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EXHIBIT
eo 4?
08/30/2013 04:13:14 PM 713-755-1451 Page 2/8
CAUSE NO. 2010-63264
ENCORE BANE IN THE DISTRICT COURT
Plaintiff,
§
Vv 5
OF HARRIS COUNTY, TEXAS
ALLEN L, BERRY:
JOSEPH D. MCCORD;
and ROBERT G. TAYLOR, IL
Defendants. 152™ JUDICIAL DISTRICT
PLAINTIFF ENCORE BANK’S SECOND AMENDED ANSWERS TO FIRST SET OF
INTERROGATORIES ISSUED BY DERBENDANT JOSEPH D. MCCORD
TO: Defendant, Joseph D. McCord, through his attomey of record, Jett Williams, IIT, Henke
& Associates, 3200 Southwest Freeway, 34 Bloor, Houston, Texas 77027.
Plaintiff Encore Bank hereby serves its Second Amended Answers to Defendant Joseph
D. MeCord’s First Set of Interrogatories pursuant tc the Texas Rules of Civil Procedure.
Respectfully submitted,
DOBRO: KL, LARKIN & JOHNSON LLLP.
BY
Paul J. Dobhgjski
SBN 05927100
pid@doblaw.com
Cody W. Stafford
SBN 24068238
estafford¢ oblaw.com
4601 Washington Avenue, Suite 300
Heuston, Texas 77007
Telephone: (713) 659-2960
Facsimile: (713) 659-2908
ATTORNEYS FOR PLAINTIFF ENCORE BANK
EXHIBIT
i ce 54"
08/30/2013 04:13:14 PM 713-755-1451 Page 3/8
CERTIFICATE OF SERVICE
T hereby certify that a true and correct copy of the foregoing has been served on all
counsel of record on this 18(b day of July, 2013, by ECF filing, facsimile, and/or certified mail-
relurn receipt requested.
Jett Williams, HT
Henke & Associates
3206 Southwest Freeway, 347 Floor
Houston, Texas 77027
Facsimile: (713) 940-4545
Robert G. Taylor, IE
Law Office of Robert G. Taylor. HE
4119 Montrose, Suite 400
Houston, Texas 77006
Facs: (713) 654-7814
James FE. “Jeb” Brown, IT
3100 Edloe Street, Suite 20
Houston, Texas 77027
Facsimile: (832) 460-3263
Jerry 8. Payne
616 Voss Road
Hunters Creek Village, Texas 77024
Facsimile: (743) 781-8547
nee
er
Ca Wally
08/30/2013 04:13:14 PM 713-755-1451 Page 4/8
potentially invades the attorey-client and work product privileges. Encore further objects that
the best evidence of the calculation of damages {s set forth in the docurnents themsclves. Encore
further objects that this request is duplicative of other requests within these interrogatories.
Subject to end without weiving the foregoing objections, Encore’s damages calculations are best
evidenced by the documents produced in this case and those ai hed to the referenced pleadings.
Encore’s actual damages arc bascd on the Promissory Note and Guaranty — pursuant to which
Encore Joaned $6 million ta Bhyn 1 Tolding, 110. The amount duc and owing on the
Promissory ote has not been repaid, despite Promissory Note’s maturity on or about March 15,
2012. Further, the interost and penaltics (amo other categories of damages) are speeilically
provided for etther pursuant to the Promissory Note and/or Guaranty or by Texas law. Enecre is
further entiticd to its alton ees pursuant to the Pro. ory Note and Guaranty. The amount
of Plank economic damages increases over time due to additional attorney foes, expenses,
penaltic: ate charges, and the accumulation of interest. At present, Defendants are liable to
Plaintiff for, at a minimum, the following: $3,600,000.00 for the outstanding principal balance
on the Promissory Note, plus interest in the amount of $490,700.00, late fees of $2,464.21,
penalties, and attorneys fees of at least $313,152.31. The amount(s) due and owing on the
Promissory Note are calculated according to the express provisions coniained in the Promissory
Note. See BKO003026 — ENBK003030. The amount of attorneys’ fees is calculated using the
amounts invoiced fram Encore retained law firms. Those amounts are supported by the
invoices produced in this litigation.
INTERROGATORY NO, 8:
Please describe the factual and legal basis for your claims for breach of contract, stiit on
guaranty, or any other cause of action identified in Plaintiff's petition.
08/30/2013 04:13:14 PM 713-755-1451 Page 5/8
ANSWER TO INTERROGATORY NO. 8:
Encere objects that this request is overly broad, unduly burdensome, harassing, and
requires Encore to marshal all of its evidence before trial. Subject to and without waiving the
foregoing objections, Pncere responds as follows: Encore loaned BLyn I Holding, LLC $6
million pursuant to the Promissory Note dated on or about March 28, 2007. In order to induce
Encore to loan Bhyn [1 Holding, LLC $6 million, Defendants each signed joint-and-several
guaranties and personally guaranteed the loan. Deferdanis breached those agreemenis with both
non-monetary and monetary defaults, Spe calby, but without limitation, the Promissory Note
was breached when BLyn 0 Holdings, LLC and Defendants permitted lens to be attached to the
Vessel and refused to disc ogo said Hens ad Defeadants breached their personal guaranties
when they failed to repay Encore the outstanding balance on tae Promissory Noie when the Aull
amount became due and payable on or about March 012. Neither BLyn Tf Holdings, LLC
nor Defendants have repaid the outsiending balance of ihe loan. Accordingly, Defendants bave
breached their contracts with Encore.
INTERROGATORY NO, 9:
With regard to payments made to Plaintiff pursuant to amy promissory notes, First
Preferred Ship Mortgage (PPSM), mortgage, contrac guaranty, consent of puaranters, letter
agreement, or other agreements and amendments, modification, or supplements for same entered
into between Plaintiff and the defendants or BLynn fl Holding, LLC, identify when and by
whom the payment was made, the amount of each payment, and the balance remaining,
ANSWER TO INTERROGATORY NO. 9:
Encore objects that this request is overly broad, unduly burdensome, vague, and
08/30/2013 04:13:14 PM 713-755-1451 Page 6/8
harassing. Encore further objects that the best evidence of the payments made pursuant to the
Promissory Note, Guaranty, cic. is the documents themselves. Encore directs Defendants to its
document production and reserves the ght to supplement locument production and the
answer to this request as very continues. The information requested is equally available to
the requesting party Subjcet to and without waiving the egoing abje tions, Encore directs
Defendanis io documents labeled NNBKO00325 — 000339, which indicates payments mace to
Encore in the form of paydowns, interest-only pay ad principal reduction payments by
BlLyn if Holdir LL Defendants, and/or Liedtke.
INTERROGATORY
NO. 10:
With regard to the alleged default by the defendants or BLynn. Ll Holding, LLC, identify
and des: be in detail when and by whom each act of default occurred, when and whal notice
Plaintiff provided to the defendants or BLynn Ul Holding garding the default, v f oppor! ity,
if any was provided by Plain vx the defendants or Bl.ym H Helding te cure the defauli,
whe when, and how each default was cured, what instances of default remain uncured, and
what damages, if any, Plaintiff sustained as a result of cach instance of default.
ANSWER TO INTERROGATORY NO. 10;
Encore objects that this request is overly broad, unduly burdensome, ie, harassin:
duplicative of other interrogatories, and is compound. Encore further objects thet the
information requested is equally available to the requesting party. Encore further objects that the
best evidence of the defaults by Defendants is the documents themselves. Encore directs
Defendants to its document production and reserves the right to supplement its document
production and the answer fo this request as discovery continues, Subject to and without waiving
the foregoing objections and reservations, Encore responds es follows: By way of example and
10
08/30/2013 04:13:14 PM 713-755-1451 Page 7/8
not of limitation, the Promissory Note and First Preferred Ship Mortgage were breached when
BLyn I Holdings, LLC and Defendants allowed a Hen to attach to the Ve land failed and
refused to promyptly discharge said lien. Defendants received notice of their default by ture 2,
2010, at the latest. é, ég., CadenceBank G001390 OODI39E. Further, BLyn IL Holdings,
LLC fifed a bankruptcy petition on August 19, 2010, which was an additional event of default.
Defendants received netice of this defadt by August 23, 2010, at the latest See, @2 &g
ENBKOO3143 — 003144. Demand was made on Defendants for the outstanding balance of the
Promissory Note on or about August 23, 2016 and again on or about September 1, 2010. Za) se
also ENBKO01762. Further, Defendants failed to timely make at least one principal reduction
required by the loan documents. See ENBKOO2713 ~ 002714. Defendants also breached the
Promissory Note and Guar ty on or about March 15, 2012 when they failed and refused to pay
the amounts due and owing on the matured Promissory Note. Defendants were given notice of
their default and given numerous opportunities over a period of more than three (3) months to
cure their default. Defendants continue to fail and r se to honor their obligations pursuant to
the Promissory Notc and Guaranty. The damages sustained by Encore are detailed in iis
response to luterrogatory No. 7, above.
INTERROG: PORY NO. Lb:
Identify and describe in detail the aitorney’s fecs and costs incurred by Plaintiff,
including, but not linxited to a description of the legal services provided, the date cach legal
3 pl woviding the legal service,
service was provided the identity of the firm, person, and/or person: Spi
the amount charged for the legal service, what attomey’s fees and costs have been paid by
Plaintiff, the balance of attorney's fees and costs that have yet to be paid, for which Jawsuit the
legal services and costs were provided or incutred (e.g. this Lawsuit, the Galveston Lawsuit, the
i
08/30/2013 04:13:14 PM 713-755-1451 Page 8/8
CAUSE NO. 2010-63264
ENCORE BANK TN THE DISTRICT COURT
Plaintiff,
v
OF HARRIS COUNTY, TEXAS
ALLEN L, BERRY.
JOSEPH D. MCCORD
and ROBERT G. TAYLOR, If,
Defendants § 152" JUDICIAL DISTRICT
VERIFICATION
THE STATE OF TEXAS
COUNTY OF HARRIS
BEPORE ME, the undersigned authority. on appeared John G.
this day personall
Lingor, known te me to be the person whos name is subscribed to the furcvuing instrument, and
acknowled:d ged to me that he has read Plaint Encore Bank’s Second Amended Answers to First
Set of Interrogatories Issued by Defendant Joseph D, McCord, that he has knowledge of the
statements therein contained, and that they are true and correct to the best of his knowledge and
belies
Haw
MES yn & LrvepEe
ime #
Se
Subscribed and Sworn to before me on the! ith aay of a a 2
2013, to certify which wimess my hand and seal of ot
Lana, C Loa Qn beuw
Notary Public in and for the Staté of Texas
© jpb(le
es" Denise Cross Jenkine
ommission Expires
My Commission Expires: é 7
o7- 10- 2016
i7
Preview
EXHIBIT eo 4? 08/30/2013 04:13:14 PM 713-755-1451 Page 2/8 CAUSE NO. 2010-63264 ENCORE BANE IN THE DISTRICT COURT Plaintiff, § Vv 5 OF HARRIS COUNTY, TEXAS ALLEN L, BERRY: JOSEPH D. MCCORD; and ROBERT G. TAYLOR, IL Defendants. 152™ JUDICIAL DISTRICT PLAINTIFF ENCORE BANK’S SECOND AMENDED ANSWERS TO FIRST SET OF INTERROGATORIES ISSUED BY DERBENDANT JOSEPH D. MCCORD TO: Defendant, Joseph D. McCord, through his attomey of record, Jett Williams, IIT, Henke & Associates, 3200 Southwest Freeway, 34 Bloor, Houston, Texas 77027. Plaintiff Encore Bank hereby serves its Second Amended Answers to Defendant Joseph D. MeCord’s First Set of Interrogatories pursuant tc the Texas Rules of Civil Procedure. Respectfully submitted, DOBRO: KL, LARKIN & JOHNSON LLLP. BY Paul J. Dobhgjski SBN 05927100 pid@doblaw.com Cody W. Stafford SBN 24068238 estafford¢ oblaw.com 4601 Washington Avenue, Suite 300 Heuston, Texas 77007 Telephone: (713) 659-2960 Facsimile: (713) 659-2908 ATTORNEYS FOR PLAINTIFF ENCORE BANK EXHIBIT i ce 54" 08/30/2013 04:13:14 PM 713-755-1451 Page 3/8 CERTIFICATE OF SERVICE T hereby certify that a true and correct copy of the foregoing has been served on all counsel of record on this 18(b day of July, 2013, by ECF filing, facsimile, and/or certified mail- relurn receipt requested. Jett Williams, HT Henke & Associates 3206 Southwest Freeway, 347 Floor Houston, Texas 77027 Facsimile: (713) 940-4545 Robert G. Taylor, IE Law Office of Robert G. Taylor. HE 4119 Montrose, Suite 400 Houston, Texas 77006 Facs: (713) 654-7814 James FE. “Jeb” Brown, IT 3100 Edloe Street, Suite 20 Houston, Texas 77027 Facsimile: (832) 460-3263 Jerry 8. Payne 616 Voss Road Hunters Creek Village, Texas 77024 Facsimile: (743) 781-8547 nee er Ca Wally 08/30/2013 04:13:14 PM 713-755-1451 Page 4/8 potentially invades the attorey-client and work product privileges. Encore further objects that the best evidence of the calculation of damages {s set forth in the docurnents themsclves. Encore further objects that this request is duplicative of other requests within these interrogatories. Subject to end without weiving the foregoing objections, Encore’s damages calculations are best evidenced by the documents produced in this case and those ai hed to the referenced pleadings. Encore’s actual damages arc bascd on the Promissory Note and Guaranty — pursuant to which Encore Joaned $6 million ta Bhyn 1 Tolding, 110. The amount duc and owing on the Promissory ote has not been repaid, despite Promissory Note’s maturity on or about March 15, 2012. Further, the interost and penaltics (amo other categories of damages) are speeilically provided for etther pursuant to the Promissory Note and/or Guaranty or by Texas law. Enecre is further entiticd to its alton ees pursuant to the Pro. ory Note and Guaranty. The amount of Plank economic damages increases over time due to additional attorney foes, expenses, penaltic: ate charges, and the accumulation of interest. At present, Defendants are liable to Plaintiff for, at a minimum, the following: $3,600,000.00 for the outstanding principal balance on the Promissory Note, plus interest in the amount of $490,700.00, late fees of $2,464.21, penalties, and attorneys fees of at least $313,152.31. The amount(s) due and owing on the Promissory Note are calculated according to the express provisions coniained in the Promissory Note. See BKO003026 — ENBK003030. The amount of attorneys’ fees is calculated using the amounts invoiced fram Encore retained law firms. Those amounts are supported by the invoices produced in this litigation. INTERROGATORY NO, 8: Please describe the factual and legal basis for your claims for breach of contract, stiit on guaranty, or any other cause of action identified in Plaintiff's petition. 08/30/2013 04:13:14 PM 713-755-1451 Page 5/8 ANSWER TO INTERROGATORY NO. 8: Encere objects that this request is overly broad, unduly burdensome, harassing, and requires Encore to marshal all of its evidence before trial. Subject to and without waiving the foregoing objections, Pncere responds as follows: Encore loaned BLyn I Holding, LLC $6 million pursuant to the Promissory Note dated on or about March 28, 2007. In order to induce Encore to loan Bhyn [1 Holding, LLC $6 million, Defendants each signed joint-and-several guaranties and personally guaranteed the loan. Deferdanis breached those agreemenis with both non-monetary and monetary defaults, Spe calby, but without limitation, the Promissory Note was breached when BLyn 0 Holdings, LLC and Defendants permitted lens to be attached to the Vessel and refused to disc ogo said Hens ad Defeadants breached their personal guaranties when they failed to repay Encore the outstanding balance on tae Promissory Noie when the Aull amount became due and payable on or about March 012. Neither BLyn Tf Holdings, LLC nor Defendants have repaid the outsiending balance of ihe loan. Accordingly, Defendants bave breached their contracts with Encore. INTERROGATORY NO, 9: With regard to payments made to Plaintiff pursuant to amy promissory notes, First Preferred Ship Mortgage (PPSM), mortgage, contrac guaranty, consent of puaranters, letter agreement, or other agreements and amendments, modification, or supplements for same entered into between Plaintiff and the defendants or BLynn fl Holding, LLC, identify when and by whom the payment was made, the amount of each payment, and the balance remaining, ANSWER TO INTERROGATORY NO. 9: Encore objects that this request is overly broad, unduly burdensome, vague, and 08/30/2013 04:13:14 PM 713-755-1451 Page 6/8 harassing. Encore further objects that the best evidence of the payments made pursuant to the Promissory Note, Guaranty, cic. is the documents themselves. Encore directs Defendants to its document production and reserves the ght to supplement locument production and the answer to this request as very continues. The information requested is equally available to the requesting party Subjcet to and without waiving the egoing abje tions, Encore directs Defendanis io documents labeled NNBKO00325 — 000339, which indicates payments mace to Encore in the form of paydowns, interest-only pay ad principal reduction payments by BlLyn if Holdir LL Defendants, and/or Liedtke. INTERROGATORY NO. 10: With regard to the alleged default by the defendants or BLynn. Ll Holding, LLC, identify and des: be in detail when and by whom each act of default occurred, when and whal notice Plaintiff provided to the defendants or BLynn Ul Holding garding the default, v f oppor! ity, if any was provided by Plain vx the defendants or Bl.ym H Helding te cure the defauli, whe when, and how each default was cured, what instances of default remain uncured, and what damages, if any, Plaintiff sustained as a result of cach instance of default. ANSWER TO INTERROGATORY NO. 10; Encore objects that this request is overly broad, unduly burdensome, ie, harassin: duplicative of other interrogatories, and is compound. Encore further objects thet the information requested is equally available to the requesting party. Encore further objects that the best evidence of the defaults by Defendants is the documents themselves. Encore directs Defendants to its document production and reserves the right to supplement its document production and the answer fo this request as discovery continues, Subject to and without waiving the foregoing objections and reservations, Encore responds es follows: By way of example and 10 08/30/2013 04:13:14 PM 713-755-1451 Page 7/8 not of limitation, the Promissory Note and First Preferred Ship Mortgage were breached when BLyn I Holdings, LLC and Defendants allowed a Hen to attach to the Ve land failed and refused to promyptly discharge said lien. Defendants received notice of their default by ture 2, 2010, at the latest. é, ég., CadenceBank G001390 OODI39E. Further, BLyn IL Holdings, LLC fifed a bankruptcy petition on August 19, 2010, which was an additional event of default. Defendants received netice of this defadt by August 23, 2010, at the latest See, @2 &g ENBKOO3143 — 003144. Demand was made on Defendants for the outstanding balance of the Promissory Note on or about August 23, 2016 and again on or about September 1, 2010. Za) se also ENBKO01762. Further, Defendants failed to timely make at least one principal reduction required by the loan documents. See ENBKOO2713 ~ 002714. Defendants also breached the Promissory Note and Guar ty on or about March 15, 2012 when they failed and refused to pay the amounts due and owing on the matured Promissory Note. Defendants were given notice of their default and given numerous opportunities over a period of more than three (3) months to cure their default. Defendants continue to fail and r se to honor their obligations pursuant to the Promissory Notc and Guaranty. The damages sustained by Encore are detailed in iis response to luterrogatory No. 7, above. INTERROG: PORY NO. Lb: Identify and describe in detail the aitorney’s fecs and costs incurred by Plaintiff, including, but not linxited to a description of the legal services provided, the date cach legal 3 pl woviding the legal service, service was provided the identity of the firm, person, and/or person: Spi the amount charged for the legal service, what attomey’s fees and costs have been paid by Plaintiff, the balance of attorney's fees and costs that have yet to be paid, for which Jawsuit the legal services and costs were provided or incutred (e.g. this Lawsuit, the Galveston Lawsuit, the i 08/30/2013 04:13:14 PM 713-755-1451 Page 8/8 CAUSE NO. 2010-63264 ENCORE BANK TN THE DISTRICT COURT Plaintiff, v OF HARRIS COUNTY, TEXAS ALLEN L, BERRY. JOSEPH D. MCCORD and ROBERT G. TAYLOR, If, Defendants § 152" JUDICIAL DISTRICT VERIFICATION THE STATE OF TEXAS COUNTY OF HARRIS BEPORE ME, the undersigned authority. on appeared John G. this day personall Lingor, known te me to be the person whos name is subscribed to the furcvuing instrument, and acknowled:d ged to me that he has read Plaint Encore Bank’s Second Amended Answers to First Set of Interrogatories Issued by Defendant Joseph D, McCord, that he has knowledge of the statements therein contained, and that they are true and correct to the best of his knowledge and belies Haw MES yn & LrvepEe ime # Se Subscribed and Sworn to before me on the! ith aay of a a 2 2013, to certify which wimess my hand and seal of ot Lana, C Loa Qn beuw Notary Public in and for the Staté of Texas © jpb(le es" Denise Cross Jenkine ommission Expires My Commission Expires: é 7 o7- 10- 2016 i7