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1 NINA M. PATANE (SBN 157059)
ANDREA C. AVILA (SBN 193982)
2 PATANE • GUMBERG • AVILA, LLP
Attorneys at Law
3 4 Rossi Circle, Suite 231
Salinas, CA 93907
4 Mailing: P.O. Box 3770, Salinas, CA 93912
Telephone: (831) 755-1461
5 Facsimile: (831) 755-1477
Email: npatane@pglawfirm.com
6 aavila@pglawfirm.com
7 Attorneys for Plaintiff,
ROBERT T. ELLIOTT
8
9 SUPERIOR COURT OF CALIFORNIA – COUNTY OF MONTEREY
10 UNLIMITED JURISDICTION
11 ROBERT T. ELLIOTT, ) CASE NO. 21CV003944
)
12 ) DECLARATION OF ROBERT T.
Plaintiff, ) ELLIOTT IN SUPPORT OF MOTION BY
13 vs. ) PLAINTIFF ROBERT T. ELLIOTT FOR
) SUMMARY JUDGMENT
14 MECHANICS BANK, a California )
corporation, as the Successor-in-Interest to ) Date: September 30, 2022
15 Rabobank, N.A.; and DOES 1 – 40, ) Time: 8:30 a.m.
inclusive, ) Dept.: 14
16 ) Judge: Hon. Carrie M. Panetta
)
17 Defendants. ) Complaint Filed: December 21, 2021
) Trial Date: Not Set
18 )
)
19
20 I, ROBERT T. ELLIOTT, hereby declare as follows:
21 1. I have personal knowledge of the facts contained herein, and if called upon as a witness
22 I could and would testify competently to each fact stated in this declaration.
23 2. I am one of approximately twelve former owners of Premium Fresh.
24 3. Premium Fresh obtained three loans from Community Bank to fund its business
25 operations. On or about February 1, 2006, RABOBANK became the successor-in-interest by
26 merger to Community Bank. On or about August 31, 2019, MECHANICS BANK, became the
27 successor-in-interest by merger to RABOBANK.
28 ///
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______________________________________________________________________________
Declaration of Robert T. Elliott in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 4. The first loan [#190012401] was issued on November 5, 2002 in the sum of
2 $750,000. Premium Fresh, myself and the remaining owners were listed as co-borrowers on this
3 loan. The second loan [# 78186840-09] was an SBA loan issued on October 12, 2004 in the sum of
4 $1,900,000. The third loan [#160064291] was issued on October 13, 2004 in the sum of $1,000,000.
5 I and other Premium Fresh owners personally guaranteed the second and third loans. (Collectively,
6 the first, second and third loans are “the Loans”.)
7 5. Premium Fresh defaulted on each of the Loans.
8 6. On January 5, 2007, RABOBANK filed a Complaint related to the defaulted Loans
9 against Premium Fresh and the guarantors/borrowers including myself (collectively, the “Debtors”).
10 7. On December 14, 2007, a Notice of Attachment was recorded against the Debtors
11 including myself imposing a lien against their real property. A true and correct copy of the Notice
12 of Attachment is attached hereto as Exhibit 1 and incorporated by reference.
13 8. On July 8, 2008, a Stipulation for Entry of Judgment (“Stipulation for Judgment”)
14 was entered between RABOBANK and the Debtors. The Stipulation provided that I and certain
15 other Debtors were jointly and severally liable for the principal sum of $2,983,552.72; interest of
16 $315,087.69; late charges of $29,107.30 and costs of $26,623.62. I further stipulated to transfer
17 certain collateral owned by Premium Fresh to RABOBANK. A true and correct copy of the
18 Stipulation for Entry of Judgment is attached hereto as Exhibit 2 and incorporated by reference.
19 9. On July 8, 2008, a Judgment consistent with the Stipulation for Judgment was
20 entered in favor of RABOBANK and against the Debtors. The Judgment was recorded in Monterey
21 County on July 17, 2008. Several Debtors filed bankruptcy and the Judgment debt was discharged
22 as to those individuals and entities. A true and correct copy of the Judgment is attached hereto as
23 Exhibit 3 and incorporated by reference.
24 10. RABOBANK thereafter seized collateral used to secure the Loans (“Collateral”).
25 The Collateral appraised on August 20, 2004 at a value of $2,083,050 with an estimated liquidation
26 value of $1,353,983. On March 4, 2009, the Collateral was liquidated at auction for the sum of
27 $121,318.75. A true and correct copy of the collateral liquidation documents are attached hereto as
28 Exhibit 4 and incorporated by reference.
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______________________________________________________________________________
Declaration of Robert T. Elliott in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 11. On April 2, 2018, RABOBANK filed a Renewal of the Judgment (“Renewed
2 Judgment”). A true and correct copy of the Renewal of Judgment is attached hereto as Exhibit 5
3 and incorporated by reference.
4 12. On May 14, 2018, RABOBANK recorded an Abstract of Judgment against the
5 Debtors including myself. A true and correct copy of the Abstract of Judgment is attached hereto as
6 Exhibit 6 and incorporated by reference.
7 13. I commenced efforts to settle my debt with RABOBANK by contacting local bank
8 representatives at the Salinas branch. In early summer of 2013, I learned that RABOBANK’s
9 Special Assets Department was located in Fresno, California.
10 14. I conducted research to locate a senior Special Assets representative. My research
11 yielded RABOBANK’s Senior Vice-President and Director of Special Assets, Robert Bennett.
12 15. Sometime before August 8, 2013, I met with Mr. Bennett in Fresno, California to
13 discuss resolution of my debt. On information and belief, I provided my first set of financials
14 during this meeting.
15 16. On August 21, 2013, I sent an email to Mr. Bennett attaching my financials and
16 stating I would be “there about 3:30 today.” I met with Mr. Bennett in RABOBANK’s Fresno
17 offices and expressed a desire to amicably resolve the Judgment and Lien. A true and correct copy
18 of my August 21, 2013 email to Mr. Bennett (without the financial statement for privacy purposes)
19 is attached hereto as Exhibit 7 and incorporated by reference.
20 17. In late August or early September 2013, I followed up with Mr. Bennett and was
21 referred to RABOBANK’s Vice President and Senior Special Assets Officer, Frank Oliver to
22 continue settlement discussions. Mr. Oliver was also located in Defendant’s Fresno offices.
23 18. Between mid-September and September 27, 2013, I hand carried a written offer to
24 settle my Judgment and Lien to Mr. Oliver. Mr. Oliver did not accept my proposal.
25 19. On September 27, 2013, I sent an updated financial statement to Mr. Oliver which
26 was immediately acknowledged via email. A true and correct copy of my September 27, 2013
27 email to Mr. Oliver (without the financial statement for privacy purposes) along with Mr. Oliver’s
28 response email is attached hereto as Exhibit 8 and incorporated by reference.
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______________________________________________________________________________
Declaration of Robert T. Elliott in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 20. On January 22, 2014 at 11:41 a.m., I sent an email to Mr. Oliver and Mr. Bennett
2 regarding the “Premium Fresh Judgment.” I attached a separate letter articulating a written
3 settlement proposal. My letter stated that I was “reaching out again to try to settle the judgment
4 against me and my assets.” Specifically, I proposed: “I will pay $140,000.00 dollars.” I stated that
5 I would “need 18 months to pay the total amount” and that installments would be made as follows:
6 $30,000.00 on April 1st 2014; $40,000.00 on September 1st 2014; $30,000.00 on April 1st 2015; and
7 $40,000.00 on September 1st 2015. I also offered commercial field trucks as collateral to secure my
8 payment obligation (collectively, the “Settlement Offer”). A true and correct copy of my January
9 22, 2014 email to Mr. Oliver and Mr. Bennett is attached hereto as Exhibit 9 and incorporated by
10 reference.
11 21. The next day, Mr. Oliver replied to my email accepting the offer and stating:
12 “We …. accept the $140,000 as payment to release the Rabobank Lien. I
13 would suggest that you begin building a savings account… I have numerous
14 other credit files that have a higher priority. This is going to require some
15 additional review and work with both the SBA and Central Coast SBDC to
16 determine who we will give your payment to. In the interim I will see if there
17 is another SAM Officer that may have the time to work on this.”
18 A true and correct copy of Mr. Oliver’s January 23, 2014 email is attached hereto as Exhibit 10 and
19 incorporated by reference.
20 22. On January 24, 2014, I emailed Mr. Oliver requesting follow up instructions and
21 thanking Mr. Oliver for “acceptance of my Premium Fresh [Settlement] proposal and lean (sic)
22 release.” I copied my bookkeeper, Martha Sisneros, to ensure she was apprised of anticipated
23 payment instructions. I had over $150,000 in accessible cash to commence my payments. A true
24 and correct copy of my January 24, 2014 email to Mr. Oliver is attached hereto as Exhibit 11 and
25 incorporated by reference.
26 23. I telephoned Mr. Oliver on several occasions between January and March 25, 2014
27 to request the contact information of his new Special Assets Officer.
28
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______________________________________________________________________________
Declaration of Robert T. Elliott in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 24. On or about March 25, 2014, Mr. Oliver and I had a telephone call during which
2 Mr. Oliver provided my new contact, Vice President – Senior Special Assets Officer, Kendall
3 Bates.
4 25. On March 26, 2014, and using the subject line “Settlement”, I sent an email to Mr.
5 Oliver requesting Mr. Bates’ contact information “in reference to the Premium Settlement.” Mr.
6 Oliver forwarded the aforementioned email to Mr. Bates later that same day instructing Mr. Bates
7 to respond to me. A true and correct copy of my March 26, 2014 email to Mr. Oliver along with
8 Mr. Oliver’s email to Mr. Bates is attached hereto as Exhibit 12 and incorporated by reference.
9 26. The next day, Mr. Bates sent an email to me acknowledging my desire to reach him
10 [Mr. Bates] regarding the “Premium Settlement”. Mr. Bates stated he may not be of much help
11 because he did not recognize the reference of [“Premium Settlement”]. Mr. Bates nevertheless
12 extended his contact information. A true and correct copy of Mr. Bates’ March 27, 2014 email is
13 attached hereto as Exhibit 13 and incorporated by reference.
14 27. On March 28, 2014, I sent an email to Mr. Bates regarding subject “Premium Fresh
15 Judgment.” I stated that I would send another email with the settlement information referred to by
16 Mr. Oliver. I confirmed that I had the first Settlement payment in the bank and was prepared to
17 perform. A true and correct copy of my March 28, 2014 email to Mr. Bates is attached hereto as
18 Exhibit 14 and incorporated by reference.
19 28. Later that day, Mr. Bates replied to my email stating that Mr. Oliver was out of the
20 office and was expected to return on Monday. Mr. Bates asked if it would be okay to wait to confer
21 with Mr. Oliver before sending a responsive email. A true and correct copy of Mr. Bates’ March
22 28, 2014 email is attached hereto as Exhibit 15 and incorporated by reference.
23 29. The following Monday, Mr. Bates provided no further instructions for payment or
24 any response whatsoever notwithstanding his representation he would do so.
25 30. After receiving no response, I sent a follow up email to Mr. Bates on April 1, 2014.
26 The email contained the subject line “Settlement”. I expressed concern that my first Settlement
27 payment was due to be deposited. I stated I wanted to “make sure that I stay in terms with Rabo.” I
28 assured Mr. Bates that I had the “cash” to pay my first payment and wanted to know where it
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______________________________________________________________________________
Declaration of Robert T. Elliott in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
1 should be deposited. I offered to deposit the payment into an escrow account to avoid default of the
2 Settlement. I stated, “Please let me know so we may continue forward.” No response was
3 received. A true and correct copy of my April 1, 2014 email to Mr. Bates is attached hereto as
4 Exhibit 16 and incorporated by reference.
5 31. In approximately February 2018, I telephoned Mr. Oliver to inquire about the status
6 of my Settlement. Mr. Oliver responded by directing me to contact President/Manager Commercial
7 Special Assets Nicola Merrifield Olivia, Senior Vice President along with her contact information.
8 Mr. Oliver did not dispute my reference to a “Settlement”.
9 32. On March 16, 2018, I emailed Ms. Olivia using the subject line “Rabobank
10 Agreement”. I stated, “Frank Oliver told me to pass this agreement on to you.” Later that same
11 day, Ms. Olivia replied stating that my contact with regard to my Settlement inquiry was Adriana
12 Sejera. Ms. Olivia did not inform me that I had no “agreement.” A true and correct copy of the
13 emails exchanged between me and Ms. Olivia on March 16, 2018 is attached hereto as Exhibit 17
14 and incorporated by reference.
15 33. On March 19, 2018, Mr. Kennedy, counsel to RABOBANK, emailed me in response
16 to my emails sent to Ms. Olivia and Ms. Sejera. Mr. Kennedy asked what I wanted to discuss. A
17 true and correct copy of Mr. Kennedy’s March 19, 2018 email (without the attachments) is attached
18 hereto as Exhibit 18 and incorporated by reference.
19 34. On April 6, 2018, using the subject line “[Premium Fresh] Settlement agreement
20 payoff schedule”, I replied to Mr. Kennedy via email reiterating the history of the Settlement. I
21 stated that I wanted information on how and when to remit payments on the Settlement and have
22 the Lien removed. A true and correct copy of my April 6, 2018 email to Mr. Kennedy is attached
23 hereto as Exhibit 19 and incorporated by reference.
24 35. On April 13, 2018, Mr. Kennedy sent an email communicating that I had no
25 Settlement with Rabobank. Mr. Kennedy set forth new conditions for a potential settlement to be
26 reached, i.e., that I would be required to provide financials in support of an offer in compromise and
27 that “any settlement … would have to be reduced to a formal written agreement with the concurrent
28
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______________________________________________________________________________
Declaration of Robert T. Elliott in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment;
Case No. 21CV003944
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Exhibit 7
Exhibit 8
Exhibit 9
Exhibit 10
Exhibit 11
Exhibit 12
Exhibit 13
Exhibit 14
Exhibit 15
Exhibit 16
Exhibit 17
Exhibit 18
Exhibit 19
Exhibit 20
Preview
1 NINA M. PATANE (SBN 157059) ANDREA C. AVILA (SBN 193982) 2 PATANE • GUMBERG • AVILA, LLP Attorneys at Law 3 4 Rossi Circle, Suite 231 Salinas, CA 93907 4 Mailing: P.O. Box 3770, Salinas, CA 93912 Telephone: (831) 755-1461 5 Facsimile: (831) 755-1477 Email: npatane@pglawfirm.com 6 aavila@pglawfirm.com 7 Attorneys for Plaintiff, ROBERT T. ELLIOTT 8 9 SUPERIOR COURT OF CALIFORNIA – COUNTY OF MONTEREY 10 UNLIMITED JURISDICTION 11 ROBERT T. ELLIOTT, ) CASE NO. 21CV003944 ) 12 ) DECLARATION OF ROBERT T. Plaintiff, ) ELLIOTT IN SUPPORT OF MOTION BY 13 vs. ) PLAINTIFF ROBERT T. ELLIOTT FOR ) SUMMARY JUDGMENT 14 MECHANICS BANK, a California ) corporation, as the Successor-in-Interest to ) Date: September 30, 2022 15 Rabobank, N.A.; and DOES 1 – 40, ) Time: 8:30 a.m. inclusive, ) Dept.: 14 16 ) Judge: Hon. Carrie M. Panetta ) 17 Defendants. ) Complaint Filed: December 21, 2021 ) Trial Date: Not Set 18 ) ) 19 20 I, ROBERT T. ELLIOTT, hereby declare as follows: 21 1. I have personal knowledge of the facts contained herein, and if called upon as a witness 22 I could and would testify competently to each fact stated in this declaration. 23 2. I am one of approximately twelve former owners of Premium Fresh. 24 3. Premium Fresh obtained three loans from Community Bank to fund its business 25 operations. On or about February 1, 2006, RABOBANK became the successor-in-interest by 26 merger to Community Bank. On or about August 31, 2019, MECHANICS BANK, became the 27 successor-in-interest by merger to RABOBANK. 28 /// -1- ______________________________________________________________________________ Declaration of Robert T. Elliott in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 4. The first loan [#190012401] was issued on November 5, 2002 in the sum of 2 $750,000. Premium Fresh, myself and the remaining owners were listed as co-borrowers on this 3 loan. The second loan [# 78186840-09] was an SBA loan issued on October 12, 2004 in the sum of 4 $1,900,000. The third loan [#160064291] was issued on October 13, 2004 in the sum of $1,000,000. 5 I and other Premium Fresh owners personally guaranteed the second and third loans. (Collectively, 6 the first, second and third loans are “the Loans”.) 7 5. Premium Fresh defaulted on each of the Loans. 8 6. On January 5, 2007, RABOBANK filed a Complaint related to the defaulted Loans 9 against Premium Fresh and the guarantors/borrowers including myself (collectively, the “Debtors”). 10 7. On December 14, 2007, a Notice of Attachment was recorded against the Debtors 11 including myself imposing a lien against their real property. A true and correct copy of the Notice 12 of Attachment is attached hereto as Exhibit 1 and incorporated by reference. 13 8. On July 8, 2008, a Stipulation for Entry of Judgment (“Stipulation for Judgment”) 14 was entered between RABOBANK and the Debtors. The Stipulation provided that I and certain 15 other Debtors were jointly and severally liable for the principal sum of $2,983,552.72; interest of 16 $315,087.69; late charges of $29,107.30 and costs of $26,623.62. I further stipulated to transfer 17 certain collateral owned by Premium Fresh to RABOBANK. A true and correct copy of the 18 Stipulation for Entry of Judgment is attached hereto as Exhibit 2 and incorporated by reference. 19 9. On July 8, 2008, a Judgment consistent with the Stipulation for Judgment was 20 entered in favor of RABOBANK and against the Debtors. The Judgment was recorded in Monterey 21 County on July 17, 2008. Several Debtors filed bankruptcy and the Judgment debt was discharged 22 as to those individuals and entities. A true and correct copy of the Judgment is attached hereto as 23 Exhibit 3 and incorporated by reference. 24 10. RABOBANK thereafter seized collateral used to secure the Loans (“Collateral”). 25 The Collateral appraised on August 20, 2004 at a value of $2,083,050 with an estimated liquidation 26 value of $1,353,983. On March 4, 2009, the Collateral was liquidated at auction for the sum of 27 $121,318.75. A true and correct copy of the collateral liquidation documents are attached hereto as 28 Exhibit 4 and incorporated by reference. -2- ______________________________________________________________________________ Declaration of Robert T. Elliott in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 11. On April 2, 2018, RABOBANK filed a Renewal of the Judgment (“Renewed 2 Judgment”). A true and correct copy of the Renewal of Judgment is attached hereto as Exhibit 5 3 and incorporated by reference. 4 12. On May 14, 2018, RABOBANK recorded an Abstract of Judgment against the 5 Debtors including myself. A true and correct copy of the Abstract of Judgment is attached hereto as 6 Exhibit 6 and incorporated by reference. 7 13. I commenced efforts to settle my debt with RABOBANK by contacting local bank 8 representatives at the Salinas branch. In early summer of 2013, I learned that RABOBANK’s 9 Special Assets Department was located in Fresno, California. 10 14. I conducted research to locate a senior Special Assets representative. My research 11 yielded RABOBANK’s Senior Vice-President and Director of Special Assets, Robert Bennett. 12 15. Sometime before August 8, 2013, I met with Mr. Bennett in Fresno, California to 13 discuss resolution of my debt. On information and belief, I provided my first set of financials 14 during this meeting. 15 16. On August 21, 2013, I sent an email to Mr. Bennett attaching my financials and 16 stating I would be “there about 3:30 today.” I met with Mr. Bennett in RABOBANK’s Fresno 17 offices and expressed a desire to amicably resolve the Judgment and Lien. A true and correct copy 18 of my August 21, 2013 email to Mr. Bennett (without the financial statement for privacy purposes) 19 is attached hereto as Exhibit 7 and incorporated by reference. 20 17. In late August or early September 2013, I followed up with Mr. Bennett and was 21 referred to RABOBANK’s Vice President and Senior Special Assets Officer, Frank Oliver to 22 continue settlement discussions. Mr. Oliver was also located in Defendant’s Fresno offices. 23 18. Between mid-September and September 27, 2013, I hand carried a written offer to 24 settle my Judgment and Lien to Mr. Oliver. Mr. Oliver did not accept my proposal. 25 19. On September 27, 2013, I sent an updated financial statement to Mr. Oliver which 26 was immediately acknowledged via email. A true and correct copy of my September 27, 2013 27 email to Mr. Oliver (without the financial statement for privacy purposes) along with Mr. Oliver’s 28 response email is attached hereto as Exhibit 8 and incorporated by reference. -3- ______________________________________________________________________________ Declaration of Robert T. Elliott in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 20. On January 22, 2014 at 11:41 a.m., I sent an email to Mr. Oliver and Mr. Bennett 2 regarding the “Premium Fresh Judgment.” I attached a separate letter articulating a written 3 settlement proposal. My letter stated that I was “reaching out again to try to settle the judgment 4 against me and my assets.” Specifically, I proposed: “I will pay $140,000.00 dollars.” I stated that 5 I would “need 18 months to pay the total amount” and that installments would be made as follows: 6 $30,000.00 on April 1st 2014; $40,000.00 on September 1st 2014; $30,000.00 on April 1st 2015; and 7 $40,000.00 on September 1st 2015. I also offered commercial field trucks as collateral to secure my 8 payment obligation (collectively, the “Settlement Offer”). A true and correct copy of my January 9 22, 2014 email to Mr. Oliver and Mr. Bennett is attached hereto as Exhibit 9 and incorporated by 10 reference. 11 21. The next day, Mr. Oliver replied to my email accepting the offer and stating: 12 “We …. accept the $140,000 as payment to release the Rabobank Lien. I 13 would suggest that you begin building a savings account… I have numerous 14 other credit files that have a higher priority. This is going to require some 15 additional review and work with both the SBA and Central Coast SBDC to 16 determine who we will give your payment to. In the interim I will see if there 17 is another SAM Officer that may have the time to work on this.” 18 A true and correct copy of Mr. Oliver’s January 23, 2014 email is attached hereto as Exhibit 10 and 19 incorporated by reference. 20 22. On January 24, 2014, I emailed Mr. Oliver requesting follow up instructions and 21 thanking Mr. Oliver for “acceptance of my Premium Fresh [Settlement] proposal and lean (sic) 22 release.” I copied my bookkeeper, Martha Sisneros, to ensure she was apprised of anticipated 23 payment instructions. I had over $150,000 in accessible cash to commence my payments. A true 24 and correct copy of my January 24, 2014 email to Mr. Oliver is attached hereto as Exhibit 11 and 25 incorporated by reference. 26 23. I telephoned Mr. Oliver on several occasions between January and March 25, 2014 27 to request the contact information of his new Special Assets Officer. 28 -4- ______________________________________________________________________________ Declaration of Robert T. Elliott in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 24. On or about March 25, 2014, Mr. Oliver and I had a telephone call during which 2 Mr. Oliver provided my new contact, Vice President – Senior Special Assets Officer, Kendall 3 Bates. 4 25. On March 26, 2014, and using the subject line “Settlement”, I sent an email to Mr. 5 Oliver requesting Mr. Bates’ contact information “in reference to the Premium Settlement.” Mr. 6 Oliver forwarded the aforementioned email to Mr. Bates later that same day instructing Mr. Bates 7 to respond to me. A true and correct copy of my March 26, 2014 email to Mr. Oliver along with 8 Mr. Oliver’s email to Mr. Bates is attached hereto as Exhibit 12 and incorporated by reference. 9 26. The next day, Mr. Bates sent an email to me acknowledging my desire to reach him 10 [Mr. Bates] regarding the “Premium Settlement”. Mr. Bates stated he may not be of much help 11 because he did not recognize the reference of [“Premium Settlement”]. Mr. Bates nevertheless 12 extended his contact information. A true and correct copy of Mr. Bates’ March 27, 2014 email is 13 attached hereto as Exhibit 13 and incorporated by reference. 14 27. On March 28, 2014, I sent an email to Mr. Bates regarding subject “Premium Fresh 15 Judgment.” I stated that I would send another email with the settlement information referred to by 16 Mr. Oliver. I confirmed that I had the first Settlement payment in the bank and was prepared to 17 perform. A true and correct copy of my March 28, 2014 email to Mr. Bates is attached hereto as 18 Exhibit 14 and incorporated by reference. 19 28. Later that day, Mr. Bates replied to my email stating that Mr. Oliver was out of the 20 office and was expected to return on Monday. Mr. Bates asked if it would be okay to wait to confer 21 with Mr. Oliver before sending a responsive email. A true and correct copy of Mr. Bates’ March 22 28, 2014 email is attached hereto as Exhibit 15 and incorporated by reference. 23 29. The following Monday, Mr. Bates provided no further instructions for payment or 24 any response whatsoever notwithstanding his representation he would do so. 25 30. After receiving no response, I sent a follow up email to Mr. Bates on April 1, 2014. 26 The email contained the subject line “Settlement”. I expressed concern that my first Settlement 27 payment was due to be deposited. I stated I wanted to “make sure that I stay in terms with Rabo.” I 28 assured Mr. Bates that I had the “cash” to pay my first payment and wanted to know where it -5- ______________________________________________________________________________ Declaration of Robert T. Elliott in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 1 should be deposited. I offered to deposit the payment into an escrow account to avoid default of the 2 Settlement. I stated, “Please let me know so we may continue forward.” No response was 3 received. A true and correct copy of my April 1, 2014 email to Mr. Bates is attached hereto as 4 Exhibit 16 and incorporated by reference. 5 31. In approximately February 2018, I telephoned Mr. Oliver to inquire about the status 6 of my Settlement. Mr. Oliver responded by directing me to contact President/Manager Commercial 7 Special Assets Nicola Merrifield Olivia, Senior Vice President along with her contact information. 8 Mr. Oliver did not dispute my reference to a “Settlement”. 9 32. On March 16, 2018, I emailed Ms. Olivia using the subject line “Rabobank 10 Agreement”. I stated, “Frank Oliver told me to pass this agreement on to you.” Later that same 11 day, Ms. Olivia replied stating that my contact with regard to my Settlement inquiry was Adriana 12 Sejera. Ms. Olivia did not inform me that I had no “agreement.” A true and correct copy of the 13 emails exchanged between me and Ms. Olivia on March 16, 2018 is attached hereto as Exhibit 17 14 and incorporated by reference. 15 33. On March 19, 2018, Mr. Kennedy, counsel to RABOBANK, emailed me in response 16 to my emails sent to Ms. Olivia and Ms. Sejera. Mr. Kennedy asked what I wanted to discuss. A 17 true and correct copy of Mr. Kennedy’s March 19, 2018 email (without the attachments) is attached 18 hereto as Exhibit 18 and incorporated by reference. 19 34. On April 6, 2018, using the subject line “[Premium Fresh] Settlement agreement 20 payoff schedule”, I replied to Mr. Kennedy via email reiterating the history of the Settlement. I 21 stated that I wanted information on how and when to remit payments on the Settlement and have 22 the Lien removed. A true and correct copy of my April 6, 2018 email to Mr. Kennedy is attached 23 hereto as Exhibit 19 and incorporated by reference. 24 35. On April 13, 2018, Mr. Kennedy sent an email communicating that I had no 25 Settlement with Rabobank. Mr. Kennedy set forth new conditions for a potential settlement to be 26 reached, i.e., that I would be required to provide financials in support of an offer in compromise and 27 that “any settlement … would have to be reduced to a formal written agreement with the concurrent 28 -6- ______________________________________________________________________________ Declaration of Robert T. Elliott in Support of Motion by Plaintiff Robert T. Elliott for Summary Judgment; Case No. 21CV003944 Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Exhibit 9 Exhibit 10 Exhibit 11 Exhibit 12 Exhibit 13 Exhibit 14 Exhibit 15 Exhibit 16 Exhibit 17 Exhibit 18 Exhibit 19 Exhibit 20