FILED: NEW YORK COUNTY CLERK 10/01/2012 INDEX NO /2012 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/01/2012

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1 FILED: NEW YORK COUNTY CLERK 10/01/2012 INDEX NO /2012 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/01/2012 SUPREME COURT STATE OF NEW YORK COUNTY OF NEW YORK X : 26 LS SERIES LTD : Index No.: /2012 Plaintiff, : : -against- : : AUDRIE BROOKS et al., : Defendants. : : X Affirmation in Support of Motion to Dismiss 1. I am an attorney duly admitted to practice before this Court and make the following statements with the knowledge that if any are willfully false, I am subject to punishment. Plaintiff Lacks Standing 2. Plaintiff s Complaint must be dismissed because it does not have standing to assert the claims in the Complaint. 3. Standing requires an inquiry into whether a litigant has an interest... in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant's request. Bank of New York v. Silverberg, 86 AD3d 274, 279 (2011). 4. Where, as here, the issue of standing is raised by a Defendant, a Plaintiff must prove its standing in order to be entitled to relief. See Bank of New York v. Silverberg, 86 AD3d 274, 279 (2011).

2 5. In order to have standing to enforce a contract, an entity must be a party thereto or a third-party beneficiary thereof. VAC Service Corp. v. Technology Ins. Co., Inc., 49 AD3d 524 (2008) 6. Contracts are freely assignable absent language which expressly prohibits assignment, and when a valid assignment is made, the assignee steps into the assignor's shoes and acquires whatever rights the latter had. See Matter of Stralem, 303 A.D.2d 120, (2003). 7. Here, the gravamen of Plaintiff s Complaint is that it allegedly bought the rights to two loans made to Defendants Audrie Brooks LIT and Audrie Brooks ILIT, collateralized in part by life insurance policies (the Note, Loan, and collateral assignments are hereinafter referred to as Loan Documents ). 8. Plaintiff does not have standing to bring this action because: 1. It does not have a valid assignment, 2. It does not have a valid assignment under the purported bill of sale, 3. It does not have standing under the terms of the Note, and 4. It does not have a valid assignment under the UCC. 9. Plaintiff first alleges that HM Ruby Fund L.P. ( HM Ruby ) was the original owner of Loan Documents. See Compl. 10. Plaintiff then alleges that HM Ruby assigned its interest in the Loan Documents to an entity called Teleios PF Loans DE, LLC ( Teleios ), a Delaware corporation. Id. 11. Plaintiff next alleges that Teleios assigned its interest in the Loan Documents to the Plaintiff. Id.

3 12. Despite these bald allegations, Plaintiff has not produced any proof of any of the necessary assignments. 13. First, there is no proof of the alleged assignment of the loan documents from HM Ruby to Teleios. 14. Additionally, there is no proof of the alleged assignment from Teleios to the Plaintiff. 15. Plaintiff stands before the court, with its outlandish claims, without a single document evidencing an assignment. 16. Accordingly, Plaintiff does not have standing to bring this matter. The Documentary Evidence Reveals That Plaintiff Does Not Have Standing 17. Second, the documents produced to date prove the fact that Plaintiff could not have received a valid assignment from Teleios. 18. Exhibit A is a copy of the alleged bill of sale that allegedly conferred ownership of the Loan Documents from Teleios to Plaintiff. 19. The bill of sale states that it is made and entered into February 2, 2012 between Teleios and the Plaintiff. 20. In fact, a search of the New York State Secretary of State Corporation & Business Entity Database reveals that the Plaintiff was formed on February 3, Exhibit B is a true and accurate copy of a printout search from the New York State Secretary of State Corporation & Business Entity Database. 22. It is axiomatic that a company not yet in existence cannot enter into agreements and contracts.

4 The Loan Documents Deny Plaintiff A Valid Assignment 23. Third, Plaintiff could not possess a valid assignment as per the loan documents. 24. Section 7(a) of the purported bill of sale states that the sale would happened only if the Plaintiff wired money to Teleios on or before February 2, Ex. A at 7(a). 25. Given that the Plaintiff was not in existence until February 3, 2012, it is impossible that Plaintiff fulfilled this requirement of the purported contract for sale. 26. Indeed, an assignment could not have occurred on the basis of the purported bill of sale as the condition precedent to the assignment could not have legally occurred. 27. Plaintiff has not submitted any evidence that the wire was made on the date, as the condition precedent in the contract requires. 28. While Plaintiff s have casted many aspersions, it appears that their documents, or lack thereof, paint an appearance of improprieties by the Plaintiff and its conspiring corporate partners. Failure to comply With the Terms of the Notes Divest Plaintiff of Any Assignments 29. Fourth, Plaintiff does not have a valid assignment because the terms of the Loan Documents pertaining to assignments have not been complied with. 30. Exhibit C is a true and accurate copy of the Notes. 31. The Notes for the two loans clearly state: The ownership of this Note (as to both principal and any state interest) shall be registered with Borrower. In order to comply with the requirements of the preceding sentence, Borrower shall maintain a book entry system or

5 other record of ownership that identities the owner of an interest in this Note. Upon transfer of this Note to a new payee, Lender shall be obligated to surrender this Note and Borrower shall be obliged to re-issue a new note to the new payee. Any such transfer shall be reflected in Borrower s book entry system or other record of ownership maintained by Borrower. If Lender participates or sells any of its rights under this Note to another party ( Participating Party ), Lender shall give notice to Borrower so Barrower can notify the participating party as to the requirements of a book entry system and other records of ownership.... Notes for Brooks LIT and Brooks ILIT Trust. 32. As absolutely required by the Notes, a new Note must be issued each time an assignment is made. 33. If Plaintiff s bald assertions are to be credited, then two new notes, one from HM Ruby to Teleios and one from Teleios to the Plaintiff, must have been issued in order for a valid assignment to have occurred. 34. Plaintiff has not produced, nor can it produce, copies of new notes issued to either Teleios or the Plaintiff upon the purported transfers. 35. Moreover, as absolutely required by the Notes, the Borrower must be notified of any transfer, and such transfer must be registered with the Borrower. 36. Plaintiff is also unable to produce any notices to the Borrower or registration statements with the Borrower. 37. No new notices were issued or new owners registered. This is in direct violation of the clear terms of the Notes. 38. Indeed, the Plaintiff s entire case is built upon sham documents with purported sales and transfers with no notices what so ever to the Trusts and the elderly beneficiaries of those Trusts.

6 39. Indeed, Plaintiff seeks to unlawfully remove the only assets of the Trusts. 40. Finally, Plaintiff does not have a valid assignment under the UCC. 41. Plaintiff cannot have a proper assignment because it has not alleged, nor can it, that loan documents were indorsed when they were allegedly transferred. 42. Uniform Commercial Code Section requires that a transferee becomes a holder only if the instrument is delivered with the necessary indorsement. UCC Plaintiff alleges that Teleios first became a holder before Plaintiff was a holder. 44. The law requires, however, that for an assignment to be valid, the note must be delivered with the proper indorsement. 45. HM Ruby did not deliver the loan documents with an indorsement, and thus any purported assignment is invalid. 46. Similarly, there is nothing before the Court to suggest that Teleios took possession of the indorsed loan documents, and thus that purported assignment is invalid. 47. In sum, Plaintiff does not have a valid assignment from either HM Ruby to Teleios or from Teleios to Plaintiff. As such, it does not have standing to assert this claim. This action must be dismissed. WHEREFORE, Defendants seeks a dismissal of this action along with the award of costs and attorney s fees in defending this frivolous matter.

7 September 28, 2012 By Defendants Attorney

8 Affirmation of Service I, Aymen, hereby affirm that I am over the age of 18, am not a party to this action, and on October 1, 2012 I served the Plaintiff with Defendants Motion to Dismiss. Dated: October 1, 2012

FILED: NEW YORK COUNTY CLERK 01/03/ :03 PM INDEX NO /2016 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/03/2017

FILED: NEW YORK COUNTY CLERK 01/03/ :03 PM INDEX NO /2016 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 01/03/2017 FILED NEW YORK COUNTY CLERK 01/03/2017 0403 PM INDEX NO. 656160/2016 NYSCEF DOC. NO. 9 RECEIVED NYSCEF 01/03/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PH-105 Realty Corp, 12 Whitwell