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Filing # 73171757 E-Filed 06/06/2018 02:10:13 PM
IN THE CIRCUIT COURT OF
THE TWENTIETH JUDICIAL
1 UNTY, FLORIDA n CIRCUIT IN AND FoR
n VEL ACTION
HARRY BIEBERSTEIN,
Plaintiff,
w.
Case No. 17-9170A
GABRIEL KIRCHBERG ER, CAROL,
DEVILLE, SOUTHERN SHORE
ENTERPRISES, LLC, a Florida limi
ted
ability company, and MOONST
ONE
HOLDINGS, LLC, a Nevada limited
liabitity company,
Defendants.
a
NOTICE OF FILING ExWITS (.0) 70 ROSEN isSTEIN AFFIDAVY IN SUPPORT OF
DEFENDANT DEVILL E'S MOTIONTO a ACT
COMES NOW CAROL DEVILLE, Defendant, by
and through her undersigned attorney and
provides Notice of Filing Exhityts A-D to the
Affidavit of JONATHAN ROSENSTEIN in suppo
rt of
Defendant DEVILLE'S Motion to Dismiss.
THEREBY CERTIFY that a true and correct copy of the foregoing has
been furnished court
©-portal service to MARK A. SLACK, ESQ. Mslack
@wwmralaw
com 9045 Strada Stell Court. Suite
400, Naples, FL 34109 and to ROBERT W. SEGU
R, ESQ. Legal @sequriaw net 1460 S, McCall
Read, Suite 2E, Englewood, FL 34223 thie 6° day of June, 2018.
4 lan f/ i
DAVID K. OAKS, ESO.
Wake,
AQ? East Marion Avenue, Suite 104
Punta Gorda, FL 33950
(941) 639-7627
Ke: comcastnet
Florida Bar No. 0301817
Attorney for Defendant DEVILLE
ene
Court File No. CV-10-83§-00CL and CV-10-8535-00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
THE HONOURABLE tien nw THE aw
MADAM JUSTICE THORBURN DAY OF .O cot aol
BETWEEN:
(Court Sev)
HARRY BIEBERSTEIN
Plaintitf
and
GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT, NOMEN FITNESS INC.,
487223 ONTARIO LIMITED and 1171852 ONTARIO LIMITED CARRYING ON
BUSINESS AS G.K. YORK MANAGEMENT SERVICE
Defendants
JUDGMENT
THIS ACTION was heard between February 7, 3014 and March 9, 2014 without a
jury at the court house, 330 University Avenue, 8th Floor, Toronto, Ontario, M3G 1R7,
in the presence of the lawyers for all parties,
ON READING THE PLEADINGS AND HEARING THE EVIDENCE and the
submissions of the lawyers for the parties,
1 THIS COURT DECLARES AND ADJUDGES that Acknowledgments between
Gabriel Kirchberger and Berlin Hypo Bank are enforceable.
4
treme
ers
mh
THIS COURT DECLARES AND ADJUDGES that the Plaintiff is entitled to
enforce against the assets of Gabriel Kirchberger located in Ontario in the manner
and to the extent as if he had obtained judgment against Kirchberger for the
payment of money in the amount of the liability assumed in the
acknowledgments, as quantified in Paragraph 3 below,
THIS COURT DECLARES AND ADJUDGES that the amount of the lability
assumed in the Acknowledgements is €8,391,909.49. inclusive of prejudgment
interest through to the date of this judgment, plus any post-judgment interest
accrued on the unpaid balance of the liability assumed in the Acknowledgements,
which shall accrue at a rate of 3% per year.
THIS COURT DECLARES AND ADJUDGES that the Claim to enforce the
Acknowledgment between Gabriel Kirchberger and Hypo Bank is dismissed.
THIS COURT DECLARES AND ADYUDGES that the claim in fraud and unjust
enrichment against Gabriel Kirchberger is dismissed.
THIS COURT DECLARES AND ADJUDGES that the claim against Susanne
Viktoria Schmidt, Nomen Fitness Inc., 487223 Ontario Limited and 1171852
Ontario Limited carrying on business as GK. York Management Services for
unjust enrichment in relation to the Banks is dismissed.
Ae
THIS COURT DECLARES AND ADJUDGES that the Defendant Gabriel
Kirchberger pay to the Plaintiff costs and disbursements in the amount of
$56,738.67, inclusive of HST
THIS COURT DECLARES AND ADJUDGES that the Plaintiff pay to Ms.
Susanne Viktoria Schmidt costs in the amount of $5,000.00.
Qin |
/
eect ATGRONTO
ENTERED AT!
ON / BOOKNO STRE NO:
On eS UE REG
SEP 26 2016
pen span *
HARRY BIEBERSTEIN and- GABRIEL KIRCHBERGER et al.
Plaintiff Defendants
Court File No. CV-10-8534-00CL and CV-10-8535-00CL.
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
PROCEEDING COMMENCED AT
TORONTO
JUDGMENT
FALCONERS LLP
10 Alcorn Ave, Suite 204
Toronto, ON MaV 3A9
Julian N. Falconer
LSUC# 29465R
Tel: (416) 964-0495,
Fax: (416) 929-8179
Lawyers for the Plaintiff
wn naam nat snare sinners
aon Ge na
Consulate o
ha
eras
aero
Consuiat du Cansda
nea
Prof. Dr. Thomas Reith, MA.
nid
Cian 488
wait Bonin si
a 168
3 i we
Canad
si,
Prof. Dr. Thomas Reith, M.A.
hacer Prof Ge, Thames Reith, M.A.
| Poarives JG1OES 1 TE4SH Stottgart
‘Ontario Superior Court of Justice
Stuttgart, 1. August 2012
Aechtzanwadt und Notar
Prof, Or Thomas Roth
‘Shabana Lapittrpinice 1368! He soe
Legal Opinion:
Limitation of 30 years to Section 197 para. 1 no. 4 German Civil Code
(§ 197 Abs. 1 Nr. 4 &
Court File No. CV-10-B534-00CL and No. CV-10-8538-00CL.
Dear Sirs
i state and confirm as follows:
4 intraduction and Acknowledgment of Expert's Duty
1, the undersigned Prof. Dr. Thomas Reith, M.A.. with residence in Stuttgart, Germany,
have beer engaged by or on behalf of the plaintiff, Harry Bleberstein, to provide evidence
in relation to the court proceeding Court File No. CV-10-8534-00CL and No. CV-10-8835-
O0CL between Harry BSieberstein (Plaintiff) and Gabriel Kirchberger, Susanne Viktoria
Schmidt, Nomen Fitness inc., 487223 Ontario Limited and 1171852 Ontario Limited
carrying on business as G.K. York Management Service (Defendants) (hereinafter the
"MatApa
ter"
from sentence
). 4, T have not been engaged in this Matter by any other party
and/or de not have any relationship te any person involved in the Matter, neither by jaw nor
by matter-of-fact. In particular, | do not have any farnily feistionship of any relationship alike
to any person invelved in the Matter.
| have been practicing in Germany as attorney-at-law (Rechissmwail) since 1888, when |
was called to the bar in the Federal Republic in Germany and admitted as attorney-atdaw
(Rechisamwaif}. | have been practicing primarily in the fields of civil lav, international iaw
and tax taw.
F469 Sugar Felefan 48 $1) a85 I One ‘Siz aed Registergeciste sam withichick dy
aban 45 Trhles a9 22 695 20.001 Shatgan 28 THE ielagpredteschich. te
-2+
in 1994, | was awarded a doctorate
in law (Dr, iur.) by Eberhard Karis University Tobingan.
My doctor thesis dealt with a civil
law topic.
in 2004, ! was appointed as a German civil-law notary (Nofer). In Germany the
professional rules of notaries (Berufsrecht der Notere} are much stricter than the
professional rules of attomneys (Berufsrecht der Rechtzanwéite). A German notary @ aubpect
io @ strict control of the Ministry
of Justice of the respective federal state (of Baden~
Worttemberg). The office and the practice of a notary Is strictly reviewed resp. audited by
public supervising authorities (Dienstaufsichtsbehdrden) every four years in average.
Accordingly, a German notary has a higher reputation as a German attorney-at-law,
Being a German civit-diaw notary (Notar), my main function ie in contracting agreements in
specialized areas of the law of contracts, property law, documents and conveyances,
successions, family iaw and cosporate law. in doing so, t provide independent and impartial
advice to all interested parties.
Since 1904, i have been lecturing ‘Internationa! Tax Law’ at Dresden University of
Technology, one of the latest so-called “excellancy universities"(“Exzelenz-Uiniversitéten’).
Since 2004, 1 have been lecturing “Estate and Succession Planning” at the University of
Hohenheim (Stuttgart), Since 2006, | have been ‘ectiying “Estate and Succession
Planning” also at Dresden University of Technology.
in 2004, | was awarded a professorshipby Dresden University of Technology.
| am senior partner of Reith Schick & Parner Attorneys where | practice as sttorney-al-law
(Rechtzanwai) and as notary (Nofar), a8 is evident from the letterhead on which this iagal
opinion is set dawn. However, my main focus and the majority of my work is notarial work.
My official professions! tite is - literally tansiated - attorney-stlaw and notary
(Rechisanwait und Noter, abbreviated RAuN}.
According to German law resp. the local law of the federal state of Baden—Waurttemberg, a
Rechtsanwalt und Notar is in the position to dually practice law (in civil law matters) as
an attomey-at-law (Rechtsanwalt) andfor ax notary (Nofar}. in order to avoid and to
prevent conficts of interests of course a Rechtsanwalt und Nofar is not entitled to act as
atomey-aliaw (Rechisanwaill) and as notary (Notar} on the same case. in a specific mattar,
the professional duties and tasks of a Rechtsanwalt und Notar depend on the function in
which he acts: Aa the case may be, the Rechisanwat und Nolar may act as a notary
(Notary, im euch event the notary has to be a neutral advisor and/or representative for all
parties involved. If the Rechtsanwalf und Notar acts as an attorney-aidaw (Rechtsanwatf}
he is the legal representative of the interests of one or several parties.
-ae
in providing the following Legal Opinion, | could lawfully act either as attomey-atiaw
(Rechtsanwalt) or as notary {Notar). For the purpose of this statement and legal opinion |
act in the function ae notary (Nofar), Under this regime | am subject to higher and much
stricter professional rules and duties and have a legal duty to be absolutely independent
and neutral, | also provide the following Legal Opinion on the backdrop of my longterm
experiance as professor. Due to this professorship | am regularly providing legal opinions
in
the fieids of my legal activities and area of axpertisa.
| acknowledge that it is my duty to provide evidence as follows:
a) to provide opinion evidence that is fair, objective and not partisan;
») to provide opinion evidence that is related only to matters that are within
my area
of expertise;
<} to provide such additional assistance as the court May reasona
bly require, to
determine a matter in issue,
J acknowledge that the duty referred to above prevails over any obligati
on which | may owe
to any party by whom or on whose behalf | am engaged,
2 = Legal Question
| was asked fo examine the legal question as to when a claim under a Aotedal
acknowledgment of indebtedness (notarieiies Schuldanerkenninis} of Mr Gabriel
Kerchberger 9 statwte-b underarr
Germaned law. Moreover | was asked te check on an
ingividua! basis the limitation period with regard to a bundle
of documents each containing
a notarial acknowledgment of indebtedness (notaris#es Schuldanerkenn
inis) with reference
fo 8 specific registered land charge (Grundsofuld). My examination
shall not and does not
encompass further resp. other jegal questions, In particular,
my examination does not
concer the existence and the extent of Gability of Mr. Gabriet Kirchberger.
3 Provided Documents
{was provided with the following documents that | receive
d as simple copies of originals
which to my information are in the possessi
ofon
the Ontario Superior Court of Justice:
a} Notarial document of 28 December 1992, document
roll no. 3335/1992 of the
notary Klaus Kroger, Berlin, contain ing the creation of
a registered land charge
(Grund in sch
the amount
ut) of OM 2.450.000 and the netarial acknowledgment
of indebtedness (nofariates Schuldenerkenninis) of Mr. Gabriel Kirchberger
(hereinafter “Notarial Acknowledgment No. Th.
ade
b) Notarial document of 29 December 1992, document roll no. 3392/1992 of the
notary Kiaus Kroger, Berlin, containing the creation of a registered land charge
(Grundinschuld the amount of)DM 2.700.000 and the notarial acknowledgment
indebtedness (notarisies Schuidanerkenninis) of Mr, Gabriel Kirchberger
(bersinstter “Notarial Acknowledgment No, 271.
¢} Notanial document of § October 199%, document roll no, 328/1995 of the notary
Kiaus Krager, Bertin, containing the creation of a registered land charge
(Grundschuid) in the amount of DM 360.000 and the notarial acknowledgment of
indebtedness (notarieves Schuldanerkenntnis) of Mr, Gabriel Kirchbergee
(hereinafter “Notarial Acknowledgment No. 3°).
qd) Notarial document of 12 December 1998, document roli no. 458/1996 of the
notary Klaus Kroger, Berlin. containing the creation of @ registered land charge
(Grundschutd) in the amount of DM 1.300.000 and the notarial acknowledgment
of indebtedness (notavisties Sohuldanerkenntnisy of Mr. Gabriel Kirchberger
(hereinafter “Notarial Acknowledgment No, 4°).
8) Notarial document of 19 March 1998, document rol no. 107/1998 of the notary
Klaus Kroger, Berlin, containing the creation of a registered land charge
(Grundsehuld) in the amount of OM 4.250.000 and the notarial acknowledgment
of indebtedness (notarielies Schuidanerkenninis) of Mr. Martin Kirchberger and
Mr. Gabriel Kirchberger (hereinafter "Notarial Acknowledgment No. 5°).
Notarial documentof 44 July 1998, decument
roll no. 288/196
of 8
the notary
Kisus Kroger, Berlin, containing the creation of a registered land charge
(Grundschuld) in the amount of DM 888.800 and the notarial acknowledgment of
indebtedness (nolariefies Schuldanerkenntnis) of Mr. Martin Kirchberger and Mr.
Gabriel Kirchberger (hereinafter “Notarial Acknowledgment No. $°).
4, Legal Opinion
aj Basic Principles of the Law of Statutory Limitation in Garman Law
aa) Duration and Commencement of Limitation Period
Under German law, Section 195 of the German Civil Code (§ 195 8GB) governs the
standard limitation period as follows:
Section 195. Standard fimitetian period
The standard lindistion period is three years.
«Bs
However, pursuant to Section 197 para. 1 of the German Civil Code (§ 197 Abs. 1 BGB),
the following claims get statute-barred only after 30 years:
‘Section 187. Thirty-year
limitation partod
(1) Unless otherwise provided, the following chaies are siricte-bamed afier thiety years:
fod
4, claims under eviorceatte setitements or enforceable documents
The subject-matter of this Legal Opinion, ie. each notarial acknowledgment of
indebtedness (nofarialles Schuldsnerkenninis), is an enforceable document in the
meanin
of Section
g 187 para. 1 of the German Civil Code (§ 197 Abs, 1 8GB}.
More details
see chapter
bb) (Definition of Enforceable Document),
Thus, pursuant to Section 197 para. 1 na. 4 of the German Civil Code (§ 197 Abs. tAn 4
865), claims under resp, on the basis of enforceable documents are statute-barred after
thirty years.
Gefore the reform of the German law of obligations (Sehufdrechtsrefenn; in force since 4
January 2002), Section 218 pata. 1 sentence 2 German Civil Code (previous version) (§
218 Abs. 1 Satz 2 8GB af.) governed the Emitation period of claims under enforceable
documents: According to this (previous) provision claims under enforceable docurnents
were siatiie-batred after thirty years. Therefore, no so-called transitional na was
necessaryin this regard, i.@. the law has not changed in this respect.
The commencement of the thirty-year limitation period is govemed in Section 201
Sentence 1 German Civil Code (§ 201 Satz 1 8G8) as follows:
Section 201. Commencement of the amitation period for recognived claims
The Brnitation period for claime uf the kind referred to i section 187 (4), nos. 3 te 6, commences
on te date when the decision becomes final and absolute, the documentis
executed or the claim is recognized in insolvency proceedings, but not betora the claim arises,
Enforceable documents ate executed as soon as they are recorded by a German natary
within the limits of his powers in the form prescribed for this purpose,
aoe Backscher Ontine-Aommentar
88, § 201, Rn. 2.
‘The effective date is the moment after which tha respective German notary has put his
signature on the document. According tm the provided documents (Notaria!
-Be
AcknowledgmentNo. 1~ No. 6) these requirements (within the limits of his powers” and ‘in
the form prescribed for this purpose”) have been met in the given cases,
Thus, under German law, the limitation
period of claims under enforceable documents is 30
years and commences when the enforceable document is executed.
bb) Definition of Enforceable Document
Section 794 para. 7 no. § German Code of Civil Procedure (§ 794 Abs, 1 Nr, 3 ZPO)
defines the term “enforceable document’ for which the limitation period of 30 years
applies:
Section 794. Further enforceable legal documents
(t) Computsory enforcement may furthermore be purued:
fol
‘5. Based on records or documents that have been recorded in accatdence with the
requirements es to form by a German court or by a German notary within the bounds of
(a official authority, provided thet the record or document has been recorded mganiing a
claim that can be provided for by an amicable settlement, thet is not directed at
obtaining 2 declaration of intent, and thal dees mot concem the existence of a
relationship for residential spaces, and furthermore provided that the debtor
has subjected himself, in: the recon or document, t immediate compulsory enlorcamert
of the claim a¢ specified
therein.
Thus, an enfor document
ceabl in the meaning
e of Section 194 para. 1 no. 5 GarmanCode
of Civil Procedure (§ 794 Abs. 71 Nr. 5 ZPQ) is in particular a document that has been
recorded by a German notary, provided that
() the German notary has recorded
the document
{a} in accordance with the requirements
as to form: and
{Dh within the bounds of tus official authority,
@ the claim recorded
{a} can be subject t an amicable settlement, and
fb) ig not directed at obtaining a declaration of intent: and
{e) does not concern the existence of a tenancy relationship for
residential spaces;
cont hime
-7-
{3} the debtor has subjected himself to immediate compulsory enforcement of
the claim as specified in the document.
b) Basic Principles of Documents of a German Notary
Pursuant to one of the basic principles of German law it Is assumed that the document of
a German notary Is legally correct. tf a party to such notarial document or any other third
party were to challenge the validity of such document, the burden of proof vests with the
opposing
or arguing party.
Therefore # Is assumed that all Notarial AcknowledgmentNo.s t - No. 6 were recorded by a
notary acting in accordance with the ‘requirements as to form” and ‘within the bounds of
his official authority’, both in the meaning of Section 794 para. 1 po, § German Code of
Civil Procedure (§ 794 Abs. 1 Ne. 5 ZPQ}.
s} Limitation Period of Cisima under the Notarial Acknowledgments Provided
aa} Notarial Acknowledgment No. 1
Nolarial Acknowledgment No, 1 contains the following notarial acknowledgment of
indebtedness of Mr. Gabriel Kirchberger and submission to immediate compulsory
enforcement:
German anginal:
Ghema
dor hme
perndnlichen Haftung mit Unterwerfung unter dig twangevollstreckung
Zagieich Obemetenen [...) Heer Gabriel Kinchberger fir die Zantung eines Geldbetrages i Hohe
des Grundschulbetrages [Asm DM 2.460.000] und der Zinsen die personiiche Hafturg, aus dar
der jewellige Gidubiger ihnisie schon vor der Vollsireckung in den Grundbesttz in Anwruchk
pehmen kann. Metwere Schutiner haflen als Gesansctuldner. Jedar Schubinar unterwirtt sich
wegen dieser Haftung der aofetigen Zwangevolisreckung sus dimser Urkunde Gber san
‘qesamies Veoriigen.
English translation,
Assumption of personal lability with submission to compulsory enforcement
Furthermore,
[...) Mr. Gabtel Kirchberger assume personal liability for the psyment of a sum of
money In the amount of the land charge amount [Aofe: DM 2.45 milfion| plus imerest, under
which the indhvidual crediior can claim on him Ahem beiwe the enforcement of the tard charge,
Multiple debtors arg jcintty ard severally liable, With regard to this claim, each debtor subunits to
inmadiate comoulsary enforcement under this dooument inte sll his assets,
-8-
Notariai Acknowledgment No. 1 wae executed on 29 December 1992 by Mr, Gabriel
Kirchberger
and the notary Mr. Klaus Kroger.
On 30 December 1982, an enforceable official copy of the document of Notarial
AcknowledgmentNo. 1 was granted by notary Mr. Klaus Kroger to the Berliner Bank
Aktiengeselischaft, Berlin, Hardenbergsirafe 32, W-1000 Bertin 12, for the purposes of
enforecement.
On 22 December 1997, the enforcement clause was rewritten by notary Mr. Kieus Kroger
on behalf of the Bariin Hyp Barlin-Hannoversche Hypothekenbank AG, Budapester Strate
4, 10787 Bertin, a8 new creditor.
‘On 18 August 2008, the Presiding Judge of the District Court of Gerin Mr. Raif Hartmann
confirmed resp. certified the following:
= the authenticity of the signature and the office seal of notary Mr. Klaus Kroger,
« the notary Mr. Kiaus Kroger was authorized by law to the execution of the
document
of Notarial Acknowledgment No. 1,
On 18 August 2008, the Embassy of Canada in Berlin certified that Mr. Ralf Hartmann is
known to hold the office of Presiding Judge of the District Court cf Berlin and that the
signature and stamp affixed to the confirmation resp. certification
of Mr. Ralf Hartmann
are
the signature of the said Mr. Ralf Hartmann and the stamp of the District Cowt of
BerinfGermary.
Accordingly, there is not only the assumption, but there is proof that notary Mr. Klaus Kriger
hes recorded the document of Notarial Acknowledgment No. 1 in accordance with the
“requirements as to form" and that he has acted ‘within the bounds of his official
authority", both in the meaning of Section 794 para. 1 no, 5 German Code of Civil
Procedure
(§ 784 Abs. 7 Nr. 3 ZPO}.
Moreover, the debtor correctly and properly consented to assume personal fiability for the
payment of a sum of mongy in the amount of the land charge amouri. This claim recorded
“can be provided for by an amicable settiement’, is “not directed at obtaining a
declaration of Intent’ and does ‘not concern the existence of a tenancy relationship
for residential spaces’, each in the meaning of Section 794 para. 1 no. 5 German
Code of
Civil Procedure(§ 794 Abs. 1 Nr. 5 ZPO}.
Finally, the debtor correctly and properly subjected himself lo immediate compulsory
enforcement of the claim as specified in the document in the meaning of Section 794 para,
tne. 5 Srereron Saxde of Give Provedre (G 784 Abs TNr SZPOH.
po
“9.
Notarial Acknowledgment No. 1 therefore is an enforceable document in the meaning of
Section
794 para, 1 no. § German Code of Civil Procedure (§ 794 Abs.
1 Nr. § ZPO).
Thus, Section 197 para. 1 no. 4 of the German Civil Code (§ 197 Abs. 1 Nr. 4 8GB) applies
with regard to the duration of the limitation period for claims under the enforceable
Socument Notarlal Acknowledgment
No. 1. Ta my knowledge no deviating agreement has
been reached on the limitation period in this regard. Ht such deviating agreement were
given, the burden of proof for the existence of auch deviating agreement would vest with the
‘oppo
or arguing
sing party. Therefore, a ciaim under Notarial Acknowladgment
No. 1 gets
statute-barred only 30 years after the execution of the document (see Section 197 para. 1
no. 4 and Section 201 sentence 1 of the German Clvii Code (§ 197 Abs. 1 Nr 4 and 207
Sot 1 G8).
AS Notarial Acknowledgment No. 1 was executed on 28 December 1892, 9 claim under this
document therefore does not 9 tet_statute-b
ta te-harred
Lee b re fore day mi b 02 Untit then,
the creditor may unconditionally irrevocably enforce his aim nder the No
Acknowledgment No, 1 against all of the debtor's assets.
bb). Notarial Acknowledgment No. 2
Notarsal Acknowledgment “No. 2 contains the following notarial acknowledgment of
indebtedness oe Mr. Gabriel Kirchberger and submission to immediate compulsory
enforcement:
Geman original
Obemanmne der persiintichen Haftung mit Unterwertung unter die 2wangsvolistrecicung
Zugleich Gbermehmen {...] Heer Gabriel Kinchberger fur die Zahlung einas Geldbetragas in Hohe
‘des Grundschutbetrages [Anm.: DW 2.720.000} und der Zinsen die persdaliche Hafung. aus der
der jewellige Gidubiger ifvsig schon vor der Volletreckung in den Grundbesite in Anspruch
nehmen kant. Mahrers Schuidner haften als Gesamischuiiner. Jeder Schuldner unimwirft sich
wegen dieser Hating der sofertigen Zwangavallereckung aus dieser Urmmie ober ssn
gesamies Vermogen.
Engligh transiation:
Aasumption of personel liability with submission to compulacry enforcement
Furtherrore, [...] Mt. Gabriel Kirchberper ssume personal labWity ter the payrent of a sum of
money in the amount of the land charge amount (Mole: OM 2.7 million] plus interest, under which
ihe individus! creditor can claim on hiner batore the enforcement of the land charge. Muftipie
Gebiors are jointly and severady Seble. With regard te this ciglm, each debtor submits to
immediate compulsory enforcement under Sis document ints af Nis senets.
tin hnntet
10>
Notarial Acknowledgment No.2 was executed on 29 December 1992 by Mr. Gabriel
Kirchberger and the notary Mr. Kiaws Krager.
Apparently on 30 December 1992, an enforceable official copy of the document of
Notariai Acknowledgment No. 2 was granted by notary Mr. Kiaus Kroger. We were rot
prowded with a copy of the enforcement clause (probably by mistake). However, on 22
December 1997, the enforcement clause was rewritten by notary Mr. Klaus Kriger on
behalf of the Bertin Hyp Berfir-Hannoverscha Hypothekenbank AG, Bucapester Strate 1,
+0787 Berlin, as new creditor. in rewriting
the enforcement clause, notary Mr. Klaus Kriiger
made reference to the initial enforcement clause of 30 December 1992. As mentioned
above, under German Law it is assumed that the document of a German notary is
legally correct. Therefore, it can be assumed thal on 30 December 1992, an enforceable
official copy of the document of Notarial Acknowledgment Nr. 2 was granted by notary Mr.
Klaus Kroger.
On 20 February 2008, the Presiding Judge of the District Court of Berlin Mr. Ralf Hartmann
confirmed resp. certified the following:
. the authenticity of the signature and the office seal of notary Mr. Klaus Kroger:
the notary Mr. Klaus Kroger was authorized by law to the execution of the
decument of Natartal Acknowledgment No. 2,
On the same day, the Embassy of Canada in Seriin certified that Mr. Ralf Narnimann &
known to hold the office of Presiding Judge of the District Court of Berlin and that the
signature and stamp affixed to the confirmation resp. certification
of Mr. Ralf Hartmann are
the signature of the said Mr. Ralf Hartmann and the stamp of the District Court of
Seriin’Germany,
Accordingly. there is not anly the assumption, but there is proof that notary Mr. Kiaus Kroger
has recomed the document of Notarial Acknowledgment No. 2 in accordance with the
“requirements as to form” and that he hes acted “within the bounds of his official
authority", both in the meaning of Section 794 para. 1 no. 5 German Code of Cail
Procedure (§ 794 Abs. 1 Air. 5 ZPO}.
Moreover, the debtor carrectly and properly consented to assume personal lability for the
payment of a sum of money in the amount of the land charge amount. This claim recorded
‘gan be provided for by an amicable settlement’, ic “not directed at obtaining a
declaration of intent and does “not concern the existence of a tenancy relationship
for residential spaces”, aach in the meaning of Section 754 para. 1 no. 5 German
Code of
Civil Procedure (§ 784 Abs. 1 Nr. 5 ZPO}.
nome
ott
Finally, the debtor comectly and properly subjected himself to immediate compulsory
enforcement of the claim as specified in the document in the meaning of Section 794 para
ino. 5 German Code of Givi Procedure (§ 794 Abs. 1 Nr. 5 ZPO).
Notarial Acknowledgment No. 2 therefore is an enforceable docurnent in the meaning of
Section 794 pars. 1 no. § German Code of Civil Procedure (§ 794 Abs, 1 Nr. 5 ZPO},
197 para. 1 no. 4 of the German Civil Code (§ 197 Abs. 1 Nr. 4 8GB) apphes
Thus, Section
with regard to the duration of the limitation period for ciains under the enforceable
document Notarial Acknowledgmant No. 2. To my knowledge no deviating agreement has
been reached on the {imitation period in this regard. f such deviating agreement were
given, the burden of proof for the existence of such deviating agreement would vest with the
opposing or arguing party, Therefore, a claim under Notarial Acknowledgment No. 4 gets
statute-harred only 30 years after the execution of the decunent (see Section 197 para. 1
no. 4 and Section
201 sentence 1 of the German
Civil Code (§ 197 Abs. 1 Nr. 4 and 201
Satz 1 BGB}.
As Notanad halcwowtedigment No: 2 was executed on 29 December 1992, a claim under tes
document therefore not ute-barrestby 2022. Until then,
the creditor may unconditionally and inevocably enforos ‘his claim under tha. Notaral
Acknowledgment No. 2 against ail of the deblor's assets.
e¢) Notarial Acknowledgment No.
Meteral Acknowledgment No.3 contains the following notarial scknowledgment of
indebtedness of Mr. Gabriel Kirchberger and submission to immediate compulsory
enforcement:
German orginal:
Ubernahme der peradnlichen Hattung mit Unterwerfung unter die Zeangevellstreckung
Zugiscn Gbemimmt Her Gabdel Kirchberger fir dig Zahiung eines Geidbetrages in Hohe deg
Grundschufbetages [Ane OM 356.000) und der Zinsen die pecndnliche Hafiung aus der der
jewellige Giaubiger ihn’sie schon vor der Volizineckung in den Grundbestz in Anspeuch nabean
kann. Metwere Schuidner hafier ais Gesamtechutiner, Jeder Schuldiner uniersirft sich wagen
dieser Haftung der sofortigen Zwangseolisireckung aus dieser Urnunds Gher sein geearnies
Vermagen.
com
-12-
Engiish transiation:
Assumption of personal [lability with submission to compulsory enforcement
Furthermore,
Me. Gabelal Kicchberger assumes Rabitity for ihe payment of a sum of
money in the: amount of the land cherge amount |Note: DAT 360,000) plus interest, under which
the individual creditor can cain on himithem betore the enforcement of the land charge. Muftipla
debtors are jointly and sevenully liable, Yitth regard to this cisim, each debtor submits to
immediate compulsory enforcement under Ins document into af bis ansets,
Notarial Acknowledgment No.3 was executed on § October 1995 by Mr. Gabriel
Kechbergar and the notary Mr. Klaus Kriger.
On 8 October 1995, an enforceable official copy of the document of Netarial
Acknowle No, 3 was dgme notary Mr. Klaus Kroger to the Berliner Bank AG,
granted by nt
Maxatr. 24, 19347 Berlin, for the purposes of anforscement.
On 22 December 1987, the enforcement clause was rewritten by notary Mr. Klaus Kroger
an behalf of the Berlin Hyp Berlin-Hannoversche Hypothekenbank AG, Budepester Strate
4, 10787 Bariin as new creditor.
On 15 August 2008, the Presiding Judge of the District Court of Berlin Mr. Ralf Hartmann
confirmed resp. certified the following:
the authenticity of the signature and the office seal of notary Mr. Kiaus Kroger,
ihe retary Mr. Klaus Kriger waa authorized by law to the execution of the
document of Notarial Acknowledgment No. 3.
On 18 August 2008, the Embassy of Canada in Becin certified that Mr. Ralf Hartmann is
knawn to hold the office of Presiding Judge of the District Court of Gerlin and that the
signature and stamp affixed to the confirmation resp. certification
of Mr. Ralf Hartmann are
the signature of the said Mr. Ralf Hartmann and the stamp of the District Court of
SerivGermany.
Accordingly, there is not only the assumption, but there is proof that notary Mr. Klaus Kroger
has recorded the document of Notarial Acknowledgment No. 3 in accordance with the
“requirements as to form” and that he has acted ‘within the bounds of his official
authority’, both in the meaning of Section 784 para. 7 no. § German Code of Civil
Procedure
(§ 794 Abs. 1 Nr. 3 ZPO).
Moreover, the debtor correctly and properly consented to assume personal liability for the
payment of a sum of money in the amount of the land charge amount This claim recorded
1
-13-
‘can be provided for by an amicable settlement’, is “not directe d a
at obtaining
declaration of intent” and does “not concern the existence of a tenancy relationship
for residential spaces", each in the meaning of Section 734 para. 1 no. 5 German Code of
Civil Procedure
(§ 784 Abs. 1 Nr. 5 ZPO).
Finally, the debtor correctly and properly subjected himself to immediate compulsory
enforcement of the claim as specified in the document in the meaning of Section 794 para,
ino. & German Code of Civil Procedure (§ 794 Abs. 1 Nr 5 ZPO).
Notaial Acknowledgment No. 3 therefore is an enforceable document in the meaning of
Section
794 para. 1 no. § German Code of Civil Procesture(§ 794 Abs. 1 Nr. 5 ZPO}.
Thus, Section
197 para. 1 no. 4 of the German Civil Code (§ 197 Abs. 1 Nr. 4 BGB) applies
with regard to the duration of the imitation period for claims under the enforceable
document Notarial AcknowledgmentNo, 3. To my knowledge no deviating agreement has
been reached on the limitation period in this regard. If such deviating agreement were
given, the burden of proct for the existence of such deviating agreement would vest with the
opposing or arguing party. Therefore, a claim under Notarial Acknowledgment No. 1 gets
Satute-harred only 30 years after the execution of the document (see Section 197 para, 1
no. 4 and Section 201 sentence 1 of ihe German Civil Code (§ 197 Abs. f Nr 4 and 207
Satz
1 8GB)
As Netafial Acknowtedgment No. 2 was exscited on5 October 1986, a claim under this
document therefore does nest jet sizh, she-bs Tse befo! re § Octobe 2025 Until then, the
erodhor may unconditoraly ard Weevecsbly enforce his clade under’ tha Notariad
Acknowledgment No. 3 against sil of the debtor's assets.
dd) Notarial Acknowledgment No. 4
Notariai Acknowledgment No.4 contains the following notarial acknowledgment of
indebtedness of Mr Gabriel Kirchberget and submission to immediate compulaory
enforcement:
German ongins!:
Persdnliche Haftungetbernatune und Zwangevollstreckungsunterwertung:
Fie dis Zahlung eines Geidbetrages, dessen Hohe der verembarien Grmdschudd (Kapital Ann.
OM 1.300.000), Zingsn und Nebenieistungen) enlsprichl, Dbemirnrnt Her Gabriel Kirchoesgr|.f
als Gesamischuldner
dip parstnliche Haftung,
athe
Er untarwr sich wegen dieser Zahlungaverstichtung der sofurtigen Zwangauctstreckung aus
desert Urkuraie in liv gosamies Varmigen, Ole Gitublgerin kann die peradaliche Haftung
unebhengig von der Elntragong der Grundachuld und ohne vorheriga Zwangsvoltsineckung in cas
belasieie Grumbeigentum
getend machert.
English transiation:
Assumption of personal lability and submission to compulsory enforcement
Mr. Gabriel Karchberger |...) ms joint and several debtors assume personal dabéity for the payment
of @ gum of money in the amcunt of the land charge amount (capital (Note: OM 1,300,009),
interest and incidentals).
With regaid to tis Rabilty to pay. they subrnit to ininediate compulsory enforcement under this
document into af thet assets. The cexditor can claim the personal lability negardiess of the
registration
of the land charge end withoul prior compulsory enforcement on the encursbered resi
property.
Notariai Acknowledigment No.4 was executedon 12 December 1996 by Mr. Gabricl
Kirchberger and the notary Mr. Klaus Kriger.
On 16 January 1997, an enforceable official copy of the document of Notarial
Acknowledgment No. 4 was granted by notary Mr. Kisus Kroger te the Berlin-Hannoversche
Hypothekenbank Aitiengesellechali in Barfn for ihe purposes
of enforcement. in this case,
the enforcement clause was not rewritten on behalf of another creditor.
On 15 August 2006, the Presiding Judge of the District Court of Berlin Mr. Raif Hartmann
confirmed resp. certified the following
= the authenticity of the signature and the office seal of notary Mr, Kisus Kroger:
* the notaryMr. Kisus Kroger was. authorized by law to the execution of the
document of Notarial Acknowledgment No. 4.
On 18 August 2008, the Embassy of Canada in Berlin certified that Mr. Ralf Hartmann is
known to hold the office of Presiding Judge of the District Court of Berlin and that the
signature and stamp affixed to the confirmation rasp. certification
of Mr. Ralf Hartmann are
the signature of the said Mr. Ralf Hartmann and the stamp of the District Court of
BerinvGennany.
Accardingly, there is not only the assumption, but there is proof that nolary Mr. Kiaus Kriger
has recorded the document of Notarlal Acknowtedgrvent No. 4 in accordance with the
“requirements ss to form* and that he has acted “within the bounds of his official
authority’, both in the meaning of Saction 734 para. 1 no, 5 German Code of Civil
Procedure (§ 794 Abs, 1 Nr. 5 ZPO}.
- 18.
Moreover, the debtor correctly and properly consented to assume personal liabilty for the
payment of a sum of money in the amount of the land charge amount, This claim reconted
‘can be provided for by an amicable settlement’, is ‘not directed at obtaining =
declaration of intent’ and does “net concern the existence of a tenancy relationship
for residential spaces”, each in the meaning of Section 794 para. 1 no. & German Code of
Clvil Procedure(§ 794 Abs. 1 Nr. 5 ZPO).
Finally, the debtor correctly and properly subjected himself to immediate compulsory
‘enforcement of the claim as specified in the document in the meaning of Section 7
Preview
Filing # 73171757 E-Filed 06/06/2018 02:10:13 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL 1 UNTY, FLORIDA n CIRCUIT IN AND FoR n VEL ACTION HARRY BIEBERSTEIN, Plaintiff, w. Case No. 17-9170A GABRIEL KIRCHBERG ER, CAROL, DEVILLE, SOUTHERN SHORE ENTERPRISES, LLC, a Florida limi ted ability company, and MOONST ONE HOLDINGS, LLC, a Nevada limited liabitity company, Defendants. a NOTICE OF FILING ExWITS (.0) 70 ROSEN isSTEIN AFFIDAVY IN SUPPORT OF DEFENDANT DEVILL E'S MOTIONTO a ACT COMES NOW CAROL DEVILLE, Defendant, by and through her undersigned attorney and provides Notice of Filing Exhityts A-D to the Affidavit of JONATHAN ROSENSTEIN in suppo rt of Defendant DEVILLE'S Motion to Dismiss. THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished court ©-portal service to MARK A. SLACK, ESQ. Mslack @wwmralaw com 9045 Strada Stell Court. Suite 400, Naples, FL 34109 and to ROBERT W. SEGU R, ESQ. Legal @sequriaw net 1460 S, McCall Read, Suite 2E, Englewood, FL 34223 thie 6° day of June, 2018. 4 lan f/ i DAVID K. OAKS, ESO. Wake, AQ? East Marion Avenue, Suite 104 Punta Gorda, FL 33950 (941) 639-7627 Ke: comcastnet Florida Bar No. 0301817 Attorney for Defendant DEVILLE ene Court File No. CV-10-83§-00CL and CV-10-8535-00CL ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST THE HONOURABLE tien nw THE aw MADAM JUSTICE THORBURN DAY OF .O cot aol BETWEEN: (Court Sev) HARRY BIEBERSTEIN Plaintitf and GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT, NOMEN FITNESS INC., 487223 ONTARIO LIMITED and 1171852 ONTARIO LIMITED CARRYING ON BUSINESS AS G.K. YORK MANAGEMENT SERVICE Defendants JUDGMENT THIS ACTION was heard between February 7, 3014 and March 9, 2014 without a jury at the court house, 330 University Avenue, 8th Floor, Toronto, Ontario, M3G 1R7, in the presence of the lawyers for all parties, ON READING THE PLEADINGS AND HEARING THE EVIDENCE and the submissions of the lawyers for the parties, 1 THIS COURT DECLARES AND ADJUDGES that Acknowledgments between Gabriel Kirchberger and Berlin Hypo Bank are enforceable. 4 treme ers mh THIS COURT DECLARES AND ADJUDGES that the Plaintiff is entitled to enforce against the assets of Gabriel Kirchberger located in Ontario in the manner and to the extent as if he had obtained judgment against Kirchberger for the payment of money in the amount of the liability assumed in the acknowledgments, as quantified in Paragraph 3 below, THIS COURT DECLARES AND ADJUDGES that the amount of the lability assumed in the Acknowledgements is €8,391,909.49. inclusive of prejudgment interest through to the date of this judgment, plus any post-judgment interest accrued on the unpaid balance of the liability assumed in the Acknowledgements, which shall accrue at a rate of 3% per year. THIS COURT DECLARES AND ADJUDGES that the Claim to enforce the Acknowledgment between Gabriel Kirchberger and Hypo Bank is dismissed. THIS COURT DECLARES AND ADYUDGES that the claim in fraud and unjust enrichment against Gabriel Kirchberger is dismissed. THIS COURT DECLARES AND ADJUDGES that the claim against Susanne Viktoria Schmidt, Nomen Fitness Inc., 487223 Ontario Limited and 1171852 Ontario Limited carrying on business as GK. York Management Services for unjust enrichment in relation to the Banks is dismissed. Ae THIS COURT DECLARES AND ADJUDGES that the Defendant Gabriel Kirchberger pay to the Plaintiff costs and disbursements in the amount of $56,738.67, inclusive of HST THIS COURT DECLARES AND ADJUDGES that the Plaintiff pay to Ms. Susanne Viktoria Schmidt costs in the amount of $5,000.00. Qin | / eect ATGRONTO ENTERED AT! ON / BOOKNO STRE NO: On eS UE REG SEP 26 2016 pen span * HARRY BIEBERSTEIN and- GABRIEL KIRCHBERGER et al. Plaintiff Defendants Court File No. CV-10-8534-00CL and CV-10-8535-00CL. ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST PROCEEDING COMMENCED AT TORONTO JUDGMENT FALCONERS LLP 10 Alcorn Ave, Suite 204 Toronto, ON MaV 3A9 Julian N. Falconer LSUC# 29465R Tel: (416) 964-0495, Fax: (416) 929-8179 Lawyers for the Plaintiff wn naam nat snare sinners aon Ge na Consulate o ha eras aero Consuiat du Cansda nea Prof. Dr. Thomas Reith, MA. nid Cian 488 wait Bonin si a 168 3 i we Canad si, Prof. Dr. Thomas Reith, M.A. hacer Prof Ge, Thames Reith, M.A. | Poarives JG1OES 1 TE4SH Stottgart ‘Ontario Superior Court of Justice Stuttgart, 1. August 2012 Aechtzanwadt und Notar Prof, Or Thomas Roth ‘Shabana Lapittrpinice 1368! He soe Legal Opinion: Limitation of 30 years to Section 197 para. 1 no. 4 German Civil Code (§ 197 Abs. 1 Nr. 4 & Court File No. CV-10-B534-00CL and No. CV-10-8538-00CL. Dear Sirs i state and confirm as follows: 4 intraduction and Acknowledgment of Expert's Duty 1, the undersigned Prof. Dr. Thomas Reith, M.A.. with residence in Stuttgart, Germany, have beer engaged by or on behalf of the plaintiff, Harry Bleberstein, to provide evidence in relation to the court proceeding Court File No. CV-10-8534-00CL and No. CV-10-8835- O0CL between Harry BSieberstein (Plaintiff) and Gabriel Kirchberger, Susanne Viktoria Schmidt, Nomen Fitness inc., 487223 Ontario Limited and 1171852 Ontario Limited carrying on business as G.K. York Management Service (Defendants) (hereinafter the "MatApa ter" from sentence ). 4, T have not been engaged in this Matter by any other party and/or de not have any relationship te any person involved in the Matter, neither by jaw nor by matter-of-fact. In particular, | do not have any farnily feistionship of any relationship alike to any person invelved in the Matter. | have been practicing in Germany as attorney-at-law (Rechissmwail) since 1888, when | was called to the bar in the Federal Republic in Germany and admitted as attorney-atdaw (Rechisamwaif}. | have been practicing primarily in the fields of civil lav, international iaw and tax taw. F469 Sugar Felefan 48 $1) a85 I One ‘Siz aed Registergeciste sam withichick dy aban 45 Trhles a9 22 695 20.001 Shatgan 28 THE ielagpredteschich. te -2+ in 1994, | was awarded a doctorate in law (Dr, iur.) by Eberhard Karis University Tobingan. My doctor thesis dealt with a civil law topic. in 2004, ! was appointed as a German civil-law notary (Nofer). In Germany the professional rules of notaries (Berufsrecht der Notere} are much stricter than the professional rules of attomneys (Berufsrecht der Rechtzanwéite). A German notary @ aubpect io @ strict control of the Ministry of Justice of the respective federal state (of Baden~ Worttemberg). The office and the practice of a notary Is strictly reviewed resp. audited by public supervising authorities (Dienstaufsichtsbehdrden) every four years in average. Accordingly, a German notary has a higher reputation as a German attorney-at-law, Being a German civit-diaw notary (Notar), my main function ie in contracting agreements in specialized areas of the law of contracts, property law, documents and conveyances, successions, family iaw and cosporate law. in doing so, t provide independent and impartial advice to all interested parties. Since 1904, i have been lecturing ‘Internationa! Tax Law’ at Dresden University of Technology, one of the latest so-called “excellancy universities"(“Exzelenz-Uiniversitéten’). Since 2004, 1 have been lecturing “Estate and Succession Planning” at the University of Hohenheim (Stuttgart), Since 2006, | have been ‘ectiying “Estate and Succession Planning” also at Dresden University of Technology. in 2004, | was awarded a professorshipby Dresden University of Technology. | am senior partner of Reith Schick & Parner Attorneys where | practice as sttorney-al-law (Rechtzanwai) and as notary (Nofar), a8 is evident from the letterhead on which this iagal opinion is set dawn. However, my main focus and the majority of my work is notarial work. My official professions! tite is - literally tansiated - attorney-stlaw and notary (Rechisanwait und Noter, abbreviated RAuN}. According to German law resp. the local law of the federal state of Baden—Waurttemberg, a Rechtsanwalt und Notar is in the position to dually practice law (in civil law matters) as an attomey-at-law (Rechtsanwalt) andfor ax notary (Nofar}. in order to avoid and to prevent conficts of interests of course a Rechtsanwalt und Nofar is not entitled to act as atomey-aliaw (Rechisanwaill) and as notary (Notar} on the same case. in a specific mattar, the professional duties and tasks of a Rechtsanwalt und Notar depend on the function in which he acts: Aa the case may be, the Rechisanwat und Nolar may act as a notary (Notary, im euch event the notary has to be a neutral advisor and/or representative for all parties involved. If the Rechtsanwalf und Notar acts as an attorney-aidaw (Rechtsanwatf} he is the legal representative of the interests of one or several parties. -ae in providing the following Legal Opinion, | could lawfully act either as attomey-atiaw (Rechtsanwalt) or as notary {Notar). For the purpose of this statement and legal opinion | act in the function ae notary (Nofar), Under this regime | am subject to higher and much stricter professional rules and duties and have a legal duty to be absolutely independent and neutral, | also provide the following Legal Opinion on the backdrop of my longterm experiance as professor. Due to this professorship | am regularly providing legal opinions in the fieids of my legal activities and area of axpertisa. | acknowledge that it is my duty to provide evidence as follows: a) to provide opinion evidence that is fair, objective and not partisan; ») to provide opinion evidence that is related only to matters that are within my area of expertise; <} to provide such additional assistance as the court May reasona bly require, to determine a matter in issue, J acknowledge that the duty referred to above prevails over any obligati on which | may owe to any party by whom or on whose behalf | am engaged, 2 = Legal Question | was asked fo examine the legal question as to when a claim under a Aotedal acknowledgment of indebtedness (notarieiies Schuldanerkenninis} of Mr Gabriel Kerchberger 9 statwte-b underarr Germaned law. Moreover | was asked te check on an ingividua! basis the limitation period with regard to a bundle of documents each containing a notarial acknowledgment of indebtedness (notaris#es Schuldanerkenn inis) with reference fo 8 specific registered land charge (Grundsofuld). My examination shall not and does not encompass further resp. other jegal questions, In particular, my examination does not concer the existence and the extent of Gability of Mr. Gabriet Kirchberger. 3 Provided Documents {was provided with the following documents that | receive d as simple copies of originals which to my information are in the possessi ofon the Ontario Superior Court of Justice: a} Notarial document of 28 December 1992, document roll no. 3335/1992 of the notary Klaus Kroger, Berlin, contain ing the creation of a registered land charge (Grund in sch the amount ut) of OM 2.450.000 and the netarial acknowledgment of indebtedness (nofariates Schuldenerkenninis) of Mr. Gabriel Kirchberger (hereinafter “Notarial Acknowledgment No. Th. ade b) Notarial document of 29 December 1992, document roll no. 3392/1992 of the notary Kiaus Kroger, Berlin, containing the creation of a registered land charge (Grundinschuld the amount of)DM 2.700.000 and the notarial acknowledgment indebtedness (notarisies Schuidanerkenninis) of Mr, Gabriel Kirchberger (bersinstter “Notarial Acknowledgment No, 271. ¢} Notanial document of § October 199%, document roll no, 328/1995 of the notary Kiaus Krager, Bertin, containing the creation of a registered land charge (Grundschuid) in the amount of DM 360.000 and the notarial acknowledgment of indebtedness (notarieves Schuldanerkenntnis) of Mr, Gabriel Kirchbergee (hereinafter “Notarial Acknowledgment No. 3°). qd) Notarial document of 12 December 1998, document roli no. 458/1996 of the notary Klaus Kroger, Berlin. containing the creation of @ registered land charge (Grundschutd) in the amount of DM 1.300.000 and the notarial acknowledgment of indebtedness (notavisties Sohuldanerkenntnisy of Mr. Gabriel Kirchberger (hereinafter “Notarial Acknowledgment No, 4°). 8) Notarial document of 19 March 1998, document rol no. 107/1998 of the notary Klaus Kroger, Berlin, containing the creation of a registered land charge (Grundsehuld) in the amount of OM 4.250.000 and the notarial acknowledgment of indebtedness (notarielies Schuidanerkenninis) of Mr. Martin Kirchberger and Mr. Gabriel Kirchberger (hereinafter "Notarial Acknowledgment No. 5°). Notarial documentof 44 July 1998, decument roll no. 288/196 of 8 the notary Kisus Kroger, Berlin, containing the creation of a registered land charge (Grundschuld) in the amount of DM 888.800 and the notarial acknowledgment of indebtedness (nolariefies Schuldanerkenntnis) of Mr. Martin Kirchberger and Mr. Gabriel Kirchberger (hereinafter “Notarial Acknowledgment No. $°). 4, Legal Opinion aj Basic Principles of the Law of Statutory Limitation in Garman Law aa) Duration and Commencement of Limitation Period Under German law, Section 195 of the German Civil Code (§ 195 8GB) governs the standard limitation period as follows: Section 195. Standard fimitetian period The standard lindistion period is three years. «Bs However, pursuant to Section 197 para. 1 of the German Civil Code (§ 197 Abs. 1 BGB), the following claims get statute-barred only after 30 years: ‘Section 187. Thirty-year limitation partod (1) Unless otherwise provided, the following chaies are siricte-bamed afier thiety years: fod 4, claims under eviorceatte setitements or enforceable documents The subject-matter of this Legal Opinion, ie. each notarial acknowledgment of indebtedness (nofarialles Schuldsnerkenninis), is an enforceable document in the meanin of Section g 187 para. 1 of the German Civil Code (§ 197 Abs, 1 8GB}. More details see chapter bb) (Definition of Enforceable Document), Thus, pursuant to Section 197 para. 1 na. 4 of the German Civil Code (§ 197 Abs. tAn 4 865), claims under resp, on the basis of enforceable documents are statute-barred after thirty years. Gefore the reform of the German law of obligations (Sehufdrechtsrefenn; in force since 4 January 2002), Section 218 pata. 1 sentence 2 German Civil Code (previous version) (§ 218 Abs. 1 Satz 2 8GB af.) governed the Emitation period of claims under enforceable documents: According to this (previous) provision claims under enforceable docurnents were siatiie-batred after thirty years. Therefore, no so-called transitional na was necessaryin this regard, i.@. the law has not changed in this respect. The commencement of the thirty-year limitation period is govemed in Section 201 Sentence 1 German Civil Code (§ 201 Satz 1 8G8) as follows: Section 201. Commencement of the amitation period for recognived claims The Brnitation period for claime uf the kind referred to i section 187 (4), nos. 3 te 6, commences on te date when the decision becomes final and absolute, the documentis executed or the claim is recognized in insolvency proceedings, but not betora the claim arises, Enforceable documents ate executed as soon as they are recorded by a German natary within the limits of his powers in the form prescribed for this purpose, aoe Backscher Ontine-Aommentar 88, § 201, Rn. 2. ‘The effective date is the moment after which tha respective German notary has put his signature on the document. According tm the provided documents (Notaria! -Be AcknowledgmentNo. 1~ No. 6) these requirements (within the limits of his powers” and ‘in the form prescribed for this purpose”) have been met in the given cases, Thus, under German law, the limitation period of claims under enforceable documents is 30 years and commences when the enforceable document is executed. bb) Definition of Enforceable Document Section 794 para. 7 no. § German Code of Civil Procedure (§ 794 Abs, 1 Nr, 3 ZPO) defines the term “enforceable document’ for which the limitation period of 30 years applies: Section 794. Further enforceable legal documents (t) Computsory enforcement may furthermore be purued: fol ‘5. Based on records or documents that have been recorded in accatdence with the requirements es to form by a German court or by a German notary within the bounds of (a official authority, provided thet the record or document has been recorded mganiing a claim that can be provided for by an amicable settlement, thet is not directed at obtaining 2 declaration of intent, and thal dees mot concem the existence of a relationship for residential spaces, and furthermore provided that the debtor has subjected himself, in: the recon or document, t immediate compulsory enlorcamert of the claim a¢ specified therein. Thus, an enfor document ceabl in the meaning e of Section 194 para. 1 no. 5 GarmanCode of Civil Procedure (§ 794 Abs. 71 Nr. 5 ZPQ) is in particular a document that has been recorded by a German notary, provided that () the German notary has recorded the document {a} in accordance with the requirements as to form: and {Dh within the bounds of tus official authority, @ the claim recorded {a} can be subject t an amicable settlement, and fb) ig not directed at obtaining a declaration of intent: and {e) does not concern the existence of a tenancy relationship for residential spaces; cont hime -7- {3} the debtor has subjected himself to immediate compulsory enforcement of the claim as specified in the document. b) Basic Principles of Documents of a German Notary Pursuant to one of the basic principles of German law it Is assumed that the document of a German notary Is legally correct. tf a party to such notarial document or any other third party were to challenge the validity of such document, the burden of proof vests with the opposing or arguing party. Therefore # Is assumed that all Notarial AcknowledgmentNo.s t - No. 6 were recorded by a notary acting in accordance with the ‘requirements as to form” and ‘within the bounds of his official authority’, both in the meaning of Section 794 para. 1 po, § German Code of Civil Procedure (§ 794 Abs. 1 Ne. 5 ZPQ}. s} Limitation Period of Cisima under the Notarial Acknowledgments Provided aa} Notarial Acknowledgment No. 1 Nolarial Acknowledgment No, 1 contains the following notarial acknowledgment of indebtedness of Mr. Gabriel Kirchberger and submission to immediate compulsory enforcement: German anginal: Ghema dor hme perndnlichen Haftung mit Unterwerfung unter dig twangevollstreckung Zagieich Obemetenen [...) Heer Gabriel Kinchberger fir die Zantung eines Geldbetrages i Hohe des Grundschulbetrages [Asm DM 2.460.000] und der Zinsen die personiiche Hafturg, aus dar der jewellige Gidubiger ihnisie schon vor der Vollsireckung in den Grundbesttz in Anwruchk pehmen kann. Metwere Schutiner haflen als Gesansctuldner. Jedar Schubinar unterwirtt sich wegen dieser Haftung der aofetigen Zwangevolisreckung sus dimser Urkunde Gber san ‘qesamies Veoriigen. English translation, Assumption of personal lability with submission to compulsory enforcement Furthermore, [...) Mr. Gabtel Kirchberger assume personal liability for the psyment of a sum of money In the amount of the land charge amount [Aofe: DM 2.45 milfion| plus imerest, under which the indhvidual crediior can claim on him Ahem beiwe the enforcement of the tard charge, Multiple debtors arg jcintty ard severally liable, With regard to this claim, each debtor subunits to inmadiate comoulsary enforcement under this dooument inte sll his assets, -8- Notariai Acknowledgment No. 1 wae executed on 29 December 1992 by Mr, Gabriel Kirchberger and the notary Mr. Klaus Kroger. On 30 December 1982, an enforceable official copy of the document of Notarial AcknowledgmentNo. 1 was granted by notary Mr. Klaus Kroger to the Berliner Bank Aktiengeselischaft, Berlin, Hardenbergsirafe 32, W-1000 Bertin 12, for the purposes of enforecement. On 22 December 1997, the enforcement clause was rewritten by notary Mr. Kieus Kroger on behalf of the Bariin Hyp Barlin-Hannoversche Hypothekenbank AG, Budapester Strate 4, 10787 Bertin, a8 new creditor. ‘On 18 August 2008, the Presiding Judge of the District Court of Gerin Mr. Raif Hartmann confirmed resp. certified the following: = the authenticity of the signature and the office seal of notary Mr. Klaus Kroger, « the notary Mr. Kiaus Kroger was authorized by law to the execution of the document of Notarial Acknowledgment No. 1, On 18 August 2008, the Embassy of Canada in Berlin certified that Mr. Ralf Hartmann is known to hold the office of Presiding Judge of the District Court cf Berlin and that the signature and stamp affixed to the confirmation resp. certification of Mr. Ralf Hartmann are the signature of the said Mr. Ralf Hartmann and the stamp of the District Cowt of BerinfGermary. Accordingly, there is not only the assumption, but there is proof that notary Mr. Klaus Kriger hes recorded the document of Notarial Acknowledgment No. 1 in accordance with the “requirements as to form" and that he has acted ‘within the bounds of his official authority", both in the meaning of Section 794 para. 1 no, 5 German Code of Civil Procedure (§ 784 Abs. 7 Nr. 3 ZPO}. Moreover, the debtor correctly and properly consented to assume personal fiability for the payment of a sum of mongy in the amount of the land charge amouri. This claim recorded “can be provided for by an amicable settiement’, is “not directed at obtaining a declaration of Intent’ and does ‘not concern the existence of a tenancy relationship for residential spaces’, each in the meaning of Section 794 para. 1 no. 5 German Code of Civil Procedure(§ 794 Abs. 1 Nr. 5 ZPO}. Finally, the debtor correctly and properly subjected himself lo immediate compulsory enforcement of the claim as specified in the document in the meaning of Section 794 para, tne. 5 Srereron Saxde of Give Provedre (G 784 Abs TNr SZPOH. po “9. Notarial Acknowledgment No. 1 therefore is an enforceable document in the meaning of Section 794 para, 1 no. § German Code of Civil Procedure (§ 794 Abs. 1 Nr. § ZPO). Thus, Section 197 para. 1 no. 4 of the German Civil Code (§ 197 Abs. 1 Nr. 4 8GB) applies with regard to the duration of the limitation period for claims under the enforceable Socument Notarlal Acknowledgment No. 1. Ta my knowledge no deviating agreement has been reached on the limitation period in this regard. Ht such deviating agreement were given, the burden of proof for the existence of auch deviating agreement would vest with the ‘oppo or arguing sing party. Therefore, a ciaim under Notarial Acknowladgment No. 1 gets statute-barred only 30 years after the execution of the document (see Section 197 para. 1 no. 4 and Section 201 sentence 1 of the German Clvii Code (§ 197 Abs. 1 Nr 4 and 207 Sot 1 G8). AS Notarial Acknowledgment No. 1 was executed on 28 December 1892, 9 claim under this document therefore does not 9 tet_statute-b ta te-harred Lee b re fore day mi b 02 Untit then, the creditor may unconditionally irrevocably enforce his aim nder the No Acknowledgment No, 1 against all of the debtor's assets. bb). Notarial Acknowledgment No. 2 Notarsal Acknowledgment “No. 2 contains the following notarial acknowledgment of indebtedness oe Mr. Gabriel Kirchberger and submission to immediate compulsory enforcement: Geman original Obemanmne der persiintichen Haftung mit Unterwertung unter die 2wangsvolistrecicung Zugleich Gbermehmen {...] Heer Gabriel Kinchberger fur die Zahlung einas Geldbetragas in Hohe ‘des Grundschutbetrages [Anm.: DW 2.720.000} und der Zinsen die persdaliche Hafung. aus der der jewellige Gidubiger ifvsig schon vor der Volletreckung in den Grundbesite in Anspruch nehmen kant. Mahrers Schuidner haften als Gesamischuiiner. Jeder Schuldner unimwirft sich wegen dieser Hating der sofertigen Zwangavallereckung aus dieser Urmmie ober ssn gesamies Vermogen. Engligh transiation: Aasumption of personel liability with submission to compulacry enforcement Furtherrore, [...] Mt. Gabriel Kirchberper ssume personal labWity ter the payrent of a sum of money in the amount of the land charge amount (Mole: OM 2.7 million] plus interest, under which ihe individus! creditor can claim on hiner batore the enforcement of the land charge. Muftipie Gebiors are jointly and severady Seble. With regard te this ciglm, each debtor submits to immediate compulsory enforcement under Sis document ints af Nis senets. tin hnntet 10> Notarial Acknowledgment No.2 was executed on 29 December 1992 by Mr. Gabriel Kirchberger and the notary Mr. Kiaws Krager. Apparently on 30 December 1992, an enforceable official copy of the document of Notariai Acknowledgment No. 2 was granted by notary Mr. Kiaus Kroger. We were rot prowded with a copy of the enforcement clause (probably by mistake). However, on 22 December 1997, the enforcement clause was rewritten by notary Mr. Klaus Kriger on behalf of the Bertin Hyp Berfir-Hannoverscha Hypothekenbank AG, Bucapester Strate 1, +0787 Berlin, as new creditor. in rewriting the enforcement clause, notary Mr. Klaus Kriiger made reference to the initial enforcement clause of 30 December 1992. As mentioned above, under German Law it is assumed that the document of a German notary is legally correct. Therefore, it can be assumed thal on 30 December 1992, an enforceable official copy of the document of Notarial Acknowledgment Nr. 2 was granted by notary Mr. Klaus Kroger. On 20 February 2008, the Presiding Judge of the District Court of Berlin Mr. Ralf Hartmann confirmed resp. certified the following: . the authenticity of the signature and the office seal of notary Mr. Klaus Kroger: the notary Mr. Klaus Kroger was authorized by law to the execution of the decument of Natartal Acknowledgment No. 2, On the same day, the Embassy of Canada in Seriin certified that Mr. Ralf Narnimann & known to hold the office of Presiding Judge of the District Court of Berlin and that the signature and stamp affixed to the confirmation resp. certification of Mr. Ralf Hartmann are the signature of the said Mr. Ralf Hartmann and the stamp of the District Court of Seriin’Germany, Accordingly. there is not anly the assumption, but there is proof that notary Mr. Kiaus Kroger has recomed the document of Notarial Acknowledgment No. 2 in accordance with the “requirements as to form” and that he hes acted “within the bounds of his official authority", both in the meaning of Section 794 para. 1 no. 5 German Code of Cail Procedure (§ 794 Abs. 1 Air. 5 ZPO}. Moreover, the debtor carrectly and properly consented to assume personal lability for the payment of a sum of money in the amount of the land charge amount. This claim recorded ‘gan be provided for by an amicable settlement’, ic “not directed at obtaining a declaration of intent and does “not concern the existence of a tenancy relationship for residential spaces”, aach in the meaning of Section 754 para. 1 no. 5 German Code of Civil Procedure (§ 784 Abs. 1 Nr. 5 ZPO}. nome ott Finally, the debtor comectly and properly subjected himself to immediate compulsory enforcement of the claim as specified in the document in the meaning of Section 794 para ino. 5 German Code of Givi Procedure (§ 794 Abs. 1 Nr. 5 ZPO). Notarial Acknowledgment No. 2 therefore is an enforceable docurnent in the meaning of Section 794 pars. 1 no. § German Code of Civil Procedure (§ 794 Abs, 1 Nr. 5 ZPO}, 197 para. 1 no. 4 of the German Civil Code (§ 197 Abs. 1 Nr. 4 8GB) apphes Thus, Section with regard to the duration of the limitation period for ciains under the enforceable document Notarial Acknowledgmant No. 2. To my knowledge no deviating agreement has been reached on the {imitation period in this regard. f such deviating agreement were given, the burden of proof for the existence of such deviating agreement would vest with the opposing or arguing party, Therefore, a claim under Notarial Acknowledgment No. 4 gets statute-harred only 30 years after the execution of the decunent (see Section 197 para. 1 no. 4 and Section 201 sentence 1 of the German Civil Code (§ 197 Abs. 1 Nr. 4 and 201 Satz 1 BGB}. As Notanad halcwowtedigment No: 2 was executed on 29 December 1992, a claim under tes document therefore not ute-barrestby 2022. Until then, the creditor may unconditionally and inevocably enforos ‘his claim under tha. Notaral Acknowledgment No. 2 against ail of the deblor's assets. e¢) Notarial Acknowledgment No. Meteral Acknowledgment No.3 contains the following notarial scknowledgment of indebtedness of Mr. Gabriel Kirchberger and submission to immediate compulsory enforcement: German orginal: Ubernahme der peradnlichen Hattung mit Unterwerfung unter die Zeangevellstreckung Zugiscn Gbemimmt Her Gabdel Kirchberger fir dig Zahiung eines Geidbetrages in Hohe deg Grundschufbetages [Ane OM 356.000) und der Zinsen die pecndnliche Hafiung aus der der jewellige Giaubiger ihn’sie schon vor der Volizineckung in den Grundbestz in Anspeuch nabean kann. Metwere Schuidner hafier ais Gesamtechutiner, Jeder Schuldiner uniersirft sich wagen dieser Haftung der sofortigen Zwangseolisireckung aus dieser Urnunds Gher sein geearnies Vermagen. com -12- Engiish transiation: Assumption of personal [lability with submission to compulsory enforcement Furthermore, Me. Gabelal Kicchberger assumes Rabitity for ihe payment of a sum of money in the: amount of the land cherge amount |Note: DAT 360,000) plus interest, under which the individual creditor can cain on himithem betore the enforcement of the land charge. Muftipla debtors are jointly and sevenully liable, Yitth regard to this cisim, each debtor submits to immediate compulsory enforcement under Ins document into af bis ansets, Notarial Acknowledgment No.3 was executed on § October 1995 by Mr. Gabriel Kechbergar and the notary Mr. Klaus Kriger. On 8 October 1995, an enforceable official copy of the document of Netarial Acknowle No, 3 was dgme notary Mr. Klaus Kroger to the Berliner Bank AG, granted by nt Maxatr. 24, 19347 Berlin, for the purposes of anforscement. On 22 December 1987, the enforcement clause was rewritten by notary Mr. Klaus Kroger an behalf of the Berlin Hyp Berlin-Hannoversche Hypothekenbank AG, Budepester Strate 4, 10787 Bariin as new creditor. On 15 August 2008, the Presiding Judge of the District Court of Berlin Mr. Ralf Hartmann confirmed resp. certified the following: the authenticity of the signature and the office seal of notary Mr. Kiaus Kroger, ihe retary Mr. Klaus Kriger waa authorized by law to the execution of the document of Notarial Acknowledgment No. 3. On 18 August 2008, the Embassy of Canada in Becin certified that Mr. Ralf Hartmann is knawn to hold the office of Presiding Judge of the District Court of Gerlin and that the signature and stamp affixed to the confirmation resp. certification of Mr. Ralf Hartmann are the signature of the said Mr. Ralf Hartmann and the stamp of the District Court of SerivGermany. Accordingly, there is not only the assumption, but there is proof that notary Mr. Klaus Kroger has recorded the document of Notarial Acknowledgment No. 3 in accordance with the “requirements as to form” and that he has acted ‘within the bounds of his official authority’, both in the meaning of Section 784 para. 7 no. § German Code of Civil Procedure (§ 794 Abs. 1 Nr. 3 ZPO). Moreover, the debtor correctly and properly consented to assume personal liability for the payment of a sum of money in the amount of the land charge amount This claim recorded 1 -13- ‘can be provided for by an amicable settlement’, is “not directe d a at obtaining declaration of intent” and does “not concern the existence of a tenancy relationship for residential spaces", each in the meaning of Section 734 para. 1 no. 5 German Code of Civil Procedure (§ 784 Abs. 1 Nr. 5 ZPO). Finally, the debtor correctly and properly subjected himself to immediate compulsory enforcement of the claim as specified in the document in the meaning of Section 794 para, ino. & German Code of Civil Procedure (§ 794 Abs. 1 Nr 5 ZPO). Notaial Acknowledgment No. 3 therefore is an enforceable document in the meaning of Section 794 para. 1 no. § German Code of Civil Procesture(§ 794 Abs. 1 Nr. 5 ZPO}. Thus, Section 197 para. 1 no. 4 of the German Civil Code (§ 197 Abs. 1 Nr. 4 BGB) applies with regard to the duration of the imitation period for claims under the enforceable document Notarial AcknowledgmentNo, 3. To my knowledge no deviating agreement has been reached on the limitation period in this regard. If such deviating agreement were given, the burden of proct for the existence of such deviating agreement would vest with the opposing or arguing party. Therefore, a claim under Notarial Acknowledgment No. 1 gets Satute-harred only 30 years after the execution of the document (see Section 197 para, 1 no. 4 and Section 201 sentence 1 of ihe German Civil Code (§ 197 Abs. f Nr 4 and 207 Satz 1 8GB) As Netafial Acknowtedgment No. 2 was exscited on5 October 1986, a claim under this document therefore does nest jet sizh, she-bs Tse befo! re § Octobe 2025 Until then, the erodhor may unconditoraly ard Weevecsbly enforce his clade under’ tha Notariad Acknowledgment No. 3 against sil of the debtor's assets. dd) Notarial Acknowledgment No. 4 Notariai Acknowledgment No.4 contains the following notarial acknowledgment of indebtedness of Mr Gabriel Kirchberget and submission to immediate compulaory enforcement: German ongins!: Persdnliche Haftungetbernatune und Zwangevollstreckungsunterwertung: Fie dis Zahlung eines Geidbetrages, dessen Hohe der verembarien Grmdschudd (Kapital Ann. OM 1.300.000), Zingsn und Nebenieistungen) enlsprichl, Dbemirnrnt Her Gabriel Kirchoesgr|.f als Gesamischuldner dip parstnliche Haftung, athe Er untarwr sich wegen dieser Zahlungaverstichtung der sofurtigen Zwangauctstreckung aus desert Urkuraie in liv gosamies Varmigen, Ole Gitublgerin kann die peradaliche Haftung unebhengig von der Elntragong der Grundachuld und ohne vorheriga Zwangsvoltsineckung in cas belasieie Grumbeigentum getend machert. English transiation: Assumption of personal lability and submission to compulsory enforcement Mr. Gabriel Karchberger |...) ms joint and several debtors assume personal dabéity for the payment of @ gum of money in the amcunt of the land charge amount (capital (Note: OM 1,300,009), interest and incidentals). With regaid to tis Rabilty to pay. they subrnit to ininediate compulsory enforcement under this document into af thet assets. The cexditor can claim the personal lability negardiess of the registration of the land charge end withoul prior compulsory enforcement on the encursbered resi property. Notariai Acknowledigment No.4 was executedon 12 December 1996 by Mr. Gabricl Kirchberger and the notary Mr. Klaus Kriger. On 16 January 1997, an enforceable official copy of the document of Notarial Acknowledgment No. 4 was granted by notary Mr. Kisus Kroger te the Berlin-Hannoversche Hypothekenbank Aitiengesellechali in Barfn for ihe purposes of enforcement. in this case, the enforcement clause was not rewritten on behalf of another creditor. On 15 August 2006, the Presiding Judge of the District Court of Berlin Mr. Raif Hartmann confirmed resp. certified the following = the authenticity of the signature and the office seal of notary Mr, Kisus Kroger: * the notaryMr. Kisus Kroger was. authorized by law to the execution of the document of Notarial Acknowledgment No. 4. On 18 August 2008, the Embassy of Canada in Berlin certified that Mr. Ralf Hartmann is known to hold the office of Presiding Judge of the District Court of Berlin and that the signature and stamp affixed to the confirmation rasp. certification of Mr. Ralf Hartmann are the signature of the said Mr. Ralf Hartmann and the stamp of the District Court of BerinvGennany. Accardingly, there is not only the assumption, but there is proof that nolary Mr. Kiaus Kriger has recorded the document of Notarlal Acknowtedgrvent No. 4 in accordance with the “requirements ss to form* and that he has acted “within the bounds of his official authority’, both in the meaning of Saction 734 para. 1 no, 5 German Code of Civil Procedure (§ 794 Abs, 1 Nr. 5 ZPO}. - 18. Moreover, the debtor correctly and properly consented to assume personal liabilty for the payment of a sum of money in the amount of the land charge amount, This claim reconted ‘can be provided for by an amicable settlement’, is ‘not directed at obtaining = declaration of intent’ and does “net concern the existence of a tenancy relationship for residential spaces”, each in the meaning of Section 794 para. 1 no. & German Code of Clvil Procedure(§ 794 Abs. 1 Nr. 5 ZPO). Finally, the debtor correctly and properly subjected himself to immediate compulsory ‘enforcement of the claim as specified in the document in the meaning of Section 7