document45

Sheehan & Associates, P.C. Attorneys at Law

10 Middle Neck Road, Ste. 200, Great Neck, NY 11021 Tel: (347) 635-4160/Fax: (516) 234-7800

[email protected] March 11, 2015

Via ECF and First-Class Mail Honorable Arlene R. Lindsay United States District Court Judge Eastern District of New York 100 Federal Plaza Central Islip, NY 11722

Re: BSI Mortgage IV, LLC v. Kaushik et al. Docket No. 14-cv-01640 (LDW)(ARL)

Dear Judge Lindsay: This firm is counsel to defendant Vekrum Kaushik in the above-entitled action. This response is in opposition to the letter-motion filed by counsel for movant Yonel Devico (“Mr. Devico” or “movant”) seeking to quash the properly noticed and personally served subpoena and subpoena duces tecum (“subpoenas”) upon Mr. Devico. Dckt. No. 41. Counsel for Mr. Devico demands the Court quash the subpoenas served by defendant pursuant to Rule 45(d) of the F.R.C.P., because, as he cites in his letter, “it seeks irrelevant and immaterial information resulting in an undue burden on non-party Devico’s legitimate privacy interest.” In addition, Counsel cites Rule 45(d)(3)(A) providing that “the issuing court must quash or modify a subpoena that…requires disclosure of privileged or other protected matter, if no exception or waiver applies; or subjects a person to undue burden.” As will be established herein, no exceptions or waivers exist which would permit this Court to grant movant’s motion to quash the instant subpoenas. Mr. Devico’s testimony is relevant and critical to this action. The list of deposition topics and production requests is appropriate and properly tailored. While defendant had prepared to address these issues at another stage, counsel for Mr. Devico has thrown down the gauntlet, which defendant accepts.

I. Identity of (Beneficial) Member(s) of Plaintiff

From the outset, plaintiff has sought to obscure the identity of the generically named BSI

Mortgage IV, LLC (“plaintiff” or “BSI”). When defendant first sought the intervention of this Court seeking disclosure of the membership of plaintiff, plaintiff’s counsel opposed such a disclosure. Dckt Nos. 15-16. Exhibit “A”. On August 5, 2014, Judge Wexler ordered that plaintiff

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Case 2:14-cv-01640-LDW-ARL Document 45 Filed 03/11/15 of 3 PageID #: 811

disclose its membership in order to establish jurisdiction was proper. 28 U.S.C. § 1332.

II. Connection of Yonel Devico to BSI Mortgage IV, LLC

A. Plaintiff has claimed Mr. Devico’s Mother is a Member of Plaintiff

One day before Judge Wexler’s deadline that plaintiff comply with his Order, plaintiff filed an affidavit of membership claiming two members of plaintiff: Anastasia Arina (“Arina”), who resides in Florida and Simy Assayag, resident of Spain. Dckt. No. 18. Exhibit “B”. After learning that Simy Assayag, citizen of Morocco, was a member of plaintiff, this office quickly investigated the connection to Yonel Devico. Simy Assayag, it turned out, was the maiden name of Simy Devico. Simy Devico is the mother of Yonel Devico, and according to this action, a dabbler in the Hamptons real estate market from her villa in Marbella. Plaintiff’s Operating Agreement indicated that Mr. Devico’s mother “controls” ninety-nine (99) percent interest of plaintiff while the purported Managing Member, Arina, allegedly controls one (1) percent. Exhibit “C”, § 1.3.

A limited liability company formed under the Limited Liability Company Act of Delaware

(the “Act”) does not require a written operating agreement. 6 Del. C. §18-101(7). The agreement can be oral or implied. Membership can be a game of musical chairs, or in this case, three-card Monte, since the agreement may explicitly provide such terms. 6 Del. C. §18-301(7).

B. Attempts by Mr. Devico to Conceal his Involvement in this Action

While the facts set forth in Part II, Section A, supra, are admittedly circumstantial and tenuous, please allow Mr. Devico’s own words to buttress defendant’s argument that the motion seeking to quash the subpoenas against him should be denied. In a January 9, 2014 email sent by Mr. Devico from [email protected] (the same email listed on the Loan Servicing Setup Form, infra, and used to email defendant hundreds of times prior to the commencement of this action, Mr. Devico states to employees of FCI: If the borrower ever contact you, please do not disclose of our identity, besides BSI obviously.

Exhibit “D”, p.1.

C. Loan Servicing Setup Form of FCI Lender Services, Inc. signed by Yonel Devico

FCI Lender Services, Inc. (“FCI”) is/was the company that serviced the mortgage that is the

subject of this federal action. The “Loan Servicing Setup Form”, dated December 13, 2013, was obtained via a duly-issued subpoena duces tecum upon FCI. Exhibit “E”. The client/authorized contact is listed as Yonel Devico and the company name is Crosby Capital USA LLC. All of the client contact information corresponds to Mr. Devico. The investor/lender listed on this document

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is plaintiff BSI Mortgage IV, LLC. The bank account information, which has been redacted, is presumably one controlled or maintained by Mr. Devico. For good measure, Mr. Devico’s signature appears at the bottom of the document.

D. Prior Communication between Mr. Devico and Defendant

The communications between defendant and movant annexed to the subpoenas serve to

show that Mr. Devico attempted to purchase the subject property from defendant for approximately two years. Dckt. No. 41-1. Thus, Mr. Devico has knowledge of the property and knew defendant.

E. At All Times, Counsel for Mr. Devico was Aware of his Connection to this Action

Mr. Weinreb’s letter-motion states that defendant’s requests are “harassing” and a “fishing expedition”. Mr. Weinreb calls the requests “an attempt to distract the Court, and the parties, from the merits of the underlying lawsuit.” That Mr. Weinreb claims this while he is copied on almost all of the emails to and from Mr. Devico from FCI, is disingenuous, disrespectful to the interests of justice and in blatant disregard of the limited jurisdiction of this court. Exhibit “E”.

III. Conclusion

While it is hopeful that Mr. Devico will provide his motivations to this Court, your undersigned can postulate several. By avoiding the disclosure of his identity (and citizenship in Manhattan, NY), Devico could, through and with the actions of his attorneys, fast-track a residential foreclosure case through fabricated diversity jurisdiction, not expecting any pushback by an indebted defendant. If Mr. Devico’s identity as the beneficial member, the person who made the decisions of plaintiff (as is shown by his emails to FCI and his counsel), were to be “disclose[d] of”, his investment would wither away with the other foreclosure cases in an overburdened State Court.

Given the conduct of the movant and his counsel before this tribunal, defendant expects plaintiff to claim that “Even if Mr. Devico had some involvement with the subject mortgage, he is not now, nor ever was, a ‘member’ of plaintiff.” However, given the evidence provided here, I do not believe that this Court requires guidance as to how to dispose of this likely future argument. Accordingly, the motion to quash should be denied.

Respectfully submitted, /s/ Spencer Sheehan Spencer Sheehan

Attachments/Exhibits (5) cc: Counsel of Record (first-class mail and CM-ECF)

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EXHIBIT A

Case 2:14-cv-01640-LDW-ARL Document 45-1 Filed 03/11/15 Page 1 of 11 PageID #: 814

Sheehan & Associates, P.C. Attorneys at Law

10 Middle Neck Road Suite 200

Great Neck, NY 11021 Telephone: (347) 635-4160

Facsimile: (516) 234-7800 [email protected]

August 4, 2014

Via ECF and First-Class Mail Honorable Leonard D. Wexler United States District Court Judge United States District Court – EDNY 100 Federal Plaza Central Islip, NY 11722

Re: BSI Mortgage IV, LLC v. Kaushik et al. Docket No. 14-cv-01640 (LDW)(ARL)

Dear Judge Wexler: This firm is counsel to Vekrum Kaushik s/h/a Vekram Kaushik (“Kaushik”), defendant in the above-entitled action. On July 11, 2014, counsel for plaintiff BSI Mortgage IV LLC (“BSI”) requested a second pre-motion conference via ECF. Dckt. No. 13. On July 28, 2014, Your Honor, in denying said request, issued a Scheduling Order filed via ECF directing that counsel for the parties confer and submit a briefing schedule for Court approval within two (2) weeks.

I. Background In its “Verified Complaint” filed on March 12, 2014, BSI, by and through its attorneys, The Margolin & Weinreb Law Group, LLP asserted it “is a Delaware Limited Liability Company with its usual place of business” in Florida. See Dckt. No. 1, ¶ 2. Plaintiff’s Verified Complaint went on to state that as “the present Action is between citizens of different states”, “jurisdiction is based upon diversity of citizenship pursuant to 28 U.S.C. § 1332.” See Dckt. No. 1, ¶ 7.

Solely on this basis, Plaintiff sought to invoke diversity jurisdiction before this honorable Court. In doing so, Plaintiff BSI has mistakenly relied on the rule applied to corporations, rather

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than the rule applied to limited liability companies, to determine diversity of citizenship, infra.

II. Differences between Corporations and LLCs in the Context of Establishing Diversity Jurisdiction

Under 28 U.S.C. §1332(c)(1), a corporation is deemed a citizen of both the state of its

incorporation and the state of its principal place of business. However, the seminal decision by the United States Supreme Court, Carden v. Arkoma Associates, refused to extend the statute to unincorporated associations. 494 U.S. 185, 189 (1990). Reasoning that the use of the word “corporation” in §1332(c)(1) precluded its application to unincorporated associations, the Supreme Court held that a limited partnership did not possess citizenship independent of its members. Id. at 196-97.

Though Carden spoke directly to the citizenship of limited partnerships, U.S. Courts of Appeals have applied its rationale to other forms of unincorporated associations, including limited liability companies (“LLC”).

Since the Carden decision, all federal courts of appeals (including the Second Circuit) which have considered the question of citizenship of unincorporated associations, including LLCs, and have unanimously concluded that an LLC does not possess independent citizenship status but rather holds the citizenship of its members for purposes of diversity jurisdiction.1

III. Proper Procedure for Establishing Diversity Jurisdiction Where the members of an LLC are, themselves, unincorporated associations (e.g., additional LLCs or limited partnerships), whose own members also may consist of unincorporated associations, the U.S. Court of Appeals for the Second Circuit has held that the citizenship of an LLC party is determined by a complete upstream analysis of its organizational structure.

In other words, when an entity consists of multiple tiers of ownership and control, the entire structure must be considered for diversity purposes. Where an entity is comprised of multiple layers

1 Pramco, LLC ex rel. CFSC Consortium, LLC v. San Juan Bay Marina, Inc., 435 F.3d 51, 54-55 (1st Cir. 2006); Handelsman v. Bedford Vill. Assocs. Ltd. P'ship, 213 F.3d 48, 51-52 (2d Cir. 2000); Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010); Gen. Tech. Applications, Inc. v. Exro Ltda, 388 F.3d 114, 121 (4th Cir. 2004); Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008); Delay v. Rosenthal Collins Grp., LLC, 585 F.3d 1003, 1005 (6th Cir. 2009); GMAC Commercial Credit, LLC v. Dillard Dep't. Stores, Inc., 357 F.3d 827, 829 (8th Cir. 2004); Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006); Rolling Greens MHP, LP v. Comcast SCH Holdings, LLC, 374 F.3d 1020, 1022 (11th Cir. 2004).

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of constituent entities, the citizenship determination requires an exploration of the citizenship of the constituent entities as far down as necessary to unravel fully the citizenship of the entity before the court. Bayerische Landesbank, N.Y. Branch v. Aladdin Capital Management, LLC, 692 F.3d 42, 49 (2d Cir. 2012).

Bayerische was a diversity action against Aladdin Capital Management LLC (“Aladdin”). 692

F.3d at 49. Aladdin's sole member was Aladdin Capital Holdings LLC (“ACH”), whose membership consisted of one limited partnership, four U.S. citizens and five corporations. The Second Circuit determined that Aladdin possessed the citizenship of ACH, which possessed the citizenship of each of its 10 members, declaring: “[D]efendant Aladdin is a citizen of the various states of the United States of which its member, ACH, is a citizen (through ACH's various members).” Id. at 51.

In a recent matter brought on the basis of diversity jurisdiction in the Southern District of New York, Quantlab Financial, LLC v. Tower Research Capital, LLC, it was determined that the sole member of plaintiff Quantlab Financial, LLC (“QLF”) was also an LLC holding company, Quantlab Holdings, LLC (“QLH”). 715 F. Supp. 2d 542 (2010).

Applying the same upstream analysis, the Southern District of New York stated that QLF's citizenship “depends on the citizenship of its sole member, [QLH], and, in turn, on the citizenship of [QLH's] members.” In determining the citizenship of QLH's members, and thus the citizenship of QLF, the court evaluated the citizenship of ten (10) layers of QLF's organizational hierarchy, ultimately finding that the parties lacked complete diversity. Id. at 546, 549.

IV. Attempts by Counsel for Defendant Kaushik to Ascertain Membership Information of Plaintiff BSI Mortgage IV LLC

On the date of the pre-motion conference, May 28, 2014, and prior to meeting with Your Honor, your undersigned inquired of counsel for BSI as to BSI’s membership information. Opposing counsel responded that he could not disclose this information.

When counsel for the parties appeared in camera before Your Honor on May 28, 2014, your undersigned raised the issue of the membership information of Plaintiff BSI. At the conclusion of the pre-motion conference, counsel for BSI and myself informed Your Honor that the parties would shortly thereafter confer to determine whether a resolution of this matter could be achieved. Counsel for the parties thereafter communicated via email to coordinate such a meeting. On May 30, 2014, this office electronically transmitted a letter to counsel for BSI relating to the scheduling of the aforementioned meeting and requested that prior to said meeting, opposing counsel provide this office with “basic information about the entity which has brought this action,” including “the legally authorized party(ies) that control its decision-making.” See Exhibit 1, annexed hereto.

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In this letter, this office also requested clarification of the status of one Mr. Elon Lebovitch a/k/a Allen Lebo, who would be attending the meeting and his relationship to Plaintiff BSI. In an effort to achieve judicial economy with respect to the limited resources of this Court, while demonstrating professional courtesy and comity, this office proceeded with the meeting on June 9, 2014, where Defendant Kaushik was present. This was done without having been provided with the identity information of Plaintiff BSI.

In the interim, neither this Court nor this office has not received a full and complete accounting of the membership of Plaintiff. Therefore, any foray into motion practice must be moot since proper jurisdiction has yet to be established by Plaintiff, who has invoked subject matter jurisdiction and therefore bears the burden of proof in establishing said jurisdiction before this Court. “A court lacks discretion to consider the merits of a case over which it is without jurisdiction." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).

V. Privacy Concerns

While various state legislatures have decided to permit the members of LLCs to remain anonymous to the public at large, Congress has not created an exception to the requirements of diversity jurisdiction which would allow the members of LLCs to remain anonymous in federal court. See Carden, 494 U.S. 185, 196 (1990) (in discussing the citizenship of non-corporate artificial entities for diversity purposes, the Court noted that “[t]he resolutions we have reached . . . can validly be characterized as technical, precedent-bound, and unresponsive to policy considerations raised by the changing realities of business organization.”).

Ultimately, the limitations that Congress has placed on federal courts’ diversity-based

jurisdiction require certain LLCs to decide between maintaining their members’ anonymity and having their cases heard in federal court. Were LLCs permitted to preserve the anonymity of their members, the principal rationale for diversity-based jurisdiction would not apply. Diversity jurisdiction is intended “to prevent apprehended discrimination in state courts against those not citizens of the state.” Erie R.R. Co. v. Tompkins, 304 U.S. 64, 74 (1938). An entity made up of anonymous members could hardly argue that it faces unfair hometown prejudice in state court when the entity’s hometown is unknown.

As Counsel for Plaintiff BSI has not informed this Court of the members of BSI and declined to provide this information to this office, it is not possible “to litigate under the diversity jurisdiction with details kept confidential from the judiciary.” Belleville Catering v. Champaign Market Place, 350 F.3d 691, 693 (7th Cir. 2003).

The identity of the members of a privately-held LLC is not publicly available, making it

impossible for Court or this office, on behalf of Defendant Kaushik, to forthrightly determine whether diversity jurisdiction has been properly established.

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VI. Application to Present Case

Plaintiff’s Verified Complaint invoked subject matter jurisdiction without even a cursory recitation of its members or an awareness of the fundamental precepts of corporate citizenship as applied by all federal courts which have considered this issue, supra.

Since filing the Verified Complaint, Plaintiff has sought two (2) pre-motion conferences. As a result of the second request for a pre-motion conference, the Court has directed the parties to enter into a briefing schedule even though Plaintiff has failed to account for, understand the significance of, or even mention the citizenship of its members.

Without establishing citizenship of Plaintiff’s members, this honorable Court cannot exercise jurisdiction absent such an accounting. See Ashcroft v. Iqbal, 556 U.S. 662, 671, 129 S. Ct. 1937, 1945, 173 L. Ed. 2d 868 (2009)(“Subject-matter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt.”)(citations omitted); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted) (“It is to be presumed that a cause lies outside [of federal courts’] limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.”)

Moreover, this Court has the obligation to determine subject matter jurisdiction, sua sponte, even if the parties do not bring the issue to their attention. Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 1244, 163 L. Ed. 2d 1097 (2006)(“Moreover, courts, including this Court, have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party,” and “when a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.”); See Also Sharkey v. Quartantillo, 541 F.3d 75, 87–88 (2d Cir. 2008).

This office respectfully requests that Your Honor direct Plaintiff to disclose the relevant information in order to ascertain whether this Court possesses jurisdiction in this matter. Thank you for your courtesies.

Very truly yours,

Spencer Sheehan

Attachment cc: Alan Weinreb, Esq. The Margolin & Weinreb Law Group, LLP

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165 Eileen Way Syosset, NY 11791

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Case 2:14-cv-01640-LDW-ARL Document 15-1 Filed 08/04/14 Page 1 of 3 PageID #: 138Case 2:14-cv-01640-LDW-ARL Document 45-1 Filed 03/11/15 Page 8 of 11 PageID #: 821

EXHIBIT B


Case 2:14-cv-01640-LDW-ARL Document 18 Filed 08113/14 Page 1of2 PagelD #: 144

Alan H. Weinreb, Esq. (AW 9361) THE MARGOLIN & WEINREB LAW GROUP, LLP 165 Eileen Way, Suite 101 Syosset, New York 11791 Telephone: (5 I 6) 945-6055 Facsimile: (5 I 6) 945-6056 [email protected]

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---~----~----~-~---~~--~~~~--~-~~~-~-~-){

BSI MORTGAGE IV LLC, Plaintiff,

-against-

VEKRAM KAUSHIK; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR CITIBANK, N.A., CITIBANK, N.A. AND JOHN DOE "l" through "12", said persons or parties having or claimed to have a right, title or interest in the Mortgaged premises herein, their respective names are presently unknown to the Plaintiff,

Defendant( s ). --~-----------------------------------~-~------------~----~-----){

STATE OF FLORIDA :ss,:

COUNTY OF MIAMI-DADE:

Anastasia Arina, being duly sworn, deposes and says:

Civil Action No.: 14-cv-01640 (LDW)(ARL)

AFFIDAVIT

I. I am a Member of BSI IV LLC, Plaintiff in the within action. I make this Affidavit

pursuant to an Order of this Court to disclose the citizenship of each member of the

Plaintiff BSI IV LLC.

2. There are two (2) members of the Plaintiff as follows:

a. Anastasia Arina, who is a citizen of the State of Florida and resides at 17720

North Bay Road, Sunny Isles Beach, Florida; and


Case 2:14-cv-01640-LDW-ARL Document 18 Filed 08113/14 Page 2 of 2 PagelD #: 145

b. Simy Assayag who is a citizen of Spain and resides at Paseo Maritimo Rey de

Malaga, 98. Edificio La Concha 2, Piso IO Cl, Fuengirola, Malaga, Spain.

STATE OF FLORIDA ) COUNTY OF MIAMI-DADE )

On the =i day of A.u~AS± in the year 2014 before me, the undersigned, personally appeared Anastasia AriLI personally know to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose names(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity (ies), that by his/her/their signature(s) on the instrument, the individuals (s), or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in

Sworn to before me this

_i_ ctayor Auaus+ .2014 J

\-U?AthQY ~~ Notary Public

·0,rl.,!...~'f;~~ H6'lliER HEATH (f ~~)~ MY COMMISSJONHE047527 ~;;ti!. ~·~l £XPlnE8: December 8 2014 '·1 •. \~'.fr.'<~' Bonded Thru Nota1y Publk: Underwlitcis

I..- -


EXHIBIT C


; .. ' .

OPERATING AGREEMENT

OF

BSI Mortgage IV LLC

This OPERATING AGREEMENT (this "Agreement") of BSI Mortgage IV LLC, a Delaware ·limited liability company (the "Company''), is made as of this __2Lday of December 2013, by and among the· Simy Assayag and Anastasia Arina (collectively, the "Members").

WITNESS ETH:

WHEREAS, the Company was fonned pursuant to a Certificate of Formation, which was filed for recordation in the office of the ·Secretary of State of the State of Delaware on December 17th, 2013;and

WHEREAS, the Members acknowledge the formation of the Company as a limited liability company under the laws of the State of Delaware for the purposes of, among other things, acquiring various Investments and entering into other transactions involving or related directly or indirectly to such Investments, subject to and in accordance with the terms of this Agreement; and .

WHEREAS, the Members wish to enter into this Agreement to set forth the tenns and conditions that will govern their relationship and the management and operation of the Company.

NOW, THEREFORE, in consideration of the mutual promises and agreements herein made and intending to be legally bound hereby, the parties hereto hereby agree as follows:

ARTICLE I

GeneralProvisions

1.1. Formation.

(a) The Company was formed by the filing of the Certificate pursuant to the Act on December 17th, 2013.

(b) Anastasi ya Arina was designated as the Manager of the Company and Simy Assayag, as its Authorized Representative, executed, delivered and filed the Certificate on behalf of the Company, and all such acts are hereby approved and ratified. Upon the filing of the Certificate, its powers as Manager, as defined herein, shall continue.

1.2. Name. The name of the Company shall be "BSI Mortgage IV LLC." The Manager is authorized to make any variations in the Company's name which the Manager may deem necessary or advisable; provided. that (a) such name shall contain the words "Limited


... .·

\

Liability Company'' or the letters "LLC" or the equivalent translation thereof, (b) such name shall not contain the name of any Member without the consent of such Member and (c) the Manager shall promptly give notice of any such variation to the Members.

1.3. Members. The Members of th~ Company shall be as follows;

Anastasia Arina, residing at 17720 North Bay Road, Surµiy Isles Beach, FL as to a 1 %

membership interest in the Company.

Simy Assayag, residing at Paseo Maritimo Rey de Espana, 98, Edificio La Concha 2, Piso 1 OCl, Fuengirola, Ma 1 a g a, Sp a in as to a 99% membership interest in the Company.

1.4. Organizational Certificates and Other Filings. If requested by the Manager, the Members shall promptly execute all certificates and other documents consistent with the terms of this Agreement necessary for the Company to accomplish all filing, recording, publishing and other acts as may be appf9priate to comply with all requirements for (a) the formation and operation of a limited liability company under the ·laws of the State of Delaware, (b) if the Manager deems it advisable, the operation of the Company as a limited liability company in all jurisdictions where the Company proposes to operate and (c) all other filings required to be made by the Company.

1.5. Purpose. The purpose of the Company is to acquire various real estate investments and enter into other transactions involving or related directly or indirectly to such real estate investments, including but not limited to the purchase of real property, debt, notes, mortgages and to engage in such other activities as are permitted hereby or are incidental or ancillary thereto as the Manager shall deem necessary or desirable, all upon the terms and conditions set forth in this Agreement.

1.6. Title to Assets. Title to all assets of the Company will be held in the name of the Company or in a single purpose entity fully owned by the Company. The Members shall have no rights to the assets of the Company or any ownership interest in those assets except indirectly as a result of each member's ownership of an interest in the Company. Except as otherwise required by law, no Member shall be liable for the debts, obligations or liabilities of the Company, including under a judgment decree or order of a court.

1.7. Principal lk:ofBusiness;OtherPlacesof'Business. The principal place of business of the Company will be located at 2500 E Hallandale Beach Blvd, Hallandale Beach, Florida, 33009, and/or such other place or p)aces within or outside the State of Delaware as the Manage may from time to time designate. The Manager will promptly give written notice of any such change to the Members. The Company may maintain offi.c.es and places of business at such other place or places within or outside the State of Delaware as the Manager deems advisable.


..

1.8. Registered Office and Registered Agent. The address of the registered office of the Company in the· State of Delaware shall be 615 South DuPont Highway, Dover, Delaware 19901, and the name of .the registered agent of the Company for service of process shall be · National Corporate Research, Ltd. The Manager may change the registered agent of the Company from time to time. .

1.9. Fiscal Year. The fiscal year C'Fiscal Year") of the Company shall be the calen$r year or, in the case of the first and last fiscal years of the Company, the fraction thereof commencing on the date hereof or ending on the date on which the winding up of the Company is completed, as the case may be. The taxable year of the Company shall be the calendar year, except as otherwise provided under Section 706 of the Code. The Manag~r shall have the authority to change the ending date of the·Fiscal Year if the Manager, in its sole discretion, shall determine such change to be necessary or ·appropriate; provided, that the Manager shall promptly give notice of any such change to the Members.

ARTICLE II

Management

2.1. Powers of the Manager.

(a) The management, operation and policy of the Company shall be vested in the Manager, which shall have the power by itself and shall be authorized and empowered on behalf and in the name of the Company to carry out the day to day operations of the Company that are necessary and it may in its sole discretion deem necessary or advisable or incidental thereto, all in accordance with and subject to the other terms of this Agreement

(b) Without limiting the foregoing general powers and duties, the Manager is hereby authorized and empowered on behalf and in the name of the Company, or on its own behalf and in its own name, or through agents, as may be appropriate, to:

(i) direct the fonnulation of investment policies and strategies for the Company, and select the investments of Company funds in the Invesbnents, all in accordance with this Agreement; ·

(ii) identify and arrange sources of financing for the Company;

(iii) open, maintain and close bank accounts and draw checks or other orders for the payment of money and open, maintain and close money market fund and similar accounts;

(iv) enter into, execute, maintain and/or terminate contracts, undertakings, agreements and any and all other documents and instruments in the name of the Company, and do or perform all such things as may be necessary or advisable in furtherance of the Company's powers, objects or purposes or the conduct of the Company's activities, including entering into acquisition agreements to make or dispose


. . .

of the Investments, which may include such representations, warranties, covenants, indemnities and guaranties as the Manager deems necessary or advisable;

( c) Without limiting the generality of the foregoing, the Manger shall perform the following services and activities:

(i) making available to the Company its knowledge and experience with respect to real estate, real estate.related securities, real estate-related loans, and other real estate-related assets and non-real estate related assets in connection with the Company's Investments;

(ii) · analyzing and making recommendations to the Company with respect to any additional capital requirements and other funding for the Investments;

(iii) engaging independent contractors to provide brokerage services, services of local legal counsel (primarily in connection with foreclosure matters and Inve~entrelated matters incident to a particular market or locality, including entitlements), due diligence or other financial services or property management, asset management, leasing, development and other services as may be required in connection with servicing and managing the Investments;

(iv) preparing various usual and customary presentations, information and marketing materials for use with prospective buyers of any Investments;

(v) negotiating on behalf of the Company for the sale, exchange or other disposition of an Investment;

(vi) proposing and carrying out the investment plan applicable and specifically tailored to each Investment, and monitoring the operating performance of the Investments and providing periodic reports with respect thereto to the Company;

(vii) notifying the Company promptly of any lawsuits, arbitration proceedings, condemnation proceedings or other governmental orders or actions, or any threat thereof or any other events becoming known to the Manager which could reasonably be expected to have an adverse effect on the Investments, any material damage, any material default or alleged material default by any third-party under any material .contract relating to the real property relating to the Investments, and any other material information;

(viii} notifying the Company promptly of, and supervising third parties in the making of payments with respect to, all taxes, assessments and other impositions applicable to the real property relating to the Investments, verifying all taxes and assessments, recommending appropriate action with respect thereto in a timely manner;

(ix) maintaining the real property relating to the Investments in a materially presentable condition and in material compliance with all applicable laws, rules, regulations, codes and ordinances, and otherwise ensuring that such real property assets are readied and suitable for disposition in accordance with the applicable business plan concerning · each Investment;


(x) making all reasonable good faith efforts to collect all payments ca1led for under the terms and provisions of the documents that evidence and/or secure the indebtedness relating to the Inv~ents, in accordance with "accepted servicing practices";

(xi) monitoring the performance of, the Investments, including (a) any consents or approvals requested or required by the borrower under a loan, (b) any defaults under an instrument evidencing indebtedness relating to the Investments, ( c) actions necessary to foreclose upon or otherwise comparably convert the ownership of collateral if such instrument evidencing indebtedness remains in and (d) any other action necessary or desirable to maximize the value of each Investment, in each case, upon the Manager's good faith determination that such action is in the best economic interest of the Company;

(xii) assisting the Company in the negotiation of any modifications or amendments to the terms of any instrument evidencing indebtedness relating to the Investments, which the Manager, determines·to be in the best interest of the Company;

(xiii) assisting the Company in acquiring title to any re~ property relating to the Investments for the benefit of the Company in foreclosure or by deed fu lieu of foreclosure ·or otherwise, or in exercising any other lender remedies available under any instrument evidencing indebtedness relating to the Investments or applicable law;

(xiv) Take such action as it may deem necessary or appropriate for the continuation of the Company's valid existence under the laws of the State of Delaware and in order to qualify the· Company under the laws of any jurisdiction in which the Company is doing business or in which such qualification is necessary to protect the limited liability of the Members or in order to continue in effect such qualification. The Manager shall file or cause to be filed for recordation in the office of the appropriate authorities of the State of Delaware, and in the proper office or offices in each other jurisdiction in which the Company is formed or qualified, such certificates, including limited liability company and fictitious name certificates, and such other documents as are required by the applicable statutes, rules or regulations of any such jurisdiction;

(xv) Use reasonable commercial efforts to take such action as may be necessary on its part to ensure that the Company is and continues throughout its term to be classified as a partnership for federal income tax purposes and not treated as a publicly traded par1nership under Section 7704 of the Code or otherwise;

(xvi) Use reasonable commercial efforts to ensure that the Company shall not be deemed an investment company as such term is defined in the Investment Company Act of 1940; provided, however, that in determining what reasonable commercial efforts should be undertaken,. the Manager shall be entitled to rely upon the representations and warranties of the Members contained herein or otherwise made to the Manager or its affiliates;

(xvii) Use reasonable commercial efforts to ensure that registration of the Membership Interests is not required under any federal or state securities Jaws and that the issuance and sale of the Membership Interests does not violate any applicable federal or state


securities laws, including any investor suitability standards; provided, however, that in detennining what reasonable commercial efforts should be undertaken, the Manager shall be entitled to rely upon the representations and warranties of the Members contained herein or otherwise made to the Manager or its affiliates;

provided, however. that, notwithstanding the foregoing, the consent of the majority of the Member's shall be required to approve the Company's acquisition of, modification of, foreclosure on or disposition of any Investment.

2.2. Limitation ofManager'sPowers.

(a) The following acts shall not be acted on in the sole discretion of the Manager, and shall require the consent of the majority of the Members.

(i) Any amendment to the Company's Operating Agreement

(ii) A decision by the Company to incur indeh.tedness

(iii) Receipt of any Member or Manager of salary, fees or distributions, unless such is pennitted and explicitly defined under this Agreement ·

(iv) Purchase or sell any assets

(v) Admit additional Members

(vi) Incur any expense greater the $5,000.00

(vii) Engage in any transaction in which the Company is a party to the transaction and the Manager has a direct or indirect interest in another party to the transaction. Any interest of the manager must be fully disclosed prior to consent.

2.3. OtherActivities. This Agreement shall not be construed in any manner to preclude the Managing Member or any of its direct or indirect partners, members or stockholders or its or. their respective officers, directors, employees or Affiliates from engaging in any activity whatsoever permitted by applica~le law. However, the Manager will not enter any Real Estate transactions, directly or indirectly, without first presenting the investment to the Members of the Company and granting the Company a Right of First Refusal. The Member will have 7 days from the date of the presentation of the Investment to let the Manager know of their decision to invest. In the event the Manager does not get a written response from the Members after 7 days, the Manager shall have the right to present to Investment to an outside party. The Manager will keep a record of all real estate transactions he has both a direct or indirect economic interest. including both inveshnent date and notional amounts and will provide such infonnation to other Member upon request in a manner consistent with Article 5.

2.4. Resignation and Removal. The Manager may not resign without the prior consent of the Non-Managing Members and may be removed at any time for actions constituting fraud, criminal acts or embezzlement. However, a Manager may be removed by the Members only at a

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meeting of the Members called for the purpose of removing the Manager, and the notice of the meeting must state that the purpose, or one of the purposes, of the meeting is the removal of the. Manager. The resignation or removal of a Manager who is also a Member will not constitute a withdrawal or expulsion of the Manager as a Member of the Company or otherwise affect the Manager's rights as a Member. Upon the Manager's resignation or removal, the Members shall appoint a new Manager, who must be approved by Members holding more than _ 66% Membership Interests in the Company collectively. A Manager also may be removed by the affirmative vote or written consent of a majority of the remaining Managers if such Manager is deceased or becomes incapable of fulfilling his or her obligations under this Agreement because of injury or physical or mental illness and such incapacity shall exist for forty-five (45) business days in the aggregate during any consecutive six (6) month period.

ARTICLE III

The Members

3 .1. Capital Contributions. The Member will have to bring capital contribution pari pasu with the shares.

3.2. AdditionalContributions. Except as otherwise provided, the Members may make additional Capital ~ontributions to the Company when needed, in line with each Member's Membership Interests in the Company.

3.3. No Management Rights. Except as expressly provided herein, the Members shall not take part in the management of the business nor shall they transact any business for the Company in their capacity as Members, nor shall they have power to sign for or to bind the Company; provided, however, that the Members shall have the right to approve or consent to certain matters, as expressly provided herein. The exercise by any Member of · any right conferred herein shall not be construed to constitute participation by such Member in the control of the business of the Company so as to make such Member liable for the debts and obligations of the Company for purposes of the Act.

3.4. Liabilities of the Members. To the fullest extent permitted by law, subject to the Agreement hereof, no Member shall have any personal liability whatsoever in its capacity as a Member, whether to the Company, to any of the Members, or to the creditors of the Company, for the debts, liabilities, contracts or other obligations of the Company or for any losses of the Company.

3.5 Non-Compete. No Member may contact any bank, broker, attorney, servicer, vendor or client that was introduced to the Members by another Member or the Manager, without the Consent of said Member or Manager. The Members agree that any Investment brought to the Members that falls within the scope of the Purpose of the Company shall be exclusive to the Company.

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ARTICLE IV

Representations; Warranties; Covenants

4.1. Representationsand Warranties oft beMembers. Each of the Members represents and warrants as follows:

(a) Independent Evaluation. Such Member is capable of evaluating the risks and merits of an investment in the Company and any Interest therein and of protecting its own interests in connection with this investment Such Member has consulted, or had the opportunity to consult, with such Member's own legal, tax, and accounting advisors regarding all legal matters concerning an investment in the Company and the tax consequences of participating in the Company. Such Member acknowledges that an investment in the Company includes significant risks, and that such Member could lose its entire investment (including, without limitation, all of its Capital Contributions). Such Member is able to (i) bear the economic risk of this investment, (ii) hold the Interest indefinitely and (iii) afford a complete loss of this investment.

(b) Tax Consequences. Such Member acknowledges that the tax consequences to it of investing in the Company will depend on such Member's particular circumstances, and neither the Company, the Manager, nor the partners, shareholders, members, managers, agents, officers, directors, employees, Affiliates or consultants of any of them will be responsible or liable for the tax consequences to such Member of an investment in the Company. Such Member will look solely to, and rely upon, such Member's own advisers with respect to the tax consequences of this investment.

ARTICLEV

ExpensesandFeesandBooksandRecords

5.1. CompanyExpenses.

(a) The Company shall bear and be charged with Company Expenses related to successfully completed transactions subsequent of their closing. -.

(b) The Manager may withhold from any distributions amounts reasonably necessary to create, in its sole discretion, appropriate reserves for expenses and liabilities, contingent or otherwise, including without limitation any Company Expenses, however, any ainount greater the $5,000.00 shall require the written consent of all Members. Any withholding shall be applied in proportion to each Member's membership interests.

5.2. Books and Records.

(i) The Manager shall keep such books and records relating to the operation of the Company as are appropriate and adequate for the Companys business. At a


.. !

minimum, the following must be maintained at the principal office of the Company: (a) financial statements for the three (3) most recent Fiscal Years; (b) federal, state, and local income tax returns for the three (3) most recent Fiscal Years; ( c) a register showing the C1:1J"l'ent names and addresses of the Members; ( d) a copy of the Company's articles of organization and any amendments thereto; (e) this Agreement and any amendments thereto; (f) minutes of any meetings of the Mangers or Members; and (g) consents to action by the Manager or Members, if required. All books and records of the Company are available to the Members, upon reasonable advance notice to the Manager, at the principal office of the Company or as agreed upon by the Members and the Manager ..

(ii) The funds, assets, properties, and accounts of the Company must be maintained separately, and may not be commingled with those of the Members, Manager or any other person. ·

(iii) Reporting and Rights Information. The Manager shall provide reports to the Members at such intervals as agreed to by the Members that cover capital

··contributions, distributions and updates on the Company's investments.

In addition, each Member, upon reasonable demand for any purpose reasonably related to the Member's interest as a Member, shall have the right to inspect and copy the Company records required to be kept by the Manager under Section 5.2 and to obtain from the Manager from time to time -.true and full information regarding the state of the business and :financial condition of the Company. A Member shall be entitled to inspect the records and documented information pursuant to this Section at the offices of the Company (or such other location as the Manager reasonably shall designate) during ordinary business hours, and the Member shall be entitled to. copy these records and other documented information. ·

5.3. Tax Returns Elections and Filing. The company must prepare and file all required federal, state, and local income tax and other tax returns on a timely basis. Within ninety (90) days after the end of each Fiscal Year, the Company must deliver to each Member a Schedule K-1, showing the amounts of any distributions, contributions, income, gain, loss, deductions, or credits allocated to the Member during the Fiscal Year.

5.4. Tax Matters Representative. By written notice to the Manager, Members • · constituting a majority of the Company by Membership Interests may designate a tax m.atters

representative ("Tax Matters Representative"). If a Tax Matters Representative is designated pursuant to this Section, then the Manager shall consult in good faith with such Tax Matters I Representative on all material tax matters affecting the Company and the Members in respect to : their Membership Interests in the Company, including, but not limited to the selection of tax return preparation professionals for the Company, tax elections and tax filings. If the Tax Matters Representative and the Manager disagree as to the handling of a tax matter, then such tax matter shall be resolved by a vote of tJ:ie Members.

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ARTICLE VI

ProfitsandLosses;Disbibutions;Allocations

6.1 Profits and Losses ·

(a) The entire net profit or net loss of the Company for each fiscal year will be allocated to the Members in accordance with th~ir membership interests and must be reported by the Members on all federal, state, and local income and other tax returns required to be filed by the Members.

6.2 Distributions

The distributions made by the Manager shall be made pari passu.

ARTICLE VII

Dissolution. Winding Downand Transfers

7.1 Events of Dissolution.

The Company will dissolve upon the earlier of (a) approval of dissolution by the Members, (b) such time as the Company has no members or ( c) and entry of a decree of judicial


dissolution of the Company. Neither the death, incompetency or bankruptcy of the Members nor the assignment of any Members entire membership interest will dissolve the Company.

7 .2 Winding Up and Liquidation.

Upon the dissolution of the Company, the affairs of the Company must be wound up by the Members. If the affairs of the Company are to be wound up, a· full account must be taken of the assets and liabilities of the Company, and the assets of the Company must then be promptly liquidated. The proceeds must first be paid to creditors of the Company in satisfaction of all liabilities and obligations of the Company, including, to the extent permitted by law, liabilities and obligations owed to the Members as a creditor. Any remaining proceeds may then b·e distributed to the Members. Property of the Company may be distributed in~kind in the process of winding up and liquidation.

7.3 - Permitted Transfers:

(a) A Member may transfer all of its membership interests in the Company to a wholly owned entity of that Member, without the prior written consent of all other Members.

(b) A Member may transfer all of its membership interests in the Company to a third party with the prior written consent of all other Members. However, the other Members shall have the right to first refusal for any sale of membership interests by another Member.

(b) The Members may at any time enter into an agreement to purchase all the interests of another Member at an agreed upon price based on the fair market value of the selling Members interests, as agreed upon by the parties. In the event that the Members cannot come to a agreed upon value for the membership interests but would like to move foiward with an agreement, the Members will contract an independent third-party to value said·membership interests. The Members agree that the third parties evaluation shall be binding on the members.

ARTICLE VIII Indemnification

8.1 Indemnification

The· Company must indenmify the Members to the fullest extent permissible under the law of the state in which the articles of organization of the Company have been filed, as the same exists or may hereafter be amended, against all liability, loss, and costs (including, without limitation, attome)'S' fees) incurred or suffered by the Members by reason of or arising from the fact that the Members are or were a member of the Company, or are or were serving at the


request of the Company as a manager, member, dire~tor, officer, partner, trustee, employee, or agent of another foreign or domestic limited liability company, corporation, partnership, joint venture, trust, benefit plan, or other enterprise. Expenses, including attorney's fees, incurred

by the lndemnitee in defending any proceeding referred to in this section 8.1, may be paid by the Company (in its sole discretion), in advance of the fmal disposition of such proceeding, upon receipt of an undertaking by or on behalf of the Indem~tee to repay such amount, if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified by the Company as authorized in this section 8.1. The indemnification provided in this section will not be exclusive of any other rights to which any person may be entitled under any statute, agreement, resolution of the Members, contract, or otherwise.

8.2 Liability Limitation

The Members are not liable to the Company for monetary damages resulting from the Member's conduct except to the extent tbilt the Act, as it now exists or inay be amended in the future, prohibits the elimination or limitation ofliability of members of limited liability companies. No repeal or amencµnent of this section or of the Act will adversely affect any right or pr9tection of the Members for actions or omissions prior to the repeal or amendment.

ARTICLE IX

Miscellaneous

9.1 .A.tnenchnent

The Members may amend or repeal all or part of this agreement by written instrwnent with the unanimous consent of all Members.

9.2 Governing Law

This agreement will be governed by the laws of the State of New York without giving effect to principles of conflict of laws.

9 .3 Severability

If any provision of this agreement is ·invalid or unenforceable, it will not affect the remaining provisions.

[Signature Page Follows]


IN WI1NESS WHEREOF, the parties hereto have caused this Operating Agreement of BSI Mortgage IV LLC to be executed. as of the date first above written.

MEMBERS:

Anastasia Arina

Simy Assayag


tN \\'TTNESS WHEREOF. the pa<ties hereto have caused this Operating Agreement of BSl Mortgage N l,LC' to 0¢ e>~ectJted a,c; oflhe da~e first nbovcwritten.

MEMBERS:

AnastHSia Arina

-----·---·----·

[

"


EXHIBIT D


EXHIBIT E


Reset F01'm I ( Print Form

LOAN SERVICING SETUP FORM (Complete one Form per lnvator)

Select Program: Q STANDARD & s PECIALTY Full Collection Q SPECIALTY No Collection

Note: Specialty Loan Servicing, then Credit ~d or Reserve Account setup needed to cover monthly fees.

Include, or arrange for, the one time LOAN SETUP AND FILE SCRUBBING FEE (per Loan).

Ot. H ( I ll·. \ 1 .,( \l I llOIH/FO < O'\l \CT~

Contact Company: Crosby Capital USA LLC

Address: 4S9 Seventh Avenue, 12TH Floor

Phone: 212 359 95 Fax: 646 607 41

City: New YOl1< State: New Yen

Other Contacts:------------ --------- ---

Only ifotber than as INVESTOR/LENDER

Name of Primary Bank: Bank rl Am!!fa! <F!shJpn Branch)

Zip: 10018

Type of Account: 0 Checking Q Savings Social Securityffax ID Number: - - - - -----

Routing Number: ... 026009==-593=-- - -------- Account Number:

Name(s): 8SJ M9!'!!1891 IV LLC

City Hallendale Beach State Flodda Zip 33009 Mailing Addresa: 2SOO Hallendllle Beach Boulevard

Social Security ffax ID #: for first listed name.Email--- ---- --------

Work Phone: 7863446620 Home Phone: Fax: - - ----- --- ----Do you have loans current or past, with FCI? @Yes 0 No Investor's exact dollar ownership of this loan: _.1..;;..00%"-=------

ui()

Name of Primary Banlc: Qrosby Capital USA LLC Type of Account: QChecking O savings

Routing Number: _02G008593_ ._.... ____ ________ _ Account Number:

O R ONLY WITH SPEC IAL APPROVAL

Ui() Receipt of Funds from Payor, Trust Checks mailed upon clearing to the above address O.

Primary Borrower .,.V,...!!gyn!.-...._·!SYf!__._...k ___________________ SS !fax I.D. #: _____ _

Home Phone: 1212381870 Work Phone: 1212381870 E-mail: -'-~=------=--.. ....... .-·ooi"""""m _______ _

Mailing Address: 55 RolUng Brook Dr City Edilan State New..,_., Zip 08820

Co-Borrower~--~---~-~~-~-~------~-~---

Property Address: ,..65""'-'-Hndre\h-.-.--.;..-.A-.wnuo=--....--------

Property Type:Con():rcialOther: @ 0 City BridQehampton

Residential

SS ffax. I.D. #: ------

State New Yont Zip 11932

Owner Occupied: 0 Ycs @No


Chuk all that apply:

(JD /Mtg2 TD IMtOLOCVariableFi.Qintcrest OOi.ERSNeg. On.HAMP 0 D D D Din Bankruptcy Iii In Foreclosure 0 On Forbearance Plan 0 Modified 0 Pre Pay Penalty 0 Other;

Only tr

Only if

Only if

____________ Phone: ______ Email: __________ _

__________ Phone: Email: __________ _

Funding Date: 911/2006 Next Payment Due Date: 10/1/2008 HELOC First Draw Date: _____ _

Original Loan Amount:S _1_260000 ______ Current Principal Balance:$ 1259443.18 Late Charge is after __ days.

Amount of Payment:$ n~.75

Payments: 0 Monthly

consisting of: Prin:S _____ _ Int:S ____ _ Tax:$ lns:S ___ _

0 Quarterly Oother: ____________________ _

Adjustable Interest Change Date: 6..5 Adjustable Payment Change Date:------

Note Maturity Date: 07/1/2036 Amortization Period (if different than Maturity Date):------

Pre Pay Penalty Expiration Date (if any): ______ Pre Pay Penalty Tcrma: ______________ _

Loan Modification Expiration Date (if any): ------

Only If Interest Only Paymt: Fully Amortized Paymt: _____ _

Note Inter est Rate: 7.375 •/o SOLD Inter est Rate (to Investor/Lender): __ o/o OR Broker SERVICING FEE: __ o/e

If Broker takes a% Spread or Servicing Fee, then the FCI Servicing Fee is deducted from: 0 Broker 0 Investor

Escrownmpounds for Taxes and/or Insurance included in Borrower payment: 0 Yes 0No

Only if"

Late Fee:FCI: 50 % Broker: ___ % Lender: ___ % Other: ---------------

Prepayment Penalty; Broker: %Lender: % Other:---------------

NOTE:Ther e is a 5100 Data Research Fee for missing documents or information if FCI agrees to research missing documents or information.

All persons or entities to whom the above described obligation is owed ("Client ft) must sian this fonn and hereby authorize and instruct FCI to service the Notes and Deeds of Trust, Mortgages or Instruments described above, and to collect and disburse proceeds received in accordance with the programs and fee structures outlined on FCl'a web page located at www.trustfci.com.

Client shall indemnify, defend and hold Servicer and its officers, directors, parent companies, affiliates, subsidiaries, $UCCCSSOrs and usians hannlcss from any and all claims, demands, causes of action, l0uet, damage, fines, pcnaltiea, liabilities, costs and expcn&ea, including reasonable attorney's fees and court costs, sustained or incurred by Servicer by reason of or arising dircc:tly from third party claims or actions that were caused by or ~ted from (A) any actions or omissions in reapcct of any loan or property of any prior servicer, sub-servicer, owner or originator of a loan or property, and/or (B) taking any action, or refraining from taking any action, with respect to any loan or property, that result from the malfeaaance, willful misconduct or grou negligence of Client, Client's sub 1erviccrs, contractors, or agents, or from the failure of the Client to provide Servicer the originals of any loan documents in order to allow Servicer sufficient time to timely process satisfactions, payoffs and releases, and/or (C) any and all liability related to the infonnation provided by Client and contained herein. or provided separately by Client. and the accuracy of aucb infonnation.

Investor/Lender Signature

Investor/Lender Print Nam~

Broker or Entity Company Name Broker or Entity Signature Broker or Entity Print Name

Pa11eof


UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------------X 14 CV 01640 (LDW) (ARL) BSI MORTGAGE IV, LLC, Plaintiff,

-against- CERTIFICATE OF SERVICE VEKRUM KAUSHIK s/h/a VEKRAM KAUSHIK MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR CITIBANK, N.A., CITIBANK, N.A. AND JOHN DOE “1 through 12”, said persons or parties having or claimed to have a right, title or interest in the Mortgaged premises herein, their respective names are presently unknown to the Plaintiff, Defendants. -------------------------------------------------------------------X

I hereby certify that, on this 11th day of March, 2015, a true and correct copy of the foregoing opposition to plaintiff’s motion to quash the subpoena and subpoena duces tecum on Yonel Devico was served upon the following counsel of record for plaintiff through the Court’s CM/ECF system and via first-class mail:

Alan Weinreb, Esq. THE MARGOLIN & WEINREB LAW GROUP, LLP 165 Eileen Way, Ste. 101 Syosset, NY 11791

I hereby further certify that, on this 11th day of March, 2015, a true and correct copy of

the foregoing opposition to plaintiff’s motion to quash the subpoena and subpoena duces tecum on Yonel Devico was served upon the following counsel of record for movant Yonel Devico via first-class mail:

Alan Weinreb, Esq. THE MARGOLIN & WEINREB LAW GROUP, LLP 165 Eileen Way, Ste. 101 Syosset, NY 11791

/s/ Spencer Sheehan Spencer Sheehan


document45

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