document52

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 13, 2015

Via ECF and First-Class Mail Honorable Arlene R. Lindsay United States District Court Judge Eastern District of New York 815 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 Kaushik in the above-entitled action. This response is in opposition to the letter-motion filed by counsel for movant Anastasiya Arina a/k/a Anastasia Arina (Arina), corporate representative of plaintiff, seeking to quash the properly noticed and served subpoenas duces tecum (subpoenas) upon five telephone numbers (wireline and cellular) controlled by, maintained by or associated with Arina. Dckt. No. 44. Counsel for Arina 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, the requests are not relevant and material to the allegations and claims at issue in the instant proceedings. Dckt. No. 44. To begin, this office apologizes to Arina that, in asserting her privacy interests, Mr. Weinreb simultaneously undermines them. Specifically, Mr. Weinreb has now shared not just one, but both of Arinas Social Security Numbers (SSN) and her date of birth with the entire internet, by making both of her SSNs publicly available in strict violation of Rule 5.2(a). Dckt. No. 49. Moreover, counsel has stated that he represents Arina, the alleged Managing Member of plaintiff, in her capacity as the corporate representative of plaintiff. Rule 30(b)(6). Counsel has not asserted that any of the five (5) telephone numbers associated with Arina were issued to her in her capacity as the corporate representative of plaintiff or connected with the operations of plaintiff. Mr. Weinreb is accurate when he states Arina has been designated the corporate representative of plaintiff. As such, the designee [Arina], in essence, represents the corporation just as an individual represents him or herself. United States v. Taylor, 166 F.R.D. 356, 360 (M.D.N.C. 1996). If defendant Kaushik sought the telephone records of Arina in her capacity as the corporate representative of plaintiff, your undersigned would have served a request under Rule 34 to plaintiff.

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Case 2:14-cv-01640-LDW-ARL Document 52 Filed 03/13/15 Page 1 of 3 PageID #: 1025

A party may serve on any other party a request within the scope of Rule 26(b). Rule 34(a). That this was not done is demonstrative of the fact that Arinas telephone records were sought under Rule 45. Nowhere in any of the subpoenas or attachments thereto does your undersigned refer to Arina in any way that is connected to her designation and alleged role as the corporate representative of plaintiff. In Application of Johnson & Johnson, the court determined that a Rule 45 subpoena directed to an individual with no mention of their capacity as a corporate officer was not a subpoena directed to the corporation. 59 F.R.D. 174,177 (D. Del. 1973). On this basis alone, this honorable Court should deny the motion of Mr. Weinreb to quash the within subpoenas seeking the production of documents from Arina, the natural person, not Arina, corporate representative of plaintiff. Plaintiff has sought, and is entitled, to utilize the corporate vehicle to obtain its lawful goals. However, where plaintiff does not properly abide by the requirements mandated by corporate formalities, this Court cannot then grant the relief plaintiff has sought.

There is no legitimate privacy interest that Arina, in her corporate or personal capacity, can have in the records requested. Booker v. Dominion Va. Power, No. 3:09cv759, 2010 WL 1848474, at *9 (E.D. Va. May 7, 2010) (An individual does not have a legitimate expectation of privacy in the telephone numbers that are dialed on his or her telephone). Though she might harbor some subjective expectation that the phone numbers she dialed would remain private, this expectation is not a legitimate one, as it is not one that society is prepared to recognize as reasonable. Booker, 2010 WL 1848474, at *9 (quoting Smith v. Maryland, 442 U.S. 735, 743 (1979).

As Arina does not possess a right to privacy in her incoming and outgoing call records, she has no standing to challenge the subpoenas insofar as they pertain to said incoming and outgoing call records. United States v. Idema, 118 Fed. Appx 740 (4th Cir. Jan. 4, 2005). Rule 45(d)(2)(A); United States v. Bornstein, 977 F.2d 112, 116 (4th Cir. 1992) (party asserting privilege bear[s] the burden of proving that [the privilege] applies). Counsel for Arina (only in her corporate capacity) has not met that burden.

However, should the Court wish to consider the more substantive reasons for defendants requests that Arinas (in her corporate or personal capacity) telephone records be provided, defendant gladly obliges. In so providing these reasons, defendant points out that defendants main arguments in this case focus on diversity jurisdiction. Previous letter-motions have outlined the relationship of Yonel Devico and Crosby Capital with plaintiff. Defendant has presented evidence challenging the credibility and veracity of plaintiffs shameless assertions, which have been contradicted by proofs. To determine whether Arina actually is the Managing Member of plaintiff, with an alleged one percent interest, a review of her telephone records would be critical. Exhibit A, Operating Agreement of plaintiff. This would show if she was indeed involved in managing plaintiff. Presumably, according to plaintiff, it was Arina who negotiated the purchase of the subject mortgage from Selene Finance, LP and corresponded with FCI Lender Services, Inc. Presumably, it was Arina, with her one percent interest, that Elon Lebouvitch telephoned on the date of the meeting held between defendant, your undersigned, Mr. Weinreb and Mr. Lebouvitch.

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There are a few things defendant knows about Arina. First, it is that she arranged to utilize the business address of Florida entrepreneur and businessman Eli Rouimi strictly as the principal address for BSI Mortgage IV, LLC. Exhibit B, Declaration of Mr. Eli Rouimi, 20. Furthermore, Arina obtained permission from Mr. Rouimi to use his address solely for the purpose of using it as the principal place of business for BSI Mortgage IV, LLC. Exhibit B, 21. However, Mr. Rouimi, one of the few persons swept in this action who has apparently not followed a script prepared by Yonel Devico, stated: I do not recall seeing Anastasia Arina a/k/a Anastasya Arina at the office location of 2500 East Hallandale Beach Blvd., PH1, Hallandale Beach, FL 33009 and that he did not provide[d] copies of keys or other instruments of entry, such as access codes to Arina for use at the office location claimed by plaintiff as its usual place of business. Exhibit B, 15, 17; Dckt. No. 1, 2. How plaintiff and Arina could have their usual place of business at a place where its Managing Member apparently never was seen nor even had keys to defies belief. Assuredly, plaintiff will now claim a different address, where they hopefully will not encounter a person with Mr. Rouimis integrity.

With respect to the records requested, virtually all of the specific requests made to the telephone providers of Arina were uniform, with the only difference being the target number. The requests were made of the target numbers for discrete blocks of time, which corresponded to the timeframe of the purchase of the subject mortgage up to the present. The numbers indicated on the spreadsheets accompanying the subpoenas were not randomly selected and were not chosen to subject Arina to any personal embarrassment. They are, without exceptions, the numbers of relevant persons/entities to this action: (i) (714) FCI Lender Services, Inc., (ii) (302) Harvard Business Services, Inc., (iii) (713) Selene Finance, LP, (iv) (212)/(646) Yonel Devico/Crosby Capital (v) (516) broker Lebovitch and (vi) (786) Eli Rouimi, Florida executive. Given that this Court must determine the credibility of plaintiffs already threadbare claims with respect to its membership, the highly limited and tailored subpoenas duces tecum issued to the telephone providers of Arina is relevant and material to ascertain the beneficial members of plaintiff. This examination can proceed should this Court act in favor of defendant Kaushik, as requested herein and deny the motion to quash the subpoenas duces tecum served upon the telecommunication providers for Arina. Lastly, defendant moves this Court to direct the Clerk of the Court to seal Document No. 44 until such time as Mr. Weinreb complies with Rule 5.2(a) to protect the legitimate privacy interests of Ms. Anastasia Arina.

Respectfully submitted, /s/ Spencer Sheehan Spencer Sheehan

Attachments/Exhibits (2) cc: Counsel of Record (first-class mail and CM-ECF)

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EXHIBIT A

Case 2:14-cv-01640-LDW-ARL Document 52-1 Filed 03/13/15 Page 1 of 15 PageID #: 1028

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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


...

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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, Suriy 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.


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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 theFiscal 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, determinesto 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


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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 be 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 saidmembership 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 amencnent 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

EXHIBIT B


UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

BSI MORTGAGE IV, LLC,

Plaintiff,

-against-

VEKRUM KAUSHIK s/h/a VEKRAM KAUSHIK MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR CITIBANK, N.A., CITIBANK, N.A. AND JOHN DOE "I 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.

) ) ) Case No. 2:14-cv-01640-LDW-ARL ) ) ) ) ) ) ) ) ) ) ) ) ) ~~~~~~~~~~--~~~~--~~~)

DECLARATION OF ELI ROUIMI

I, ELI ROUMI, residing at Sunny Isles Beach, Florida, pursuant to 28 U.S.C.

I 7 46, declares the following under penalty of perjury:

I. I make this declaration based upon personal knowledge of the facts

discussed in this declaration and, if sworn as a witness, I can competently testify to the

facts stated herein.

2. I am a subtenant of AAA Investment Group I LLC. The office address of

AAA Investment Group I LLC is 2500 East Hallandale Beach Blvd., PHI, Hallandale

Beach, FL 33009.

3. I have been a subtenant of AAA Investment Group 1 LLC located at 2500

East Hallandale Beach Blvd., PHI, Hallandale Beach, FL 33009 for I Y2 years,


4. My Company EroRentals LLC is the subtenant of the leaseholder AAA

Investment Group 1 LLC, for 2500 East Hallandale Beach Blvd., PHl, Hallandale Beach,

FL 33009.

5. On December 16, 2014, I was duly served with a subpoena and subpoena

duces tecum by defendant Vekrum Kaushik s/h/a Vekram Kaushik ("Kaushik" or

"defendant").

6. The noticed date for my deposition was January 21, 2015 in Aventura,

Florida.

7. Shortly after being served with the aforementioned subpoenas, I retained

Mr. Casey Cummings, Esq. of Kenner Cummings PLLC, as counsel. The address of

Kenner Cummings is 175 SW ih Street, Suite 2410, Miami, FL 33130.

8. I presently am not, nor have I ever been, the "over-tenant" for plaintiff BSI.

9. There are no sublease or subtenancy agreements between Ero Rentals LLC,

and BSI, due to the fact that EroRentals, LLC is a subtenant of AAA Investment Group 1

LLC, for 2500 East Hallandale Beach Blvd. , PHI, Hallandale Beach, FL 33009.

10. I do not recall the date but Anastasia Arina requested of me to use my

subleased office for BSI Mortgage IV, LLC, the plaintiff in the above-captioned action,

strictly as the address to be listed with the Secretary of State for the Plaintiff.

11. I know Y onel Devico through conducting business in the real estate

industry.

12. I met Anastasia Arina a/k/a Anastasya Arina as a result of a referral from

Yon el Devi co concerning my request to hire a real estate attorney.


13. I do not know Simi Assayag a/k/a Simi Assayag Devico.

14. I do not know Elon Lebovitch a/k/a Allen Lebo.

15. I do not recall seeing Anastasia Arina a/k/a Anastasya Arina at the office

location of 2500 East Hallandale Beach Blvd. , PHI , Hallandale Beach, FL 33009.

16. I have never seen Simi Assayag a/k/a Simi Assayag Devico at the office

location of2500 East Hallandale Beach Blvd. , PHI , Hallandale Beach, FL 33009

1 7. I have not provided copies of keys or other instruments of entry, such as

access codes, to Anastasia Arina a/k/a Anastasya Arina for use at the office location of

2500 East Hallandale Beach Blvd., PHI, Hallandale Beach, FL 33009 as I am a subtenant

of AAA Investment Group 1, LLC.

I 8. I have not provided copies of keys or other instruments of entry, such as

access codes, to Simi Assayag a/k/a Simi Assayag Devico for use at the office location of

2500 East Hallandale Beach Blvd., PHI, Hallandale Beach, FL 33009 as I am a subtenant

of AAA Investment Group 1, LLC.

I 9. I have never seen Simi Assayag a/k/a Simi Assayag Devi co at the office

location of 2500 East Hallandale Beach Blvd. , PHI , Hallandale Beach, FL 33009 due to

the fact that I have never met Simi Assayag a/k/a Simi Assayag Devico.

20. I was aware of the entity known as BSI Mortgage IV, LLC prior to being

served with the subpoena and subpoena duces tecum in this action because I was asked by

Anastasia Arina to use my business address strictly as the principal address for BSI

Mortgage IV, LLC.

21. I granted permission, to Anastasia Arina to use my address solely for the


purpose of using it as the principal place of business for BSI Mortgage IV, LLC.


I hereby declare under penalty of perjury and pursuant to 28 U.S.C. 1746 and under

the laws of the United States that the following is true and correct.

Dated: January 20, 2015 Sunny Isles Beach, Florida

~::;;?,, 01/J-,,/;s Eli Rouimi


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 13th day of March, 2015, a true and correct copy of the foregoing opposition to movant and plaintiffs corporate representative Ms. Arinas motion to quash the subpoena duces tecum for five (5) telecommunications providers, was served upon the following counsel of record for plaintiff and plaintiffs corporate representative, Ms. Arina, through the Courts 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

/s/ Spencer Sheehan Spencer Sheehan

4


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