NAILAH K. BYRD
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`CUYAHOGA COUNTY CLERK OF COURTS
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`1200 Ontario Street
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`Cleveland, Ohio 44113
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`Court of Common Pleas
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`BRIEF
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`July 13,2023 09:10
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`By: BRYAN J. FARKAS 0072779
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`Confirmation Nbr. 2907436
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`ANUP GARGET AL.
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`CV 22 969524
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`vs.
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`MARK JENKINS ET AL.
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`Judge: JOAN SYNENBERG
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`Pages Filed: 176
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`Electronically Filed 07/13/2023 09:10 / BRIEF / CV 22 969524 / Confirmation Nbr. 2907436 / BATCH
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`

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`IN THE COURT OF COMMON PLEAS
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`CUYAHOGA COUNTY, OHIO
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`CASE NO. CV-22-969524
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`JUDGE DEBORAH M. TURNER
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`COMMUNITY LOAN SERVICING
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`LLC’S SUPPLEMENTAL BRIEF IN
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`SUPPORT OF ITS MOTION FOR
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`SEPARATE TREATMENT OF 485
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`FRONT ST., BEREA, OH 44017 AND
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`1370 W. 93RD ST., CLEVELAND, OH
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`44102 AND FOR APPOINTMENT OF
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`RECEIVER
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`ANUP GARG, et al.,
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`Plaintiffs,
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`vs.
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`MARK JENKINS, et al.,
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`Defendants.
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`I.
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`Introduction
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`On March 28, 2023, Defendant Silver Hill Funding, LLC (“Silver Hill”) and
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`Community Loan Servicing1 (“CLS”) filed their Motion for Separate Treatment of485 Front
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`St. Berea, OH 44017 and 1370 W.93rd St., Cleveland, OH 44102 and For Appointment of
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`Receiver (the “CLS Motion”). Through the CLS Motion, CLS and Silver Hill sought to
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`exclude certain collateral (the “Properties”) consisting of two parcels of real property, which
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`are fully described in the CLS Motion, from any Order appointing a receiver pursuant to
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`Plaintiff Anup Garg's and Defendant Mark Jenkin's competing receivership motions (the
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`“Receivership Motions”). Additionally, CLS and Silver Hill sought to appoint a receiver over
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`1 CLS and Silver Hill have filed a motion to substitute CLS as defendant for Silver Hill Funding.
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`

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`the Properties, separate and apart from any receivership established pursuant to the
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`Receivership Motions.
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`Inadvertently, CLS did not include two additional properties in the CLS Motion. CLS
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`has moved to be substituted for Silver Hill and recently discovered that two additional
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`properties encumbered by mortgages in favor of CLS are subject to this action. These
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`properties are 3644 Bosworth Road, Cleveland, OH 44111 (the “Bosworth Property”), which
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`is owned by Defendant 3644 Bosworth LLC (“3644 Bosworth”), and 1361 W. 114th St.,
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`Cleveland, OH 44102 (the “W. 114th St. Property,” and together with the Bosworth Property,
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`the “Additional Properties”), which is owned by Defendant Bosworth 1 LLC (“Bosworth 1”
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`and together with 3644 Bosworth, “Additional Borrowers” and each an “Additional
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`Borrower”). CLS holds a first priority mortgage security interest in the Additional Properties.
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`For the reasons stated in the CLS Motion, and more fully stated herein, the Court
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`should exclude the Additional Properties from the jurisdiction of any receiver appointed
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`pursuant to the Receivership Motions and appoint a separate receiver to protect the Additional
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`Properties and to allow CLS to realize on its collateral. As with the Properties, CLS should
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`not be forced to watch the Additional Properties deteriorate and to have its cash collateral
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`siphoned off to support an expensive and broad receivership geared primarily towards
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`investigating and mediating disputes among the principals. A separate receiver should be
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`appointed to protect the Additional Properties and to allow CLS to realize on its collateral.
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`CLS submits that this Supplemental Brief is made in good faith, and not for purposes
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`of delay. An updated Proposed Order including the Additional Properties is attached to this
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`Motion as Exhibit 1.
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`II.
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`Background2
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`A.
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`The Bosworth Property
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`On August 27, 2021, 3644 Bosworth and Silver Hill entered into that certain Business
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`Loan Agreement (as may be amended, restated, supplemented or otherwise modified from
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`time to time, the “Bosworth Agreement”). (Jonas Aff. at 6.) A true and accurate copy of
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`the Bosworth Agreement is attached hereto as Exhibit 3. (Id. at 7.) On August 27, 2021,
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`3644 Bosworth executed and delivered to Silver Hill that certain Promissory Note dated
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`August 27, 2021 in the original principal amount of $431,250.00 (the “Bosworth Note”). (Id.
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`at 8.) A true and accurate copy of the Bosworth Note is attached hereto as Exhibit 4. (Id. at
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`9.) As evidenced by the allonge attached to the Bosworth Note, Silver Hill endorsed the
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`Bosworth Note to CLS.3 (See id. at 10; Ex. 4.)
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`To secure the amounts owing pursuant to Bosworth Note, 3644 Bosworth executed
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`and delivered that certain Open-End Mortgage dated August 27, 2021 to Silver Hill, which
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`was recorded on September 2, 2021 with the Cuyahoga County Recorder's Office as
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`Instrument No. 202109020722 (the “Bosworth Mortgage”). (Jonas Aff. at 11.) A true and
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`accurate copy of the Bosworth Mortgage is attached as Exhibit 5. (Id. at 12.) On February
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`11, 2022, the Bosworth Mortgage was assigned to CLS pursuant to a Corporate Assignment
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`of Mortgage filed and recorded with the Cuyahoga County Recorder's Office on February 24,
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`2022 as Instrument No. 202202240241 (the “Bosworth Assignment”). (Id. at 13.) A true
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`and accurate copy of the Bosworth Assignment is attached as Exhibit 6. (Id. at 14.)
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`To further secure the amounts owing pursuant to the Bosworth Note, 3644 Bosworth
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`2 The facts recited herein are verified by the affidavit of Kevin Jonas (the “Jonas Aff.”). A copy of the Jonas Aff.
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`is attached hereto as Exhibit 2.
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`3 Bayview Loan Servicing, LLC changed its name to Community Loan Servicing, LLC pursuant to a Certificate of
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`Amendment filed in the state of Delaware. See Ex. D to the CLS Motion.
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`executed and delivered that certain Assignment of Rents to CLS to Silver Hill, which was
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`recorded on September 2, 2021 with the Cuyahoga County Recorder's Office as Instrument
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`No. 202109020723 (the “Bosworth Assignment of Rents”). (Id. at 15.) A true and accurate
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`copy of the Bosworth Assignment of Rents is attached as Exhibit 7. (Id. at 16.) The
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`Bosworth Assignment of Rents was assigned to CLS pursuant to an Assignment of
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`Assignment of Rents, which was recorded on February 24, 2022 with the Cuyahoga County
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`Recorder's Office as Instrument No. 202202240242 (the “Bosworth AOR Assignment”). (Id.
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`at 17.) A true and accurate copy of the Bosworth AOR Assignment is attached as Exhibit
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`8. (Id. at 18.)
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`As further security, 3644 Bosworth executed and delivered to Silver Hill that certain
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`Commercial Security Agreement (the “Bosworth Security Agreement”) dated August 27,
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`2021 granting Silver Hill a security interest in the collateral more fully identified in the
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`Bosworth Security Agreement. (Id. at 19.) A true and accurate copy of the Bosworth
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`Security Agreement is attached as Exhibit 9. (Id. at 20.) Silver Hill perfected its security
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`interest by filing a UCC-1 Financing Statement with the Ohio Secretary of State on October
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`12, 2021 as Instrument No. OH00257079337 (the “Bosworth Financing Statement,” and
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`together with the Bosworth Agreement, the Bosworth Note, the Bosworth Mortgage the
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`Bosworth Assignment, the Bosworth AOR Assignment, and the Bosworth Security
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`Agreement, the “Bosworth Loan Documents”). (Id. at 20.)
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`B.
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`The W. 114th St. Property
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`On September 22, 2021, Bosworth 1 and Silver Hill entered into that certain Business
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`Loan Agreement (as may be amended, restated, supplemented or otherwise modified from
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`time to time, the “W. 114th St. Agreement”). (Id. at 22.) A true and accurate copy of the
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`W. 114th St. Agreement is attached hereto as Exhibit 10. (Id. at 23.) On September 22,
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`2021, Bosworth 1 executed and delivered to Silver Hill that certain Promissory Note dated
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`September 22, 2021 in the original principal amount of $232,500.00 (the “W. 114th St. Note”).
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`(Id. at 24.) A true and accurate copy of the W. 114th St. Note is attached hereto as Exhibit
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`11. (Id. at 25.) As evidenced by the allonge attached to the W. 114th St. Note, Silver Hill
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`endorsed the W. 114th St. Note to CLS. (See id. at 26; Ex. 11.)
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`To secure the amounts owing pursuant to Bosworth Note, Bosworth 1 executed and
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`delivered that certain Open-End Mortgage to Silver Hill dated September 22, 2021, which
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`was recorded on September 29, 2021 with the Cuyahoga County Recorder's Office as
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`Instrument No. 202109290684 (the “W. 114th St. Mortgage”). (Jonas Aff. at 27.) A true
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`and accurate copy of the W. 114th St. Mortgage is attached as Exhibit 12. (Id. at 28.) The
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`W. 114th St. Mortgage was assigned to CLS pursuant to an Assignment of Mortgage (the “W.
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`114th St. Assignment”). (Id. at 29.) A true and accurate copy of the W. 114th St. Assignment
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`is attached as Exhibit 13. (Id. at 30.)
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`To further secure the amounts owing pursuant to the W. 114th St. Note, Bosworth 1
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`executed and delivered that certain Assignment of Rents to CLS to Silver Hill, which was
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`recorded on February 11, 2022 with the Cuyahoga County Recorder's Office as Instrument
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`No. 202202110745 (the “W. 114th St. Assignment of Rents”). (Id. at 31.) A true and
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`accurate copy of the W. 114th Assignment of Rents is attached as Exhibit 14. (Id. at 32.)
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`The W. 114th St. Assignment of Rents was assigned to CLS pursuant to an Assignment of
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`Assignment of Rents (the “W. 114th St. AOR Assignment”). (Id. at 33.) A true and accurate
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`copy of the W. 114th St. AOR Assignment is attached as Exhibit 15. (Id. at 34.)
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`As further security, Bosworth 1 executed and delivered to Silver Hill that certain
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`Commercial Security Agreement (the “W. 114th St. Security Agreement”) dated September
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`22, 2021 granting Silver Hill a security interest in the collateral more fully identified in the
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`W. 114th St. Security Agreement. (Id. at 35.) A true and accurate copy of the Bosworth
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`Security Agreement is attached as Exhibit 16. (Id. at 36.) Silver Hill perfected its security
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`interest by filing a UCC-1 Financing Statement with the Ohio Secretary of State on October
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`26, 2021 as Instrument No. OH00257457884 (the “W. 114th St. Financing Statement,” and
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`together with the W. 114th St. Agreement, the W. 114th St. Note, the W. 114th St. Mortgage
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`the W. 114th St. Assignment, the W. 114th St. AOR Assignment, and the W. 114th St. Security
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`Agreement, the “W. 114th St. Loan Documents”). (Id. at 37.)
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`C.
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`The Litigation
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`On October 3, 2022, Anup Garg and Tarsem Garg (collectively, “Plaintiffs”) initiated
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`the above captioned litigation, pursuant to which a claim for the judicial dissolution of
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`Additional Borrowers is asserted, among other claims (the “Litigation”). As further described
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`below, testimony provided at evidentiary hearings conducted in conjunction with the Litigation
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`has raised concerns as to each Additional Borrower's ability to adequately maintain and manage
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`the Properties.
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`III.
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`Law and Argument
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`A. CLS is Entitled to Have the Additional Properties Excluded from the
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`Authority of Any Receiver Appointed Pursuant to the Receivership
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`Motions
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`Under Ohio law, the “appointment of a receiver is an extraordinary remedy.” See, e.g.,
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`Haber Polk Kabat, L.L.P. v. Condos at Stonebridge Owners Ass'n, 2017-Ohio-8069, 98
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`N.E.3d 1172, 22 (8th Dist.). “Because appointment of a receiver is “such an extraordinary
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`remedy,” the need for a receiver must be established by clear and convincing evidence.” Id.
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`(internal citations omitted). When considering whether a request for appointment of receiver
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`meets this standard, courts “must generally consider all the circumstances and facts of the
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`case, the conditions and grounds justifying relief, the ends of justice, the rights of all the
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`parties interested in the controversy and subject matter of the dispute and the adequacy and
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`effectiveness of other remedies.” See id. at 23, citing State ex rel. Celebrezze v. Gibbs, 60
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`Ohio St. 3d 69, 73, n. 3, 573 N.E.2d 69 (1991); Telecom Acquisition Corp. v. Lucic Enters.,
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`8th Dist. Cuyahoga No. 102067, 2015-Ohio-2703,
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`9; Debartolo v. Dussault Moving, Inc.,
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`8th Dist. Cuyahoga No. 96667, 2011-Ohio-6282,
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`10.
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`CLS has a first and best lien on the Additional Properties, and thus is “interested in the
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`controversy” with respect to the Additional Properties. As stated in the CLS Motion, CLS is
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`entitled to have the Properties excluded from any order granting the Receivership Motions.
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`The Receivership Motions both seek the appointment of a broad receivership (the “Requested
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`Receiver Actions”), which would not only consume the income from the Properties, but also
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`the Additional Properties. As with Properties, this proposed receivership would hinder the
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`maintenance of the Additional Properties. Accordingly, for the same reasons stated in the
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`CLS Motion, the Additional Properties should also be excluded from any receivership estate
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`established pursuant to the Receivership Motions.
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`B. A Separate Appointment of a Receiver Over the Additional Properties is
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`Authorized by the Express Terms of the Loan Documents Between the
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`Parties and Ohio Law
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`As stated in the CLS Motion, CLS is entitled to have a receiver appointed for the
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`limited scope of taking possession and control of the Properties; to manage the Properties; to
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`collect the rents derived from the Properties; to enter into and terminate leases for the
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`Properties; and to sell the Properties. For the same reasons stated in the CLS Motion, CLS is
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`entitled to have a receiver appointed for the same limited purpose over the Additional
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`Properties.
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`It is well-settled under Ohio law that, a party is entitled to have a receiver appointed where
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`the loan documents contain a provision authorizing such an appointment. See, e.g., Metro. Life
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`Ins. Co. v. Triskett Illinois, Inc., 97 Ohio App.3d 228, 236, 646 N.E.2d 528 (1st Dist.1994)
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`(acknowledging appointment of receiver pursuant to terms of mortgage is appropriate); see also
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`Mfrs. Life Ins. Co. v. Patterson, 51 Ohio App.3d 99, 101, 554 N.E.2d 134 (8th Dist.1988)
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`(upholding mortgage provision authorizing appointment of a receiver without prior notice); Fed.
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`Land Bank v. De Ran, 74 Ohio App. 365, 59 N.E.2d 54, paragraph 1 of the syllabus (6th
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`Dist.1944) (holding that where the mortgage provides for the appointment of a receiver and
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`conveys rents and profits, the court has the authority to appoint a receiver under Section 11894(6)
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`of the General Code (the precursor of subparagraph (F) of Ohio Revised Code § 2735.01(F)4).
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`Here, the Bosworth Loan Documents and W. 114th St. Loan Documents expressly
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`permit CLS to appoint a receiver to manage the Additional Properties (respectively) as a
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`remedy in the event of a default. See Bosworth Mortgage at 11-12; Bosworth Security
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`Agreement at 6; Bosworth Assignment of Rents at 5-6; W. 114th St. Mortgage at 11-12; W.
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`114th St. Security Agreement at 6; W. 114th St. Assignment of Rents at 5-6. As a result of this
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`Litigation, which seeks to dissolve both Additional Borrowers, and the testimony provided to the
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`Court over the course of the Court's consideration of the Receiver Motions, CLS has cause to
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`believe that a material adverse change has occurred that impairs the prospect of payment and/or
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`the performance of the Bosworth Loan Documents and W. 114th St. Loan Documents (the
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`“MAC Default”). See Bosworth Note at 2; Bosworth Mortgage at 11; Bosworth Security
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`4 R.C. § 2735.01(F) states, in relevant part, that a receiver may be appointed “.. .in all...cases in which receivers
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`have been appointed by usage in equity.”
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`Agreement at 6; Bosworth Assignment of Rents at 5; W. 114th St. Note at 2; W. 114th St.
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`Mortgage at 11; W. 114th St. Security Agreement at 6; W. 114th St. Assignment of Rents at 5.
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`Due to the MAC Default, the Bosworth Loan Documents and W. 114th St. Loan Documents are
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`all in Default.
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`Moreover, in Plaintiff's Second Amended Complaint, he seeks judicial dissolution of 3644
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`Bosworth, which if successful would also be an event of default the Bosworth Loan Documents.
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`See Bosworth Mortgage at 10; Bosworth Security Agreement at 5; Bosworth Assignment of
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`Rents at 5. Additionally, in Defendant Jenkins’ Amended Answer to Plaintiffs’ Second
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`Amended Complain, Counterclaims, and Crossclaims, he seeks judicial dissolution of
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`Bosworth 1, which if successful would also be an event of default under the W. 114th Loan
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`Documents. W. 114th St. Mortgage at 10; W. 114th St. Security Agreement at 5; W. 114th St.
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`Assignment of Rents at 5.
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`Further, exhibits presented to the Court during the evidentiary hearings on
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`Receivership Motions demonstrate that the Bosworth Property is in violation of certain
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`building codes, including, but not limited to, the need to repair the exterior walls, windows,
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`doors, trim, and garage, the need to repair the interior ceilings and walls, the need to connect
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`gas appliances to the buildings as required by law, and the need to obviate an infestation of
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`roaches. 3644 Bosworth’s failure to properly maintain the property is an event of default
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`pursuant to the Loan Agreement and Mortgage. See Bosworth Agreement at 3-4; Bosworth
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`Mortgage at 4, 10.
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`Therefore, on account of the foregoing events of default, pursuant to the Bosworth Loan
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`Documents and W. 114th St. Loan Documents, CLS is entitled to have a receiver appointed over
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`the Additional Properties. See Bosworth Mortgage at 11-12; Bosworth Security Agreement at
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`6; Bosworth Assignment of Rents at 5; W. 114th St. Mortgage at 11-12; W. 114th St. Security
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`Agreement at 6; W. 114th St. Assignment of Rents at 5.
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`In addition, pursuant to O.R.C. § 2735.01(A)(3), a party need only demonstrate a
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`contractual assignment of rents and leases to qualify for appointment of a receiver. City of
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`Cincinnuli v. PE Alms Hill Realty, LLC, 2017-Ohio-1569, 90 N.E.3d 156, 24 (1st Dist.). Here,
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`the Bosworth Assignment of Rents and the W. 114th St. Assignment of Rents both entitle CLS
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`to collect the rents and to appoint a receiver in aid of such collection as a remedy for default. See
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`Bosworth Assignment of Rents at 5-6; W. 114th St. Assignment of Rents at 5-6. Therefore,
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`CLS is entitled to appoint a receiver over the Additional Properties in this case.
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`Ohio law also permits the appointment of a receiver “[i]n all other cases in which receivers
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`have been appointed by the usages of equity.” O.R.C. § 2735.01(A)(7). As stated above, when
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`considering whether a request for appointment of receiver meets this standard, courts “must
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`generally consider all the circumstances and facts of the case, the conditions and grounds
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`justifying relief, the ends of justice, the rights of all the parties interested in the controversy
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`and subject matter of the dispute and the adequacy and effectiveness of other remedies.”
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`Haber Polk Kabat, L.L.P. at 23. For example, one court granted a receiver motion when
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`parties “cannot and will not agree” on how to resolve the issues, finding that a creditor “should
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`not be forced to sit on the sidelines waiting to be paid due to the parties' apparent inability”
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`to resolve the issues. TD Ltd., L.L.C. v. Dudley, 12th Dist. Butler No. CA2014-01-009, 2014-
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`Ohio-3996,
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`30-31.
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`For the same reasons stated more fully in the CLS Motion, a receiver should also be
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`appointed over the Additional Properties because CLS' proposed receiver would efficiently
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`manage and protect the Additional Properties' value without the Additional Properties being
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`unnecessarily encumbered by the expansive receivership authority sought in the Receivership
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`Motions primarily on account of the principals' inability to resolve the issues between them.
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`In addition, the Bosworth Property is in very significant disrepair and has been cited for
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`numerous building code violations. (See Affidavit of Joseph Fasino at 5.5) The Bosworth
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`Property requires window replacements, tuck pointing, re-siding of the garage, and lead paint
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`abatement. (Id.) This is estimated to cost $132,000.00. (Id.) Because of these issues, and the
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`Litigation, a receiver will be able to protect CLS' collateral from further disrepair.
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`Accordingly, the Court should appoint a receiver over the Additional Properties.
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`IV.
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`Conclusion
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`For the reasons stated herein, and in the CLS Motion, the Court should exclude the
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`Additional Properties from the Receivership Motions, and include the Additional Properties
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`the receivership appointed pursuant to the CLS Motion.
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`Respectfully submitted,
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`/s/ Bryan J. Farkas___________
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`Bryan J. Farkas (0072779)
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`Carrie M. Brosius (0075484)
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`Matthew D. Fazekas (0099693)
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`VORYS, SATER, SEYMOUR AND PEASE LLP
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`200 Public Square, Suite 1400
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`Cleveland, Ohio 44114
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`Telephone:
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`(216) 479-6100
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`Facsimile:
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`(216) 479-6060
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`Email: bjfarkas@vorys.com
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`cmbrosius@vorys.com
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`mdfazekas@vorys. com
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`Attorney for Defendant Silver Hill Funding, LLC
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`and Community Loan Servicing LLC
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`5 A copy of this affidavit is attached to Plaintiff Anup Garg's Brief in Opposition to Defendant Mark Jenkins'
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`Motion to Appoint Receiver.
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the foregoing Community Loan Servicing LLC's
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`Supplemental Brief in Support of Its Motion for Separate Treatment of 485 Front St., Berea, OH
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`44017 and 1370 W. 93rd St., Cleveland, OH 44102 and for Appointment of Receiver was served
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`on this 13th day of July, 2023, by regular U.S. mail to the following:
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`Daniel F. Lindner
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`Meredith Ruetty
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`The Lindner Law Firm LLC
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`2077 East 4th Street, Second Floor
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`2077 East 4th Street, Second Floor
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`Cleveland, OH 44115
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`Cleveland, OH 44115
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`Attorney for Plaintiff Tarsem Garg
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`Attorney for Plaintiff Anup Garg
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`Ziad Tayeh
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`Erik L. Walter. Esq.
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`Tayeh Law Offices, LLC
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`Dworken & Bernstein Co. L.P.A.
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`22255 Center Ridge Road, Suite 311
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`60 South Park Place
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`Rocky River, OH 44116
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`Painesville. OH 44077
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`Attorney for Defendant Mark Jenkins
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`Attorney for Defendant Stephanie Jenkins
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`Jenkins Property Group LLC
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`1370 West 93rd LLC
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`c/o Statutory Agent - Mark Jenkins
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`c/o Statutory Agent - Mark Jenkins
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`15301 Fischer Road
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`15301 Fischer Road
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`Cleveland, OH 44111
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`Cleveland, OH 44111
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`3644 Bosworth LLC
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`Bosworth 1 LLC
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`c/o Statutory Agent - Anup Garg
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`c/o Statutory Agent - Anup Garg
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`15319 Clifton Blvd.
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`15319 Clifton Blvd.
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`Lakewood, OH 44107
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`Lakewood, OH 44107
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`3174 W 94 LLC
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`Stronghold Group LLC
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`c/o Statutory Agent - Anup Garg
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`c/o Statutory Agent - DFL Agent Inc.
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`15319 Clifton Blvd.
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`2077 East 4th Street, Second Floor
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`Lakewood, OH 44107
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`Cleveland, OH 44115
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`Haystack Hills LLC
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`10810 Parkhurst LLC
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`c/o Statutory Agent - DFL Agent Inc.
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`c/o Statutory Agent - Anup Garg
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`2077 East 4th Street, Second Floor
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`15319 Clifton Blvd.
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`Cleveland, OH 44115
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`Lakewood, OH 44107
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`Electronically Filed 07/13/2023 09:10 / BRIEF / CV 22 969524 / Confirmation Nbr. 2907436 / BATCH
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`S2 Holdings LLC
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`Huntington National Bank
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`c/o Statutory Agent - Anup Garg
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`Department NC1N04
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`15319 Clifton Blvd.
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`Lakewood, OH 4410
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`2361 Morse Road
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`Columbus, OH 43229
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`Erik L. Walter. Esq.
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`Dworken & Bernstein Co.. L.P.A.
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`60 South Park Place
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`Painesville. OH 44077
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`Attorney for Defendant Steph Invests, LLC
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`Bryan J. Farkas
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`Attorney for Silver Hill Funding, LLC and
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`Community Loan Servicing LLC
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`Electronically Filed 07/13/2023 09:10 / BRIEF / CV 22 969524 / Confirmation Nbr. 2907436 / BATCH
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`EXHIBIT 1
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`Electronically Filed 07/13/2023 09:10 / BRIEF / CV 22 969524 / Confirmation Nbr. 2907436 / BATCH
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`IN THE COURT OF COMMON PLEAS
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`CUYAHOGA COUNTY, OHIO
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`CASE NO. CV-22-969524
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`JUDGE DEBORAH M. TURNER
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`ORDER APPOINTING A RECEIVER
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`FOR 485 FRONT ST., BEREA, OH, 44017
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`1370 W. 93RD ST., CLEVELAND, OH
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`44102,
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`3644 BOSWORTH ROAD,
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`CLEVELAND, OH 44111, AND 1361 W.
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`114th ST., CLEVELAND, OH 44102
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`ANUP GARG, etal.,
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`Plaintiffs,
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`vs.
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`MARK JENKINS, et al.,
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`Defendants.
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`This matter came before the Court on Defendant Silver Hill Funding, LLC’s and
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`Community Loan Servicing, LLC, successor in interest to Silver Hill Funding, LLC’s (the
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`“Lender”) Motion for Separate Treatment of 485 Front St., Berea, OH and 1370 W. 93rd St.,
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`Cleveland, OH and for Appointment of Receiver (the “Motion”). The Court, having considered
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`the Motion, the Affidavit in Support of the Motion, the Supplemental Brief in Support of the
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`Motion and any objections thereto and finding that there is proper jurisdiction over this matter and
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`proper notice having been provided, finds the Motion well taken and the Court GRANTS the relief
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`sought in the Motion in its entirety.
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`IT IS NOW THEREFORE ORDERED, ADJUDGED AND DECREED THAT:
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`1.
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`Appointment of Receiver and Receivership Estate. Zachary B. Burkons of Rent
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`Due, LLC is hereby appointed receiver (the “Receiver”) for the real property and improvements
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`commonly known as 485 Front St. Berea, OH 44017 (as further described in the attached Exhibit
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`1(A), “Front Street”), 1370 W. 93rd St., Cleveland, OH 44102 (as further described on the attached
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`Exhibit 1(B) “93rd St.”), 3644 Bosworth Road, Cleveland, OH 44111 (as further described on the
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`attached Exhibit 1(C), “Bosworth”), and 1361 W. 114th St., Cleveland, OH 44102 (as further
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`Electronically Filed 07/13/2023 09:10 / BRIEF / CV 22 969524 / Confirmation Nbr. 2907436 / BATCH
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`described on the attached Exhibit 1(D), “114th St.” and together with Front Street, 93rd Street,
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`114th St., the “Properties” and each a “Property”) together with all contract rights and leases related
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`to either Property, all improvements thereon and any equipment, fixtures and other personal
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`property, tangible or intangible, used or usable in connection with either Property or the operations
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`of the Properties including, without limitation, insurance premium refunds, insurance proceeds,
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`condemnation awards, utility deposits and deposits of every other kind related to the Properties,
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`causes of action, drawings, plans, specifications, escrow agreements, and all Income (collectively,
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`the “Receivership Assets”). The term “Income” includes, without limitation, all cash, cash on
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`hand, checks, cash equivalents, demand deposit accounts, bank accounts, cash management or
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`other financial accounts, bank or other deposits and all other cash collateral (all whether now
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`existing or later arising); current and past due earnings, revenues, rents, issues and profits, accounts
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`or accounts receivable (all whether unpaid, accrued or to become due); all claims to rent, issues,
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`profits, income, cash collateral and all other gross income (including insurance proceeds and
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`refunds and real estate tax refunds) derived with respect to the Properties or the operations of the
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`Properties regardless of whether earned before or after entry of this Order.
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`2.
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`Bond and Oath. The Receiver shall serve without bond and file an Oath of
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`Receiver within five (5) business days after the entry of this Order; provided, however, that this
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`Order shall become effective upon entry by the Court.
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`3.
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`Lender’s Liens. The Receivership Assets remain subject to Lender’s liens to the
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`full extent of the amounts due and the appointment of the Receiver by no way shall impair Lender’s
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`rights or be deemed a waiver of Lender’s secured position.
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`4.
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`Authority of Receiver.
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`Electronically Filed 07/13/2023 09:10 / BRIEF / CV 22 969524 / Confirmation Nbr. 2907436 / BATCH
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`2
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`a.
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`In addition to the powers stated in this Order, the Receiver shall have all
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`usual and customary powers vested in a receiver under Ch. 2735 of the Ohio Revised Code and
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`the laws applicable thereto.
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`b.
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`The Receiver shall take immediate possession and full control of all of the
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`Receivership Assets and shall take such other actions as the Receiver deems reasonable and
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`appropriate to effect this Order to prevent waste and to preserve, manage, secure, and safeguard
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`the Receivership Assets in accordance with the powers granted herein.
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`c.
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`Subject to the terms of this Order, the Receiver shall have and may exercise
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`the following powers, and such additional powers that are provided by law and that the Court may
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`from time to time direct or confer:
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`papers, and deposit accounts relating to the Receivership Assets;
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`i.
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`take and maintain possession of all documents, books, records,
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`ii.
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`change any locks, passcodes or passwords to the Receivership
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`Assets as appropriate and exclude the named plaintiffs and other named defendants in this action
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`(collectively, the “Averse Parties”) and any of their respective partners, representatives, officers,
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`managers, directors, members, shareholders, affiliates or agents (collectively, the “Averse
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`Agents”) wholly from the Receivership Assets;
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`iii.
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`manage, control, operate, preserve and maintain the Receivership
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`Assets as a prudent person would, including, without limitation, the power to enter into, terminate
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`or negotiate contracts and make repairs or alterations to the Receivership Assets that the Receiver
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`in its business judgment reasonably believes necessary for the management, operation,
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`preservation and maintenance of the Receivership Assets;
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`agreements, under such terms and conditions as the Receiver may deem appropriate or desirable
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`iv.
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`enter into leases, whether of real or personal property, or tenancy
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`to preserve the Receivership Assets;
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`v.
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`employ such consultants, managers, brokers, marketing agents, or
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`other employees, agents, independent contractors, or professionals as the Receiver may in its
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`discretion deem appropriate or desirable to implement and effectuate the rights and powers herein
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`granted;
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`advise and assist the Receiver in carrying out its duties and appearing in Court or other proceedings
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`vi.
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`engage attorneys or other professionals, as appropriate, in order to
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`on its behalf;
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`Electronically Filed 07/13/2023 09:10 / BRIEF / CV 22 969524 / Confirmation Nbr. 2907436 / BATCH
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`vii.
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`collect the rents, accounts receivable, insurance claim proceeds, real
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`estate tax refunds, utility deposits, security deposits, proceeds, earnest money deposits and profits
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`from the Receivership Assets, if any, from any time period whether historical, current or
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`prospective, and receive any such assets presently in the possession of the Averse Parties and/or
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`the Averse Agents;
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`viii.
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`sue for unpaid rent, income, or proceeds derived from the Properties;
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`acquittance for receivables, income, or proceeds that may become due;
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`ix.
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`subject to Lender’s prior written consent, compromise or give
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`other governmental entities, as necessary;
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`x.
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`deal with issues and other matters with vendors, municipalities, and
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`xi.
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`open any mail related to either Property;
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`xii.
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`with respect to taxes: (A) the Receiver shall not be responsible for
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`filing any federal, state,
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`or local income tax returns of the Averse Parties, including any
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`commercial activity tax or real estate taxes or assessments; and (B) to the extent funds are available
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`and authorized pursuant to the procedures set forth in this Order, pay taxes which may have been
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`or may be levied against the Receivership Assets or which are otherwise due and payable with
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`respect to the Receivership Assets;
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`licenses, permits and authority from all relevant governmental agencies related to the Properties;
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`xiii.
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`take all actions necessary to maintain and/or transfer existing
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`xiv.
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`subject to the prior written consent of Lender, conduct a marketing
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`or leasing program with respect to all or a portion of the Receivership Assets, or employ a
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`marketing or leasing agent or agents to do so, direct the leasing or sale of all or portions of the
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`Receivership Assets under such terms and conditions as Lender may in its sole discretion deem
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`appropriate or desirable, provided, however, that the Receiver shall comply with the provisions of
`Ohio Revi