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CAUSE NO
SHARESTATES INVESTMENTS LLC IN THE JUDICIAL DISTRICT COURT
AND PALLASITE REO 2018
OF HARRIS COUNTY TEXAS
CAPITAL TITLE OF TEXAS
KELLI M OWENS CUSHMAN &
WAKEFIELD U.S., INC
BDFI APPRAISAL NATION
EHLERT LAW JEREL W
EHLERT II AND MICHAEL WELLS
D/B/A WELLS & ASSOCIATES
APPRAISAL SERVICE JUDICIAL DISTRICT
S MOTION IN LIMINE
REGARDING DAMAGE CALCULATIONS
COMES NOW Plaintiffs SHARESTATES INVESTMENTS, LLC and PALLASITE
REO 2018 1, LLC and makes this motion to the Court to enter an order prior to the voir dire
examination of the jury panel, that opposing counsel, and through opposing counsel any and all
witnesses called on behalf of opposing parties, be instructed to refrain from any mention or
interrogation, directly or indirectly, in any manner whatsoever, including the offering of
documentary evidence, concerning Plaintiffs' "Internal Loss Calculation" as et forth herein.
In this connection, movants request the Court to order, if opposing counsel wishes to
propose a theory of admissibility concerning these matters, that opposing counsel first must request
a ruling from the Court outside the presence and hearing of all prospective juror and jurors
ultimately selected in this case In support of this motion, movants show the following:
Permitting interrogation of witnesses, comments to jurors, or prospective jurors, or offers
of evidence concerning any of the matters set forth would prejudice the jury, and sustaining
objections to such questions, statements or evidence introduced by counsel or witnesses will not
prevent prejudice but will reinforce the development of questionable evidence.
II.
Plaintiffs seeks damage calculations based on losses as identified in loan documentation.
Plaintiff Sharestates was tricked into funding a loan to allow the purchase of 929 Kirby Drive,
Houston ("929 Kirby") Texas by Harold Polk's operating entity Grove Enterprises, LLC.
A. Damages Must be Calculated per Plaintiff's Loan Documents.
The Plaintiff's loss per the Note1 is the way the Plaintiff's damages must be calculated. The
Plaintiff entered a short sale of 929 Kirby with an unrelated third party on April 30, 2019 to
mitigate its losses for $2,334,171.26, recovering cash of $2,157,125.15.2 This left the Plaintiff
with an unpaid Note balance calculated as follows:3
$2,660,000.00 Unpaid Principal Balance
$ 262,120.87 Unpaid Interest at 10.75%
$ 322,835.26 Default Fee at 23.99%
$ 15,727.25 Late Fee
$ (260,000.00) Escrow Hold Back
$ 0.00 Return Check Fee
$ 53,177.83 Per Diem (Good Through April 30, 2019)
$ 0.00 Prepayment Penalty (Good Through April 30, 2019)
$ 25,236.97 Legal Fees
$ 0.00 Assignment Fees
$ 0.00 Additional Advance Fees
$2,157,125.15 Deduct Loan sale balance4
$ 921,973.03 Total Contractual and Other Fees and Charges Due
(Sharestates Investments, LLC)
$ 350.00 *Satisfaction/UCC Termination Preparation
(Sharestates Investments, LLC)
$ 922,323.03 Total
1
See that that Commercial Promissory Note ("Note"), Bates-Stamped SS 131 – 135.
2
The cash to Sharestates was actually $2,157,125.15 per the Closing Disclosure Bates-Stamped S 27 – 30.
3
The payoff calculation was articulated in that Payoff Statement dated April 15, 2019 and Bates-Stamped SS 675 –
677.
4
The Payoff Statement contains an error in that it credits the short sales price of $2,4000,000.00 instead of the net
sales proceeds actually received.
This calculation is through April 30, 2019, the mitigation recovery date. However, as this case
proceeds, pre-judgment interest continues to accrue as follows under the Note: 23.99% x
$922,323.03 / 360 = $452.54.
There are an additional 1,771 days between April 30, 2019 and March 4, 2024, the present
trial date, so an additional $801,448.34 in interest needs to be added to the calculation plus any
additional days to judgment; this totals $1,480,546.52,
Courts use the loan documents to calculate losses of mortgage lenders when tortfeasors
trick them into making loans they would otherwise not have made.
See Sharestates Investments, LLC v O.N.C.E. Appraisals, LLC, et al., Civil Action No.
1:18-cv-001275 (CJN) (2020), in the Unites States District Court for the District of Columbia, at
Doc 81, in which the Court entered a judgment of $2,023,957.33, and prejudgment interest in the
amount of $1,056.47 per day from December 1, 2017, to the date that judgment is entered.5 This
ruling granted the memo of Sharestates6 was articulated in that
The Buyer failed to make payments as required under the Note.14
The Lender accelerated the balance under the Note and demanded
that the Buyer pay all outstanding funds, but the Buyer refused to do
so.15 The Lender sold the Property at a foreclosure sale for
$1,400,000.00,16 on December 4, 2017, resulting in a deficiency
balance as of April 1, 2019 of $2,537,401.75 (principal amount of
$2,023,957.33, plus interest at the per diem amount of $1,056.47).17
This is a sum certain.
But for Appraisers' violation of their professional obligations, the
Lender would not have approved and funded the Loan the Loan
amount, and would not have been damaged as set forth above.7 …
Plaintiff's damages are for a sum certain as to each count against
each Appraiser Defendant.57
5
See Sharestates Investments, LLC v O.N.C.E. Appraisals, LLC, et al., Civil Action No. 1:18-cv-001275 (CJN), in
the Unites States District Court for the District of Columbia, at Doc 81, attached.
6
See Sharestates Investments, LLC v O.N.C.E. Appraisals, LLC, et al., Civil Action No. 1:18-cv-001275 (CJN), in
the Unites States District Court for the District of Columbia, at Doc 78, attached.
7
At pp. 10, 11, 13 & 20.
Fn 57: See Plaintiff Exhibit 1, Schedule A to Exhibit 18.
Plaintiff Exhibit 1, Schedule A to Exhibit 1 uses the same basic factors as calculated above
totaling $2,023,957.33 including additional interest, which was calculated at the note rate as
$1,056.47 per diem [at 19.99%].
And see FDIC v. Hoyle, 2012 U.S. Dist. LEXIS 130957 (E.D.N.Y. 2012) 9 awarding
damages based on the amount due under the loan documents, less the amount for which property
was sold at foreclosure:
"It is well settled that in breach of contract actions 'the
nonbreaching party may recover general damages which are the
natural and probable consequence of the breach.'" Bi–Econ. Mkt.,
Inc. v. Harleysville Ins. Co. of N.Y., 10 N.Y.3d 187, 192 (2008)
(quoting Kenford Co. v. Cnty. of Erie, 73 N.Y.2d 312, 319 (1989)).
"[D]amages for breach of contract should put the plaintiff in the
same economic position he would have been in had the defendant
fulfilled the contract." …
The court notes that even though it was the Borrower's default, and
not the defendants' conduct alone, that led to the plaintiff's loss of
$265,000, that does not change the court's analysis because the
prospect of the Borrower's default was in the reasonable
contemplation of the parties. …
Thus, although the Borrower's default on the loan and the
foreclosure sale of the property at issue were not directly caused by
the inflated appraisal, they are the types of events that can be
reasonably contemplated in any real estate transaction.
Professional appraisers like the defendants, who are aware that the
property is being appraised for the purpose of a mortgage loan for
real property, would reasonably foresee that the borrower could
default on that loan and the bank would be forced to sell the property
to mitigate its loss. For these reasons, the plaintiff is entitled to a
damages award of $265,000.
8
Schedule A to Exhibit 1 is the pay history, attached Doc 78-2, at p. 6 of 46, and articulates the calculations due under
the loan documents in that loan.
9
See FDIC v Hoyle, et al., Case 1:10-cv-04245-JG-VVP, US District Court for the Southern District of New York,
Doc 21, attached, the articulate Report and Recommendation of Magistrate Judge Viktor Pohorelsky. and that final
order of Article II Judge, The Honorable John Gleeson, accepting the recommendation at Doc 24, attached.
See also Goodrich & Pennington Mortg. Fund, Inc. v. J.R. Woolard, Inc., 120 Nev. 777
(Sup. Ct. Nevada 2004) (affirming judgment against appraiser of difference between net
foreclosure sales proceeds and loan balance upon default, using an "out-of pocket" formula);
Advanced Fin. Svcs. V. Associated Appraisal Svcs., 2001 Conn. Super. LEXIS 2008 (Sup. Ct.
Hartford Dist. 2001)(awarding compensatory damages against appraiser of the difference between
the debt and the value at title vesting, as well as punitive damages and attorneys' fees on fraud and
CT Unfair Trade Practices Act); Johnson v. Am. Homestead Mortg. Corp., 306 N.J. Super. 429
(Sup. Ct. N.J. ,App. Div. 1997) (affirmed damage calculation in reverse mortgage case of the
difference between the true-base line value and the erroneous value used to calculate appreciation
payment due to mortgagee);
B. Damages beyond the Plaintiffs' admitted "net loss" on the 929 Kirby Transaction are
Properly calculated and recoverable.
There is no legal, equitable, contractual, or other reason, that the funds from the sale of the
Kirby Property should be applied first to the principal loan balance as damages for the causes of
action alleged against CAPITAL TITLE and Owens. CAPITAL TITLE MSJ tries to use an
internal loss calculation 10 given by Sharestates to the investors as the loss calculation with all
foreclosure funds going to the principal and ignoring Allen Shayanfekr, CEO of Sharestates'
testimony. Which was as follows:11
13 Q. Which left a net loss to the investors of
14 approximately 248,000?
15 A. No. This is just an internal calculation to
16 look at it relative to the outstanding principal, but
17 not how it's actually accounted for. As for the loan
18 documents, the proceeds would be applied the way I
19 described in a prior exhibit. First towards fees,
10
See Exhibit 43: CTOT Memo p. 13 Plaintiffs know and acknowledge that their "net loss" is only $247,663.36. The
Plaintiffs calculated this amount themselves after considering all the losses and credits incurred from the 929 Kirby
Loan ("Internal Loss Calculation")
11
See Exhibit 31: Deposition Excerpts of Allan Shayanfekr, p. 65:13-21.
20 advances, late fees, collection fees, default
21 interest, interest and then to principal. [Emphasis Added]
Note, Section 1. Payments defines how sales proceeds are applied to the then outstanding
loan balance exactly as testified to by Mr. Shayanfekr: E. All payments received will be credited
first to late charges and costs hereunder, then to interest accrued at the applicable interest rate
hereinafter set forth, with the balance on account of principal. The calculation used for investors
applied the payment directly to principal and was purely an internal calculation, not the correct
calculation to be used in this case as damages. Applying the sales proceeds of the Kirby Property
as required by the Note is the proper manner for damages to be calculated. Allen Shayanfekr
described this articulately in his deposition at p. 181 Lines 12-17:12
12 Q. But my question is -- let me ask you this
13 way: If -- what would it take to make it as if you
14 had never made the loan; that it never happened?
15 A. We would have to turn back time, and I would
16 have never had to have put the money up, and it would
17 have gone somewhere else where it earned return.
The Internal Loss Calculation is prejudicial and confusing. It does not reflect Sharestates'
internal loss calculation, as reflected in a plethora of internal documents including the Pay History,
Texas Law's loss calculation under the counts in this case, or how other courts around the nation
calculate mortgage lenders' losses from tortfeasors like Defendant appraiser Michael Wells or
Capital Title of Texas, LLC.
Even the negotiated judgment against Harold Polk for $566,347,000 – in Sharestates
Investments, LLC Series BC2018-001991 v Polk, 4:19-cv-2002, in the United States District
Court, Southern District of Texas, Houston Division, Doc 6, MK929 Kirby 3993 – 2994 was for
far greater a number than the Internal Loss Calculation. This damage calculation was consented to
12
See Exhibit 31: Deposition Excerpts of Allan Shayanfekr
by Harold Polk and approved by The Honorable Lynn N Hughes, US District Court. This judgment
remains uncollected. Accordingly, Internal Loss Calculation Bates-Stamped SS 274 must not be
admitted into evidence or otherwise used at trial.
SUMMARY
The Plaintiff's loss calculation should be based on the Note and the Internal Loss
Calculation should not be allowed at trial.
Respectfully Submitted:
HUNTER C. PIEL, LLC
/s/ William M. Rudow
William M. Rudow
Lead Counsel
WRudow@PielLawFirm.com
Law Office of Hunter C. Piel, LLC
502 Washington Avenue, Ste 730
Towson MD 21204-4525
Pro Hac Vice
(410) 542-6000
Fax (410) 849-4889
ATTORNEY FOR PLAINTIFFS
LAMBRIGHT ✯ MCKEE
/s/ Casey Jon Lambright
Casey Jon Lambright
State Bar No. 00794136
cjl@lambrightmckee.com
Shawn Robert McKee
State Bar No. 24049403
srm@lambrightmckee.com
940 Corbindale Rd.
Houston, Texas 77024
(713) 840-1515
(713) 840-1521 (FAX)
ATTORNEY FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that on February 19, 2024, a true and correct copy of the foregoing
instrument was served upon all counsel and/or parties of record in accordance with the Texas Rules
of Civil Procedure via e-service upon all counsel listed below:
Charles Monyango charles@nhowardlaw.com
Linda Kimball lkimball@pmmlaw.com
Kamy Schiffman kschiffman@thompsoncoe.com
Cory S. Reed creed@thompsoncoe.com
Keith Gross attnykgross@aol.com
Kevin M. Long klong@oldenettellaw.com
Jerel W. Ehlert II jerel@ehlertlaw.com
Theadore R. Andrews theadorerandrews@gmail.com
Cory Reed creed@thompsoncoe.com
James Q. Pope jamesp@thepopelawfirm.com
William Rudow wrudow@piellawfirm.com
James Pierce jim@jamespierce.com
Chris Wyatt cwyatt@wyattconsultingservices.com
/s/ Shawn R. McKee
Shawn R. McKee
Preview
CAUSE NO SHARESTATES INVESTMENTS LLC IN THE JUDICIAL DISTRICT COURT AND PALLASITE REO 2018 OF HARRIS COUNTY TEXAS CAPITAL TITLE OF TEXAS KELLI M OWENS CUSHMAN & WAKEFIELD U.S., INC BDFI APPRAISAL NATION EHLERT LAW JEREL W EHLERT II AND MICHAEL WELLS D/B/A WELLS & ASSOCIATES APPRAISAL SERVICE JUDICIAL DISTRICT S MOTION IN LIMINE REGARDING DAMAGE CALCULATIONS COMES NOW Plaintiffs SHARESTATES INVESTMENTS, LLC and PALLASITE REO 2018 1, LLC and makes this motion to the Court to enter an order prior to the voir dire examination of the jury panel, that opposing counsel, and through opposing counsel any and all witnesses called on behalf of opposing parties, be instructed to refrain from any mention or interrogation, directly or indirectly, in any manner whatsoever, including the offering of documentary evidence, concerning Plaintiffs' "Internal Loss Calculation" as et forth herein. In this connection, movants request the Court to order, if opposing counsel wishes to propose a theory of admissibility concerning these matters, that opposing counsel first must request a ruling from the Court outside the presence and hearing of all prospective juror and jurors ultimately selected in this case In support of this motion, movants show the following: Permitting interrogation of witnesses, comments to jurors, or prospective jurors, or offers of evidence concerning any of the matters set forth would prejudice the jury, and sustaining objections to such questions, statements or evidence introduced by counsel or witnesses will not prevent prejudice but will reinforce the development of questionable evidence. II. Plaintiffs seeks damage calculations based on losses as identified in loan documentation. Plaintiff Sharestates was tricked into funding a loan to allow the purchase of 929 Kirby Drive, Houston ("929 Kirby") Texas by Harold Polk's operating entity Grove Enterprises, LLC. A. Damages Must be Calculated per Plaintiff's Loan Documents. The Plaintiff's loss per the Note1 is the way the Plaintiff's damages must be calculated. The Plaintiff entered a short sale of 929 Kirby with an unrelated third party on April 30, 2019 to mitigate its losses for $2,334,171.26, recovering cash of $2,157,125.15.2 This left the Plaintiff with an unpaid Note balance calculated as follows:3 $2,660,000.00 Unpaid Principal Balance $ 262,120.87 Unpaid Interest at 10.75% $ 322,835.26 Default Fee at 23.99% $ 15,727.25 Late Fee $ (260,000.00) Escrow Hold Back $ 0.00 Return Check Fee $ 53,177.83 Per Diem (Good Through April 30, 2019) $ 0.00 Prepayment Penalty (Good Through April 30, 2019) $ 25,236.97 Legal Fees $ 0.00 Assignment Fees $ 0.00 Additional Advance Fees $2,157,125.15 Deduct Loan sale balance4 $ 921,973.03 Total Contractual and Other Fees and Charges Due (Sharestates Investments, LLC) $ 350.00 *Satisfaction/UCC Termination Preparation (Sharestates Investments, LLC) $ 922,323.03 Total 1 See that that Commercial Promissory Note ("Note"), Bates-Stamped SS 131 – 135. 2 The cash to Sharestates was actually $2,157,125.15 per the Closing Disclosure Bates-Stamped S 27 – 30. 3 The payoff calculation was articulated in that Payoff Statement dated April 15, 2019 and Bates-Stamped SS 675 – 677. 4 The Payoff Statement contains an error in that it credits the short sales price of $2,4000,000.00 instead of the net sales proceeds actually received. This calculation is through April 30, 2019, the mitigation recovery date. However, as this case proceeds, pre-judgment interest continues to accrue as follows under the Note: 23.99% x $922,323.03 / 360 = $452.54. There are an additional 1,771 days between April 30, 2019 and March 4, 2024, the present trial date, so an additional $801,448.34 in interest needs to be added to the calculation plus any additional days to judgment; this totals $1,480,546.52, Courts use the loan documents to calculate losses of mortgage lenders when tortfeasors trick them into making loans they would otherwise not have made. See Sharestates Investments, LLC v O.N.C.E. Appraisals, LLC, et al., Civil Action No. 1:18-cv-001275 (CJN) (2020), in the Unites States District Court for the District of Columbia, at Doc 81, in which the Court entered a judgment of $2,023,957.33, and prejudgment interest in the amount of $1,056.47 per day from December 1, 2017, to the date that judgment is entered.5 This ruling granted the memo of Sharestates6 was articulated in that The Buyer failed to make payments as required under the Note.14 The Lender accelerated the balance under the Note and demanded that the Buyer pay all outstanding funds, but the Buyer refused to do so.15 The Lender sold the Property at a foreclosure sale for $1,400,000.00,16 on December 4, 2017, resulting in a deficiency balance as of April 1, 2019 of $2,537,401.75 (principal amount of $2,023,957.33, plus interest at the per diem amount of $1,056.47).17 This is a sum certain. But for Appraisers' violation of their professional obligations, the Lender would not have approved and funded the Loan the Loan amount, and would not have been damaged as set forth above.7 … Plaintiff's damages are for a sum certain as to each count against each Appraiser Defendant.57 5 See Sharestates Investments, LLC v O.N.C.E. Appraisals, LLC, et al., Civil Action No. 1:18-cv-001275 (CJN), in the Unites States District Court for the District of Columbia, at Doc 81, attached. 6 See Sharestates Investments, LLC v O.N.C.E. Appraisals, LLC, et al., Civil Action No. 1:18-cv-001275 (CJN), in the Unites States District Court for the District of Columbia, at Doc 78, attached. 7 At pp. 10, 11, 13 & 20. Fn 57: See Plaintiff Exhibit 1, Schedule A to Exhibit 18. Plaintiff Exhibit 1, Schedule A to Exhibit 1 uses the same basic factors as calculated above totaling $2,023,957.33 including additional interest, which was calculated at the note rate as $1,056.47 per diem [at 19.99%]. And see FDIC v. Hoyle, 2012 U.S. Dist. LEXIS 130957 (E.D.N.Y. 2012) 9 awarding damages based on the amount due under the loan documents, less the amount for which property was sold at foreclosure: "It is well settled that in breach of contract actions 'the nonbreaching party may recover general damages which are the natural and probable consequence of the breach.'" Bi–Econ. Mkt., Inc. v. Harleysville Ins. Co. of N.Y., 10 N.Y.3d 187, 192 (2008) (quoting Kenford Co. v. Cnty. of Erie, 73 N.Y.2d 312, 319 (1989)). "[D]amages for breach of contract should put the plaintiff in the same economic position he would have been in had the defendant fulfilled the contract." … The court notes that even though it was the Borrower's default, and not the defendants' conduct alone, that led to the plaintiff's loss of $265,000, that does not change the court's analysis because the prospect of the Borrower's default was in the reasonable contemplation of the parties. … Thus, although the Borrower's default on the loan and the foreclosure sale of the property at issue were not directly caused by the inflated appraisal, they are the types of events that can be reasonably contemplated in any real estate transaction. Professional appraisers like the defendants, who are aware that the property is being appraised for the purpose of a mortgage loan for real property, would reasonably foresee that the borrower could default on that loan and the bank would be forced to sell the property to mitigate its loss. For these reasons, the plaintiff is entitled to a damages award of $265,000. 8 Schedule A to Exhibit 1 is the pay history, attached Doc 78-2, at p. 6 of 46, and articulates the calculations due under the loan documents in that loan. 9 See FDIC v Hoyle, et al., Case 1:10-cv-04245-JG-VVP, US District Court for the Southern District of New York, Doc 21, attached, the articulate Report and Recommendation of Magistrate Judge Viktor Pohorelsky. and that final order of Article II Judge, The Honorable John Gleeson, accepting the recommendation at Doc 24, attached. See also Goodrich & Pennington Mortg. Fund, Inc. v. J.R. Woolard, Inc., 120 Nev. 777 (Sup. Ct. Nevada 2004) (affirming judgment against appraiser of difference between net foreclosure sales proceeds and loan balance upon default, using an "out-of pocket" formula); Advanced Fin. Svcs. V. Associated Appraisal Svcs., 2001 Conn. Super. LEXIS 2008 (Sup. Ct. Hartford Dist. 2001)(awarding compensatory damages against appraiser of the difference between the debt and the value at title vesting, as well as punitive damages and attorneys' fees on fraud and CT Unfair Trade Practices Act); Johnson v. Am. Homestead Mortg. Corp., 306 N.J. Super. 429 (Sup. Ct. N.J. ,App. Div. 1997) (affirmed damage calculation in reverse mortgage case of the difference between the true-base line value and the erroneous value used to calculate appreciation payment due to mortgagee); B. Damages beyond the Plaintiffs' admitted "net loss" on the 929 Kirby Transaction are Properly calculated and recoverable. There is no legal, equitable, contractual, or other reason, that the funds from the sale of the Kirby Property should be applied first to the principal loan balance as damages for the causes of action alleged against CAPITAL TITLE and Owens. CAPITAL TITLE MSJ tries to use an internal loss calculation 10 given by Sharestates to the investors as the loss calculation with all foreclosure funds going to the principal and ignoring Allen Shayanfekr, CEO of Sharestates' testimony. Which was as follows:11 13 Q. Which left a net loss to the investors of 14 approximately 248,000? 15 A. No. This is just an internal calculation to 16 look at it relative to the outstanding principal, but 17 not how it's actually accounted for. As for the loan 18 documents, the proceeds would be applied the way I 19 described in a prior exhibit. First towards fees, 10 See Exhibit 43: CTOT Memo p. 13 Plaintiffs know and acknowledge that their "net loss" is only $247,663.36. The Plaintiffs calculated this amount themselves after considering all the losses and credits incurred from the 929 Kirby Loan ("Internal Loss Calculation") 11 See Exhibit 31: Deposition Excerpts of Allan Shayanfekr, p. 65:13-21. 20 advances, late fees, collection fees, default 21 interest, interest and then to principal. [Emphasis Added] Note, Section 1. Payments defines how sales proceeds are applied to the then outstanding loan balance exactly as testified to by Mr. Shayanfekr: E. All payments received will be credited first to late charges and costs hereunder, then to interest accrued at the applicable interest rate hereinafter set forth, with the balance on account of principal. The calculation used for investors applied the payment directly to principal and was purely an internal calculation, not the correct calculation to be used in this case as damages. Applying the sales proceeds of the Kirby Property as required by the Note is the proper manner for damages to be calculated. Allen Shayanfekr described this articulately in his deposition at p. 181 Lines 12-17:12 12 Q. But my question is -- let me ask you this 13 way: If -- what would it take to make it as if you 14 had never made the loan; that it never happened? 15 A. We would have to turn back time, and I would 16 have never had to have put the money up, and it would 17 have gone somewhere else where it earned return. The Internal Loss Calculation is prejudicial and confusing. It does not reflect Sharestates' internal loss calculation, as reflected in a plethora of internal documents including the Pay History, Texas Law's loss calculation under the counts in this case, or how other courts around the nation calculate mortgage lenders' losses from tortfeasors like Defendant appraiser Michael Wells or Capital Title of Texas, LLC. Even the negotiated judgment against Harold Polk for $566,347,000 – in Sharestates Investments, LLC Series BC2018-001991 v Polk, 4:19-cv-2002, in the United States District Court, Southern District of Texas, Houston Division, Doc 6, MK929 Kirby 3993 – 2994 was for far greater a number than the Internal Loss Calculation. This damage calculation was consented to 12 See Exhibit 31: Deposition Excerpts of Allan Shayanfekr by Harold Polk and approved by The Honorable Lynn N Hughes, US District Court. This judgment remains uncollected. Accordingly, Internal Loss Calculation Bates-Stamped SS 274 must not be admitted into evidence or otherwise used at trial. SUMMARY The Plaintiff's loss calculation should be based on the Note and the Internal Loss Calculation should not be allowed at trial. Respectfully Submitted: HUNTER C. PIEL, LLC /s/ William M. Rudow William M. Rudow Lead Counsel WRudow@PielLawFirm.com Law Office of Hunter C. Piel, LLC 502 Washington Avenue, Ste 730 Towson MD 21204-4525 Pro Hac Vice (410) 542-6000 Fax (410) 849-4889 ATTORNEY FOR PLAINTIFFS LAMBRIGHT ✯ MCKEE /s/ Casey Jon Lambright Casey Jon Lambright State Bar No. 00794136 cjl@lambrightmckee.com Shawn Robert McKee State Bar No. 24049403 srm@lambrightmckee.com 940 Corbindale Rd. Houston, Texas 77024 (713) 840-1515 (713) 840-1521 (FAX) ATTORNEY FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that on February 19, 2024, a true and correct copy of the foregoing instrument was served upon all counsel and/or parties of record in accordance with the Texas Rules of Civil Procedure via e-service upon all counsel listed below: Charles Monyango charles@nhowardlaw.com Linda Kimball lkimball@pmmlaw.com Kamy Schiffman kschiffman@thompsoncoe.com Cory S. Reed creed@thompsoncoe.com Keith Gross attnykgross@aol.com Kevin M. Long klong@oldenettellaw.com Jerel W. Ehlert II jerel@ehlertlaw.com Theadore R. Andrews theadorerandrews@gmail.com Cory Reed creed@thompsoncoe.com James Q. Pope jamesp@thepopelawfirm.com William Rudow wrudow@piellawfirm.com James Pierce jim@jamespierce.com Chris Wyatt cwyatt@wyattconsultingservices.com /s/ Shawn R. McKee Shawn R. McKee