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Aviad Sahar, An Individual v. Prescient

July 20, 2012

AVIAD SAHAR, AN INDIVIDUAL, PLAINTIFF,
v.
PRESCIENT, INC., A FLORIDA CORPORATION DOING BUSINESS AS PRESCIENT ASSET MANAGEMENT; FEDERAL DEPOSIT INSURANCE CORPORATION, A CORPORATION; AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Judge: Hon. Manuel L. Real

FINDINGS OF FACT AND CONCLUSIONS OF LAW

TRIAL DATE DATE: July 3, 2012 TIME: 9:00 a.m. DEPT: Dept. 8, 2nd Floor ACTION FILED: July 7, 2010

Defendant Prescient, Inc. ("Prescient") submits its proposed Findings of Fact and Conclusions of Law.

I.FINDINGS OF FACT

1. Plaintiff Aviad Sahar ("Plaintiff") resided at the real property located at 6020 Etiwanda St., Tarzana, California (the "Property") as a tenant from December 2005 through January 2012. Testimony of Aviad Sahar on July 3, 2012.

2. On January 18, 2008, Real Time Resolutions, LLC ("RTR") took title to the Property by way of a Trustee's Deed Upon Sale which was recorded on January 24, 2008, with the Los Angeles County Official Records as instrument number

20080149107. Exhibit 85. 3. On June 17, 2009, Plaintiff commenced an action in the Los Angeles County Superior Court styled Aviad Sahar v. Real Time Resolutions Properties, LLC et al., Case No. LC085908 ("RTR Action"). Testimony of Daniel B. Spitzer on July 3, 2012, and Exhibit 13.

4. On June 23, 2009, Plaintiff recorded a Notice of Pendency of Action Affecting Title to Real Property (Lis Pendens) with the Los Angeles County Recorder's Office as instrument number 20090941675. Testimony of Daniel B. Spitzer on July 3, 2012, and Exhibit 14.

5. On July 14, 2009, an amendment to the Complaint in the RTR Action was filed naming Prescient as a defendant. Testimony of Daniel B. Spitzer on July 3, 2012 and Exhibit 17.

6. On October 13, 2009, Olga Velasco, staff counsel for Prescient, sent Daniel B. Spitzer an email correspondence ("October 13, 2009 Email") which stated the following:

We have reviewed your client's offer based on the FDIC criteria and have the following counter-offer:

1. Increase purchase price to $265,000;

2. Execution by your client of the attached contract and other documents attached;

3. Dismissal of the lawsuit as it relates to all parties. Testimony of Daniel B. Spitzer on July 3, 2012, Testimony of Olga Velasco on July 5, 2012, and Exhibit 27.

7. The October 13, 2009 Email string contained language stating: "Counter offers from Prescient Asset Management are valid for 24 hours from the time date stamp on this email transmission. Acceptance of the counter offer must be in writing in the form of a contract and fully executed by the purchaser and subject to approval of Prescient and FDIC's senior management." Testimony of Daniel B. Spitzer on July 3, 2012 and Exhibit 27.

8. On October 26, 2009, Norm Chess, Asset Manager for Prescient, sent Daniel B. Spitzer an email correspondence containing language stating: "Counter offers from Prescient Asset Management are valid for 24 hours from the time date stamp on this email transmission. Acceptance of the counter offer must be in writing in the form of a contract and fully executed by the purchaser and subject to approval of Prescient and FDIC's senior management." Testimony of Daniel B. Spitzer on July 3, 2012 and Exhibit 30.

9. The Real Estate Purchase and Sale Contract ("FDIC Contract") expressly states at paragraph 20: "AUTHORITY TO EXECUTE: Only an FDIC employee who is an Attorney-in-Fact for the FDIC acting in the capacity stated in Section 1 is authorized by the FDIC to execute this Contract." Testimony of Daniel B. Spitzer on July 3, 2012, Testimony of Olga Velasco on July 5, 2012 and Exhibit 52.

10. The FDIC contract was not executed by the FDIC and the FDIC did not approve the counter-offer which Prescient conveyed to Plaintiff. Testimony of Olga Velasco on July 5, 2012 and Complaint at Exhibit B.

11. Plaintiff and Daniel B. Spitzer, as Plaintiff's agent, knew or should have known that the counter-offer of $265,000.00 was subject to FDIC approval and that the FDIC had to approve the sale of the Property. Testimony of Olga ...


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