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Note;F.mphasisadded to this affidavit with Yellow Highlighting!

STATE OFMJCHIGAN

TN THE CIRCUIT COURT FOR IBE COUNTY OF OAKLAND

)BANK ONE, N.A., )

)Plaintiff, )

).v. )

)HARSHAVARDHAN DAVE and )PRATIMA DAVE,jointly and severally, )

)Defendants. )

Harshavardban Dave and Pratirna H. DaveClo 5128 Echo Road Bloomfield Hills, Ml48302 DefendantS,inpropriapersona

1:

Case No. QJ-047448.C.Z

Hon. · i.<il>

AFFIDAVJT OF WALKER F.TODD,EXPERT WITNESSFOR DEFENDANTS

Michael C.Hammer (,1>4 l705) Ryan 0.Lawlor (P64693) Dickinson Wright Pl.LC Attorneys for Bank One, N.A.500 Woodward Avenue, Suite 4000Detroit, Michigan 48226

I .

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F. Todd, a citizen of the Uorted States and the State of Ohio over the age of 21 years,

and declares as follows, under penalty of perjury:

I. That I arn familiar with the Promissory Note and Disbursement Request and

Authorization, dated November 23, 1999, together sometimes referred to in

other documents filed by Defendants in this case as ihe "alleged agreement"

between

Defendants and Plaintiff but called the "Note» inthis Affidavit. If called as a witness,

I would testify as stated herein. I make this Affidavit based on my own

personal knowledge of the I.economic, and historical principles stated herein,

except that I have relied entirely on documents provided to me, including the

Note, regarding

·--. . . . - .

I!

I certain facts at issue in this case of which I previously had no direct snd personal:'. f -:-·: ::·'":;..... "

III

lmow! ge: I iam making this affidavit based on my experience and expertise as an

.attorney, economist, research writer. and teacher. I am competent to make the

following statements.

PR O FESSI O NAL BA C KGR O UND O UA L IFICATIQNS

2. My qualifications as an expert witness in monetary and banking instruments are asI follows. For 20

.-

.rked as an attorney legal oflieer for the legal

years, l wo and

:: ···:· -

.·

·.:.·'"cients of the Feder3J Reserve Banks ofNew York 3Dd Cleveland. Among other

'.•···.··-

·· '-- --·

········-··• things,Iwas assigned responsibility for questions involving bolh nove_I and routine

. ..:....._ .. ··--- :...: _

..

I I I I IIw

:,!

' 111 ,;! •

•

-- o;.- --·batikers' ap : es, and OiiiCi financial instruments in '"7:::=::- . .

·connection with my work for the Reserve Banks' discount windows and parts of the

open market trading desk functio-n in New. York. In addition. fur nine years, I

worked as an economic research officer at the Federal Reserve Bank of

Clevelaod. I became one of the Federal Reserve System's recognized experts on

the legal history of central

banking and the pledging of notes, bonds, and other financial instruments at the

discount window to enable the Federal Reserve ·to make advances of credit

that became or could become money. l also have read extensively treatises on

the legal and financial history of money and banking and have publi shed

several articles covering all of the subjec:ts just mentioned. l have served as an

expert witness in several trials involving bankin& practices and monetary

instrum.eots. A summary biographical sketcll and resume inclucliog further

details of my work experience, readings, publications, and education will be

tendered to Defendants and may be made available to the Court and toPlaintifl's

counsel upon request.

! • .I :.1...-

-- GEN E RA L LY ACCEPTED A CC Q UNTING PRINCIPLES

2

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3. Banks are required to adhere to Generally Ac.cepted Accounting Principles (GAAP).

·'(;A.AP follows an accounting convention that lies at the heart of the double-

entry bookkeeping system called the Matching Principle. This principle worlts as

follows: When a bank accepts bullion, coin, currency,checks, drafts, promissory

notes, or any

.- .

; •.: :.··

··:· '

.. .

other similar instruments (hereinafter "instruments") from rustomers and deposits or

reGOfds the instruments as assets, it must record offsetting liabilities that match the

assets that it accepted from rustomers. The liabilities represent the aniounts that the

... bank oiiei the rustomers, ..funds accepted from rustomers. In a fractiooal reserve

[" " · · ' · "'· ···- ----- •·baDking system like the United States banking system, most of tbe funds advanced to

: :-.· - ::, :.- -

merely transferred from ooe set of depositors to anotbcr set ofborrowers.

RELEVANCE OF SUB 1LE DISTINCTION S ABOUT IYP ES OF M ONEY

4. From my study of historical and economic writings on the subject, J conclude that a

common misconception about the nature of money unfortnnately has been

perpetuated in the U.S.monetary and banking systems,especially since the

1930s. Jn classical economic theory, once economic exchange has moved beyond

the barter stage, there arctwo types of money: money of er.change and money of

acccrml.. For

neatly 300 years in both Europe and the United States, confusion about the

I distinctiveness of these two concepts has led to persistent attempts to treat

money of account as the equiwlent of money of exchange. In reality,

especially in a fractional reserve banking system, a comparatively small

amount of money of exchange (e.g.,

I gold, silver, and official currency notes) may support a vastly larger quantity of

business transactions denominated in money of account. The sum of

these transactions is the sum of credit extensions in the economy. Wtth the

exception of

I3

t.

··-·-·..-· ... >Lo ·-...._ -

-...:.•.

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.. • '. .--·- -:,:. -

.-

I: ..;-.··.

I I I I . I

/ 1I---•:---··--·

I

,_.

.

rostomar

y stores

of value

like gold

and

silver,

the

monetary

e of the

«:0nomy

Iaigely

consists

of credit

instrume

nts.

Aninst

this

backgrou

nd, I

condude

that the

Note.

despite

some

faniruage

about

"I.awful

money"

explained

below,

clearly conWllplam beth disbursement of funds and eventual rwaymr.nl or

settlement in money · of account ( that is. money of ex cbance w ould be

welcome but is not required to rway or settle the Note). The factual basis of

this conclusion is the reference in the Disbursement Request and

Authorization to repayment of

$95,905.16 to Michigan National Bank fro.m the proceeds of the Note. That was an

exchange of the credit pf Bank .One (Plaintiff) for credit apparently and previously .... ·

Ji;;;·i0 DefendantS.by Michi o , nk. so. -- · -; n- ..::=::.. -

=

believe that Plaintiff would refuse a substitution of the credit of another bank or

banker as complete p1y. meot of the Defendants' repayment obligation under the Note.

This is a case about exchan.ges of money of account (cred.it),not about exchanges of

money of exchange (lawful money or even legal tender).

5. Ironically, the Note explicitly refers to repayment in "lawful money of the United

States of America" (.su "Promise to Pay" clause). Traditionally and

legally, Congress defines the phrase "lawful money" for the United States. Lawful

DlOney the foim of DlOnty of exchange that the federal government (or any state)

could

be required by statule to receive inpayment of Wees or other debts. Traditionally,as

defined by Congress, lawful money only included gold, silver, and currency

notes redeemable fur gold or silver on demand. In a banking Jaw context, lawfu l

money was only those forms of money of exchange (the forms ju st mentioned,

plus U.S. bonds and notes redeemable for gold) that constituted the·reserves of a

national bank prior to 1913 (date of creation of the Federal Reserve Banks). See,

Lawful Money,

4

.

i

•

•••

. .. £:-

I{ -·'!'·-

... .

i ....:... _ ,,

----..·· ................,,..... ................. .........____ -

Webster's New Jntemational Dictionary (2d ed. 1950). In ligbt of these facts, I

·coodode that Plaintiff' and Delcndants esdiaoged reciprocal <ndits involving

wooev of auount and not money of exchange; no lawful money was or probably

ever would be disbursed by either side in die covered tranpc;tjons. This

.conclusion alro is consistent wilh lhe bookkeeping entries that tmderlie the loan

account in dispute in the present case. Moreover, it_ is puzzling why Plaintiff would

I: .-·..:- - - ·-·--- -- retain the archaic language, "lawful money of the United States of AmC8-!"!_ it

iIJ _ ._ - _ -- eswise modem-seeming Note. 11 is poSSll>le that this language is merely a legacy

. : ·-

.

;-.,

.·;

.

;.

.

:..-·

·-:-::=_ °.

-' ...··--- -··- ..: - ... -· .. .. ..... . - · · . - . . · · - - · - ·..

r-_t J a -:: - --:_ : - - sl}t_ - Qle"f e -

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such as. "The repayment" Obligation under·this agreement shall continue until

payineni-:-

.is teceived infaliy and collect&/ funds. wruch avoids the entire question of

"Inwhat form of money or c r edit is the repayment obligation duer

6. Lew lender.a related conct;pt but one that is ecqpomically inferior to kiwfiil monzy

Wm'S!: it allows payment jn instruments that canno t be redeemed for gold o r

silver on c!emand has been the furm of monev of exchange commonly used in the

Unjted States since 1 9 33 . when domestic private gold transactions were

suspended (until

1974).. Basically, legal tender is whatever the government says that it is. The

most common fonn of legal tender today is Federal Reserve notes, which by law

cannot be redeemed for gold since I 934 or, since 1964, fur silver. See, 31

U.S.C. Sections 5103, 5118 (b), and 5119 (a).

Note: I question the statement that fed reserve notes cannot be redeemed for silver

since 1964. 11was Johnson who declared on J S Marcy 1967 that after 15 lune

1967 that Fed Res Notes would not be exchallged for silver and the practice did stop

on 15June

--. ·.·-·4- -

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,., ..1967 -not i96li.·1believe this to be error inthe text of the author's affidavit. h!-=-·-

7.·.Legal tender umkr iie Uniform Commercial Code (U.C.C.) , Section 1-201 (24)

I.. , (

OfficialComment),is

a concept that somdimes surfaces in cases of this nature.. lk

I.. ............

.. ..,

referenced Official Comment notes that the definition of mo'W' isnot limited to leW.

tender under the iJ.C.C, Money is defined in Section 1-201 (24) as "a medium of

_ ._exchange authorized or adopted by a domestic or foreign govttnment and }!lludes a ..

.. / .·: -:,.·":" :-.··--· ··::-·····-... ·-·· - . - .·····:-monetary uillt of 8cc:ount established by an intergovernmental organization or by . ..

I .

· ' .:_·=-agreement between two or more nations." The relevant Official Comment states that

:·1;--·. -=-·_ . =hi·iesiaao --, t of sanction of governm

: :by..,:;: :r?.•=--===Ii . . ·· · ,;.15Sue or adoptioo .which recognizes the circul.3ting media ;;:i·br tbe ·

• official currency of that govcmment. The narrow view that money is limited to!rel

I; tmt ! er i s rej w et!" Thus, I conclude that the U.C.C. tends to validate the classical

theorEtical view of money.

HOW BANKS BEGAN TO LEND THEIR OWN CREDIT INSTEAD OP REAL MONEY

I 8. In my opinion, the best sources of information on the origins and use of qcdit as

l!lQ!!llY are in Alfred Marshal MONEY, CREDIT & COMMERCE 249-251 (1929)•i and Charles P.Kindleberger, A FINANCIAL EnSTORY OF WESIERN EUROPEIi 50-53 (1984). A synthesis of these sources, asapplied to tbe facts of the present case,I

! is as follows: As commercial banks and discount houses (private bankers) becam e

I established in parts of Europe (especially Great Britain) and North America, by t!ie

mid-nineteenth century they commonly made loans to borrowers by extending

their own credit to the borrowers or, at the borrowers ' direction, to third

parties. The

I typical fonn of such exrensions of credit was drafts or bills of exchange drawn

upon themselves (claims on the credit of the drawees) instead of disbursements

of bullion,

6

- - ----··-- . .: . . · . . i..

:I

I

I '·... . . ... -I ' ; :

·1·::::..

.=.

I

coin, or other forms of money. In transactions with third partie'these drafts and bills -

··::::....:·= . came to serve most of the o rdinarv functions of money. The third parties

had to "ili:teimine for themselves whether such "credit money" had value and, if so, how

..:

I ··· much. · The Federal Reserve Act of 1913 was drafted with this model of

the commercial ecenomy in mind and provided at least two mechanisms (the discount

····· window and the open-market trading desk) by which certain types of bankers' credits ····-···- .. . ·.-··· . .·· -- -.-· ·-··- .,.·===; ·

. I___ ·-·-···-

. uld be exchangcid for Federal Reserve credits, which in turn could be Withdrawn in ·'·...... .

·. ' · ·-·. .·- ;fu1monei. Credit at thi:FcideriilReserve eventuaJlybecame the p iiri c ipa l form or- -·-· ··

: 1.:.:!oiT.; ;.; ·:-:;"'·°''.:r-< · ;: o :erci- n : :O.·es;i;tb· ; in .;.::; ·: . -:

I·1 "'

''

I

I

..._ ::of domestic transactions in gold in 1933. Thus credit money is not alien to the

aureot official monetary systeID.; it is just rarely used as a device for the creation of

· ···Federal Reserve a-edit that, in tum, in the funn of either Federal Reserve notes or

----· banks• deposits at Federal Reserve Banks, functions as money in the

curregt monetazy syi;rem In met, a means by which the Federal Reserve expands

the money

I supply, loosely defined, is to set banks' reserve requirements (CUITelltly, usually ten

1 1 · percen1 of demand liabil.ities) at levels that would encourage banks to extend

new credit to borrowers on their own books that third parties would have to present to the

I same banks for redemption, thus leading to an expansion of bank-created credit

money. In the modem economy, many non-bank providers of credit also extend book

I

credit to their customers without previously setting aside an equivalent amount of

I monetary reserves (credit card line of credit atcess checks issued by non-banks are a

' I good example of thi.stype of credit), wbicb also causes an expansion of the aggregate quantity of credit money. The discussion of money taken from Federal Reserve and

I other modern sources in paragraphs 11 et seq. is consistent with the account of the

7

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·-- ---·--··-····· ... ·-····- -·- ·-················- --·····-·-

II

b• -· . J···• ·• • origins of the use of bank credit as money inthis paragraph.

·I ADVANCtS OF BANK CREJ>IT AS THE EQUIVALENT OF MONEY

9. Plaintiff apparently asserts that the Defendants signed a·promise to pay, such as a

note(s}or credit application (collectively, the "Note"), in exchange for the Plaintiff's

i advance or'funds, credit, or some type of money to or on behalf of Defendant.

.·- · · -·.... >-· However, the bookkeeping entries reqtlired by application of GAAP. and the Federal . --· · . . -

"""'"'. --- -...,_ ,-,,,,. ··· ·"R.eseiVe' s"u\Jiin writirigs·should trigger close scrutiny of Plaintiff's apparent assertions "'"=··.

_ _, ... . that i Jentt funds, credit, or money.to or on behalf of Defant Y causi -::.':'"''·

;1·.:--- -=-:::-:- -::- ····:1beiino_;-

0weu·Plaintiff .S4: '.000.:.

According. o the boold\eepi !C'.S.shv.-'.. - --···.. _ .

'' · · · otherwise d bed io application of GAAP, the DefendaniS ailegedly wC<e- ""=··

i to tender some form of mo11ey \lawful money of the United States of America"is the

I type of money explicitly called for in the Note), securities or otheT capital

equivalent to money, funds,credit, or something else of value in exchange (money of exchange,

loosely defined), collectively referred to herein as umoney," to repay what the

IPlaintiff claims was the money lent to the Defendants. It ls not an unreasonable

a n 1 1 nnent to state that Plaintiff aooarenlly change!! the economic snbstlnce of

I the transaction from that contemplated in the credit apoligtion fonn,

agreimen t , note ( s l . or other sim i lar instrumen t { sl that the Defe11dants execut ¢ .

thereby changing the cotts and risks to the Defendaicts. At most, the

Plaintiff I extended its own credit (money of account), but the Defendants were required to

repay in money (money of exchange, and laeful money at that), which creates at

mist the inference or ioequality ef obligations on the two sides of the transaction

I (money, including lawful money, is to be exchanged for bank credif).

MODERN AUTHORITIES ON MONEY

8

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•• ..•. ;; .

••

-··--h--... ..... ...... .--···-······-·-·-···· -- ---·.....

11.Tounderstand wnat occurred between Plaintiff and Defendants concerning the

alleged loan of money r, m;re'accUrately, credit, it is helpful to review a modem

Federal Reserve description of a bank's lending process. See, Dllvid H.Friedman,

MONEY

AND BANKING (4"' ed. 1984)(apparently already introduced into this c.ase): ..The. •. -··" ··-----

from depositors increases both its assets and its.deposit liabilitie .which enables it to

1: .,..,_ "!''

.

commereial bank lending process is similar to that of a thrift in the receipt of cash

·······•..- -,_, .·..······niake ·additional loans and investments. ...· .. .When a commercial .bank makes a

I business loan, it accepts as an asset the borrower's debt obligation (the promise to

•, •. H- •

I

I

I

••

I

I

I(

l

' [

l•:-- .• '"-----···-·

. --··· · . .. ·-- -

..

, ..

.... ·.Jepay}.81ld .creates a li.ilitY. on its .books.in.Jbe.form of a Q.J!.landA!<P<!it_i11_ the_._

-..·--·--··-·--·-.·· ...

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lsumer loans ·fu dd similarly.) Therefore, the

bank's originaf bookkeeping entry should show an increase in the amount of

the asset credited on the asset side of its books and a corresponding increase

equal to the value

of the asset on the liability side of its books. This would 1bow tlaat the bank

receiVed the castomer'• signed promise to repay as an tzS$el, thus monetidng the

cnstomer's signature and creating on its books a liability in the form of a

demand deposit or other demand liability of the bank. The bank then usually

would hold this demand deposit in a transaction account on behalf of the

customer.

Instead of the bank lending its money or other assetS to the customer, as the.customer

reasonably might believe from the face of the Note, the bank created funds for the

customer's transaction account without the customer's pennission, authorization, or

knowledge and delivered the credit on its own books representing those funds to the

customer, meanwhile alleging that the bank lent the customer money. IfPlaintiff s

response to this line of argument is to the effect that it acknowledges that it Jent

credit or issued credit instead of money, one might refer to Thomas P.Fitch,

BARRON'S

9

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,''· , . .. . .j,. 11BUSINESS GUIDE I;>JCTIONARY OF BANKING TERMS, "Credit banking," 3.

"Bookkeeping entry representing a deposit of funds into an account." But

Plaintiff's loan agreement apparently avoids claiming that the bank actually lent

the Defendants money. They apparently state in the agreement that the

Defendants are obligated to

.-·--::--·····

'

..-.·..-......_

...., ...._

.. I

repay Plaintiff principal and interest for the "Valuable consideration (money) the

bank gave the customer (borrower)." The loan agreement and Note apparently ·still

·delete any reference to-the bank's reeeipto(actual cash value from-die .Defendiirii.S

. and.exchange of that pt.for !ictllal cas/l \lalUe that the Plaintiff b- ·-..

=:I -=.:.: .:: -- ' ·::12.A cr o nlmg to the F eii i iil Reser v e B aitl t or New Y o r !c. in o lit;y iS - aiiji b T u g tl i iiffias .. .. -

.. :..;,;

....

I

:· - ..

II I

I I I. II II

v aloe

tb 1 t

banks

and

pe o nle

accept as

money;

mon e y

does not

b 1 v e to

be igued

by tbe

gevemm

ent. For

example,

David H

Friedman

, I BET

YOU

THOUG

HT....

9,

Federal

Reserve

Banlc of

New

York (4"'

ed. 1984)

(apparentl

y already

introduce

d into this

ca

se),explai

ns that

banks create new money by depositing JOUs, promissory notes, offset by bank

liabilities called checking account balances. Page S says, "Money doesn ' t have

to be intrinsically valuable. be issued by aovqnment. or be jn any special form.

..."

13. The publication, Anne Marie L. Gorn:zy, MODERN MONEY MECHANICS

7-33, Federal Reserve Bank of Chicago (rev. ed.June 1992)(apparently already

introduced into this case). contains standard bookkeeping entries demonstrating

that money ordinarily is recorded as a bank asset, while a bank liability is

evidence of money that a bank owes. The bookkeeping entries tend to prove that

banks accept cash, cbecb, drafts, and promissory notes/credit agreements

(assets) as money deposited to create

credit or checkbook money that are banlc liabilities, which shows thai, absent any

right of setofl; banks owe money to persons who deposit money.. C•sh (money of

JO

-- .. --

p

•

!·-,.

·- -- ---· ·· ··············· ···•··- -··.· ······-.. --··

..;._

-

. .:· ,.: .·

• • f •• ' •• • •• • • • •

exbangel is money, and credit pr promissory notes (money of acc:ooot) become '·;;;o y wh ·ban deposit promlssorv notes with the intent or treating them

.

I;,

. .. .....-·: . 'like deposits of cash. See, 12 U.S.C. Section 1813 (lj(J) (definition of "deposit"

under Federal Deposit Insurance Act). The Plaintiff acts 'in the capacity of a lending

or banking institution, and the newly issued qedit 01 mone y is similar o equivaient

to a .promisSOJY notC.'winch may be treated as a dl:llosit of money when received

by

'4-·- . ..

M T.

... ,....... -·- ..

· -lending bank..-·Federal Reserve Bank of DaUas publication MONEY AND ·. . . .

;••.

,...'o·.-:=: .- :··...... _._,;:_ -

G. page .... . .

that when bJ111ks grant loan they =ate ow_ l!loney. .. _ .. ·-

BANK.JN 11, explains

: , The .new money is created because a new "loan becomes a deposit, just like a

•._-::---=..:::.· ·.... eek does.n:.M MO _ cs,..p;;- ; yS; ":O\

Thu.. the--::==·==:c-. ... : .. . -·· -.7- - . .. ----!- - .·- . - - -- ...···-· . .• ·

---_ _ _ _ :_

I'. II

[banks) do when they make Joans is to accept promissory notes iD exchange for -·-·......

.- its to the d.;w;transaction accounts." The · ,ct sentence on the

same page explains that the baoks' assets and liabilities increase by the amount

of the loans.

COMMENTARY AND SUMMARY OF ARGUMENT / 1 .14. .·-· .-. tly ccepted the Defendants' Note credit application {money ofPlaintiff appare

and

account) in exchange for its own credit (also money of account) and deposited

that credit into an account with the Defendants' names on the account, as

well as

1 • apparently issuing its own credit for $95,905.16 to Michigan National Bank for the

• account of the Defendants. One reasonably might argue that the Plaintiff recorded

, •_ •

II

j ---..

the Note or credit application as a loan (money of account) from the Defendants to

the Plaintiff and that the Plaintiff then became the borrower of an equivalent amount

of money of account from the Defendants.

15. The Plaintiff in fact never lent any of its own pre-existing

money, credit. or assets as consideration to purchase the Note

or cred it

II

•

I..·-···--· . .-'

I:· .,·.:·

.II: •'

· ;-.... greement from the Defendants. (Robertson Notes:l add that when the bank

• •: _::..•.•. .! •• '.'" .••·• • . ... .1 • • •

does the forgoing, then in that event, there is an utter fai lure o(consiJ/eration for the··,"'·

"loan contract".) When the Plaintiff deposited the Defendants' $400,000 of newly

: :..... '"J-ea .eredit into an ac:cOWit, the Plaintiff created from $360,000 to $400,000 of new

·inooey (the nominal principal amount Jess up to ten percent or $40,000 of reserves

·····ill.at the Federal Reserve would require against a demand depo it ofthis size). The

·..;-..Plaintiff received $400,000 of credit or money of account from the Defendants as---- ·-·

- .--· . ··-··-----·- ...- . ··-··- --·. . .. . . .. :asset. GAAP.ilrdinarily·would retjire that the Plaintiff record a liability account, ::.-..-=-: :::-

-· . f - . · . :-·.·-·...:--- hiog theDefendiuits,.deposit account, showing that the Plaintiff owes $4.00,000.=

·.....;12-":;i:-'".-··:.·.. l··· ·o ·.. .. . -··. :;:::-: ·· :- _c · ·-···-·- ..:--:• -

. . ===::=:--·. c:;::=·=·=·=· ===· ···' ".!,.._ ,... ..- ::·. ..,'"-of money"to.. ihe Defendants;just.:a. s.if the Defendant were to deposit cash or ·-a . . :: : . · · _- · . : .. . .

- -·--·· .: "':':.:: -

• •I..... -

I I

I I I I

II

, • -..

., ·...,=·==" -. •.·

payroU check into their account

- ..

16. The

follow

ing

appea

rs to

be a

disput

ed

fact

in this

case

about

which l

have

insufficient

infonnation

on which to

form a

conclusion:

I infer that it

is aUeged

that Plaintiff

refused to

lend the

Defendants

Plaintiff s

own money

or assets

and

recorded

' ··'a $400,000

Joan from

the

Defendants

to the

Plaintiff;

which

arguably

was a

$400,000

deposit of

money of

account by

the

Defendants, and then when the Plaintiff repaid the Defendants by paying its

own credit (money of account) in the amount of

$400,000 to third-party sellers of goods and services for the account of Defendants,

the Defendants were repaid their loan to Plaintiff: and the transaction .was complete.

17. I do not have sufficient knowledge of the facts in this case to form a conclusion

on the following disputed points: None of the following material facts are

disclosed in the credit application or Note or were advertised by Plaintiff to

prove that the Defendants are tbe true lenders and the Plaintiff is the true

borrower. The Plaintiff is trying to use the credit application form or

the Note to persuade

12

··---··- ··-----

----.··- .

"

•

•• ..._;:.-'

- -·• •u •••• •• ••• -••• ••- - -- -•-

I·. . .-- t;:-:. "' ·-

.. •.,. , ,· and deeeive the Defendants into believing that the opposite occurred ,.

·.: ···--ad that ih'e:i>cfendants were the·borrower and not the.lender. The-

.....

....

·.,..:.:·; ..

:I.:; . ...

following point is undisputed: The Defendants' loan of tlieir credit to Plaintiff,

when issued and paid from their-deposit or credit account at Plaintiff, became

money in the

. ' ·•

:.•.-·' .

:: :-:_·:.;.·.: ..Federal Reserve System (subject to a reduction of up to ten percent for reserve

_ requirements) as the newly issued credit wa.s paid pursuant to written orders,... . . . .·-··--.. - -- ·--- . ···--···.

. including checks and wire ers._ to sellers ogoods and servifor th e _ account o!_-- _

Defen@Jl!S. :'':=-:;-·.

:.•.- ;

·I

..... ;·· ... .::ifui:i it.rCiiiaiiis-to be proven whether Plaintiff bas incurred any financial loss or actual

:. _::- damages (J do not have sufficient information to fonn a conclusion on this point).

Inany casC, tlie inclusion of the "lawful money" languBge in the repayment clause of the

- . Note is confusing Illbest and in&ct may be misleading inthe context described

above.

I AFFIRMATION

19. I hereby affirm that I prepared and have read this Affidavit and that I believe the

foregoing statements in this Affidavit to be true. I hereby further affirm that the basis

I of these beliefs is citl.ier my own direct knowledge of tbe legal principles a1.1d

I historical facts involved and with respect to which I bold myself out as an

expert or statements made or documents provided to me by third parties whose

veracity I

I reasonably assumed.

I Further the Affiant sayetb naught:At Chagrin Falls,Ohio

I,--- 13

O

S .

I

8

I

-···

II .[i. . · ' '

. ".:. .

I'

I. .., 'I

EcI1

. 2

·

· Note is confusil.ig ai best and in fact may be misleading in tho context deicnbd

above.

DON19. J hereby affinn that I prepared and have read this Affidavit and _that I belillVe the

.. -

.0

3

I .. :. :. .

Lf

foregoing statements inthis Affidavit to be true. I hereby funber affirm that the basis.... ·-. ... ... .

of theso beliefs is either my own direct knowledge of the legd principles and

-::. ·-. :. ,·; - ;.':.·1.. . · · - - · -- -· .. ... -·-- · -. . ····.-·-·..·-·"'7·:

historical fact involved and with respect to which I hold myself out as an expert or · · ·3 . . . . . .

,.,.. " ---,,,;........ _,._,,.' •n ••. -'!lta made or documents provided to me by third parties whose veracity r

---·;·:· -·-··

_·-

_._.._- ·-.:=:.:::- . reuo=n=a:-b:l:y:-u-s-

u·-m-

ed::.::=-==-:::-.:··· ..

···----- - ·-

...--

.: -:·::

·.--.-····- -=·---·.· .._ .._ __ · ......

.,;;;_.;..:. . .- ·-.·-- --· ··-- . --. ' .... . . . . - -=-== - ....---·Further the Afilant sayeth naught. .. :: ..

•• . t Chagrin Falls,.Ohio

· 1 _ . embec 5, 200

.....F.TODD(Oh

iO£bar 110 539) ·

{1

I . : ·0

·

I

.... .·

.:..

&pert witness for the DefendantsWalbr F.Todd,·i\ttomcy.at Law1164 Shoerbrook DriveChagrin Fal!J, Ohio 44022(440) 338-1 169,fax (440) 338-1537e-mail: wmodd@.adclphia. net

I. ;.!"·· .NOTARY'S VERIFICAllON

At ChaS!:in FaUs, OhiQ

I December 5, 2003On this day peraonaUy came before me tlio above-named Af!iant, who proved his identity

to me to my aatisfilctlon, and he acknowledged his signature on this Affidavit in my presence and

stated that ho did so with t\111 undel'standing that ho was.subject to t e penalties of perjury.

Ir

I \

I

I

l

Jun 15 06 03:31p roger o johnson 1-740-4327789 p.1From:QERKS CfFICE LEG.Al... 2484529'221 04/18/2006 08:35 lt145 p .001/002

II

. ,,. •RvE·CE. tVEfl rnl) .... '"

"STATE OF MICHlGAN

INn!E CIRCUIT COURT :r: nnflDPFoAKLANri

BANK ONE, N.A.

v.

llY ''"" "'1!J-£Rl('t:ase No. 03-047448-CZ

Hon. Edward Sosnick

HARSHAVARDHAN DAVE mdPRATIMA DAVE, jointly and severally,

Defendants,

Michael C.Hammer (P4l705) Ryan 0. Lawlor (64693)Dickinson Wright PLLC Attorneys fur Bank one.NA.500 Woqdwanl Avenue, Suiu:4000Detroit, Michig;m 48226(313) 223-3500

Harsbavardhan Dave and Pratima Dave Defendants, in propria personaCIO5128 Echo Rc:l,BloomJiclcl H.ilb. Michigm 48302

JUDGMENT

This matter comes before the Court upon Bank One. N.A.'s ("Ba:ilk One") Notice of

Presentment of Judgment; the Court having entered the Opinion a:nd Order Granting Plaintifi's

Motion for Summary Disposition on January 8, 2004; and the Court being otherwise fully

advised inthe premises:

IT fS ORDERED that Judgment i$ entered in favor of Baqk One and agai

Defundants, jointly and seveially, in the sum of Two Hundred Fifty SiK Thousand Seven

Hundn:d Sixty Three Dollars and Thirty Five Cents ($256,763.35).

Jun 15 06 03:31p roger c johnson

From: S OFFICE LEGAL2484529221

1-740-4327789 p.2

04/18/2CXJ6 08:35 #145 P.Ol2/002

IT JS FURTIIER ORDERED that this Judgment resolves the last pen<fjng claim and

closes this case.

Dated:. _

2