN
SPOUSE OF BLAIR BERGSTROM; ANY DEFENDANTS, DONALD W.
AND ALL UNKNOWN PARTIES NEEDHAM AND BLAIR
CLAIMING BY, THROUGH, UNDER, AND BERGSTROM’S, MEMORANDUM
AGAINST THE UNKNOWN NAMED IN OPPOSITION TO MOTION FOR
INDIVIDUAL DEFENDANT(S) WHO ARE RECONSIDERATION/REHEARING
NOT KNOWN TO BE DEAD OR ALIVE, ON NON-PARTIES’ MOTION FOR
WHETHER SAID UNKNOWN PARTIES PROTECTIVE ORDER
MAY CLAIM AN INTEREST AS SPOUSES,
HEIRS, DEVISEES, GRANTEES. OR
OTHER CLAIMANTS; TENANT #l,
TENANT #2, TENANT #3, TENANT #4,
TENANT #5, TENANT #6, TENANT
#7,TENANT #8 the names being fictitious to
account for parties in possession,
Defendants.
___________________________________/
Defendants, DONALD W. NEEDHAM and BLAIR BERGSTROM, file this
memorandum of law in opposition to Motion for Reconsideration/Rehearing on [the Cullaros’]
Motion for Protective Order on the grounds that:
• This Court heard and considered the Cullaros’ position because the Plaintiff’s
attorney represented he was authorized to speak for the Cullaros and their
attorney;
• The Cullaros’ attorney never asked that the hearing be rescheduled to
accommodate a personal scheduling conflict;
ICE LEGAL, P.A.

1975 SANSBURYS WAY, SUITE 104, WEST PALM BEACH, FL 33411 • TELEPHONE (561) 729-0530 • FACSIMILE (866) 507-9888
CASE NO. 2009 20298 CINS
• The Defendant’s allegations of misconduct have a good faith basis;
• Other grounds as stated below.
I. Introduction and Background.
This is a foreclosure action filed by WELLS FARGO BANK, NA (the “BANK”). The
BANK is represented by Florida Default Law Group, P.L. (“FDLG”). On behalf of the BANK
in this case, and on behalf of other clients in other cases, FDLG filed affidavits to establish that
the attorneys’ fees it was allegedly paid were reasonable. The affidavits purport to have been
executed by Lisa Cullaro, the appointed expert on attorneys’ fees. The notary who allegedly
administered the expert’s oath and vouched for her signature was Erin Cullaro, a former
employee of FDLG and now an Assistant Attorney General in the Economic Crimes Division of
the Office of the Attorney General.
The undersigned defense counsel set the depositions of Lisa and Erin Cullaro, starting
with the case of The Bank of New York Mellon Trust Co. NA v. Sanchez, Case No. 50 2008 CA
027182XXXX MB (Palm Beach County) (“Sanchez”). At first, neither FDLG nor the affiant,
opposed the deposition other than to demand that the expert witness be paid for her time.
Defense counsel readily agreed and sent FDLG a check for the expert witness fee.
FDLG then filed a motion for protective order arguing that the duces tecum requests in
the deposition notices were a “fishing expedition.” 1 FDLG also filed objections to non-party
production, claiming that the Defendants’ routine requests for communications between the
attorney and the expert actually sought “privileged and confidential” information. 2 FDLG,
1
Plaintiff's Motion for Protective Order, dated November 12, 2009 in Sanchez.
2
Plaintiff’s Objection to Nonparty Production, November 10, 2009 in Sanchez.
2
ICE LEGAL, P.A.
however, stated that Plaintiff would “produce the witnesses after reasonable exhibits for their
depositions have been determined.” 3
Based on this unusual representation that FDLG controlled the witnesses’ deposition
attendance and that communications with them were privileged, Defense Counsel asked FDLG
whether it represented the witnesses as their attorney, to which FDLG responded that it did. 4
When Defense Counsel pointed out that such a relationship would be highly inappropriate and a
conflict of interest, FDLG responded “upon further investigation, our firm does not represent the
Cullaros.” FDLG further asserted it would be withdrawing the affidavit and “[t]herefore, the
deposition will not be necessary.” 5 FDLG then withdrew its affidavit in Sanchez and several
other cases, including this case. 6
The Defendants maintained, however, that the depositions were still relevant because, if
the BANK had knowingly submitted affidavits that were false or unlawfully executed, it could
not escape the repercussions by simply withdrawing them. With Lisa Cullaro having been
withdrawn as an expert, Defendants subpoenaed both Cullaros for deposition as fact witnesses to
any litigation misconduct surrounding the affidavit.
The Cullaro witnesses then retained their own attorney, John J. Cullaro of the Cullaro
Law Firm, who filed a Motion for Protective Order on behalf of Cullaros. 7 The witnesses argued
that FDLG had withdrawn the affidavit—not to obviate the deposition—but because it was “no
3
Plaintiff's Motion for Protective Order, dated November 12, 2009 in Sanchez, ¶ 5.
4
Email exchange between FDLG and Defense Counsel, November 13, 2009 (Exhibit A).
5
Email exchange between FDLG and Defense Counsel, November 14 and 17, 2009 (Exhibit A).
6
Notice of Withdrawal of Affidavit as to Reasonable Attorneys Fees, December 10, 2009.
7
Motion for Protective Order, dated November 24, 2009.
3
ICE LEGAL, P.A.
longer accurate with respect to the amount of attorney’s fees that will be sought.” As a result,
they argued, there was no legitimate purpose for their depositions. 8
FDLG noticed the hearing on its Motion for Protective Order. 9 By agreement, this notice
served to schedule the hearing on the motions for both FDLG and the Cullaros. 10 At the hearing,
only the FLDG attorney appeared, but he represented that he had authority to speak for the
Cullaro’s attorney:
MR. MANCILLA: Yes. And I also wanted to mention that John Cullaro, who is
representing the individuals, and he was unable to attend this hearing because his
wife has been recently diagnosed with cancer, so he's relying on papers that we
filed and asking that the Court accepts the argument on behalf of his client. 11
After hearing argument on FDLG’s motion, the Court specifically asked about the objections
raised by the Cullaros, which were then argued. 12 After due consideration, the Court declined to
grant a protective order to stop the depositions. 13
II. The Cullaros Arguments Were Presented and Considered at the Hearing.
Unhappy with the Court’s ruling, the Cullaro’s now ask for a second bite at the apple.14
They begin by stating that their attorney, John Cullaro, was unable to attend the hearing due to
an unforeseen scheduling conflict with his wife’s oncology appointment. As a result, Mr.
Cullaro requests that “he be heard in this matter.” 15
8
Id.
9
Notice of Hearing, dated January 22, 2010.
10
Email from John Cullaro, December 9, 2009 (Exhibit B).
11
Transcript of Hearing Before the Honorable Robert K. Rouse, Jr., March 10, 2010 (“Hrg.”),
p. 6 (Exhibit C).
12
Hrg., pp. 15.16.
13
Hrg., p. 21.
14
Motion for Reconsideration/Rehearing on Non-Parties’ Motion for Protective Order, dated
March 19, 2010 (“Rehearing Motion”).
15
Rehearing Motion, ¶ 1.
4
ICE LEGAL, P.A.
While Defendants do not wish to appear unsympathetic, it bears repeating that Mr.
Cullaro was heard in this matter—by way of the FLDG attorney he appointed to speak for him
and his clients. More importantly, FLDG set this hearing on behalf of Plaintiff and the Cullaros,
and Defendants had already agreed to reschedule the depositions until after the hearing. The
hearing, therefore could easily have been postponed had Mr. Cullaro simply made that request.
Instead, without ever mentioning Mr. Cullaro’s unavailability to Defense Counsel before
the hearing began, they proceeded with the hearing knowing that Defense Counsel would be
driving approximately 400 miles round trip to attend. (Notably, Mr. Cullaro does not state when
he learned of the conflicting oncology appointment.) It is entirely inappropriate that the Cullaros
would use this unfortunate personal circumstance as an excuse for re-argument when there was
no attempt to reschedule the hearing.
III. The Cullaros Promise Not to Provide Any More Expert or Notary Services is
Unenforceable and Irrelevant.
Next, the Cullaros promise this Court that they have ceased providing any expert witness
or notary services to FDLG “and have no intention” to so in the future. 16 This, they claim,
should moot this Court’s concern regarding their role in this litigation.
First, because this Court could never enforce such a promise, it is meaningless to the
analysis of whether Defendants should be denied discovery to which they are entitled. Second, a
promise to cease violating rules in the future does not relieve one of the consequences for having
violated rules in the past. If the Cullaros have done something improper in the execution of these
affidavits, the Court’s inherent power and responsibility to protect the integrity of the judicial
system will support the imposition of sanctions. The Defendants must be permitted to conduct
discovery and, if evidence of misconduct exists, bring that evidence to the Court.
16
Rehearing Motion, ¶3.
5
ICE LEGAL, P.A.
IV. Defense Counsel’s Allegations of Potential Misconduct Have a Good Faith Basis.
The Cullaros accuse Defendants of taking “enormous liberty with the facts” and making
assertions that are “beyond absurd” and without basis in fact. 17 Defendants, however, stated on
the record that they have compendiums of signatures for these two witnesses that are noticeably
different. Focusing just on Erin Cullaro, 18 the sampling of her alleged signatures below,
demonstrate remarkable differences. And while, she proffers that she has abbreviated her
signature over the years, the sampling reveals that more than one “abbreviated” signature has
appeared over her signature line.
Erin Cullaro Signatures
17
Id. at ¶¶ 7-8.
18
Despite the Cullaros’ statement otherwise, Defendants also question the authenticity of Lisa
Culloro’s signature and Defendants have amassed a similar collection of her documents allegedly
signed by her. Defendants believe, however, that maintaining some potential cross-examination
materials confidential until the deposition will encourage more reliable testimony. If requested
by the Court, the Defendants will not object to an in camera inspection of these materials.
6
ICE LEGAL, P.A.
Furthermore, the so-called “abusive and harassing” Florida public records request 19 to
Erin Cullaro’s employer, the Office of Attorney General, turned up a an April 30, 2008 affidavit
which Ms. Cullaro executed with this signature:
and an April 24, 2009 affidavit with this signature:
The public records request also revealed that Ms. Cullaro completed a “Request for Approval of
Dual Employment” in which she certified that her secondary job notarizing documents “does not
create a conflict of interest (as specified in Chapter 112, Part III, Florida Statutes) nor the
appearance of impropriety…” (see Figure 1, below).
19
The Cullaros also complain that, by serving Erin Cullaro at home rather than serving her
attorney, Defendants revealed her private home address to the public, and stripped her of her
statutory right as a law enforcement officer to keep such information confidential. When the
initial subpoenas were served, however, Erin Cullaro did not have an attorney. And when
counsel appeared for the Cullaros, he did not offer to accept service until December 22, 2009—
after the next wave of subpoenas had already been sent to the process server. And even when
their attorney did offer to accept service, he did not mention the privacy issue. Finally, and more
importantly, the home address used in the subpoenas was obtained from a public source, so the
allegation that it was Defendants who made the address public is without merit.
7
ICE LEGAL, P.A.
Figure 1
Ms. Cullaro’s dual employment was limited to Mondays, Wednesdays and Fridays
between 7:00 p.m. to 7:15 p.m. Defendants proffer that they will show affidavits executed on
days other than those approved by the Office of the Attorney General and that travel records
suggest that Ms. Cullaro would have not been present in Florida on the date and time that an
affidavit was notarized. Contrary to the Cullaro’s accusations, therefore, Defendants do have a
good faith basis for questioning the authenticity of the signatures.
The argument that this Court has no jurisdiction to “address” pleadings or documents
filed in other circuit courts 20 is specious. This Court’s power to examine and weigh evidence of
20
Rehearing Motion, ¶ 14.
8
ICE LEGAL, P.A.
authenticity (or evidence disproving the authenticity) of signatures is not diminished in the least
by the fact that these affidavits have been presented in cases filed in other circuits. Indeed, if the
signatures are fraudulent, proof of the intent to defraud may well hinge on the fact that these
signatures were on documents used as summary judgment evidence in a court of law.
In any event, not all the signatures in Defendants’ collection are from affidavits.
Obviously, Defendants should be permitted to inquire as to the obvious differences in signatures
purporting to be that of the witnesses, regardless of where those signatures were made.
V. The “Exceptional Circumstances” Standard Does Not Apply to Fact Witnesses.
Defendants need not show “exceptional circumstances” to depose fact witnesses
concerning potential fraud. The cases relied upon by the Cullaros 21 address discovery of
opinions from experts who will not testify at trial. Defendants, however, do not intend to ask
Lisa Cullaro about her opinions as to the reasonableness of the attorneys’ fee claimed by
Plaintiff. Instead, Defendants will be questioning the witnesses about the authenticity of their
signatures.
VI. Both Erin and Lisa Cullaro Should be Deposed.
The Cullaros claim that Defendants’ contentions regarding the authenticity of signatures
were aimed only at Erin Cullaro, and as such, Lisa Cullaro should not be deposed. 22 To be clear,
Defendants’ contentions are aimed at the signatures of both witnesses. Moreover, Lisa Cullaro
has, in the past, served as a notary for Erin Cullaro’s signature (the reverse relationship on the
21
Morgan v. Tracy, 604 So. 2d 15 (Fla. 4th DCA 1992); Forman v. Fink, 646 So. 2d 236 (Fla. 3d
DCA 1994).
22
Rehearing Motion, ¶12.
9
ICE LEGAL, P.A.
affidavit filed in this case). Accordingly, as notaries, both witnesses should be able to attest to
the authenticity of the other’s signatures.
VII. The Depositions Are Intended to Establish the Who and The Why.
Finally, the Cullaros comment that, if the signatures have been forged, Defendants have
not established who forged them or what the purpose would be. 23 Of course, the very purpose of
the discovery is to learn the answers to these questions. If Defendants had these answers, they
would not need discovery and would have already moved to dismiss the case as a sanction for
fraud on the court. Indeed, other clients of the undersigned have conducted discovery with
respect to affidavits filed by FLDG which revealed grounds for the imposition of sanctions. 24
WHEREFORE, Defendants request that this Court deny the Cullaros’ Motion for
Reconsideration/Rehearing on Non-Parties’ Motion for Protective Order.
Dated: March 23, 2010.

ICE LEGAL, P.A.
Counsel for Defendant
1975 Sansburys Way, Suite 104
West Palm Beach, FL 33411
Telephone: (561) 729-0530
Facsimile: (866) 507-9888
By:
THOMAS E. ICE
Florida Bar No. 0521655
23
Id. ¶ 11.
24
See e.g. Indymac Federal Bank FSB v. Machado, Case No. 50 2008 CA 037322XXXX MB
(Palm Beach County).
10
ICE LEGAL, P.A.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served by mail
this March 23, 2010 to all parties on the attached service list.
ICE LEGAL, P.A.

Counsel for Defendant
1975 Sansburys Way, Suite 104
West Palm Beach, FL 33411
Telephone: (561) 729-0530
Facsimile: (866) 507-9888
By:
THOMAS E. ICE
Florida Bar No. 0521655
SERVICE LIST
Joseph Mancilla, Esq. John J. Cullaro, Esq.

FLORIDA DEFAULT LAW GROUP, P.L. THE CULLARO LAW FIRM
P.O. Box 25018 2701 W. Busch Blvd., Suite 210
Tampa, FL 33622-5018 Tampa, FL 33618
(813) 251-4766 Cullaro’s counsel
Plaintiff’s counsel
11
ICE LEGAL, P.A.
EXHIBIT A
12
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EXHIBIT B
15
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EXHIBIT C
16
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Motion - Substantiated Allegations of Foreclosure Fraud That Implicates The Florida Attorney General's Office and The Florida Default Law Group

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Motion - Substantiated Allegations of Foreclosure Fraud That Implicates The Florida Attorney General's Office and The Florida Default Law Group

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IN THE CIRCUIT COURT FOR THE 7TH JUDICIAL CIRCUIT,

IN AND FOR VOLUSIA COUNTY, FLORIDA

WELLS FARGO BANK, NA, GENERAL JURISDICTION

DONALD W. NEEDHAM; THE UNKNOWN

Defendants, DONALD W. NEEDHAM and BLAIR BERGSTROM, file this

memorandum of law in opposition to Motion for Reconsideration/Rehearing on [the Cullaros’]

Motion for Protective Order on the grounds that:

• The Cullaros’ attorney never asked that the hearing be rescheduled to

accommodate a personal scheduling conflict;

ICE LEGAL, P.A.

• The Defendant’s allegations of misconduct have a good faith basis;

• Other grounds as stated below.

I. Introduction and Background.

the Office of the Attorney General.

depositions have been determined.” 3

other cases, including this case. 6

any litigation misconduct surrounding the affidavit.

they argued, there was no legitimate purpose for their depositions. 8

grant a protective order to stop the depositions. 13

Cullaro requests that “he be heard in this matter.” 15

no attempt to reschedule the hearing.

appeared over her signature line.

Erin Cullaro Signatures

which Ms. Cullaro executed with this signature:

and an April 24, 2009 affidavit with this signature:

appearance of impropriety…” (see Figure 1, below).

good faith basis for questioning the authenticity of the signatures.

signatures were on documents used as summary judgment evidence in a court of law.

Obviously, Defendants should be permitted to inquire as to the obvious differences in signatures

V. The “Exceptional Circumstances” Standard Does Not Apply to Fact Witnesses.

Defendants need not show “exceptional circumstances” to depose fact witnesses

VI. Both Erin and Lisa Cullaro Should be Deposed.

the authenticity of the other’s signatures.

Reconsideration/Rehearing on Non-Parties’ Motion for Protective Order.

Dated: March 23, 2010.

ICE LEGAL, P.A.

Joseph Mancilla, Esq. John J. Cullaro, Esq.

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