IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: 1021-00006
VERIMARK HOSPITALITY GROUP INC., a Delaware corporation,
Plaintiff,
v.
COASTAL PALMS FRANCHISE HOLDINGS LLC, a Florida limited liability company; RANDALL BRECKER, individually; and SUNCOAST ROOM MANAGEMENT INC., a Florida corporation,
Defendants.
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PLAINTIFF'S SUBPOENA DUCES TECUM TO NON-PARTY IRONCLAD NATIONAL BANK
TO: IRONCLAD NATIONAL BANK
Attention: Devon Schultz, Senior Vice President, Commercial Real Estate Lending
225 Peachtree Street NE, Suite 2600 Atlanta, GA 30303
This Subpoena Duces Tecum is issued pursuant to Florida Rule of Civil Procedure 1.351, governing production of documents and things by non-parties without deposition, by the Clerk of the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida.
Date of Issuance: August 8, 2022
Issued by: Clerk of the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida
SECTION 1: COMMAND TO PRODUCE
YOU ARE HEREBY COMMANDED, pursuant to Florida Rule of Civil Procedure 1.351 and the authority of this Court, to produce the documents and materials described in Exhibit A attached hereto and incorporated herein by reference, in accordance with the following terms and conditions:
1. Location of Production. All responsive documents and materials shall be produced at the offices of Calderwood & Harkness LLP, 110 SE 6th Street, Suite 2800, Fort Lauderdale, FL 33301, or, at the Bank's election, by secure electronic transfer to a designated document repository hosted by Nexagen Document Solutions LLC, as may be arranged between the Bank and undersigned counsel.
2. Deadline for Production. Production shall be made within thirty (30) days of service of this Subpoena, i.e., no later than September 7, 2022.
3. Format of Production. All documents shall be produced in their native electronic format, including all associated metadata, or as single-page TIFF images with extracted text and load files, consistent with the E-discovery Protocol set forth in the Joint Stipulation Regarding discovery of Electronically Stored Information filed in this action on June 20, 2022 (Dkt. No. 47). Documents that exist originally and solely in paper form shall be produced as legible copies, Bates-stamped and organized in a manner reflecting the order in which they were maintained in the ordinary course of business.
4. Copies in Lieu of Originals. The Bank may produce copies of documents in lieu of originals, provided that such copies are true, correct, and complete reproductions of the originals in all respects. The Bank shall preserve all original documents pending the resolution of this litigation, and Plaintiff reserves the right to inspect originals upon reasonable notice.
5. Completeness. All responsive documents shall be produced in their entirety, including all attachments, enclosures, cover letters, transmittal sheets, appendices, exhibits, and schedules, regardless of whether such accompanying materials are separately responsive to a specific request.
SECTION 2: IDENTIFICATION OF PARTIES AND COUNSEL
2.1 Plaintiff. Verimark Hospitality Group Inc. is a Delaware corporation publicly traded on the Nasdaq Global Select Market under the ticker symbol VHMK. Verimark is one of the nation's leading hotel-franchise companies, with a portfolio of approximately 1,200 franchised properties across six brand tiers. Verimark maintains its principal executive offices at 2400 East Las Olas Boulevard, Suite 3100, Fort Lauderdale, FL 33301. Renata Solis-Vega serves as Verimark's Senior Vice President and General Counsel and may be contacted at the foregoing address.
2.2 Plaintiff's Counsel (Issuing the Subpoena)
Calderwood & Harkness LLP 110 SE 6th Street, Suite 2800 Fort Lauderdale, FL 33301
Priya Anand, Responsible Partner (FL Bar No. 0087451) Douglas Carmichael, Billing Partner (FL Bar No. 0093217) Yuki Nakamura, Lead Associate (FL Bar No. 0119644) Carlos Espinoza, Working Associate (FL Bar No. 0128903)
All correspondence and communications regarding this Subpoena should be directed to Priya Anand or Yuki Nakamura at the address set forth above.
2.3 Defendants.
Coastal Palms Franchise Holdings LLC, a Florida limited liability company, with its principal place of business at 9500 Gulf Shore Drive, Suite 450, Naples, FL 34108.
Randall Brecker, individually, and in his capacity as Managing Member of Coastal Palms Franchise Holdings LLC and President of Suncoast Room Management Inc. Mr. Brecker is a resident of Collier County, Florida.
Suncoast Room Management Inc., a Florida corporation, with its principal place of business at 9500 Gulf Shore Drive, Suite 450, Naples, FL 34108. Suncoast is a hotel management company controlled by Randall Brecker that provides management and operational services to the hotel properties franchised under the Verimark brand system.
2.4 Defendants' Counsel
Whitfield, Barrow & Crane LLP 1221 Brickell Avenue, Suite 3000 Miami, FL 33131
Nathan Whitfield III, Senior Partner (lead defense counsel) Gabriela Montes, Partner
SECTION 3: BACKGROUND AND RELEVANCE STATEMENT
The following background information is provided for the purpose of informing Ironclad National Bank of the nature of this action and the relevance of the documents sought by this Subpoena.
3.1 Nature of the Action. Plaintiff Verimark Hospitality Group Inc. ("Verimark") filed this breach-of-contract action on March 7, 2022, alleging that Defendants Coastal Palms Franchise Holdings LLC ("Coastal Palms"), its Managing Member Randall Brecker ("Brecker"), and the affiliated management company Suncoast Room Management Inc. ("Suncoast") systematically underreported Gross Room Revenue ("GRR") over a nine-year period spanning from 2013 through 2021, across twenty-two (22) franchised hotel properties — comprising eighteen (18) Verimark Suites-branded hotels and four (4) Verimark Select-branded hotels — with an aggregate room count of approximately 3,740 guest rooms. The underreporting resulted in the underpayment of franchise royalties, marketing-fund contributions, and technology fees owed to Verimark under the applicable Franchise License Agreements ("FLAs").
3.2 Claimed Damages. Verimark's total claimed damages are approximately $150 million, comprising the following components:
(a) $16,095,000 in direct underpayments of royalties, marketing-fund contributions, and technology fees attributable to the underreported GRR;
(b) $28,400,000 in contractual late-payment interest, calculated at the rate of 1.5% per month, compounded monthly, as provided in Section 12.4 of the FLAs; and
(c) $105,500,000 in liquidated damages assessed under Section 15.3 of the FLAs, which provides for the payment of liquidated damages upon the occurrence of a material breach of the reporting and payment obligations set forth therein.
3.3 Scope of Underreporting. Verimark's forensic accounting analysis, conducted by its retained expert Harborline Advisors, estimates that the total underreported GRR across the 2013–2021 period amounts to approximately $197.8 million. By way of illustrative example, for fiscal year 2021 alone, Coastal Palms reported GRR of $112.4 million to Verimark, while Verimark's analysis indicates that the true GRR for the same period was approximately $145.6 million — a shortfall of $33.2 million, representing an underreporting percentage ranging from approximately 22% to 31% depending on the individual property.
3.4 Revenue Diversion Mechanism. As alleged in Verimark's Amended Complaint (Dkt. No. 32), the revenue diversion was accomplished through the intermediary role of Suncoast Room Management Inc. Suncoast, which is wholly controlled by Brecker, collected revenues from direct-booking channels — including walk-in guests, corporate-direct contracts negotiated outside of Verimark's central reservation system, and bookings made through the unbranded third-party website gulfcoastrooms.com — and retained a 12% "management fee" on such revenues. Suncoast then remitted the remaining 88% to property-level entities, but those revenues were excluded from the GRR reports submitted to Verimark. In this manner, a significant and growing stream of room revenue was systematically diverted from Verimark's contractual entitlements.
3.5 Relevance of Documents Sought from Ironclad National Bank. Ironclad National Bank ("Ironclad" or the "Bank") holds first-lien mortgage loans on eighteen (18) of the twenty-two (22) Coastal Palms hotel properties, with an aggregate outstanding principal balance of approximately $94 million. In the ordinary course of its commercial lending relationship with Coastal Palms and its affiliated entities, Ironclad has received — and continues to receive — financial statements, revenue reports, operating data, borrower compliance certificates, and other financial information from Coastal Palms and its affiliated entities, including the property-level entities Gulf Breeze Hospitality LLC and Savannah Lodging Partners LLC.
These documents are directly relevant to the core issues in this litigation for two critical reasons. First, the financial statements and revenue reports submitted by Coastal Palms to its lender in the ordinary course of business may reflect true revenue figures that differ materially from the amounts reported to Verimark. It is axiomatic that a borrower seeking to maintain compliance with financial covenants and secure favorable credit terms has a strong incentive to present accurate — or even favorably stated — revenue data to its lender, in contrast to the incentive to understate revenue to a franchisor for the purpose of minimizing royalty obligations. Any discrepancies between the revenue figures reported to Ironclad and those reported to Verimark are therefore highly probative of the existence, scope, and magnitude of the underreporting scheme, and are essential to the quantification of Verimark's damages.
Second, the Bank's internal credit analyses, underwriting reports, and loan-committee presentations may contain independent assessments of the revenue performance and financial condition of the Properties that corroborate or illuminate the extent to which the reported GRR figures were unreliable.
SECTION 4: DEFINITIONS AND INSTRUCTIONS
4.1 Definitions. As used in this Subpoena and in the attached Exhibit A, the following terms shall have the meanings set forth below:
A. "Bank" or "Ironclad" means Ironclad National Bank, including its predecessors, successors, subsidiaries, divisions, departments, officers, employees, agents, representatives, loan servicers, and any person or entity acting on its behalf.
B. "Coastal Palms" means Coastal Palms Franchise Holdings LLC and any subsidiaries, affiliates, or related entities, including but not limited to Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, and Suncoast Room Management Inc., as well as any other entity owned or controlled, directly or indirectly, by Randall Brecker or any member or principal of Coastal Palms Franchise Holdings LLC.
C. "Brecker" means Randall "Randy" Brecker, individually and in his capacity as Managing Member of Coastal Palms Franchise Holdings LLC and President of Suncoast Room Management Inc., and includes Theresa Brecker (spouse of Randall Brecker) and Nolan Prescott (minority member of Coastal Palms) to the extent specifically referenced in individual document requests.
D. "Suncoast" means Suncoast Room Management Inc., a Florida corporation, and any predecessors, successors, subsidiaries, or affiliates thereof.
E. "Property" or "Properties" means any and all hotel properties owned, operated, managed, or controlled by Coastal Palms, its affiliates, or any entity controlled by Brecker, including all twenty-two (22) hotel properties franchised under the Verimark Suites and Verimark Select brands, and any other hotel or lodging property in which Coastal Palms, Brecker, or any affiliated entity holds a direct or indirect ownership or management interest.
F. "Loan Documents" means any and all loan agreements, credit agreements, promissory notes, mortgages, deeds of trust, security agreements, pledge agreements, guaranty agreements, indemnity agreements, environmental indemnity agreements, intercreditor agreements, subordination agreements, participation agreements, assignment and assumption agreements, amendment and modification agreements, forbearance agreements, workout agreements, loan extension agreements, and any other instruments, documents, or agreements related to any extension of credit, loan, line of credit, or other financial accommodation by the Bank to Coastal Palms, Brecker, or any affiliated entity.
G. "Financial Statements" means balance sheets, income statements, profit and loss statements, statements of operations, cash flow statements, statements of members' equity or stockholders' equity, and all accompanying notes, schedules, supplemental information, management discussion and analysis, and any other financial reports or summaries, whether audited, reviewed, compiled, or internally prepared.
H. "Revenue Reports" means any document, schedule, report, spreadsheet, data submission, or other record reflecting, summarizing, or detailing revenues generated by or attributable to any of the Properties, including but not limited to gross room revenue, total revenue, food and beverage revenue, ancillary revenue, occupancy reports, average daily rate ("ADR") reports, revenue per available room ("RevPAR") reports, competitive-set performance reports (including STR or similar benchmarking reports), and any similar operating metrics or key performance indicators.
I. "Communication" means any written, electronic, or recorded exchange of information of any kind, including but not limited to letters, correspondence, emails, memoranda, text messages (including SMS and MMS), instant messages, messages transmitted through any messaging platform or application, facsimiles, notes of telephone conversations, voice messages, video messages, and any other form of transmission of information between two or more persons.
J. "Document" shall be construed in the broadest sense permitted under Florida law and the Florida Rules of Civil Procedure, including Rule 1.350, and shall include all writings, recordings, electronically stored information ("ESI"), photographs, images, charts, graphs, drawings, and tangible things, regardless of the medium on which they are stored or the manner in which they are maintained.
K. "Relevant Period" means January 1, 2007, through the date of the Bank's full compliance with this Subpoena. The Relevant Period encompasses the full franchise relationship commencing with the execution of the first Franchise License Agreement dated June 15, 2007, the entirety of the underreporting period alleged to have begun in January 2013, and any subsequent period through the date of production.
4.2 Instructions. The following instructions apply to the Bank's production of documents in response to this Subpoena:
A. Completeness of Production. The Bank shall produce all responsive documents in their entirety, without redaction, alteration, or abbreviation, unless a specific privilege is asserted in a privilege log as described in Instruction B below. Each document shall be produced together with all attachments, enclosures, appendices, exhibits, cover pages, and transmittal materials.
B. Privilege Log. If any document responsive to this Subpoena is withheld in whole or in part on the basis of any privilege, immunity, or other legal protection (including but not limited to the attorney-client privilege, the work-product doctrine, or the bank-examination privilege), the Bank shall provide a privilege log within the time for compliance with this Subpoena. The privilege log shall identify each withheld document or portion thereof with sufficient specificity to enable Plaintiff and the Court to evaluate the claim of privilege, including the following information for each entry: (i) the date of the document; (ii) the author or sender; (iii) all recipients (including copy recipients); (iv) the general subject matter of the document (without revealing privileged content); (v) the type of document (e.g., letter, email, memorandum, report); (vi) the specific privilege or protection asserted; and (vii) the factual basis for the assertion of the privilege.
C. Format of Production. Documents shall be produced in electronic format, as single-page TIFF images with extracted text (OCR where necessary) and all associated metadata, delivered in standard load-file format (concordance or Relativity-compatible), in accordance with the E-discovery Protocol — Joint Stipulation entered by the Court on June 20, 2022 (Dkt. No. 47). Native-format production is required for all spreadsheets (including Microsoft Excel files and comparable formats) and databases. Documents maintained solely in paper form shall be scanned at a resolution of no less than 300 dpi and produced as TIFF images with OCR text.
D. Bates Numbering. All produced documents shall be sequentially Bates-numbered using the prefix "INB-" (e.g., INB-000001).
E. Duplicate Productions. If a document is responsive to more than one request set forth in Exhibit A, the document need be produced only once, but its responsiveness to each applicable request should be identified in any accompanying production index or cover letter.
F. Possession, Custody, or Control. The Bank shall produce all responsive documents within its possession, custody, or control, including documents held by agents, representatives, outside counsel, loan servicers, sub-servicers, special servicers, or any third party acting on the Bank's behalf or maintaining documents for the Bank's account.
G. Continuing Obligation. If, after the date of its initial production, the Bank discovers or comes into possession of additional responsive documents, the Bank shall produce such documents promptly and supplement its production accordingly.
SECTION 5: NOTICE TO DEFENDANTS' COUNSEL
In accordance with Florida Rule of Civil Procedure 1.351(b), Plaintiff has served written notice of this Subpoena Duces Tecum upon Defendants' counsel simultaneously with service upon Ironclad National Bank. A true and correct copy of this Subpoena, together with all attachments and exhibits, has been served upon:
Gabriela Montes, Esq. Whitfield, Barrow & Crane LLP 1221 Brickell Avenue, Suite 3000 Miami, FL 33131
Pursuant to Rule 1.351(b), Defendants have the right to serve written objections to this Subpoena within ten (10) days of service of the notice upon Defendants' counsel. Any objections must set forth the grounds for the objection with specificity. If timely objections are served, the documents that are the subject of the objection shall not be produced pending resolution of the objection by the Court, unless otherwise ordered.
EXHIBIT A
SCHEDULE OF DOCUMENTS REQUESTED
The following categories and individual requests describe the documents and materials that Ironclad National Bank is commanded to produce in response to this Subpoena Duces Tecum. All capitalized terms used herein have the meanings ascribed to them in Section 4 of this Subpoena.
CATEGORY 1: LOAN AGREEMENTS AND RELATED DOCUMENTS
Request No. 1. All Loan Documents between the Bank and Coastal Palms, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, Suncoast Room Management Inc., Randall Brecker, Theresa Brecker, Nolan Prescott, or any other entity or individual acting as borrower, co-borrower, guarantor, pledgor, or indemnitor in connection with any financing, loan, or extension of credit for or related to any of the Properties, for the entire Relevant Period. This request includes, without limitation, all loan agreements, credit agreements, promissory notes, term sheets, commitment letters, and any other instruments evidencing or governing any such extension of credit.
Request No. 2. All amendments, modifications, restatements, renewals, extensions, supplements, side letters, letter agreements, and waivers to or of any Loan Documents identified in or responsive to Request No. 1, for the entire Relevant Period. This request includes, without limitation, any change-in-terms agreements, loan-modification agreements, forbearance agreements, pre-negotiation agreements, and workout agreements.
Request No. 3. All personal guaranty agreements, limited guaranty agreements, completion guaranties, payment guaranties, and performance guaranties executed by Randall Brecker, Theresa Brecker, and/or Nolan Prescott in connection with any loans, credit facilities, or other extensions of credit by the Bank to Coastal Palms or any of its affiliates, for the entire Relevant Period, together with any amendments, modifications, reaffirmations, or supplements thereto.
Request No. 4. All appraisals, property valuations, broker price opinions, market studies, feasibility studies, and environmental assessments (including Phase I and Phase II environmental site assessments) of any of the Properties submitted to or obtained by the Bank in connection with the Loan Documents, for the entire Relevant Period. This request includes any updated or supplemental appraisals obtained by the Bank during the term of any loan.
CATEGORY 2: FINANCIAL STATEMENTS AND TAX RETURNS
Request No. 5. All Financial Statements submitted to the Bank by or on behalf of Coastal Palms, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, Suncoast Room Management Inc., Randall Brecker (individually or as a guarantor), or any other affiliated entity or individual, for all fiscal years within the Relevant Period (2007 through 2022). This request encompasses annual financial statements, interim financial statements (including quarterly and monthly statements), and any financial projections, budgets, or forecasts submitted in connection with any loan application, renewal, or covenant compliance requirement.
Request No. 6. All federal, state, and local income tax returns (including all schedules, attachments, worksheets, and Schedules K-1) submitted to the Bank by or on behalf of Coastal Palms, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, Suncoast Room Management Inc., Randall Brecker, Theresa Brecker, Nolan Prescott, or any other affiliated entity or individual, for all fiscal years within the Relevant Period. This request includes partnership returns (Form 1065), corporate returns (Form 1120 or 1120-S), and individual returns (Form 1040) to the extent such returns were submitted to the Bank in connection with loan applications, underwriting, or ongoing covenant compliance.
Request No. 7. All audited financial statements, reviewed financial statements, and compilation reports prepared by any certified public accounting firm — including but not limited to Thornbury & Associates CPAs LLP, or any successor, predecessor, or other accounting firm — submitted to the Bank by or on behalf of Coastal Palms, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, Suncoast Room Management Inc., or any other affiliated entity, for all fiscal years within the Relevant Period. This request includes all management letters, internal-control letters, and agreed-upon-procedures reports prepared by any such accounting firm and submitted to or obtained by the Bank.
CATEGORY 3: REVENUE REPORTS AND OPERATING DATA
Request No. 8. All Revenue Reports, operating statements, property-level profit and loss statements, and consolidated or combined income statements for any of the twenty-two (22) Properties submitted to the Bank during the Relevant Period, including but not limited to monthly, quarterly, semi-annual, and annual reports. This request includes any summary or roll-up reports reflecting aggregate revenue data across multiple Properties.
Request No. 9. All occupancy reports, average daily rate ("ADR") schedules, revenue per available room ("RevPAR") data, competitive-set analyses, and Penmark Enterprises ("STR") reports (or equivalent benchmarking or market-data reports, including reports from Thackeray Group, Larkspur Enterprises, or any similar service) submitted to the Bank by or on behalf of Coastal Palms or its affiliates in connection with any of the Properties, for the entire Relevant Period.
Request No. 10. All reports, statements, schedules, summaries, or data — in any form — reflecting revenues collected by, through, or on behalf of Suncoast Room Management Inc., including but not limited to revenue from direct bookings, bookings made through the website gulfcoastrooms.com or any related or successor website, walk-in guests, corporate-direct contracts, group contracts, and any other booking channel not part of the Verimark central reservation system. This request encompasses management-fee calculations, management reports, and any revenue-sharing or revenue-allocation schedules involving Suncoast.
Request No. 11. All reports, statements, schedules, or data reflecting revenues from online travel agency ("OTA") bookings for any of the Properties, including but not limited to gross booking amounts, net-rate payments, commission calculations, and settlement statements from OTAs such as Aldermere Technologies, Bramwell Holdings, Drayton Software, Drayton Corporation, Penmark Industries, Northpoint Corporation, and any other OTA platform, to the extent such information was submitted to or obtained by the Bank during the Relevant Period.
CATEGORY 4: LOAN COMPLIANCE AND COVENANT REPORTING
Request No. 12. All borrower compliance certificates, covenant compliance reports, officer's certificates, and debt-service coverage ratio ("DSCR") calculations submitted by or on behalf of Coastal Palms, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, or any other borrower entity to the Bank during the Relevant Period. This request includes any schedules, worksheets, or supporting documentation accompanying such certificates or reports, as well as any correspondence from the Bank acknowledging receipt of, or commenting upon, such submissions.
Request No. 13. All notices of default, reservation-of-rights letters, cure notices, acceleration notices, forbearance agreements, standstill agreements, waiver letters, and any other correspondence or agreements between the Bank and Coastal Palms or its affiliates relating to any actual or alleged default under any Loan Documents during the Relevant Period. This request includes any correspondence from the Bank identifying deficiencies in financial reporting, covenant breaches, or payment delinquencies.
Request No. 14. All internal Bank memoranda, credit analyses, credit-approval memoranda, loan-committee presentations, loan-committee minutes, annual review reports, portfolio-review reports, risk-rating assessments, and underwriting reports related to the origination, renewal, extension, modification, or ongoing monitoring of any loans to Coastal Palms or its affiliates, to the extent such documents contain or reference revenue data, financial data, or operating metrics for any of the Properties. This request is limited to documents that contain or reference revenue, financial, or operating information concerning the Properties and/or the borrower entities, and does not seek documents relating solely to the Bank's internal risk-management policies or procedures unrelated to the Coastal Palms credit relationship.
CATEGORY 5: COMMUNICATIONS
Request No. 15. All Communications between the Bank — including but not limited to Devon Schultz, any other loan officer, relationship manager, credit analyst, portfolio manager, asset manager, or any other Bank representative — and Coastal Palms, Randall Brecker, Theresa Brecker, Nolan Prescott, or any representative, agent, employee, or counsel of Coastal Palms or its affiliates, concerning the revenues, financial performance, financial condition, operating results, or financial prospects of any of the Properties or any of the borrower entities, during the Relevant Period.
Request No. 16. All Communications between the Bank and any third party — including but not limited to accountants, auditors, appraisers, environmental consultants, inspectors, consultants, or advisors — concerning the financial condition, revenue performance, operating performance, creditworthiness, or financial reporting of Coastal Palms, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, Suncoast Room Management Inc., Randall Brecker, or any affiliated entity, during the Relevant Period. This request includes, without limitation, communications with Thornbury & Associates CPAs LLP or any other accounting firm that prepared or reviewed financial statements for the borrower entities.
CATEGORY 6: COLLATERAL AND SECURITY DOCUMENTS
Request No. 17. All mortgages, deeds of trust, assignments of leases and rents, assignments of management agreements, assignments of franchise agreements, security agreements, and collateral assignments securing the Bank's loans to Coastal Palms or its affiliates, including all amendments, modifications, supplements, and restatements thereof, for the entire Relevant Period. This request specifically seeks documents identifying which of the twenty-two (22) Properties serves as collateral for the Bank's loans, with particular attention to the eighteen (18) Properties encumbered by the Bank's first-lien mortgages.
Request No. 18. All UCC-1 financing statements, UCC-3 amendments, continuation statements, and termination statements filed by the Bank against Coastal Palms, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, Suncoast Room Management Inc., Randall Brecker, or any affiliated entity, in connection with any loans secured by personal property, accounts, revenues, or other collateral associated with the Properties.
Request No. 19. All title insurance policies, title commitments, title endorsements, lien-search reports, judgment-search reports, and tax-lien search reports obtained by the Bank in connection with the Properties, for the entire Relevant Period, including any updated title searches or endorsements obtained in connection with loan modifications, refinancings, or renewals.
CATEGORY 7: ESCROW AND ACCOUNT RECORDS
Request No. 20. All bank account statements for any deposit account, demand account, checking account, savings account, money-market account, escrow account, reserve account (including furniture, fixtures, and equipment reserves; property-improvement-plan reserves; tax reserves; and insurance reserves), operating account, lockbox account, or any other account maintained by Coastal Palms, Gulf Breeze Hospitality LLC, Savannah Lodging Partners LLC, Suncoast Room Management Inc., Randall Brecker, Theresa Brecker, Nolan Prescott, or any affiliated entity at the Bank, for the entire Relevant Period. This request includes all periodic statements, account-activity reports, and account-summary reports generated by the Bank for any such account.
Request No. 21. All records of wire transfers, ACH transfers, electronic fund transfers, check clearings, or other fund transfers into or out of any accounts referenced in Request No. 20, for the entire Relevant Period. This request includes wire-transfer confirmations, ACH transaction records, check images (front and back), and any internal Bank records reflecting the source, destination, amount, date, and reference information for each such transfer.
SECTION 6: COMPLIANCE AND SERVICE INFORMATION
Method of Service. This Subpoena Duces Tecum has been served upon Ironclad National Bank by certified mail, return receipt requested, addressed to Devon Schultz, Senior Vice President, Commercial Real Estate Lending, Ironclad National Bank, 225 Peachtree Street NE, Suite 2600, Atlanta, GA 30303. A courtesy copy has been simultaneously delivered via FedEx overnight delivery to the same address.
Date of Service. August 8, 2022.
Compliance Deadline. September 7, 2022 (thirty (30) days from the date of service).
Location for Production. All responsive documents shall be produced at:
Calderwood & Harkness LLP 110 SE 6th Street, Suite 2800 Fort Lauderdale, FL 33301
Attention: Yuki Nakamura
Alternatively, the Bank may produce documents by secure electronic transfer to a designated document-review repository hosted by Nexagen Document Solutions LLC, the details of which will be provided by Plaintiff's counsel upon request. The Bank is encouraged to contact Yuki Nakamura at (954) 555-8200 or ynakamura@calderwoodharkness.com to coordinate the logistics of production.
SECTION 7: PENALTIES FOR NON-COMPLIANCE
NOTICE IS HEREBY GIVEN that failure to comply with this Subpoena Duces Tecum without adequate excuse may subject Ironclad National Bank to proceedings for contempt of court pursuant to Section 38.22, Florida Statutes, and Florida Rule of Civil Procedure 1.380. The Court may impose sanctions, including but not limited to fines, attorney's fees, and costs, for noncompliance with or obstruction of a lawful subpoena issued under the authority of the Circuit Court.
Any person or entity upon whom this Subpoena is served who fails to produce the requested documents within the time specified, or who fails to appear as commanded (if applicable), or who otherwise fails to comply with the terms of this Subpoena, may be held in contempt of this Court and subject to such penalties as the Court deems appropriate, in accordance with Chapter 38 of the Florida Statutes and the Florida Rules of Civil Procedure.
Nothing in this Section shall be construed to limit the Bank's right to assert objections or claims of privilege in accordance with the applicable rules, provided that any such objections or claims are asserted in a timely manner and with the specificity required by law.
SECTION 8: CONFIDENTIALITY PROVISIONS
8.1 Designation of Confidential Materials. Any documents produced by Ironclad National Bank in response to this Subpoena may be designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" by the Bank or by any party to this litigation, subject to the terms and conditions of the Stipulated Protective Order entered by the Court on May 12, 2022 (Dkt. No. 38) (the "Protective Order"). The Bank is encouraged to review the Protective Order, a copy of which is available from Plaintiff's counsel upon request, prior to making its production. Any confidentiality designations shall be made in accordance with the procedures set forth in the Protective Order.
8.2 No Waiver of Rights or Privileges. The Bank's production of documents in response to this Subpoena shall not constitute a waiver of any rights, privileges, or protections that the Bank may hold with respect to such documents, except as to documents actually produced without a claim of privilege. Nothing in this Subpoena shall be construed to require the Bank to waive any applicable privilege, including the attorney-client privilege, the work-product doctrine, or any bank-examination privilege, provided that any claim of privilege is asserted in accordance with Section 4.2, Instruction B of this Subpoena.
8.3 Inadvertent Production. In the event that the Bank inadvertently produces any document that is protected by a privilege or other legal protection, such inadvertent production shall not constitute a waiver of the applicable privilege or protection, and the Bank may promptly notify Plaintiff's counsel and request the return or destruction of the inadvertently produced document in accordance with the procedures set forth in the Protective Order and Florida Rule of Civil Procedure 1.285.
CERTIFICATION AND SIGNATURE
I, Priya Anand, counsel for Plaintiff Verimark Hospitality Group Inc., hereby certify that this Subpoena Duces Tecum is issued in good faith, is not intended to harass or cause undue burden to the non-party recipient, and seeks documents that are relevant to the subject matter of this action and reasonably calculated to lead to the discovery of admissible evidence.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP Counsel for Plaintiff Verimark Hospitality Group Inc.
By: ________
Priya Anand, Esq. Florida Bar No. 0087451 Calderwood & Harkness LLP 110 SE 6th Street, Suite 2800 Fort Lauderdale, FL 33301 Telephone: (954) 555-8200 Facsimile: (954) 555-8201
Email: panand@calderwoodharkness.com
Counsel for Plaintiff Verimark Hospitality Group Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 8, 2022, a true and correct copy of the foregoing Plaintiff's Subpoena Duces Tecum to Non-Party Ironclad National Bank, together with Exhibit A attached thereto, was served upon the following:
Devon Schultz Senior Vice President, Commercial Real Estate Lending Ironclad National Bank 225 Peachtree Street NE, Suite 2600 Atlanta, GA 30303 Via Certified Mail, Return Receipt Requested, and FedEx Overnight Delivery
Gabriela Montes, Esq. Whitfield, Barrow & Crane LLP 1221 Brickell Avenue, Suite 3000 Miami, FL 33131
Email: gmontes@whitfieldbarrow.com
Via email and U.S. First-Class Mail, as notice to Defendants' counsel pursuant to Florida Rule of Civil Procedure 1.351(b)
By: ________
Yuki Nakamura, Esq. Florida Bar No. 0119644 Calderwood & Harkness LLP 110 SE 6th Street, Suite 2800 Fort Lauderdale, FL 33301 Telephone: (954) 555-8200 Facsimile: (954) 555-8201
Email: ynakamura@calderwoodharkness.com
Counsel for Plaintiff Verimark Hospitality Group Inc.