ANSWER OF RESPONDENT JUDGE JOHN A. BESSEY. Now comes Respondent Judge John A. Bessey (Respondent) and for his answer to the Complaint

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1 NAL IN THE SUPREME COURT OF OHIO State of Ohio, ex rel., Columbus Southern Power Company, Relator, Case No V. Original Action in Prohibition John A. Bessey, Judge, Franklin County Court of Common Pleas, Respondent. ANSWER OF RESPONDENT JUDGE JOHN A. BESSEY RON O'BRIEN ( ) PROSECUTING ATTORNEY, FRANKLIN COUNTY, OHIO Patrick J. Piccininni ( ) (COUNSEL OF RECORD) franlclincountyohio.gov Franklin County Prosecutor's Office, Civil Division 373 South High Street, 13th Floor Columbus, Ohio (Phone) (Fax) COUNSEL FOR RESPONDENT THE HONORABLE JOHN A. BESSEY, JUDGE Marilyn McConnell ( ) (COUNSEL OF RECORD) Steven T. Nourse ( ) American Electric Power Service Corporation 1 Riverside Plaza, 29"' Floor Columbus, Ohio (Phone) (Fax) COUNSEL FOR RELATOR COLUMBUS SOUTHERN POWER COMPANY

2 ANSWER OF RESPONDENT JUDGE JOHN A. BESSEY Now comes Respondent Judge John A. Bessey (Respondent) and for his answer to the Complaint states as follows: 1. Respondent admits the allegations contained in Paragraph 1 of the Complaint for Writ of Prohibition. 2. Respondent admits that the Public Utilities Commission was created by the Ohio General Assembly. Respondent further admits that Title 49 vests authority to administer and enforce the provisions of Title 49 of the Ohio Revised Code with the Commission. Respondent admits that some of those powers include the ability to allow utilities to charge deposits and disconnect service to customers under specified circumstances. 3. Respondent admits that the Commission possesses regulatory authority over public utilities. Respondent submits that the provisions of Chapter 4905 of the Ohio Revised Code speak for themselves and no admission or denial is necessary. 4. Respondent is without information sufficient to form a belief as to the allegations contained in Paragraph 4 because a full and complete copy of the purported document has not been attached as Exhibit A. Further, the document is unauthenticated and incomplete under the applicable Rules of Evidence; therefore Respondent denies the allegations contained in Paragraph 4 and demands strict proof thereof. 5. Respondent admits the allegations contained in Paragraph 5 of the Complaint for Writ of Prohibition. 6. Respondent admits the allegations contained in Paragraph 6 of the Complaint for Writ of Prohibition. 7. Respondent admits that Exhibit D is a copy of the May 17, 2010 Order. However, Respondent submits that said Order was superseded on July 13, 2010 (attached as Exhibit 1). 8. Respondent admits that the May 17, 2010 Order contained the paragraph quoted, however, this paragraph is no longer in force and effect due to the Amended Order for the Appointment 2

3 of a Receiver on July 13, 2010 (see Exhibit 1), and therefore denies Paragraph 8 of the Complaint for Writ of Prohibition. 9. Respondent admits that Exhibit E purports to be an that the Receiver sent to CSP. However, Respondent is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 9 of the Complaint for Writ of Prohibition and therefore deny same. 10. Respondent denies the allegations contained in Paragraph 10 of the Complaint for Writ of Prohibition. 11. Revised Code speaks for itself; however, Respondent denies the allegations contained in Paragraph 11 of the Complaint for Writ of Prohibition because due to the amended Order Rel"ator is not subject to it. 12. Respondent denies the allegations contained in Paragraph 12 of the Complaint for Writ of Prohibition because there is no conflict with the July 13, 2010 Order. 13. Respondent admits that Article IV, Section 2(B)(1)(d) of the Ohio Constitution, and Rule X of the Rule of Practice of the Ohio Supreme Court grant this Court original jurisdiction over a writ of prohibition, 14. Respondent denies the allegations contained in Paragraph 14 of the Complaint for Writ of Prohibition based on the July 13, 2010 Order. 15. CSP is under no obligation to follow the May 17, 2010 Order because it is not subject to the May 17, 2010 Order. Therefore, Respondent denies the allegations contained in Paragraph 15 of the Complaint for Writ of Prohibition and requests dismissal of this action. 16. Respondent denies the allegations contained in Paragraph 16 of the Complaint for Writ of Prohibition. 17. There is no Order currently in effect to stop the Relator from disconnecting a customer charging a deposit based on the July 13, 2010 Order. Therefore, Respondent denies the allegations contained in the Complaint for Writ of Prohibition. 3

4 SECOND DEFENSE 18. Respondent realleges and reincorporates the allegations contained in Paragraphs 1 through 17 of the Complaint of this Answer as if fully rewritten. 19. Relator has failed to state a claim upon which relief can be granted because there is no order that Relator is subject to follow. THIRD DEFENSE 20. Respondent realleges and reincorporates Paragraphs 1 through 19 as if fully rewritten. 21. The issuance of the July 13, 2010 Order renders this action moot. FOURTH DEFENSE 22. Respondentre2.lleges and reincorporates Paragraphs 1-21 as if fully rewritten. 23. Respondent reserves the right to amend this Answer as discovery warrants. FIFTH DEFENSE 24. Respondent realleges and reincorporates Paragraphs 1-23 as if fully rewritten. 25. Any allegation not expressly admitted is hereby denied. WHEREFORE, it is requested that Relator's Complaint for a Writ of Prohibition be dismissed and that all costs of this action be assessed against Relator. Respectfully submitted, RON O'BRIEN PROSECUTING ATTORNEY FRANKLIN COUNTY, OHIO atrick. Piccininni ( ) (COUNSEL OF RECORD) franklincountyohio.gov Frank in County Prosecutor's Office, Civil Division 373 South High Street, 13th Floor Columbus, Ohio (Phone) (Fax) COUNSEL FOR RESPONDENT 4

5 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing has been forwarded by regular U.S. mail, postage prepaid, to: Marilyn McConnell Steven T. Nourse American Electric Power Service Corporation 1 Riverside Plaza, 29^' Floor Columbus, Ohio COUNSEL FOR RELATOR this _1_(o day of^ ccininni ( ) Prosecuting Attomey 5

6 PM 2: 12 IN THE FRANKLIN COUNTY, OHIO COURT OF COMMON PLEAS COMMERCIAL DOCKET ORIX CAPITAL MARKETS, LLC AS ) CASE NO. 10 CV SPECIAL SERVICER FOR BANK OF AMERICA, NATIONAL ASSOCIATION, AS SUCCESSOR BY MERGER WITH ) JUDGE BESSEY LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION, COMMERCIAL MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2001-Cl, SUA SPONTE AMENDED ORDER Plaintiff, ) APPOINTING RECEIVER -vs- WORTHINGTON WOODS I LLC, et al., Defendants. ) ) This matter came on for consideration upon the Emergency Motion of Plaintiff ORIX Capital Markets, LLC as Special Servicer for BANK OF AMERICA, National Association, as successor by merger with LaSalle Bank National Association, as Trustee for the registered holders of Prudential Securities Secured Financing Corporation, Commercial Mortgage Pass-Through Certificates, Series 2001-Cl (the "Noteholder" or "PlaintifP") for Appointment of Receiver (the "Motion") to take possession and control of the property known as Worthington Woods Apartments,

7 Worthington Forest Place, Columbus, Ohio 43229, which includes a one and two bedroom apartment complex (the "Property"), to lease the Property, to collect the rents, issues and profits thereof, and apply the same to the indebtedness secured by Plaintiff's Mortgage after payment of all necessary charges and expenses, and to sell the Property, subject to the further provisions of this Order. Upon consideration of the Motion and the need to safeguard and secure the Property, it is hereby ORDERED, ADJUDGED AND DECREED that: 1. Pursuant to R.C , Robert J. Wahlke, President of Towne Properties Asset Management Co., who is not a party, attorney or person interested in this action, is appointed as receiver (the "Receiver") with respect to the Property. The Receiver shall provide a bond in the amount of $ as security for the due and proper performance of his duties as Receiver. 2. The Receiver is authorized and directed to manage and conserve the assets of the Property and to demand, collect and receive the rents, issues and profits arising from the Property due and becoming due during the term of this receivership, including all proceeds in the possession of Worthington Woods I LLC ("Borrower") and Charles M. Simon ("Guarantor," and together with Borrower, collectively, "Defendants"), which are derived from the rents and profits generated by the Property. The Receiver shall keep all monies received from the Property separate from the monies received from any other source and shall not commingle any monies received from the Property with any other monies collected by the Receiver. The Receiver shall have the authority to operate and manage the Property as he deems prudent throughout the litigation, subject to the terms of this Order and further order of the Court. 2

8 3. The Receiver shall be responsible for the maintenance of adequate property and liability insurance respecting the Property. The insurance policies, which the Receiver will maintain, shall afford all risk property insurance coverage and other coverages on the Property and improvements thereon in such amounts as will adequately protect Plaintiffs security interest and the interests of the Receiver and other parties as their interests may appear, in amounts not less than as required in the loan documents with respect to the interests of Noteholder and any other applicable security agreements, at the cost and expense of appropriate parties absent sufficient assets in the receivership estate. 4. The Receiver is hereby authorized to construct tenant improvements and/or make any repairs to the Property that the Receiver, in his discretion deems necessary or appropriate, in an amount not to exceed $5,000 absent the express written consent of Plaintiff or further order of this Court. 5. The Receiver is hereby authorized to expend funds to purchase merchandise, materials, supplies and services as the Receiver deems necessary and advisable to assist him in performing his duties hereunder and to pay therefore the ordinary and usual rates and prices out of the funds that may come into the possession of the Receiver, in an amount not to exceed $5,000 absent the express written consent of Plaintiff or further order of this Court. 6. Defendants, and their partners, shareholders, property managers, directors, officers, employees, agents, contractors, and all persons having notice of this Order, shall forthwith make available at the Property or deliver to the Receiver, all of the books, documents, papers, insurance policies and records of every kind relating to 3

9 managing, operating, maintaining and owning the Property which are in their possession or subject to their control. Additionally, Defendants are ordered to turn over to Receiver all monies collected by them or their agents from the Property, including but not limited to, rents, income, and security deposits, that remain in the their possession or control. Defendants are authorized to retain copies of all documents delivered or made available to the Receiver. However, all copies of documents that Defendants wish to retain shall be made at Defendants' expense. 7. The Receiver is authorized and directed to establish or maintain one or more bank accounts in the Receiver's name for his operations as Receiver in this matter at any federally insured bank with offices in Columbus, Ohio (or in the vicinity thereof) as reasonably needed to conduct rental operations and other matters on behalf of the Borrower. The Receiver shall keep a true and accurate account of any and all receipts and disbursements which the Receiver shall receive or make as Receiver. 8. All parties, including, without limitation, all tenants of the Property, are directed to make all rental payments directly to the Receiver. 9. As the Receiver receives money from the Property, the Receiver shall: (a) first, pay all necessary and appropriate expenses for the continued management, operation and maintenance of the Property, including fees or expenses incurred pursuant to provisions herein; and (b) second, Receiver shall retain in his possession working capital reasonably requiredby the Receiver for the operation of the Property; and (c) third, remit to Plaintiff all excess cash in the Receiver's possession, if any, on a monthly basis, which Plaintiff shall apply towards the indebtedness that is the subject of, the action. 4

10 10. Pursuant to Local Rule 93, on or before the 10th day of each calendar month during the term of this receivership, the Receiver shall file with this Court and furnish to Noteholder, c/o Chuck Crouch, Special Servicing, ORIX Capital Markets, LLC, 1717 Main Street, Suite 900, Dallas, Texas 75201, a statement of receipts and disbursements incurred during the immediately preceding calendar month and describing the activities undertaken by the Receiver and providing an accounting of the monies received from the Property and paid for managing, operating and maintaining the Property. Such statement shall be in reasonable detail so that anyone reviewing the statement can determine the object of the disbursement and the source of the receipt, and shall be prepared in accordance with generally accepted accounting principals (GAAP). 11. Receiver, in consultation with and upon prior written approval of Noteholder, is authorized to institute and prosecute all proceedings and actions at law or in equity as may in his judgment be necessary for the proper maintenance, management, operation and protection of the Property, including actions to recover rents, revenue, profits and other income due with respect to the Property. 12. The Receiver, in consultation with and upon approval of Noteholder, is authorized to take all necessary action to file a real property tax valuation complaint with respect to the Property and prosecute any appeals thereof and retain necessary counsel in seeking a reduction of the current tax assessment and valuation of the Property. Borrower is directed to provide necessary assistance and consent (including, but not limited to, execution of any documentation as appropriate or required from the 5

11 Property owner) to facilitate or enable prosecution of matters seeking a reduction in the applicable property tax for the Property. 13. The Receiver is authorized to sell the Property, in the ordinary course of business, at public auction, by public tender, or private sale, on such terms or conditions as it deems appropriate; provided, however, that any such sales shall be first approved by the Plaintiff and the Court, and shall be supported by appropriate valuation or appraisal. 14. Noteholder may, in its sole discretion, make advances for payment of the following expenses in aid of the Receiver: a. utilities for the Premises, including gas, electric, telephone and water; b. security for the Property; c. insurance for the Property; d. taxes of any kind or nature accruing after the receivership and required to be paid on the Property by the statutes of the United States or any state political subdivision or any governmental agency; e. such expenses for the Receiver, and his attorneys, accountants, or other agents employed by the Receiver; f. such other expenses necessary to maintain and preserve the Property. Noteholder has no obligation of any kind to make any advance and may prevent further liability of any kind for all costs and expenses of the receivership, including, without limitation, for the fees and expenses of the Receiver and any retained professionals, by giving seven (7) days advance written notice to the Receiver and any retained professionals. Any and all amounts advanced by Noteholder shall become expenses of administration of the receivership, shall be reimbursable directly to Noteholder, shall 6

12 constitute obligations of the Defendants under the loan documents, and shall be secured by the Property. 15. The Receiver is hereby authorized to enter into or renew any lease or license agreement with respect to the Property, for any space located therein, on such terms or conditions as it deems appropriate; provided, however, that any such lease or license agreement shall be first approved by Noteholder. 16. The Receiver is hereby empowered to receive and collect all money now or hereafter owing to the Defendants with respect to the Property, and to execute, assign, issue, and endorse any and all checks, bills of sale, contracts, bills of lading or exchange and other documents necessary or convenient for any purpose pursuant to this Order, and to enter into arrangements or compromise any claims; provided that if such arrangement or compromise involving an amount in excess of $5,000, the same shall be subject to the approval of the Plaintiff. 17. No member, partner, or shareholder of the Receiver or any entity related thereto shall be a member, partner or shareholder of the Borrower; and no member, partner, or shareholder of the Borrower or any entity related thereto shall be a member, partner or shareholder of the Receiver. 18. The Receiver is authorized and directed to recover and collect any and all other property or sums of money comprising a portion of the collateral described in the Mortgage and Security Agreement, whether the same are now due or shall hereafter become due and payable. 19. The Receiver shall have full and unrestricted access to all of the Property, and Defendants, and their officers, beneficiaries, employees and agents, and any other 7

13 parties, are directed to take all steps necessary to give the Receiver access to the Property and to give the Receiver all keys to the facilities. 20. In order to assist the Receiver in fulfilling his obligations hereunder, the Receiver is authorized to hire, subject to this Court's approval, and after consultation with Noteholder, agents, attorneys, consultants or employees to perform such services as the Receiver may deem advisable; provided, however, the Receiver may, without Court approval but with approval of Noteholder, employ such assistants, agents and employees as, necessary for the continuance of leasing activities, preparation of leasing space, and as otherwise necessary for purposes of managing, operating and maintaining the Property. In selecting agents, attorneys, consultants or employees, the Receiver shall be mindful of minimizing the expenses of this proceeding as well as the competence of the agent, attorney, consultant or employee for the position. The Receiver shall be responsible for the actions of any and all agents, attorneys, consultants or employees whom he hires. 21. Pursuant to Local Rule 93, the Receiver, and his agents, including any attorneys and any accountants that are appointed by the Court, shall be entitled to reasonable compensation for services rendered and reimbursement for expenses incurred which are (a) related to the Receiver's duties, rights, and obligations under this Order or any future orders of the Court and applicable law, (b) related to the administration, management, protection or liquidation of the Property, or (c) the defense or prosecution of any claim or suit brought by or against the Receiver or by the Receiver against any person or entity. Such compensation of the Receiver and his agents, attorneys and accountants shall be paid pursuant to Local Rule 93, consistent with the 8

14 provisions of this Order and awarded from the receivership estate and/or pursuant to R.C If the receivership does not generate sufficient funds to pay the reasonable and authorized fees and expenses of the Receiver and his attorneys, accountants and other professionals, such fees and expenses will be assessed as costs of this case. 22. The Receiver shall be paid as follows: a. Receiver shall receive a one-time receivership fee of $2, for converting data and providing the initial property assessment; b. a Property Management Fee equal to five percent (5%) of the gross rental income from the Property or $3, per month, whichever is greater, payable monthly and estimated based on the prior month fee and paid by the fifth day of the current month ("Property Management Fee"); and c. A construction management oversight fee of three percent (3%) of cost of work on projects exceeding $20, The out-of-pocket costs and expenses of the Receiver shall be paid in the ordinary course of the management of the Property after approval by Noteholder, without application to the Court, including but not limited to reimbursement for any office and out-of-pocket expenses such as copying charges, telephone charges, postage, delivery expenses, and actual travel expenses reimbursed to employees that may not have originated but were specifically required for the Property. In accordance with Local Rule 93, the Receiver and its agents, counsel, accountants and/or other retained professionals shall submit fee applications to the Court, Noteholder, and all other creditors and other persons requesting notice in these proceedings; provided, however, the Property Management Fee may be paid on a monthly basis, prior to notice or Court approval. Any parties, including Plaintiff, who wish to object to the fees shall file an objection within ten (10) days after the filing of the application. If no party in interest 9

15 objects to the fee application, the Receiver may pay itself and its professionals from the Receiver's account fourteen (14) days after the filing of the applicable fee application. If an objection is filed, then the Court shall schedule a hearing to consider the party's objection and payment can thereafter be made only after and to the extent of Court approval. The compensation of the Receiver and his retained professionals shall be paid from rents collected or received by the Receiver. 23. Noteholder's request for this receivership, the taking of any action in conformity with this receivership, or the acceptance of any payments pursuant to this receivership, shall not in any way constitute a release by Noteholder or any other creditor. Noteholder shall be entitled to all of the remedies available to it prior to the institution of this receivership proceeding. Nothing herein shall in any way constitute or be construed as waiver of any other remedy which Noteholder or any other creditor may have, a waiver of collateral, a waiver of priority, a consent to substitution of collateral, or an election of remedies. 24. The Receiver may resign his receivership by giving thirty (30) days advance written notice to this Court, counsel of record for Noteholder, and to Noteholder, c/o Chuck Crouch, Special Servicing, ORIX Capital Markets, LLC, 1717 Main Street, Suite 900, Dallas, Texas Upon providing such notice and after approval by this Court of an accounting of the Receiver's duties hereunder and the funds held pursuant hereto, the Receiver shall be released and discharged from further obligations hereunder. The Receiver may be removed upon order of the Court acting sua sponte or for good cause upon notice and hearing upon motion by any interested party. 10

16 25. After consultation with Noteholder and after Court approval upon notice and hearing, the Receiver is authorized to take any other actions that the Receiver deems necessary to protect the Property or perform his duties hereunder. 26. Defendants shall fully cooperate with the Receiver in the discharge of his duties hereunder and shall take all steps necessary to comply with this Order and other orders of the Court and with all applicable laws and/or rules and is enjoined from interfering with the use, management, possession and control of the Property by the Receiver, and from in any way, manner or means wasting, disposing of, transferring, selling, assigning, pledging, canceling, concealing, interfering with, or hypothecating any of the Property and the books and records of Imperial. 27. The Receiver is vested with all of the powers which are conferred upon receivers by law or by the usages and customs of equity and shall perform his duties under the supervision of the Court. 28. [Omitted.] 29. [Omitted.] 11

17 30. [Omitted.] 31. Defendant and its employees are prohibited from removing any personal property from the Property or diverting any income therefrom, and the Receiver is hereby granted the right to open and review all mail directed to Borrower or its representatives pertaining to the Property. 32. Notwithstanding any other provision hereof, the Receiver shall be under no obligation to complete or file tax returns on behalf of Borrower for income or other taxes arising before the date of this Order. While acting as Receiver, the Receiver shall comply with all applicable laws and regulations relating to tax reporting requirements. 12

18 The Receiver shall furnish Borrower with such access to the books and records within the Receiver's custody or control as reasonably may be necessary in order for Borrower to complete and file necessary tax returns. Receiver and the receivership estate shall not be liable for the payment of taxes of any kind, assessments, goods or services provided to Borrower or the Property prior to the date of this Order. 33. Any motion by the Receiver for Court approval of any act of the Receiver requiring Court approval (including any proposed sale of Property; disposition of claims, lawsuits or proceedings; modification of this Order; or requests for instructions) shall be served on counsel for Noteholder (Michael P. Shuster, Porter Wright Morris & Arthur, LLP, 925 Euclid Ave., Ste. 1700, Cleveland, Ohio 44115, c/o Chuck Crouch, Special Servicing, ORIX Capital Markets, LLC, 1717 Main Street, Suite 900, Dallas, Texas 75201, any party affected by the proposed sale or disposition of. claims, lawsuits or proceedings, and all other persons who have filed and served on the Receiver a request for notice. Notice to Noteholder and other parties-in-interest shall be provided not less than fourteen (14) days in advance of any hearing or as otherwise provided by the Court with an objection or response due not less than ten (10) days from the date of filing and subject to Rule 6 of the Ohio Rules of Civil Procedure. Notice may be served by mail,express/overnight mail, personal service, facsimile, or electronic mail. The Receiver shall be deemed to have provided adequate notice if he complies with this paragraph and files a certificate of service. 34. As provided in Local Rule 93.04, and within sixty (60) days of the date of this Order, the Receiver shall file an inventory of all property and assets in his 13

19 possession comprising the Property or otherwise located at the Property and shall send the required notices and take other actions as required pursuant to Local Rule 93 unless otherwise ordered by the Court. The Receiver shall regularly file reports with the Court as to all of the Receiver's receipts and expenditures and take other necessary actions as required pursuant to Local Rule Nothing in this Order shall be read or interpreted as requiring Noteholder to continue to extend credit to Borrower and Noteholder shall continue to have all rights and remedies to which it is entitled under its agreements with Borrower and pursuant to Ohio law, subject to the terms of this Order. 36. All notices in this proceeding shall also be sent to the Receiver as follows: Robert J. Wahlke, Towne Properties Asset Management Co., 1055 St. Paul Place Cincinnati, Ohio IT IS SO ORDERED. '-l3-id - Date udge DATfON/6^wQ95 14

20 Copies to: Michael P. Shuster ( ) Tami Hart Kirby ( ) PORTER WRIGHT MORRIS & ARTHUR LLP One South Main Street, Suite 1600 Dayton, Ohio Telephone: (937) Facsimile: (937) and- Matthew E. Moberg ( ) PORTER WRIGHT MORRIS & ARTHUR LLP 41 South High Street Columbus, Ohio Telephone: (614) Facsimile: (614) Attorneys for Plaintiff ORIX Capital Markets, LLC as Special Servicer for BANK OF AMERICA, National Association, as successor by merger with LaSalle Bank National Association, as Trustee for the registered holders of Prudential Securities Secured Financing Corporation, Commercial Mortgage Pass-Through Certiffcates, Series 2001-Cl 7HE STATE OF Hlp pf^ RT OF COIr1AqDMN Franklin County, ss PLEAS WN}NN AND FOR SWDCOUNfY, HEREBY CERTIFY THAT THE ABOVE ANDfORE- GOINGISfRULYT NANDCOPIEDF Q^ E ORIGINAL.J ua.r3! NOW ON FILE IN MY OFFICE JyJJ^1E$,SMY DANDSEALOFSAIDCOUNIY THIS...:I.^... AYOFf...kA.D.2 1P MARYELLE 'fhaygfinessy, Clerk DAYTON/ v.05 15