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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, plaintiffs counsel opposed such a
disclosure. Dckt Nos. 15-16. Exhibit A. On August 5, 2014, Judge Wexler ordered that plaintiff
1
disclose its membership in order to establish jurisdiction was proper. 28 U.S.C. 1332.
II.
One day before Judge Wexlers 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. Plaintiffs Operating Agreement indicated
that Mr. Devicos 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.
While the facts set forth in Part II, Section A, supra, are admittedly circumstantial and
tenuous, please allow Mr. Devicos own words to buttress defendants 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 yoneldevico@gmail.com (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
2
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. Devicos signature
appears at the bottom of the document.
D.
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. Weinrebs letter-motion states that defendants 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. Devicos 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)
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EXHIBIT A
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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:
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. Plaintiffs 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.
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.
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.
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 BSIs 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 entitys 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.
Plaintiffs 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 Plaintiffs 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 subjectmatter jurisdiction, the court must dismiss the complaint in its entirety.); See Also Sharkey v.
Quartantillo, 541 F.3d 75, 8788 (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
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-againstAFFIDAVIT
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:
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
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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
)
)
A.u~AS
=i
On the
day of
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;~~
(f ~~)~
H6'lliER HEATH
MY COMMISSJONHE047527
XPlnE8: December 8 2014
~;;ti!. ~~l
'1.\~'.fr.'<~' Bonded Thru Nota1y Publk: Underwlitcis
I..-
EXHIBIT C
..Case' 2:14-cv-01640-LDW-ARL
.
;
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)
Anastasiya 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.
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
1OCl, Fuengirola, Ma 1a 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 ofthe
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 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.
(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
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:
(b)
(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)
(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
. ..
(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;
(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
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)
(ii)
(iii)
Receipt of any Member or Manager of salary, fees or distributions, unless
such is pennitted and explicitly defined under this Agreement
(iv)
(v)
(vi)
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 ofthe 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
I
!
i'
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
TheMembers
3.1.
Capital Contributions. The Member will have to bring capital contribution pari
.i
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 ofthis investment.
ARTICLEV
ExpensesandFeesandBooksandRecords
5.1.
CompanyExpenses.
The Company shall bear and be charged with Company Expenses related to
successfully completed transactions subsequent oftheir closing. -.
(a)
(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.
(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
iI
i
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 ofthe 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.
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 ofthe
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
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. Ifthe 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 oftJ:ie Members.
ARTICLE VI
ProfitsandLosses;Disbibutions;Allocations
6.1
(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 ofjudicial
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
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, afull 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 ofthe 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.
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 ofthe 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.
(b)
8.1 Indemnification
TheCompany 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 ofthe 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
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 ofthe 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 ofthis 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.
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
------------
[
"
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EXHIBIT E
Reset F01'm
I(
Print Form
Select Program:
Q STANDARD
&
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~
Zip: 10018
212 359 95
Other Contac t s : - - - - - - - - - - - - - - - - - - - -- - - -
Q Savings
- --------
Account Number:
- - - -----
Zip 33009
State Flodda
7863446620
@Yes
0 No
Fax:
- -- - --- -Investor's
----exact dollar ownership of this loan: _.1..;;..
00%
"-=------
ui()
Name of Primary Banlc: Qrosby Capital USA LLC
Type of Account:
Account Number:
_ _ _ _ _ _ _ __
QChecking
O savings
Ui() Receipt of Funds from Payor, Trust Checks mailed upon clearing to the above address O.
E-mail:
City Edilan
.......
-'-~
=------=--..
.-
ooi
"""""
m_ _ _ _ _ _ _ _
State New..,_.,
Zip 08820
Residential
Owner Occupied:
0 Ycs
@No
Only tr
_ _ _ _ _ _ _ _ _ _ Phone:
Only if
Email: _ _ _ _ _ _ _ _ _ __
Only if
Funding Date: 911/2006
n~.75
Monthly
Quarterly
Late Charge is
Int:S _ _ _ __ Tax:$
after _ _ days.
lns:S _ _ __
Oother: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Adjustable Payment Change D a t e : - - - - - -
Pre Pay Penalty Expiration Date (if any): _ _ _ _ _ _ Pre Pay Penalty Tcrma:_ _ _ _ _ _ _ _ _ _ _ _ _ __
Loan Modification Expiration Date (if any): - - - - - Only If
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:
Escrownmpounds for Taxes and/or Insurance included in Borrower payment:
0 Broker
0 Yes
0 Investor
0No
Only if"
Late Fee:FCI:
50
Prepayment Penalty;
%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 ("Clientft) 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~
CERTIFICATE OF SERVICE