Case 3:16-cv-00252-SDD-RLB Document 1

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA
U.S. BANK, N.A., AS SUCCESSOR TRUSTEE
TO BANK OF AMERICA, N.A., AS
SUCCESSOR TRUSTEE TO LASALLE
BANK, N.A., AS TRUSTEE FOR THE
REGISTERED HOLDERS OF J.P. MORGAN
CHASE COMMERCIAL MORTGAGE
SECURITIES TRUST 2008-C2,
COMMERCIAL MORTGAGE PASSTHROUGH CERTIFICATES 2008-C2

CASE NO.: 16-252

JUDGE

MAG. JUDGE

*
*

VS.

FLORIDA STREET HOLDINGS LLC

VERIFIED COMPLAINT TO FORECLOSE BY EXECUTORY PROCESS

WITH BENEFIT OF APPRAISAL AND FOR THE APPOINTMENT OF A KEEPER

NOW INTO COURT, through undersigned counsel, comes Plaintiff, U.S. Bank National
Association, as Trustee, as successor in interest to Bank of America, National Association, as
successor by merger to LaSalle Bank National Association, for the registered holders of J.P.
Morgan Chase Commercial Mortgage Securities Trust 2008-C2, Commercial Mortgage Passthrough Certificates, Series 2008-C-2 (U.S. Bank, Holder, or Plaintiff), acting by and
through CWCapital Asset Management LLC (CWCAM), solely in its capacity as Special
Servicer for Holder, and for its Verified Complaint to Foreclose By Executory Process With
Benefit of Appraisal and For the Appointment of a Keeper (the Verified Complaint),
respectfully represents as follows:

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PARTIES
1.
Plaintiff is U.S. Bank National Association, as Trustee, as successor in interest to Bank of
America, National Association, as successor by merger to LaSalle Bank National Association,
for the registered holders of J.P. Morgan Chase Commercial Mortgage Securities Trust 2008-C2,
Commercial Mortgage Pass-through Certificates, Series 2008-C-2, acting by and through
CWCapital Asset Management LLC (CWCAM), solely in its capacity as Special Servicer for
Holder.
2.
Named Defendant herein is Florida Street Holdings LLC, a Delaware limited liability
company (FSH or Defendant).
JURISDICTION
3.
This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. 1332
because there is complete diversity of citizenship between the Plaintiff and the Defendant, and
because the amount in controversy exceeds $75,000, excluding interest and costs.
4.
Plaintiff, U.S. Bank, is a national banking association with its principal place of business
located in Chicago, Illinois.
5.
For purposes of determining diversity jurisdiction, a national banking association is
located in the State where its principal place of business resides. Wachovia v. Schmidt, 546
U.S. 303 (2006). As Plaintiff is the trustee for the loan at issue and holds all right, title and
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interest in the trust and its assets pursuant to that certain Pooling Service Agreement (the
Pooling Services Agreement) dated May 1, 2008, at 2.01(a)1, Plaintiff is the true party in
interest for purposes of determining diversity jurisdiction, as opposed to any agent or servicer
acting on its behalf.2 See U.S. Bank National Association v. Nesbitt Bellevue Property LLC, 859
F.Supp.2d 602 (S.D.N.Y. 2012); Wells Fargo Bank, N.A. v. Konover, 2009 WL 2710229
(D. Conn. 2009); Fed. R. Civ. P. 17(a). See also Navarro Sav. Assn v. Lee, 446 U.S. 458 (1980)
(where the trustees possess certain customary powers to hold, manage and dispose of assets, their
citizenship, and not that of the trust beneficiaries, is controlling for diversity of citizenship
purposes).
6.
Accordingly, given that Plaintiffs principal place of business is in Chicago, Illinois,
Plaintiff is a citizen of Illinois and nowhere else.

The Pooling and Service Agreement is identified in further detail infra and attached as Exhibit 16. Due
to the extraordinary length of the Pooling Services Agreement (i.e., 300+ pages), a true and accurate copy of only
the relevant portions of the Pooling Service Agreement is attached. Pursuant to the Pooling Services Agreement
(Sec. 3.01, et seq.) and that certain Limited Power of Attorney dated March 6, 2013 (also identified in further detail
infra and attached as Exhibit 18), Plaintiff has appointed CWCapital Asset Management LLC as its Special
Servicer. CWCapital Asset Management LLC acts only as Plaintiffs agent, and has no real and substantial
interest in the loan documents, the collateral or this litigation such that its citizenship must be considered as part of a
diversity jurisdiction determination. See U.S. Bank Nat. Assn v. Nesbitt Bellevue Property LLC, 859 F.Supp.2d 602,
at 608-609 (S.D.N.Y. 2012) (wherein the Court discusses identical language as that contained in the Pooling
Services Agreement at issue); Wells Fargo Bank, N.A., Trustee v. Konover, 2009 WL 2710229, *4 (D. Conn. Aug.
21, 20009) (delegation to a servicer is not relevant because, in so delegating, the Trustee does not relinquish the
powers it holds as Trustee).
2

As noted in Wells Fargo Bank, N.A., Trustee v. Konover, 2009 WL 2710229 (D. Conn. Aug. 21, 2009),
the Pooling Services Agreement is the document through which the Trustee acts on behalf of the registered holders
of the trust. In this case, the Trust is J.P. Morgan Chase Commercial Mortgage Securities Trust 2008-C2,
Commercial Mortgage Pass-through Certificates, Series 2008-C-2.

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7.
Defendant is a limited liability company, and accordingly, its citizenship is determined by
the citizenship of all of its members. Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080
(5th Cir. 2008).
8.
On information and belief, the sole members of Defendant, Florida Street Holdings LLC,
are: (1) Sam Weiss, a resident of Monsey, New York; (2); Mayer Steg, a resident of Monsey,
New York; and (3) Florida Street Holdings Manager, LLC. Florida Street Holdings Manager,
LLC is a Delaware limited liability company, and on in information and belief, its sole members
are (1) Toby Mandel, a resident of Brooklyn, New York; (2) Abraham Scwartz, a resident of
Brooklyn, New York; and (3) Joseph Brunner, a resident of Brooklyn, New York.
9.
Accordingly, given that all of the members of FSH are citizens of New York and only
New York, FSH is a citizen of New York and nowhere else.
10.
Given that the Plaintiff and the Defendant are the only parties to this case, that the
Plaintiff is domiciled in Illinois and nowhere else, and that the Defendant is domiciled in New
York and nowhere else, there is complete diversity between the Plaintiff and the Defendant.
11.
The relief requested herein is the enforcement of a promissory note in the original
principal amount of $21.5 million to which FSH is indebted and the foreclosure by executory
process of a commercial office tower and related rights securing the note, together with a
deficiency judgment for all that remains due after the seizure and sale of the property.
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Accordingly, it is facially apparent that the amount in controversy is in excess of $75,000,

excluding interest and costs.
VENUE
12.
Venue is proper in this district pursuant to 28 U.S.C. 1391(b)(2) because United States
District Court for the Middle District of Louisiana encompasses East Baton Rouge Parish, the
parish in which the immovable property at issue in this matter lies.
FACTS AND ALLEGATIONS
I.

The Original Loan Documents with J.P. Morgan Chase, N.A.

13.

On December 23, 2007, FSH executed and delivered to J.P. Morgan Chase Bank (Chase
Bank or Original Lender) a certain fixed-rate promissory note in the principal sum of
$21,500,000.00 (the Note), the proceeds of which were utilized by FSH to purchase a
commercial office tower and related rights commonly known as the Chase South Tower, with an
address of 451 Florida Street, Baton Rouge, Louisiana. See Note, dated 12/3/2007, a true and
accurate copy of which is attached hereto as Exhibit 1.
14.
In order to secure repayment of the Note, FSH executed and delivered to Chase Bank a
certain Multiple Indebtedness Mortgage, Assignment of Rents and Leases and Security
Agreement, dated December 3, 2007 (the Mortgage). See Multiple Indebtedness Mortgage,
Assignment of Rents and Leases and Security Agreement, dated December 3, 2007, Filed and
Recorded on December 7, 2007, in East Baton Rouge Parish, at Original 674, Bundle 12016, a

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certified, true, and correct copy of which is attached hereto as Exhibit 2. The Mortgage
covers and affects FSHs interest in the property more particularly described in the Mortgage,
including without limitation that certain property located in East Baton Rouge Parish, Louisiana,
and all improvements located thereon and component parts thereof (hereinafter referred to as the
Premises), all as more particularly described in Exhibit A to the Mortgage.
15.
To further secure the Note, the Mortgage contains an assignment of all of the rentals and
profits from the Premises. As previously stated, the Mortgage was recorded in the Mortgage
Records of East Baton Rouge Parish, State of Louisiana, and therefore the Holders security
interests in the rentals and income generated by the Premises have been perfected pursuant to La.
Rev. Stat. 9:4401(A). See Ex. 2, Mortgage, at Art. 1, 1.2.
16.
Additionally, FSH executed and delivered to Chase Bank a separate Assignment of
Leases and Rents, dated December 3, 2007.

See Assignment of Leases and Rents, dated

December 3, 2007, Filed and Recorded on December 7, 2007, in East Baton Rouge Parish, at
Original 677, Bundle 12016, a certified, true, and correct copy of which is attached hereto as
Exhibit 3. Accordingly, Holders security interests in the leases and rents from the Premises
have been perfected pursuant to La. Rev. Stat. 9:4401(A).
17.
In the Assignment of Leases Rents, FSH did absolutely and unconditionally transfer,
assign and pledge its entire interest in and to: (a) all current and future leases, (b) all deposits,
rents, income, proceeds, revenue and profits of every nature of and from the Property; (c) and

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any right of FSH to receive monies under the Leases on the Property in connection with a
termination of such Leases. See Ex. 3, Article 1, 1.1.
18.
In connection with the Note and Mortgage, FSH authorized the filing of UCC-1
Financing Statements to evidence the valid and effective security interest in the Collateral (as
defined in the Mortgage), including amendments to those statements reflecting their assignment
and/or continuing the filing (the UCC Financing Statements). The UCC Financing Statements
were recorded on December 7, 2007, as File No. 2007-4621297, UCC No. 71295570, in the
UCC records of the State of Delaware, the state in which FSH is organized. A certified, true, and
correct copy of the UCC Financing Statements, together with all subsequent Assignments and
relevant Continuations (the UCC Filings, Assignments, and Continuations), evidencing the
perfection of Plaintiffs valid and effective security interest in the Collateral, is attached as
Exhibit 4 in globo.
19.
In connection with the Note and Mortgage, FSH executed a certain Escrow Agreement
for Reserves and Impounds, dated December 3, 2007 (the Escrow Agreement), a true and
accurate copy of which is attached hereto as Exhibit 5. Pursuant to the Escrow Agreement,
FSH was required to periodically deposit funds into certain escrow accounts to provide for the
payment of real estate taxes, repairs, tenant improvements, and similar expenses.3

The Escrow Agreement also includes escrow obligations that are triggered based on the future decisions
by certain tenants who were occupying the Property and paying rent at the time FSH purchased the building. See
Ex. 5, Escrow Agreement, at pp. 1-3. Those decisions include terminating the lease or reducing the lease space.
For example, the Escrow Agreement provides a variety of contingencies designed to protect the lender in the event
that the Albemarle Corporation, one of the larger Property tenants leasing space in the building at the time the
Escrow Agreement and other Loan Documents were executed, decided to terminate its lease or reduce its floor

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20.
The Loan Documents identified herein as Exhibits 1 through 5 are hereinafter
referred to as the Loan Documents. FSH appeared in the Loan Documents through the
unanimous written consent of its members: Mayer Steg, Sam Weiss, and Florida Street Holdings
Manager LLC. See Certificate of Consent of Members of Florida Street Holdings LLC, dated
December 3, 2007, a true and accurate copy of which is attached hereto as Exhibit 6. Florida
Street Holdings Manager, LLC appeared in the Certificate of Consent of Members of Florida
Street Holdings LLC through the unanimous written consent of its Managing Member, Joseph
Brunner.

See Certificate of Consent of Member and Manager of Florida Street Holdings

Manager LLC, dated December 3, 2007, a true and accurate copy of which is attached hereto as

space. Id. at pp. 1-3, 10. In such an event, the lender is protected by virtue of a specific escrow fund set up for
precisely such a scenario when one of the larger commercial spaces in the building suddenly becomes vacant
without a paying tenant. To the extent the lenders decision to loan money to FSH was conditioned upon the
creditworthiness of FSH to make its monthly payment obligations, and FSHs creditworthiness is contingent in part
on the steady flow of proven rentals, the escrow obligations associated with Albemarles lease protects the lenders
risk in the event Albemarles vacancy disrupts the certainty of FSHs ability to make its payment obligations.
Much the same way, the Escrow Agreement also protects the lender in the event that Chase, another large tenant in
the building, was to exercise its right to terminate its lease. In fact, the Escrow Agreement contemplates that Chase
might give notice to exercise its option to terminate a specific portion of its lease space at various dates throughout
the course of the loan; each such lease reduction option, with specificity as to square footage and dates, is set forth in
the Escrow Agreement. Id. at pp. 1-3, 10-12. Just like the escrow obligations tied to the Albemarle lease, it
provides protections to the lender in the event Chase vacates a portion or all of its lease space and disrupted the
certainty of FSHs ability to make its payment obligations.
FSHs payment obligations under the Escrow Agreement are part of its regular payment obligations under
the Note and Loan Documents. As detailed more fully below, FSH is in breach of its payment obligations for, inter
alia, failure to make payment when payment is due under the Escrow Agreement. In another proceeding pending in
the United States District Court for the Middle District of Louisiana, FSH challenges whether the obligations due
under the Escrow Agreement constitute an illegal tying under the Bank holding Company Act. FSH also sought a
declaratory judgment to determine whether Defendant (the Plaintiff in the captioned matter) is the Holder of the
Loan Documents. See Florida Street Holdings, LLC v. U.S. Bank National Association, as Trustee, as successor in
interest to Bank of America, National Association, as successor by merger to LaSalle Bank National Association, for
the registered holders of J.P. Morgan Chase Commercial Mortgage Securities Trust 2008-C2, Commercial
Mortgage Pass-through Certificates, Series 2008-C-2, No. 15-007154 (M.D. La.) (Jackson, J.). In that proceeding,
on December 4, 2015, the Defendant (the Plaintiff in this captioned matter) filed a Motion to Dismiss the claims
urged by FSH (the Defendant in this captioned mater). On March 18, 2016, the Court issued a Ruling and Order,
[R. Doc. No. 38], dismissing FSHs Request for Declaratory Relief with prejudice. The Court did not grant the
Motion to Dismiss with respect to FSHs tying claim.

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Exhibit 7. FSHs authority to appear in the Loan Documents is also made of record and
attached to the Act of Sale, Filed and Recorded on December 7, 2007, in East Baton Rouge
Parish, at Original 672, Bundle 12016, at page 24, along with Florida Street Holdings Manager
LLCs grant of authority to FSH for FSH to appear in the Loan Documents, at page 29. A
certified, true, and correct copy of the Act of Cash Sale, which includes the aforementioned
certifications of FSH and Florida Street Holdings Manager, LLC is attached hereto as
Exhibit 8.
21.
Pursuant to the terms of the Loan Documents, all of the Original Lenders rights under
the Loan Documents were assignable.

As stated more fully below, through a series of

assignments, Plaintiff, U.S. Bank National Association, as Trustee, as successor in interest to

Bank of America, National Association, as successor by merger to LaSalle Bank National
Association, for the registered holders of J.P. Morgan Chase Commercial Mortgage Securities
Trust 2008-C2, Commercial Mortgage Pass-through Certificates, Series 2008-C-2 (U.S. Bank,
Holder, or, the Plaintiff), became the Holder of the Loan Documents.
II.

The Assignment of the Loan Documents to LaSalle Bank, N.A.

22.

The Loan Documents were assigned by Original Lender to LaSalle Bank National
Association, in its capacity as Trustee for the registered holders of J.P. Morgan Chase
Commercial Mortgage Securities Trust 2008-C2, Commercial Mortgage Trust 2008-C2 by the
following documents: (i) that certain Allonge endorsement, dated May 8, 2008, a true and
accurate copy of which is attached hereto as Exhibit 9; (ii) that certain Assignment of

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Multiple Indebtedness Mortgage, Assignment of Leases and Rents and Security Agreement and
Assignment of Assignment of Leases and Rents, Filed and Recorded on August 28, 2008, in East
Baton Rouge Parish, at Original 528, Bundle 12089, a certified, true, and correct copy of which
is attached hereto as Exhibit 10; and (iii) that certain Omnibus Assignment, dated May 8,
2008, a true and accurate copy of which is attached hereto as Exhibit 11.
III.

The Assignment of the Loan Documents to U.S. Bank (Plaintiff)

23.

The Loan Documents were assigned by Bank of America, N.A., as Trustee, Successorby-Merger to LaSalle Bank National Association, as Trustee for the Registered Holders of J.P.
Morgan Chase Commercial Mortgage Securities Trust 2008-C2, Commercial Mortgage Trust
2008-C2, to Holder, by the following documents: (i) that certain Allonge endorsement to Holder,
a true and accurate copy of which is attached hereto as Exhibit 12; (ii) an Assignment of
Multiple Indebtedness Mortgage, Assignment of Leases and Rents and Security Agreement and
Assignment of Assignment of Leases and Rents, Filed and Recorded on October 29, 2015, in
East Baton Rouge Parish, at Original 854, Bundle 12691, a certified, true, and correct copy of
which is attached hereto as Exhibit 13; (iii) an Assignment of Assignment of Leases and
Rents, Recorded on October 29, 2015, in East Baton Rouge Parish, at Original 856, Bundle
12691, a certified, true, and correct copy of which is attached hereto as Exhibit 14; and (iv)
that certain Omnibus Assignment, dated October 16, 2015, a true and accurate copy of which is
attached hereto as Exhibit 15.

See also Ex. 4, UCC Filings, Assignments, and

Continuations.

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IV.

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The Pooling Service Agreement and

Powers Granted by the Limited Powers of Attorney
24.

The Loan Documents are subject to a Pooling Service Agreement, dated May 1, 2008.
See Relevant Portions of Pooling Service Agreement, dated May 1, 2008, a true and accurate
copy of which is attached hereto as Exhibit 16.4
25.
Certain officers of Holder have the authority to enforce the Loan Documents through that
certain Limited Power of Attorney, dated October 24, 2011, Filed and Recorded on September
10, 2013, in East Baton Rouge Parish, at Original 267, Bundle 12528, together with the Affidavit
Confirming Status of Limited Power of Attorney, a true and accurate copy of which is attached
hereto as Exhibit 17.
26.
Pursuant to that certain Limited Power of Attorney, dated March 6, 2013, a true and
accurate copy of which is attached hereto as Exhibit 18, Plaintiff has appointed CWCapital
Asset Management LLC as its Special Servicer.
V.

The Terms of the Loan Documents

27.

Plaintiff is the holder of the Note in the principal amount of TWENTY-ONE MILLION,
FIVE-HUNDRED THOUSAND AND 00/100 DOLLARS ($21,500,000.00) (the Loan),
bearing interest at the rate of SIX AND 5854/10000 PERCENT (6.5854%) per annum (the
4

Due to the extraordinary length of the Pooling Services Agreement (i.e., 300+ pages), a true and accurate
copy of only the relevant portions of the Pooling Service Agreement are attached hereto. Pursuant to the Pooling
Services Agreement (Sec. 3.01, et seq.) and that certain Limited Power of Attorney, dated March 6, 2013 (Ex. 17),
Plaintiff has appointed CWCapital Asset Management LLC as its Special Servicer.

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Applicable Interest Rate), payable in installments as provided in the Note. The Note further
provides that upon default, the Note shall bear interest at the greater of (i) five percent (5%)
above the Applicable Interest Rate or (ii) five percent (5%) above the Prime Rate (as defined in
the Note), in effect at the time of the occurrence of the Event of Default (the Default Rate),
until paid. See Exhibit 1, Note, at 2 & 6. Because the Note represents a commercial
transaction and the Default Rate does not exceed 21% per annum, the Default Rate is permissible
under LA. REV. STAT. 9:3509 to the extent the statute applies. Additionally, the Note provides
for the payment of late charges in an amount equal to five percent (5%) of the overdue payment,
provided, however, that such late fee shall not apply to any amounts due on the Maturity Date.
See Exhibit 1, Note, at 4.
28.
The Note provides that payments of principal and interest shall be paid in installments as
follows:
Principal and interest due under this Note shall be paid as follows:
(a) A payment of interest only on the date hereof for the period of time from
the date hereof through and including December 31, 2007, a payment of
interest only on the first day of February, 2008 and on the first day of each
calendar month thereafter, up to and including the first day of January, 2011;
and
(b) A constant payment of $137,104.38 on the first day of February, 2011 and
on the first day of each calendar month thereafter up to and including the first
day of December, 2017;
with payment under this Note to be applied as follows:
(i) First, to the payment of interest and other costs and charges due in
connection with this Note or the Debt, as Lender may determine in its sole
discretion; and
(ii) The balance shall be applied toward the reduction of the principal sum;
and the balance of said principal sum, together with accrued and unpaid interest
and any other amounts due under this Note shall be due and payable on the first
day of January, 2018 or upon earlier maturity hereof whether by acceleration or
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otherwise (the Maturity Date). Interest on the principal sum of this Note shall
be calculated on the basis of a three hundred sixty (360) day year and paid for the
actual number of days elapsed. All amounts due under this Note shall be payable
without setoff, counterclaim or any other deduction whatsoever.
See Exhibit 1, Note, at 1.
29.
A default occurs under the Loan (and the Note) when any scheduled payment of
principal, interest, or other sums due is not paid when due and not timely cured, or when an
Event of Default (as defined in the Mortgage or any of the Loan Documents) has occurred. See
Exhibit 1, Note, at 5.
30.
The Mortgage secures payment of the indebtedness evidenced by the Note, and any and
all indebtedness and obligations under the Mortgage and any of the Loan Documents. See
Exhibit 2, Mortgage, at p. 1 & Articles 1-2, Article 3, 3.1 & 3.10.
31.
The maximum indebtedness secured by the Mortgage is $43,000,000.00. See Exhibit
2, Mortgage, at 20.3.
32.
In the Mortgage, FSH did specifically irrevocably mortgage, grant, bargain, sell, convey,
transfer, pledge, set over, assign and create a security interest in the Premises and all other
property described therein unto and in favor of Plaintiff as security for all of FSHs obligations
under the Loan Documents, including the repayment of all indebtedness under the Note, and any
other indebtedness of FSH to Plaintiff. See Mortgage (Ex. 2), at Art. 1.

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33.
The Mortgage also serves as a security agreement affecting, among other collateral, the
following fixtures and movable property (the Collateral, and collectively with the Premises,
the Property):

[]

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[]

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[]

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See Mortgage, Ex. 2, at Art. 1, 1.1 (Property Mortgaged), Art. 12, and Exhibit A
attached thereto. Capitalized terms used hereinabove are as provided for in the Mortgage.
34.
As set forth above, the UCC Filings, Assignments, and Continuations (Ex. 4 in globo)
evidence Plaintiffs valid, effective, and continuously perfected security interest in the Collateral
that FSH pledged pursuant to the Mortgage (Ex. 2), including amendments to those statements
reflecting their assignment and/or continuing the filing.

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VI.

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FSHs Defaults
35.

FSH has failed to make the full regular monthly payments (unrelated to its escrow
obligations) when payments became due under the Note. As of March 1, 2016, the Borrower
was past due for the full monthly payment (unrelated to its escrow obligations) for October 1,
2015 and forward. Such failure is a separate and independent default of FSHs obligations under
the Note.

Subsequently, Borrower made some payments due under the Loan Documents,

however, FSH remains in payment default under the Loan Documents (unrelated to its escrow
obligations). Notably, FSH waived presentment for payment, demand, protest, notice of
protest or other dishonor. See Ex. 1, Note, at 5 & 9(a).
36.
FSH has not cured any such defaults under the Note, and the entire balance due under the
Note remains unpaid and is due and payable in full, including without limitation principal,
interest, late charges, collection costs, including attorneys fees and expenses, and all other
amounts due under the Note.
37.
Additionally, FSH did not make the full payment due under the Note on March 1, 2015,
the date it was due, or any month thereafter, based on FSHs failure to make payment due for its
obligations under the Escrow Agreement.

FSHs payment obligations under the Escrow

Agreement are part of its regular payment obligations under the Note and Loan Documents.
Accordingly, on March 1, 2015, another Event of Default occurred under the Note and it became
immediately due and payable according to its terms.

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38.
Although notice was waived by FSH, on November 20, 2015, Plaintiff issued FSH a
Notice of Default, Acceleration, Demand for Payment, and Revocation of Right to Collect Rents
(the Notice of Default), via overnight carrier and certified mail return receipt requested. See
Notice of Default, dated November 20, 2015, a true and accurate copy of which is attached
hereto as Exhibit 19. FSH has not cured its defaults.
VII.

Amounts Due under the Note and

Enforcement of the Mortgage by Executory Process
39.

As confirmed herein and attested to by the attached Verification of Dina R. Bell, Vice
President of CWCAM, as of March 1, 2016, the total principal balance due under the Note is
$20,357,665.60, together with accrued but unpaid interest properly calculated at the non-default
rate of 6.5854% per annum for the period of September 1, 2015 to March 1, 2016 in the amount
of $677,764.82, accrued but unpaid interest properly calculated at the Default Rate (after
subtracting interest calculated at the non-default rate) for the period of March 1, 2015 to March
1, 2016 in the amount of $1,018,235.81, plus interest as it continues to accrue on the unpaid
principal amount from and after March 1, 2016, at the Default Rate, late charges in the amount of
$89,117.85 as of March 1, 2016, prepayment premium as of March 1, 2016 in the amount of
$2,167,885.77, expenses, costs and attorneys fees in the amount of $130,263.79, tax service fees
in the amount of $75.00, all of which as of March 1, 2016, total $24,441,008.64, all subject to an
escrow/reserve credit in the amount of $2,047,451.76 and a suspense credit of $321,643.97,
leaving a balance owed as of March 1, 2016 of $22,071,912.91, plus attorneys fees and

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expenses, and all other amounts due and owing under the Note and Mortgage. Borrower has
made a partial payment subsequent to March 1, 2016, however, the loan remains in default.
40.
The Note provides that after an event of default occurs, FSH agrees to pay all reasonable
costs of collecting, enforcing, or attempting to collect or enforce the Note or any other Loan
Document, including court costs and reasonable attorneys fees. See Ex. 1, Note, at 5.
Payment of such costs and expenses is secured by the Mortgage. See Ex. 2, Mortgage, at
2.2-2.3.
41.
Plaintiff, through CWCAM, has employed the law firm of Baker Donelson Bearman
Caldwell & Berkowitz, PC to enforce payment of the Note, and to enforce the Mortgage.
Accordingly, Holder is entitled to recover its attorneys fees and expenses as provided in the
Note and Mortgage, and FSH also is liable for all costs of the captioned executory process
action.
42.
In the Mortgage, FSH acknowledged the secured indebtedness and CONFESSED
JUDGMENT for the purpose of executory process for the full amount of the indebtedness
secured by the Note. See Ex. 2, Mortgage, at Article 10, 10.1(c)-(e). Further, FSH agreed
that Plaintiff may, without making a demand and without putting in default, both of which
were expressly waived, cause all Property to be seized and sold by executory or ordinary
process, at the Plaintiffs sole option, with or without appraisal, to the highest bidder for cash,

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and otherwise exercise the rights, powers and remedies afforded under the Mortgage and
applicable Louisiana law. Id.
43.
In the Mortgage, FSH expressly waived (a) the benefit of appraisal as provided in LA.
CODE CIV. PROC. arts. 2332, 2336, 2723 and 2724; (b) the demand and three (3) days delay as
provided under LA. CODE CIV. PROC. art. 2721, (c) the notice of seizure as provided under LA.
CODE CIV. PROC. arts. 2293 and 2721; (d) the three (3) days delay provided under LA. CODE
CIV. PROC. arts. 2331 and 2722; (e) all other benefits provided under the aforementioned and all
other articles not specifically mentioned above. See Ex. 2, Mortgage, at Article 10, 10.1(c)(e).
44.
The Mortgage provides that if there shall occur an Event of Default under the Mortgage,
then the Mortgage is subject to foreclosure as provided by law and Mortgagee may, at its option
and by or through a trustee, nominee, assignee or otherwise, to the fullest extent permitted by
law, among other remedies: accelerate the maturity date of the Note and declare any or all of the
Debt to be immediately due and payable without any presentment, demand, protest, notice or
action of any kind whatever, collect rents and profits, commence a foreclosure proceeding (all
expenses of which, including, but not limited to, reasonable attorneys fees and costs, shall be
paid by Mortgagor and secured by the Mortgage and by all of the other Loan Documents
securing all or any part of the Debt). See Ex. 2, Mortgage, at Article 10, 10.1(c)-(e), &
Article 16, 16.1.

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45.
Plaintiff is entitled to and requests that executory process issue with respect to the
Property. Plaintiff desires that the Property be sold with benefit of appraisal and that FSHs
waiver of demand for payment be recognized and that such demand be dispensed with.
VIII. Appointment and Power of the Keeper
46.
Pursuant to the authority contained in La. Rev. Stat. 9:4136 through 9:5140.2,5 the
Mortgage provides that, if the Property is seized as an incident to an action for the recognition or

La. Rev. Stat. 9:5136 provides:

The parties to a mortgage of either immovable property or movable property, or both, or the
parties to a security agreement under Chapter 9 of the Louisiana Commercial Laws (R.S. 10:9101, et seq.), may designate a keeper of the property to be appointed pursuant to R.S. 9:5137 by
expressly naming or identifying in the mortgage or security agreement the person who is to serve
as keeper or by describing the method by which he is to be selected. The parties may designate
the mortgagee, or secured party, or his agent as the keeper or may permit the mortgagee or secured
party to name the keeper at the time the seizure is effected. If the designation of the keeper by the
parties to the mortgage or security agreement is not made in the original instrument, it may be
made by any other instrument executed by them, either concurrently with or subsequent to the act
of mortgage or security agreement, which in the case of a mortgage on immovable property shall
be by an instrument duly acknowledged by the parties in the presence of a notary public and two
witnesses.

La. Rev. Stat. 9:4137(A) provides:

A. If any immovable or any movable property, or both immovable and movable property, affected
by a mortgage is seized as an incident to an action for the recognition or the enforcement of the
mortgage, whether by executory process, writ of fieri facias, sequestration, or otherwise, the court
issuing the order under which the seizure is to be effected shall, if such order is petitioned for by
the seizing creditor, direct the sheriff or other officer making the seizure to appoint as keeper of
the seized property such person as the parties may have designated as herein provided. The
designation of a keeper of the property in accordance with the provisions of R.S. 9:5136 is for the
benefit of the seizing creditor, but such designation shall not be deemed to require the seizing
creditor to provoke the appointment of any such keeper.
La. Rev. Stat. 9:5138 provides:
A. The keeper or receiver shall perform his duties as a prudent administrator, and neither the
keeper nor the seizing creditor shall be liable to the mortgagor or the owner of the seized property
or any other person for any financial or pecuniary loss or damage claimed to have been suffered
by the mortgagor or owner of the seized property or any other person by reason of the
administration or management of the property by the keeper or receiver acting as a prudent
administrator. A keeper appointed under the provisions of R.S. 9:5136 through 5140.2 shall have

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enforcement of the Mortgage by executory process, ordinary process, sequestration, writ of fieri
facias or otherwise, Plaintiff may request the Court to appoint as keeper of the Property either
the Plaintiff or any agent designated by the Plaintiff at the time the seizure is effected (the
Keeper). See Ex. 2, Mortgage, at Article 10, 10.1(f).6 The Mortgage further provides that
the Keeper shall be entitled to reimbursement of all reasonable costs and expenses incurred by it
as Keeper, in addition to reasonable compensation equal to $500 per day, which is costs,
expenses, and compensation shall be included in the indebtedness secured by the Mortgage.
full powers of management and administration of the property and may operate the property
seized, whether immovable, movable, or both, in the ordinary course of business.
B. All revenues or other amounts received by the keeper during his administration first shall be
applied to the costs and expenses incurred by him in the administration or preservation of the
property, including meeting any obligations the owner might have to provide services, amenities,
or other obligations as provided in the prior recorded existing leases of the tenants or lessees of the
property, and any balance shall be applied to the debt secured by the mortgage.
C. The keeper shall render an accounting of his administration at such time or times as the court
before whom the proceedings are pending may direct, and all costs and expenses necessarily
incurred by him in the course of his administration shall be taxed as a part of the costs of the
proceedings to the extent they have not been satisfied out of revenues previously received by the
keeper. Costs and expenses of administration shall not include any compensation to a keeper
appointed under R.S. 9:5136 through 5140.2 for his services, unless he was particularly identified
by the parties in the act of mortgage and the manner of determining such compensation is therein
agreed to, or unless the keeper was appointed by the court pursuant to the provisions of R.S.
9:5137(B).
La. Rev. Stat. 9:5139 provides:
A. No bond shall be required of the keeper appointed pursuant to R.S. 9:5137(A) by the person
provoking the seizure other than any bond otherwise required by law in such proceedings.
B. The keeper appointed pursuant to R.S. 9:5137(B) shall give such bond for the faithful
performance of his duties as the court may fix, which shall be at such reasonable sum as the nature
of the case justifies.
C. The sheriff or other officer seizing property shall have no responsibility for the property seized
or the actions of the keeper after custody of the property has been delivered to the keeper, and
shall not be entitled to receive any commission on the rents, revenues, or other fruits of the
property delivered to the keeper.
6

Moreover, Plaintiff has the right to request the appointment of a Keeper given that Plaintiff is the trustee
for the loan at issue and holds all right, title and interest in the trust and its assets pursuant to that certain Pooling
Service Agreement (the Pooling Services Agreement) dated May 1, 2008, at 2.01(a) (Ex. 16). Pursuant to that
certain Limited Power of Attorney, dated March 6, 2013 (Ex. 18), Plaintiff has appointed CWCapital Asset
Management LLC as its Special Servicer to transact business of any kind regarding the Loans, including seeking the
appointment of a Keeper.

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47.
To the extent the costs and expenses necessarily incurred by the Keeper are not satisfied
out of revenues previously received by the Keeper, all such necessary costs and expenses shall be
taxed as part of the court costs of the proceeding.
48.
Finally, with respect to the appointment of a Keeper, the mortgage specifically designates
Lender or its designee as the Keeper. Accordingly, Plaintiff requests that this Court designate
Corporate Realty, Inc., or its designee, as the Keeper for the Property.
49.
Plaintiff reserves the right to pursue FSH and any other maker or guarantor of the
indebtedness represented by the Note, Mortgage, or any other Loan Document remaining after
completion of the Marshals sale of the Property, and the net sales proceeds of the Marshals sale
have been credited to the indebtedness represented by the Note, Mortgage and any other Loan
Document.
RELIEF SOUGHT
50.
Plaintiff respectfully requests:
1.

That FSHs waiver of demand for payment be recognized and that such demand

be dispensed with;
2.

That an Order for Executory Process and Appointment of a Keeper, and a Writ of

Execution and Seizure and Sale, be issued herein;

3.

That the Writ of Execution and Seizure and Sale direct the U.S. Marshal for the

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Middle District of Louisiana, to seize and after due delays, requisites, and formalities, save those
expressly waived in the Mortgage, to sell the Premises described in Exhibit A to the Mortgage,
attached at Exhibit 2 to this Verified Complaint, including all rights and interests in and to
leases and rents from the Premises, according to law, for cash and WITH BENEFIT OF
APPRAISAL;
4.

That the Writ of Execution and Seizure and Sale further order the U.S. Marshal

for the Middle District of Louisiana, to seize and after due delays, requisites, and formalities,
save those expressly waived in the Mortgage, to sell, the Collateral more particularly described
in this Verified Complaint, according to law, for cash and WITH BENEFIT OF APPRAISAL;
5.

That out of the proceeds of said sale, Plaintiff be paid its claim in the principal

sum of $20,357,665.60, together with accrued regular and default interest, late charges, advances
and collection costs less credits, for a total amount of $22,071,912.91 owed as of March 1, 2016,
together with all attorneys fees, costs and all other amounts due and owing under the Note and
Mortgage in connection with this proceeding, as those amounts continue to accrue;
6.

That Plaintiff be allowed to supplement the amount of indebtedness up to, through

and including the time period running after commencement of this action and the date of the
Marshals sale;
7.

That out of the proceeds of said sale, Plaintiff be paid the amount of its claim in

preference and priority over all other persons;

8.

That following payment to Plaintiff, a deficiency judgment issue in favor of

Plaintiff against FSH for the deficiency, if any, between the amount recovered by Plaintiff from
the sale of the Property and the indebtedness of FSH to Plaintiff;

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9.

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For the appointment of Corporate Realty, Inc., or its subsequent designee, as the

Keeper for the Property immediately upon the Seizure of the Property, without bond or security,
for safekeeping, maintenance, preservation and/or operation of the Property, which Keeper shall
have the duties and powers described in La. Rev. Stat. 9:5136 et seq. with respect to the
Property, including, but not limited to, the receipt and collection of any and all sums of money
arising from the Assignment of Leases and Rents, the right to operate under the authority of any
existing permits, contracts, leases, and licenses on the Property, and the right to obtain property
and casualty, general liability, and workmans compensation insurance for the protection of the
Property; and
10.

For all general and equitable relief this court deems just and proper.

WHEREFORE, considering the foregoing, Plaintiff, U.S. Bank National Association, as

Trustee, as successor in interest to Bank of America, National Association, as successor by
merger to LaSalle Bank National Association, for the registered holders of J.P. Morgan Chase
Commercial Mortgage Securities Trust 2008-C2, Commercial Mortgage Pass-through
Certificates, Series 2008-C-2 (U.S. Bank, Holder, or Plaintiff), acting by and through
CWCapital Asset Management LLC (CWCAM), solely in its capacity as Special Servicer for
Holder, PRAYS:
1.

That FSHs waiver of demand for payment be recognized and that such demand

be dispensed with;
2.

That an Order for Executory Process and Appointment of a Keeper, and a Writ of

Execution and Seizure and Sale, be issued herein;

3.

That the Writ of Execution and Seizure and Sale direct the U.S. Marshal for the

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Middle District of Louisiana, to seize and after due delays, requisites, and formalities, save those
expressly waived in the Mortgage, to sell the Premises described in Exhibit A to the Mortgage,
attached at Exhibit 2 to this Verified Complaint, including all rights and interests in and to
leases and rents from the Premises, according to law, for cash and WITH BENEFIT OF
APPRAISAL;
4.

That the Writ of Execution and Seizure and Sale further order the U.S. Marshal

for the Middle District of Louisiana, to seize and after due delays, requisites, and formalities,
save those expressly waived in the Mortgage, to sell, the Collateral more particularly described
in this Verified Complaint, according to law, for cash and WITH BENEFIT OF APPRAISAL;
5.

That out of the proceeds of said sale, Plaintiff be paid its claim in the principal

sum of $20,357,665.60, together with accrued regular and default interest, late charges, advances
and collection costs less credits, for a total amount of $22,071,912.91 owed as of March 1,
2016, together with all attorneys fees, costs and all other amounts due and owing under the Note
and Mortgage in connection with this proceeding, as those amounts continue to accrue;
6.

That Plaintiff be allowed to supplement the amount of indebtedness up to, through

and including the time period running after commencement of this action and the date of the
Marshals sale;
7.

That out of the proceeds of said sale, Plaintiff be paid the amount of its claim in

preference and priority over all other persons;

8.

That following payment to Plaintiff, a deficiency judgment issue in favor of

Plaintiff against FSH for the deficiency, if any, between the amount recovered by Plaintiff from
the sale of the Property and the indebtedness of FSH to Plaintiff;

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9.

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For the appointment of Corporate Realty, Inc., or its subsequent designee, as the

Keeper for the Property immediately upon the Seizure of the Property, without bond or security,
for safekeeping, maintenance, preservation and/or operation of the Property, which Keeper shall
have the duties and powers described in La. Rev. Stat. 9:5136 et seq. with respect to the
Property, including, but not limited to, the receipt and collection of any and all sums of money
arising from the Assignment of Leases and Rents, the right to operate under the authority of any
existing permits, contracts, leases, and licenses on the Property, and the right to obtain property
and casualty, general liability, and workmans compensation insurance for the protection of the
Property; and
10.

For all general and equitable relief this court deems just and proper.

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Respectfully submitted,
BAKER DONELSON BEARMAN
CALDWELL & BERKOWITZ, PC
/s/ Nancy Scott Degan
NANCY SCOTT DEGAN (La. Bar No. 01819)
BENJAMIN W. JANKE (La. Bar No. 31796)
201 St. Charles Ave., Suite 3600
New Orleans, Louisiana 70170
Telephone: (504) 566-5200
Facsimile: (504) 636-4000
AND
TIMOTHY M. LUPINACCI (#ASB-7626-L64T)
Wells Fargo Tower, Suite 1600
420 Twentieth Street North
Birmingham, AL 35203
Telephone: (205) 328-0480
Facsimile: (205) 322-8007
Pro Hac Vice Admission Pending
ATTORNEYS FOR U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE, AS SUCCESSOR IN
INTEREST TO BANK OF AMERICA, NATIONAL
ASSOCIATION, AS SUCCESSOR BY MERGER TO
LASALLE BANK NATIONAL ASSOCIATION, FOR
THE REGISTERED HOLDERS OF J.P. MORGAN
CHASE COMMERCIAL MORTGAGE SECURITIES
TRUST 2008-C2, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2008-C2, ACTING BY AND THROUGH CWCAPITAL
ASSET MANAGEMENT LLC, SOLELY IN ITS
CAPACITY AS SPECIAL SERVICER FOR HOLDER

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA
U.S. BANK, N.A., AS SUCCESSOR TRUSTEE
TO BANK OF AMERICA, N.A., AS
SUCCESSOR TRUSTEE TO LASALLE
BANK, N.A., AS TRUSTEE FOR THE
REGISTERED HOLDERS OF J.P. MORGAN
CHASE COMMERCIAL MORTGAGE
SECURITIES TRUST 2008-C2,
COMMERCIAL MORTGAGE PASSTHROUGH CERTIFICATES 2008-C2

CASE NO.:

JUDGE

MAG. JUDGE

*
*

VS.

FLORIDA STREET HOLDINGS LLC

VERIFICATION
STATE OF MARYLAND
COUNTY OF MONTGOMERY
BEFORE ME, the undersigned Notary Public, duly commissioned and qualified in and for the
State and County aforesaid, therein residing, personally came and appeared:
DINA R. BELL
who, upon first being duly sworn by me, Notary, did depose and say that she is a duly authorized
Vice President for CWCapital Asset Management LLC, who is the Special Servicer for the
holder in due course of the Note and Mortgage referenced in the Verified Complaint to Foreclose
By Executory Process With Benefit of Appraisal and For the Appointment of a Keeper filed in
the captioned matter (the Verified Complaint), and as such is familiar with the account of the
Defendant, Florida Street Holdings LLC, that she has read the above and foregoing Verified
Complaint and that all of the facts and allegations contained therein are true and correct to the
best of her knowledge, information and belief.
SWORN TO AND SUBSCRIBED
BEFORE ME, NOTARY, THIS ____
DAY OF __________, 2016.

By:__________________________
Name: Dina R. Bell
As: Vice President
CWCapital Asset Management LLC

NOTARY PUBLIC

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