Free Affidavit - District Court of Delaware - Delaware

Case 1 :06-cv-00371-GIVIS Document 23 Filed 07/24/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
COLUMBIA HOUSING/PNC INSTITUTIONAL
FUND IV LIMITED PARTNERSHIP,
COLUMBIA HOUSING SLP CORPORATION, *
OCWEN 2000—LLC, PNC BANK, and 2
COLUMBIA HOUSING/PNC FUND IV, INC., j
Ptatmtrrs,
Civil Action N0. 06-371
v. E
OCWEN FEDERAL BANK FSB, OCWEN
INVESTMENT CORPORATION, and OCWEN
LOAN SERVICING, LLC
Defendants.
SECOND AFFIDAVIT OF MICHAEL MOSHER IN SUPPORT OF
DEFEN`DANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE
TO DEPOSIT FUNDS INTO THE COURT REGISTRY AND DEF ENDANTS‘
MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12|b[(l[
I, Michael Mosher, under oath do depose and state that:
I . I am over eighteen years of age and am a Senior Manager for Affordable Housing
for Ocwen Loan Servicing LLC ("OLS”), one of the named defendants in the captioned matter.
2. I have personal knowledge of the facts stated herein, all of which are true and
correct. I also have personal knowledge of the facts stated in the affidavits I previously
submitted in this rnatter,I all of which are true and accurate.
3. Since July 2005, OLS has functioned as the Managing Member of Ocwen 2000 —
LLC ("Ocwen 2000"), including the discharge ofthe duties of the Managing Member as set forth
I See Affidavit of Michael Mosher in Support of Defendants Opposition to Plaintiffs Motion for Leave to Deposit
Funds into the Court Registry ("First Mosher Aff") (Docket No. 8) and Revised Affidavit of Michael Moshcr in
Support of Defendants Opposition to Plaintiffs Motion for Leave to Deposit Funds into the Court Registry and
Defendants Motion to Dismiss Pursuant to Fed. R. Civ. P. l2(b)(l) ("Revised First Mosher Aff.") (Docket No. 13).
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Case 1:06—cv—00371-Gl\/IS Document 23 Filed 07/24/2006 Page 2 of 3
in the Amended and Restated Operating Agreement of Ocwen 2000 ("Operating Agreement"), a
copy of which is appended at Tab 4 to the First Mosher Aff. (Docket No. S).
4. Specifically, OLS has kept and maintained, or caused to be kept and maintained,
adequate books of account and records of Ocwen 2000 for income tax and other purposes as
required by Sections 5.3.2 and 5.3.10 of the Operating Agreement.
5. OLS also has arranged for accountants to prepare tax returns for Ocwen 2000,
which it has then executed and caused to be filed, as is called for by Section 5.3.3 ofthe
Operating Agreement.
6. Similarly, OLS has caused to be prepared and delivered to Columbia
Housing/PNC lnstitutional Fund IV Limited Partnership ("PNC Fund IV") the following
infomation and reports as required by Section 5.3.9 ofthe Operating Agreement: (a) Ocwen
2000's federal and state tax returns for 2004 and all accompanying schedules, accountants' work
papers and other infomation reasonably requested by PNC Fund IV, or its accountants; (b)
reports or correspondence submitted or received by Ocwen 2000 to or from third parties that
related to Ocwen 2000 or any Remaining Subject Interest as that term is defined in the Operating
Agreement; and (c) a balance sheet and income statement for Ocwen 2000 was prepared by
Ocwen 2000's accountants and certified as accurate by OLS for 2004. Currently, OLS also is in
the process of completing Ocwen 2000's federal and state tax retums for 2005, as well as a
balance sheet and income statement for 2005. Specifically, OLS has coordinated and approved
eight ofthe nine audit and tax returns comprising Ocwen 2000 for the physical year 2005.
7. Neither OLS, nor any other Ocwen entity received from PNC Fund IV or any
other PNC entity the Designation of Successor Managing Member and Tax Matters Partner and
Agreement Among Members of Ocwen 2000 — LLC attached as Exhibit A to the Declaration of
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Case 1:06—cv—00371-G|\/IS Document 23 Filed 07/24/2006 Page 3 of 3
Christopher I-I. Bric, which is attached as Exhibit l to Plaintiffs Response to Det`endants' Motion
to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) (Docket No. 16) prior to the filing of that
response.
Signed under the penalties of perjury this 24m day of July 2006.
lx/Hegel Mosgr
STATE OF FLORIDA
Then personally appeared Michael Mosher, who, having identified himself to me and
been duly sworn, stated that he has executed this aflidavit and acknowledged it to be his free act
and deed on this 24h day of July 2006.
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Case 1:06-cv-00371-Gl\/IS Document 23-2 Filed 07/24/2006 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
COLUMBIA HOUSING/PNC INSTITUTIONAL
FUND IV LIMITED PARTNERSHIP,
COLUMBIA HOUSING SLP CORPORATION,
OCWEN 2000—LLC, PNC BANK, and
COLUMBIA HOUSING/PNC FUND IV, INC.,
Piamurrs,
Civil Action No. 06-371 GMS
v_
OCWEN FEDERAL BANK FSB, OCWEN
INVESTMENT CORPORATION, and OCWEN
LOAN SERVICING, LLC
Defendants.
CERTIFICATE OF SERVICE
I, Domenic E. Pacitti, Esquire, hereby certify that on July 24, 2006, I electronically filed
SECOND AFFIDAVIT OF MICHAEL MOSHER IN SUPPORT OF DEFENDANTS’
OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO DEPOSIT FUNDS INTO
THE COURT REGISTRY AND DEFENDANTS’ MOTION TO DISMISS PURSUANT TO
FED. R. CIV. P. l2(b)(I) with the Clerk of Court using CM/ECF which will send notification of
such filing. A copy of the document was served on the following counsel via first class mail:
Karen Lee Turner Charles L. Perry
Michael Busenkell Andrews Kurth LLP
Eckert Seamans Cherin & Mellott 1717 Main Street, Suite 3700
300 Delaware Avenue, Suite 1360 Dallas, TX 75201
Wilmington, Delaware 19801
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Domenic E. Pacitti (DE Bar No. 3989)
222 Delaware Avenue, 12m Floor
Wilmington, DE 19801
(302) 421-6864
(302) 421-5881
[email protected]