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Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082
0G087 - D5
IN THE COURT OF COMMON PLEAS
OF FRANKLIN COUNTY, OHIO
APF -— CRE I, LLC & CASE NO. 20CV007082
APF - CPX I, LLC,
MAGISTRATE JENNIFER CORDLE
Plaintiffs,
v
TEHRAH HOSPITALITY, LLC,
ABHIJIT S. VASANI &
BHAVNA A. VASANI,
Defendants.
EXPEDITED MOTION (I) FOR CONTINUANCE OF DISCOVERY REQUESTS
ISSUED TO PLAINTIFFS, (If) FOR CONTINUANCE OF THIRD-PARTY
DEPOSITIONS, (11) FOR CONTINUANCE OF THIRD-PARTY CIVIL SUBPOENAS,
AND (IV) TO QUASH THIRD-PARTY CIVIL SUBPOENA SERVED ON
ACCESS POINT FINANCIAL, LLC
Plaintiffs APF — CRE I, LLC (“APF — CRE”) and APF — CPX I, LLC (“APF — CPX”, and
together with APF — CRE, collectively, “Plaintiffs”), successors in interest to Access Point
Financial, LLC, f/k/a Access Point Financial, Inc. (“Access Point”), and third-party Access Point,
by and through undersigned counsel, respectfully move (this “Expedited Motion”), on an
expedited basis, for an Order (i) continuing the deadline for Plaintiffs to respond to the First
Combined Set of Requests for Admissions Interrogatories, and Requests for the Production of
Documents to Plaintiff [sic] (the “Combined Requests”) served by Defendants Abhijit S. Vasani
and BhavnaA. Vasani (collectively,“Defendants”), currently set to be due on September
27, 2022;
(ii) continuing the depositions of third parties InterContinental Hotel Group (“IHG”) and Trimont
Real Estate Advisors LLC (“Trimont’), currently scheduled for September 28, 2022; (iii)
continuing the response deadlines for Civil Subpoenas issued by Defendants to CW Financial
Services, CWFS Insight LLC, Alfons Beshi, Berkadia Commercial Mortgage LLC, Berkadia Real
Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082
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Estate Advisors LLC, Hagman Hospitality LLC, InterContinental Hotels Group, and Trimont Real
Estate Advisors LLC (collectively, the “Third Parties”), currently set to be due on September 16
or 28, 2022; and (iv) quashing
the Civil Subpoena served by Defendants upon Access Point, the
parent entity of the Plaintiffs As set forth below, Plaintiffs’ requests are both reasonable and
necessary in order to provide the Court with sufficient time to address Plaintiffs’ Motion (1) For
Protective Order to Exclude Discovery Previously Served and (I) In Limine to Exclude Argument
or Evidence of Collateral Disposition (the “Motion in imine”), which was filed
contemporaneously with this Expedited Motion. In support, Plaintiffs respectfully state as follows:
1 Plaintiffs and Access Point hereby incorporate all statements and assertions made
in the Motion in Limine by reference.
2. On July 22, 2022, this Court entered its Entry Granting in Part Plaintiffs’ Motion
Sor Partial Summary Judgment; Denying Defendants’ Motion to Amend; and Denying as Moot
Defendants’ Civ. R. 56(F) Motion (the “Entry”). In the Entry, this Courtruled, among other things,
thatthe Motion of Plaintiffs, APF —CRE I, LLC & APF —CPX, LLC for Partial Summary Judgment
as to Defendants Abhijit S. Vasani and Bhavna A. Vasani, as amended (the “Summary Judgment
Motion”), should be granted in part and that Defendants’ are liable for all damages under the Loan
Documents! between Plaintiffs and Tehrah Hospitality, LLC (“Borrower”), pursuant to the
Mortgage Guaranty and Equipment Guaranty (collectively, the “Guaranties”)* executed by
Defendants in Plaintiffs’ favor. The Court also concluded that a separate evidentiary hearing
should be held to determine the amount of damages that Plaintiffs are entitled to under the
Guaranties and other Loan Documents, and accordingly referred the matter to a magistrate fora
' Capitalized but undefined terms herein shall have the meanings ascribed to them in Plaintiffs’ Complaint, filed in
this case on October 29, 2020.
? The Mortgage Guaranty and Equipment Guaranty are attached to Plaintiffs’ Complaint as Exhibits 5 and 8,
respectively.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082
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hearing (the “Damages Hearing”). On July 25, 2022, the Court issued an Order of Reference
referring the matter to Magistrate Jennifer Cordle.
2 In the Entry, the Court indicated that Defendants “may conduct discovery
necessary to prepare for the damages hearing.” Entry at p. 17 (emphasis added),
2
3 Following issuance of the Entry, Defendants filed a Notice of Substitution of
Counsel, by which Andrew Gerling, Esq. and Troy Doucet, Esq. of the law firm Doucet Gerling
Co., LPA were substituted as counsel for Defendants in this action. Since their retention,
Defendants’ new counsel have served the numerous discovery requests listed above on Plaintiffs,
Access Point, and the Third Parties. Upon review of both the discovery requests issued to
Plaintiffs, as well as the Civil Subpoenas issued to Access Point and the Third Parties, Defendants
seek a broad array of documents and correspondence from the inception of the lending relationship
between Plaintiffs and Defendants
4 In the Motion in Limine, Plaintiffs have asserted that Defendants’ ability to seek
any discovery challenging Plaintiffs’ disposition and release of its collateral was expressly waived
by Defendants under the terms of the Guaranties that they knowingly and voluntarily signed. As
such, Defendants are barred from introducing any evidence obtained by such discovery, or raising
additional argument or evidence at the Damages Hearing pertaining to same—in particular, with
respect to the disposition of that certain real property, along with all furniture, fixtures, and
equipment, commonly known as the Holiday Inn Express located at 5855 Hagman Road, Toledo,
Ohio 443612 (as more specifically described in the Loan Documents, hereinafter collectively the
“Hotel’”) by public auction (the “Sale”).
5 As further explained in the Motion in Limine, Defendants agreed that their
obligations under the Guaranties wouldremain valid and absolute, notwithstanding
any disposition
Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082
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of collateral conducted by Plaintiffs in connection with their rights and remedies under the Loan
Documents, or the manner or timing in which such disposition was undertaken and completed by
Plaintiffs. Consequently, Defendants’ attempts to conduct such expansive discovery in this case
is unnecessary for the Damages Hearing, given the express terms of the Guaranties
that Defendants
signed. Plaintiffs are therefore entitled to both a protective order with respect to any discovery
seeking such information, as well as an order prohibiting Defendants from introducing any
argument or evidence related to disposition and release of the collateral at the Damages Hearing.
6 Plaintiffs believe that a continuance of the majority of the pending discovery
deadlines issued by Defendants is necessary until such time that the Court issues its ruling on the
Motion in Limine. The arguments raised by Plaintiff's in the Motion in Limine are fundamental to
determining
the types of information and documentation that Defendants are actually entitled to
receive, review, and presentat the Damages Hearing. Thus, Plaintiffsseek a continuance regarding
the Combined Discovery Requests served on them to avoid incurring unnecessary time and
expense— particularly if the Motion in Limine is granted and much of Defendants’ requests in the
Combined Discovery Requests are deemed unnecessary or irrelevant for purposes of the Damages
Hearing.
7 In addition, the two depositions unilaterally noticed by Defendants for Trimont and
IHG, respectively, should be continued pending the Court’s ruling for similar reasons. Plaintiffs
seek to avoid unnecessary expense and preparation time for attendanceat these depositions. To the
extent the Motion in Limine is granted, the depositions would be largely meaningless and a waste
of legal fees for both sides.
8 Plaintiffs further assert that a ruling on the Motion in Limine will have a direct
bearing on what discovery may be obtained by Defendants from the Third Parties and Access
Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082
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Point, and thus a continuance of the deadlines for those parties (including Access Point) to respond
to their respective Civil Subpoenas is appropriate to prevent potentially expansive and unnecessary
record reviews and business expense. See also Martin v. The Budd Co., 713 N.E.2d 1128, 1131
(Ohio Ct. App. 1998) (“Documents to be subpoenaed must have some relevance to and be
reasonably necessary.” (citations omitted) (emphasis added); Splater v. Thermal Ease Hydronic
Systems, Inc., 863 N.E.2d 1060, 1062 (Ohio Ct. App. 2006) (“Pursuant to Rule 45(C)(3)(b) ofthe
Ohio Rules of Civil Procedure, a party cannot discover ‘privileged or protected’ information from
a non-party.”) (emphasis added).$
9 In addition to Plaintiffs’ requests for continuances in this Expedited Motion, Access
Point also seeks an order quashing the Civil Subpoena issued against it, as this subpoena is
inappropriate and unnecessary given the waivers contained in the Guaranties as outlined above.
WHEREFORE, for the reasons stated above, Plaintiffs and Access Point respectfully
request that the Court enter an Order (i) continuing
the deadline for Plaintiffs to respond to the
Combined Requests until such time as the Court rules on the Motion in Limine, (ii) continuing the
depositions of third parties InterContinental Hotel Group and Trimont Real Estate Advisors LLC
for the same period, (iii) continuing the response deadline for Civil Subpoenas issued on the Third
Parties, including Access Point, for the same period, (iv) quashing
the Civil Subpoena served upon
Access Point, and (v) granting Plaintiffs such other and further relief as the Court deems just and
appropriate.
5 Plaintiffs anticipate that Defendants will assert that Pla intiffs and Access Point lack standing to challenge third -
party subpoenas served upon other third-parties. However, every useless and harassing subpoena served increases
the cost of litigation forall parties involved.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082
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Dated: September 16, 2022. Respectfully submitted,
/s/ Sean A. Gordon
Sean A. Gordon (OH Bar No. 0074243)
Matthew J. Kerschner (OH Bar No. 0096902)
THOMPSON HINE LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114-1291
(216) 566-5500 (P)/ (216) 566-5800
(F)
Sean.Gorden@ ThompsonHine.com
Matthew Kerschner’® Thompson Hine com
Counsel for Plaintiffs and Access Point
Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082
0G0O87 - Dé
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing Plaintiffs’ Expedited Motion
(1) For Continuance of Discovery Requests Issued to Plaintiffs, (I) For Continuance of Third-
Party Depositions, (III) For Continuance of Third-Party Civil Subpoenas, and (IV) To Quash
Third-Party Civil Subpoenas Served on Access Point Financial, LLC was electronically filed with
the Clerk of the Court by using the e-Filing system, which will send a notice of electronic filing to
all counsel registered to receive notice thereby, including:
Andrew J. Gerling andrew @doucet law
Troy J. Doucet troy @doucet
law
Dated: September 16, 2022. Respectfully submitted,
/s/ Sean A. Gordon
Sean A. Gordon (Ohio Bar No. 0074243)
Matthew J. Kerschner (Ohio Bar No. 0096902)
THOMPSON HINE LLP
3900 Key Center
127 Public Square
Cleveland, Ohio 44114-1291
(216) 566-5500 (P)/ (216) 566-5800
(F)
Sean Gordon @Thompsontiins com
Maithew Kerschner(@ Thompaontiine.com
Counsel for Plaintiffs and Access Point
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082 0G087 - D5 IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO APF -— CRE I, LLC & CASE NO. 20CV007082 APF - CPX I, LLC, MAGISTRATE JENNIFER CORDLE Plaintiffs, v TEHRAH HOSPITALITY, LLC, ABHIJIT S. VASANI & BHAVNA A. VASANI, Defendants. EXPEDITED MOTION (I) FOR CONTINUANCE OF DISCOVERY REQUESTS ISSUED TO PLAINTIFFS, (If) FOR CONTINUANCE OF THIRD-PARTY DEPOSITIONS, (11) FOR CONTINUANCE OF THIRD-PARTY CIVIL SUBPOENAS, AND (IV) TO QUASH THIRD-PARTY CIVIL SUBPOENA SERVED ON ACCESS POINT FINANCIAL, LLC Plaintiffs APF — CRE I, LLC (“APF — CRE”) and APF — CPX I, LLC (“APF — CPX”, and together with APF — CRE, collectively, “Plaintiffs”), successors in interest to Access Point Financial, LLC, f/k/a Access Point Financial, Inc. (“Access Point”), and third-party Access Point, by and through undersigned counsel, respectfully move (this “Expedited Motion”), on an expedited basis, for an Order (i) continuing the deadline for Plaintiffs to respond to the First Combined Set of Requests for Admissions Interrogatories, and Requests for the Production of Documents to Plaintiff [sic] (the “Combined Requests”) served by Defendants Abhijit S. Vasani and BhavnaA. Vasani (collectively,“Defendants”), currently set to be due on September 27, 2022; (ii) continuing the depositions of third parties InterContinental Hotel Group (“IHG”) and Trimont Real Estate Advisors LLC (“Trimont’), currently scheduled for September 28, 2022; (iii) continuing the response deadlines for Civil Subpoenas issued by Defendants to CW Financial Services, CWFS Insight LLC, Alfons Beshi, Berkadia Commercial Mortgage LLC, Berkadia Real Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082 0G087 - D5 Estate Advisors LLC, Hagman Hospitality LLC, InterContinental Hotels Group, and Trimont Real Estate Advisors LLC (collectively, the “Third Parties”), currently set to be due on September 16 or 28, 2022; and (iv) quashing the Civil Subpoena served by Defendants upon Access Point, the parent entity of the Plaintiffs As set forth below, Plaintiffs’ requests are both reasonable and necessary in order to provide the Court with sufficient time to address Plaintiffs’ Motion (1) For Protective Order to Exclude Discovery Previously Served and (I) In Limine to Exclude Argument or Evidence of Collateral Disposition (the “Motion in imine”), which was filed contemporaneously with this Expedited Motion. In support, Plaintiffs respectfully state as follows: 1 Plaintiffs and Access Point hereby incorporate all statements and assertions made in the Motion in Limine by reference. 2. On July 22, 2022, this Court entered its Entry Granting in Part Plaintiffs’ Motion Sor Partial Summary Judgment; Denying Defendants’ Motion to Amend; and Denying as Moot Defendants’ Civ. R. 56(F) Motion (the “Entry”). In the Entry, this Courtruled, among other things, thatthe Motion of Plaintiffs, APF —CRE I, LLC & APF —CPX, LLC for Partial Summary Judgment as to Defendants Abhijit S. Vasani and Bhavna A. Vasani, as amended (the “Summary Judgment Motion”), should be granted in part and that Defendants’ are liable for all damages under the Loan Documents! between Plaintiffs and Tehrah Hospitality, LLC (“Borrower”), pursuant to the Mortgage Guaranty and Equipment Guaranty (collectively, the “Guaranties”)* executed by Defendants in Plaintiffs’ favor. The Court also concluded that a separate evidentiary hearing should be held to determine the amount of damages that Plaintiffs are entitled to under the Guaranties and other Loan Documents, and accordingly referred the matter to a magistrate fora ' Capitalized but undefined terms herein shall have the meanings ascribed to them in Plaintiffs’ Complaint, filed in this case on October 29, 2020. ? The Mortgage Guaranty and Equipment Guaranty are attached to Plaintiffs’ Complaint as Exhibits 5 and 8, respectively. Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082 0G087 - D5 hearing (the “Damages Hearing”). On July 25, 2022, the Court issued an Order of Reference referring the matter to Magistrate Jennifer Cordle. 2 In the Entry, the Court indicated that Defendants “may conduct discovery necessary to prepare for the damages hearing.” Entry at p. 17 (emphasis added), 2 3 Following issuance of the Entry, Defendants filed a Notice of Substitution of Counsel, by which Andrew Gerling, Esq. and Troy Doucet, Esq. of the law firm Doucet Gerling Co., LPA were substituted as counsel for Defendants in this action. Since their retention, Defendants’ new counsel have served the numerous discovery requests listed above on Plaintiffs, Access Point, and the Third Parties. Upon review of both the discovery requests issued to Plaintiffs, as well as the Civil Subpoenas issued to Access Point and the Third Parties, Defendants seek a broad array of documents and correspondence from the inception of the lending relationship between Plaintiffs and Defendants 4 In the Motion in Limine, Plaintiffs have asserted that Defendants’ ability to seek any discovery challenging Plaintiffs’ disposition and release of its collateral was expressly waived by Defendants under the terms of the Guaranties that they knowingly and voluntarily signed. As such, Defendants are barred from introducing any evidence obtained by such discovery, or raising additional argument or evidence at the Damages Hearing pertaining to same—in particular, with respect to the disposition of that certain real property, along with all furniture, fixtures, and equipment, commonly known as the Holiday Inn Express located at 5855 Hagman Road, Toledo, Ohio 443612 (as more specifically described in the Loan Documents, hereinafter collectively the “Hotel’”) by public auction (the “Sale”). 5 As further explained in the Motion in Limine, Defendants agreed that their obligations under the Guaranties wouldremain valid and absolute, notwithstanding any disposition Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082 0GO87 - Dé of collateral conducted by Plaintiffs in connection with their rights and remedies under the Loan Documents, or the manner or timing in which such disposition was undertaken and completed by Plaintiffs. Consequently, Defendants’ attempts to conduct such expansive discovery in this case is unnecessary for the Damages Hearing, given the express terms of the Guaranties that Defendants signed. Plaintiffs are therefore entitled to both a protective order with respect to any discovery seeking such information, as well as an order prohibiting Defendants from introducing any argument or evidence related to disposition and release of the collateral at the Damages Hearing. 6 Plaintiffs believe that a continuance of the majority of the pending discovery deadlines issued by Defendants is necessary until such time that the Court issues its ruling on the Motion in Limine. The arguments raised by Plaintiff's in the Motion in Limine are fundamental to determining the types of information and documentation that Defendants are actually entitled to receive, review, and presentat the Damages Hearing. Thus, Plaintiffsseek a continuance regarding the Combined Discovery Requests served on them to avoid incurring unnecessary time and expense— particularly if the Motion in Limine is granted and much of Defendants’ requests in the Combined Discovery Requests are deemed unnecessary or irrelevant for purposes of the Damages Hearing. 7 In addition, the two depositions unilaterally noticed by Defendants for Trimont and IHG, respectively, should be continued pending the Court’s ruling for similar reasons. Plaintiffs seek to avoid unnecessary expense and preparation time for attendanceat these depositions. To the extent the Motion in Limine is granted, the depositions would be largely meaningless and a waste of legal fees for both sides. 8 Plaintiffs further assert that a ruling on the Motion in Limine will have a direct bearing on what discovery may be obtained by Defendants from the Third Parties and Access Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082 0G0O87 - Dé Point, and thus a continuance of the deadlines for those parties (including Access Point) to respond to their respective Civil Subpoenas is appropriate to prevent potentially expansive and unnecessary record reviews and business expense. See also Martin v. The Budd Co., 713 N.E.2d 1128, 1131 (Ohio Ct. App. 1998) (“Documents to be subpoenaed must have some relevance to and be reasonably necessary.” (citations omitted) (emphasis added); Splater v. Thermal Ease Hydronic Systems, Inc., 863 N.E.2d 1060, 1062 (Ohio Ct. App. 2006) (“Pursuant to Rule 45(C)(3)(b) ofthe Ohio Rules of Civil Procedure, a party cannot discover ‘privileged or protected’ information from a non-party.”) (emphasis added).$ 9 In addition to Plaintiffs’ requests for continuances in this Expedited Motion, Access Point also seeks an order quashing the Civil Subpoena issued against it, as this subpoena is inappropriate and unnecessary given the waivers contained in the Guaranties as outlined above. WHEREFORE, for the reasons stated above, Plaintiffs and Access Point respectfully request that the Court enter an Order (i) continuing the deadline for Plaintiffs to respond to the Combined Requests until such time as the Court rules on the Motion in Limine, (ii) continuing the depositions of third parties InterContinental Hotel Group and Trimont Real Estate Advisors LLC for the same period, (iii) continuing the response deadline for Civil Subpoenas issued on the Third Parties, including Access Point, for the same period, (iv) quashing the Civil Subpoena served upon Access Point, and (v) granting Plaintiffs such other and further relief as the Court deems just and appropriate. 5 Plaintiffs anticipate that Defendants will assert that Pla intiffs and Access Point lack standing to challenge third - party subpoenas served upon other third-parties. However, every useless and harassing subpoena served increases the cost of litigation forall parties involved. Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082 0G0O87 - Dé Dated: September 16, 2022. Respectfully submitted, /s/ Sean A. Gordon Sean A. Gordon (OH Bar No. 0074243) Matthew J. Kerschner (OH Bar No. 0096902) THOMPSON HINE LLP 3900 Key Center 127 Public Square Cleveland, Ohio 44114-1291 (216) 566-5500 (P)/ (216) 566-5800 (F) Sean.Gorden@ ThompsonHine.com Matthew Kerschner’® Thompson Hine com Counsel for Plaintiffs and Access Point Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Sep 16 4:24 PM-20CV007082 0G0O87 - Dé CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing Plaintiffs’ Expedited Motion (1) For Continuance of Discovery Requests Issued to Plaintiffs, (I) For Continuance of Third- Party Depositions, (III) For Continuance of Third-Party Civil Subpoenas, and (IV) To Quash Third-Party Civil Subpoenas Served on Access Point Financial, LLC was electronically filed with the Clerk of the Court by using the e-Filing system, which will send a notice of electronic filing to all counsel registered to receive notice thereby, including: Andrew J. Gerling andrew @doucet law Troy J. Doucet troy @doucet law Dated: September 16, 2022. Respectfully submitted, /s/ Sean A. Gordon Sean A. Gordon (Ohio Bar No. 0074243) Matthew J. Kerschner (Ohio Bar No. 0096902) THOMPSON HINE LLP 3900 Key Center 127 Public Square Cleveland, Ohio 44114-1291 (216) 566-5500 (P)/ (216) 566-5800 (F) Sean Gordon @Thompsontiins com Maithew Kerschner(@ Thompaontiine.com Counsel for Plaintiffs and Access Point