Free Declaration - District Court of Arizona - Arizona

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Terrance J. Slominski, OSB 81376 7150 SW Hampton, Suite 201 Tigard OR 97223 Phone: 503-968-2505 Fax: 503-684-7950 E-mail: [email protected] Attorney for Plaintiff, David Menken

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA DAVID MENKEN, Plaintiff,
v.

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) ) No. 04-598-PHX-MHM

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) DECLARATION ) MENKEN ) OF DAVID

GERRY F. EMM, husband, MAXINE C. EMM, wife, COLDWELL BANKER ITILDO, INC., a foreign corporation, MARSHA L. TOMERLIN, wife, JOHN DOE TOMERLIN, DA VID J. MORANDI, husband, JANE DOE MORANDI, wife; SCARPELLO, HUSS & OSHINSKI, LTD, A Nevada Law firm, Defendants.

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I, David Menken, make this declaration based upon personal knowledge of the facts 21 stated herein and under penalty of perjury. 22 23
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I am the Plaintiff in the above captioned case. For approximately the past 35 years r have been in the business of horse breeding in the states of Oregon, Washington, New York and Arizona. In the

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them through a business entity and then after operating the horse breeding

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business, I would sell the property.
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In 2001 I purchased property located at 1301019N.

150th

St., Scottsdale,

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Arizona for the purposes of developing and building a small horse ranch. Subsequently, I built a home with stables and riding arenas. I acquired the

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property in the name of my LLC, Los Pintos LLC, a limited liability company that I formed for the acquisition and development ofthis ranch. Attached to this declaration as Exhibit 1 is a true copy of the 2001 Deed to Los Pintos.

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On January 31, 2002, acting on behalf of Los Pintos LLC, I deeded the real property to me as an individual so that I could obtain improve and finance the ranch. The Deed was recorded on February 1,2002.

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When I acquired the property it was just bare land and it was my plan to develop the property into a substantial residence, stables and riding areas. I acquired financing under my own name and developed the property between January, 2002 and early 2003. It was my plan that once the property had been completely developed and the horse breeding business operating at that location, that the property would be sold after holding the property for at least two years.

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After I acquired the property I had transfened the property several times to my own name for the purposes of refinancing and then back to Los Pintos for the operation of the property business.

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7.

On February 25, 2003, I recorded a Wananty Deed from Los Pintos LLC to me. A copy of that Warranty Deed is attached hereto as Exhibit 2.

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8.

After completing refinancing of the property I recorded a Quit Claim Deed to Los Pintos LLC on April 3, 2003. A copy of that Quit Claim Deed is attached hereto has Exhibit 3.

9.

On April 30, 2003, the Defendants filed a Certification of Judgment in the

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OF DAVID MENKEN

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United States District attempted to District a Arizona, case No. 03MC35PHX-FJM which they Court for the register ofNevada judgment in Arizona

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District ~ourt. Afterwards, the 2003-0558897 creatmg a hen and cloudmg the MarIcopa County Records atDefendants recorded ~he Ne.vada judgme~t in my title.

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Att~che~ hereto as Exhibit 4 to this Declaration is a copy ofthe 2003 regIstratIOn. At the time that the Nevada Judgment was recorded in the Maricopa records, I was neither notified or aware that the registration ofthe foreign judgment had been filed with the U.S. District Court and recorded in the Maricopa County Records.

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In the summer of2003, I was planning on refinancing the property and then marketing the property in late 2003 or 2004. On August 1,2003 I recorded a Warranty Deed from Los Pintos LLC to me. A true copy of the Warranty Deed is attached hereto as Exhibit 5. I was totally unaware of the recorded judgment and, upon recording of the Warranty Deed from Los Pintos LLC to

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me, the property.foreign judgment recorded by the Defendants became a lien on my 13. While I was in the process of refinancing my property, the title company found the Defendants' the refinancing. 14. On August 22, 2003, David J. Morandi, as attorney for Defendants wrote a letter to General America Corporation demanding a payoff in the amount of $79,985.20. A copy ofthe August 22,2003 letter is attached hereto as Exhibit May 1, 2003 judgment lien and requested a payoff as part of

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6. On September 2,2003, Gary Zwillinger, acting as my attorney, sent Mr.

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Morandi a letter questioning the $79,985.20 payoff demand and pointing out to Mr. Morandi that such groundless liens may be a violation of ARS §33-420. A copy of Mr. Zwillinger's letter is attached hereto as Exhibit 7. 16. On October 23, 2003, one of my attorneys sent a letter to Mr. Morandi asking for a breakdown of post judgment collection costs as well as advising Mr. Morandi that I had a pending offer to purchase the property and that I could not complete the sale without the removal of his client's Lis Pendens. A copy ofthe October 23, 2003 letter is attached. 17. In October, 2003, I received a written cash offer to purchase my property for $1,300,000 with the property to be closed on November 30, 2003. A true copy of the written offer is attached to this Declaration as Exhibit 8. 18. I wanted to accept the offer from Mr. and Mrs. Allen, however, I could not do so because I did not know if! could clear title. When the Nevada judgment was entered in Arizona, it was not clear as to how much was owed and the Defendants would not give my attorney a clear answer. At one point, they indicated they wanted more than $80,000 in attorney fees even though the judgment did not include an attorney fee award. 19. 20. When I did not accept the offer, they increased the offer to 1.5 million dollars. I wanted to accept the offer and I would have accepted the offer but for the lien placed on my property by the Defendants. I felt that I could not accept the offer because I could not be sure that I could remove the lien and because I did not want to pay the Defendants unless the Henwas valid. Had I accepted the offer I would have made a profit of almost $900,000 and, the offer was at least $400,000 more than the fair market value at the time. 21. On November 20, 2003, I received a letter from Defendants' attorney who forwarded to me a copies of documents sent to my previous attorney.

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DECLARATION OF DAVID MENKEN

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Enclosed with the letter were copies of billing entries by Defendants' attorneys. Enclosed as Exhibit 9 is a true copy of the billing records from April 24,2003 through May 2, 2003.

Dated th¢
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day of September, 2008.

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DECLARA nON OF DAVID MENKEN

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