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AsTRiELLA & :ICE PC. <br />ATTORNEYS A,r LAW <br />Messrs. Exline, and Ruybalid <br />February 7, 2009 <br />Page 2 <br />No. Obi CV 5976 has come to our attention. We enclose herewith <br />copies of what appear to be the pertinent documents. <br />Although we offer no opinion as to whether the equipment to be <br />repossessed is integral to the operation of the Feister pit, it is clear <br />that it is more likely than not that MS Forest and Canda owe the <br />plaintiff nearly $300,000. No doubt, and even after repossession, <br />there will be a substantial deficiency, and given the non-appearance <br />by MS Forest at the replevin hearing, it seems inevitable that at some <br />time in the near future, judgment will enter in favor or the plaintiff in <br />such an amount that the plaintiff would essentially leap frog the <br />Schneiders, and the Schneiders would be unlikelyto receive amounts <br />that were contemplated by the settlement agreement. <br />While we acknowledge that Mary Canda was not served until mid- <br />January, 2009, the existence of such a default was obviously known <br />to MS Forest at the time the parties were in the process of negotiating <br />a settlement and such fact should have. been disclosed. I do not <br />ascribe this lack of disclosure to Max Exline, as I can only assume <br />that he was unaware of the existence of the default. And, while Mr. <br />Exline did indicate that the business of MS Forest was "off", the <br />business being "off" or "slow" is a far cry from a liability of $286,000. <br />In summary, if you think that a settlement can be salvaged, please let me know. <br />However, and in light of the Court's order, I believe that the trial needs to be re-scheduled. <br />We would not be opposed, however, to also scheduling another session with Mr. Hessel <br />to see if there is some common, and financially substantive, ground is available for <br />settlement. Additionally, if there is a substitute for Mr. Ruybalid, please advise. <br />Should you have any questions or comments, please call. <br />Ve.ry truly yours, <br />YA?? <br />T. R. Rice <br />TRR/etr <br />cc: Mr. and Mrs. Ed Schneider (w/encl.)