Preview
FILED: NASSAU COUNTY CLERK 06/21/2023 11:55 AM INDEX NO. 609881/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/21/2023
MEDIATION & CIVIL ARBITRATION, INC.:
COMMERCIAL ARBITRATION
MCA Claim No.: 44182/2023
FINAL ARBITRATION AWARD
Arbitral Seat: New York, New York
Award Date: June 13, 2023
Arbitrator: Eric B. Gerbert, Esquire
Eric B. Gerbert, Esq., the undersigned, an arbitrator duly appointed under the prevailing
Commercial Arbitration Rules of MEDIATION & CIVIL ARBITRATION, INC. (hereinafter,
“MCA”) in the above-captioned matter, hereby makes the following factual findings, legal
conclusions, and final arbitral award:
A. Factual Findings.
1. By way of written Merchant Agreement and Security Agreement for the Purchase
& Sale of Future Receivables Agreement dated December 28, 2022 (hereinafter “Agreement”),
THE LCF GROUP, INC. (hereinafter “Claimant”), agreed to enter into a non-recourse merchant
cash advance transaction to purchase a face value of $4,470.00 for a purchase price of $3,000.00
of future receivables of respondent UMANA PAINTING CONTRACTORS LLC DBA UMANA
PAINTING CONTRACTORS and respondent JOSE UMANA GUEVARA (jointly hereinafter,
“Respondents”).
FILED: NASSAU COUNTY CLERK 06/21/2023 11:55 AM INDEX NO. 609881/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/21/2023
2. Under the Agreement, Respondent covenanted to allow Claimant access to their
online banking accounts and repayment through ACH debits at all times unless and until
satisfaction of the Agreement has been made in-full.
3. Further, the Agreement provides that in the event of default, Claimant shall be
entitled to “the entire Purchased Amount and all fees (including reasonable attorney’s fees)”.
4. This action was brought pursuant to CPLR § 7501, “[a] written agreement to
submit any controversy thereafter arising or any existing controversy to arbitration is
enforceable without regard to the justiciable character of the controversy and confers
jurisdiction on the courts of the state to enforce it and to enter judgment on an award.”
5. Accordingly, the Agreement provided that “any dispute, claim or controversy
arising out of or relating to this agreement, the security agreement or the guaranty(s) herein, or
breach of any of the said agreement, security agreement or the guaranty(s), shall be, at the
election of either party, settled by arbitration administered by Mediation and Civil Arbitration,
Inc. (www.mcarbitration.org) in accordance with its Arbitration Rules & Procedures effective
at the time a claim is made, and judgment on the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof.”
6. Sometime after execution of the Agreement, Respondent failed to meet its
obligations under the Agreement by blocking Claimant’s access to ACH debits.
7. As of February 14, 2023, Respondent maintained an outstanding balance due and
owing to Claimant in the amount of $1,986.75 (hereinafter, the “Balance”), exclusive of costs,
attorneys’ fees, and interest.
8. Under both the Agreement, upon Respondents’ default, the Balance is
accelerated, a liquidated Default Fee of $2,780.00, is accrued, and liquidated counsel fees in
FILED: NASSAU COUNTY CLERK 06/21/2023 11:55 AM INDEX NO. 609881/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/21/2023
the amount of one-third of the Total Balance are awarded in the amount of $662.18, rendering
Respondents’ total balance, consisting of Default Fees and attorneys’ fees, in sum total
$5,428.93.
9. Claimant has submitted documentation to this Arbitral Tribunal, substantiating
their claim. Claimant provided an Arbitration Demand and Statement, as well as a true and
correct copy of the Agreement.
10. Accordingly, pursuant to CPLR § 7501, by virtue of Respondents’ default under
the Agreement and liquidated damages under the Agreement, Claimant is entitled to the entry
of award in the amount of $5,428.93.
11. Pursuant to Claimant’s Narrative Statement and upon the Claimants own
volition, the prayer for relief has been reduced to $3,973.50.
B. Procedural Posture
11. Pursuant to the Agreement, the instant arbitration by and between Claimant and
Respondent was commenced before MCA by Claimant paying the Commercial Arbitration
Claim filing fee in the amount of three hundred USD ($300.00).
12. Pursuant to the MCA Commercial Arbitration Rules, on February 22, 2023,
Respondent was served with Claimant’s Demand for Arbitration and Arbitration Statement –
as well as MCA’s Commercial Arbitration Rules – wherefore Respondents’ time to interpose
a response within fourteen (14) days commenced.
13. As of March 9, 2023, Respondents’ time to interpose a response to Claimant’s
Demand for Arbitration and Arbitration Statement elapsed without Respondents’ filing of a
responsive statement, rendering Respondent in default under MCA’s Commercial Arbitration
Rules.
14. Furthermore, under MCA’s Commercial Arbitration Rules, the prevailing party
FILED: NASSAU COUNTY CLERK 06/21/2023 11:55 AM INDEX NO. 609881/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/21/2023
is entitled to additional damages comprising reimbursement from the losing party of all
arbitration costs and fees added to the Final Arbitration Award.
15. Here, Claimant, as the prevailing party, is entitled to additional damages from
Respondent in the sum of three hundred USD ($300.00) (hereinafter, “Additional Damages”)
for reimbursement of MCA filing fees.
FINAL ARBITRAL AWARD
WHEREFORE, I find Respondents’ default under the Agreement, entitling Claimant
to initiate the present arbitration, pursuant to CPLR § 7501, resulting in an Arbitral Award in
favor of Claimant and against Respondent for all liquidated, pursuant to the Agreement, sums
due and owing to Claimant in the amount of $3,973.50. I further find that Claimant is entitled
to an award of Additional Damages from Respondent under the Commercial Arbitration Rules
of the MCA in the amount of three hundred USD ($300.00), as well as an award of all costs of
confirming this Final Arbitral Award by a Court of competent jurisdiction, and pre-judgment
interest accruing from the date of Respondents’ default at nine-percent (9%) per annum
thereon.
As such, I hereby grant this Final Arbitral Award in favor of claimant, jointly and
severally against respondent UMANA PAINTING CONTRACTORS LLC DBA UMANA
PAINTING CONTRACTORS and respondent JOSE UMANA GUEVARA individually in the
amount of $4,273.50, plus an award of all of Claimant’s costs of confirming this Final
Arbitral Award by a Court of competent jurisdiction, attorneys’ fees in the liquidated amount
of thirty-three percent of the outstanding Balance due and owing to Claimant, and
pre-judgment interest accruing at nine-percent (9%) per annum thereon.
FILED: NASSAU COUNTY CLERK 06/21/2023 11:55 AM INDEX NO. 609881/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/21/2023
AFFIRMATION
Eric B. Gerbert, Esq., the undersigned, an attorney duly admitted to practice before the
Courts of the State of New York, hereby affirms the truth of the foregoing under the penalties
of perjury pursuant to CPLR § 2106(a).
Dated: New York, New York
June 13, 2023
Eric B. Gerbert, Esq
Arbitrator
To: The Feldman Law Firm, P.C.
Attn: Adam J. Feldman, Esq.
147 Willis Avenue
Mineola, NY 11501
(212) 244-4422
Attorneys for Claimant
Jose Umana Guevara
2515 Malcolm Dr
Chester, Virginia 23831
kiloumana@gmail.com
For All Respondents
Preview
FILED: NASSAU COUNTY CLERK 06/21/2023 11:55 AM INDEX NO. 609881/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/21/2023 MEDIATION & CIVIL ARBITRATION, INC.: COMMERCIAL ARBITRATION MCA Claim No.: 44182/2023 FINAL ARBITRATION AWARD Arbitral Seat: New York, New York Award Date: June 13, 2023 Arbitrator: Eric B. Gerbert, Esquire Eric B. Gerbert, Esq., the undersigned, an arbitrator duly appointed under the prevailing Commercial Arbitration Rules of MEDIATION & CIVIL ARBITRATION, INC. (hereinafter, “MCA”) in the above-captioned matter, hereby makes the following factual findings, legal conclusions, and final arbitral award: A. Factual Findings. 1. By way of written Merchant Agreement and Security Agreement for the Purchase & Sale of Future Receivables Agreement dated December 28, 2022 (hereinafter “Agreement”), THE LCF GROUP, INC. (hereinafter “Claimant”), agreed to enter into a non-recourse merchant cash advance transaction to purchase a face value of $4,470.00 for a purchase price of $3,000.00 of future receivables of respondent UMANA PAINTING CONTRACTORS LLC DBA UMANA PAINTING CONTRACTORS and respondent JOSE UMANA GUEVARA (jointly hereinafter, “Respondents”). FILED: NASSAU COUNTY CLERK 06/21/2023 11:55 AM INDEX NO. 609881/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/21/2023 2. Under the Agreement, Respondent covenanted to allow Claimant access to their online banking accounts and repayment through ACH debits at all times unless and until satisfaction of the Agreement has been made in-full. 3. Further, the Agreement provides that in the event of default, Claimant shall be entitled to “the entire Purchased Amount and all fees (including reasonable attorney’s fees)”. 4. This action was brought pursuant to CPLR § 7501, “[a] written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award.” 5. Accordingly, the Agreement provided that “any dispute, claim or controversy arising out of or relating to this agreement, the security agreement or the guaranty(s) herein, or breach of any of the said agreement, security agreement or the guaranty(s), shall be, at the election of either party, settled by arbitration administered by Mediation and Civil Arbitration, Inc. (www.mcarbitration.org) in accordance with its Arbitration Rules & Procedures effective at the time a claim is made, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.” 6. Sometime after execution of the Agreement, Respondent failed to meet its obligations under the Agreement by blocking Claimant’s access to ACH debits. 7. As of February 14, 2023, Respondent maintained an outstanding balance due and owing to Claimant in the amount of $1,986.75 (hereinafter, the “Balance”), exclusive of costs, attorneys’ fees, and interest. 8. Under both the Agreement, upon Respondents’ default, the Balance is accelerated, a liquidated Default Fee of $2,780.00, is accrued, and liquidated counsel fees in FILED: NASSAU COUNTY CLERK 06/21/2023 11:55 AM INDEX NO. 609881/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/21/2023 the amount of one-third of the Total Balance are awarded in the amount of $662.18, rendering Respondents’ total balance, consisting of Default Fees and attorneys’ fees, in sum total $5,428.93. 9. Claimant has submitted documentation to this Arbitral Tribunal, substantiating their claim. Claimant provided an Arbitration Demand and Statement, as well as a true and correct copy of the Agreement. 10. Accordingly, pursuant to CPLR § 7501, by virtue of Respondents’ default under the Agreement and liquidated damages under the Agreement, Claimant is entitled to the entry of award in the amount of $5,428.93. 11. Pursuant to Claimant’s Narrative Statement and upon the Claimants own volition, the prayer for relief has been reduced to $3,973.50. B. Procedural Posture 11. Pursuant to the Agreement, the instant arbitration by and between Claimant and Respondent was commenced before MCA by Claimant paying the Commercial Arbitration Claim filing fee in the amount of three hundred USD ($300.00). 12. Pursuant to the MCA Commercial Arbitration Rules, on February 22, 2023, Respondent was served with Claimant’s Demand for Arbitration and Arbitration Statement – as well as MCA’s Commercial Arbitration Rules – wherefore Respondents’ time to interpose a response within fourteen (14) days commenced. 13. As of March 9, 2023, Respondents’ time to interpose a response to Claimant’s Demand for Arbitration and Arbitration Statement elapsed without Respondents’ filing of a responsive statement, rendering Respondent in default under MCA’s Commercial Arbitration Rules. 14. Furthermore, under MCA’s Commercial Arbitration Rules, the prevailing party FILED: NASSAU COUNTY CLERK 06/21/2023 11:55 AM INDEX NO. 609881/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/21/2023 is entitled to additional damages comprising reimbursement from the losing party of all arbitration costs and fees added to the Final Arbitration Award. 15. Here, Claimant, as the prevailing party, is entitled to additional damages from Respondent in the sum of three hundred USD ($300.00) (hereinafter, “Additional Damages”) for reimbursement of MCA filing fees. FINAL ARBITRAL AWARD WHEREFORE, I find Respondents’ default under the Agreement, entitling Claimant to initiate the present arbitration, pursuant to CPLR § 7501, resulting in an Arbitral Award in favor of Claimant and against Respondent for all liquidated, pursuant to the Agreement, sums due and owing to Claimant in the amount of $3,973.50. I further find that Claimant is entitled to an award of Additional Damages from Respondent under the Commercial Arbitration Rules of the MCA in the amount of three hundred USD ($300.00), as well as an award of all costs of confirming this Final Arbitral Award by a Court of competent jurisdiction, and pre-judgment interest accruing from the date of Respondents’ default at nine-percent (9%) per annum thereon. As such, I hereby grant this Final Arbitral Award in favor of claimant, jointly and severally against respondent UMANA PAINTING CONTRACTORS LLC DBA UMANA PAINTING CONTRACTORS and respondent JOSE UMANA GUEVARA individually in the amount of $4,273.50, plus an award of all of Claimant’s costs of confirming this Final Arbitral Award by a Court of competent jurisdiction, attorneys’ fees in the liquidated amount of thirty-three percent of the outstanding Balance due and owing to Claimant, and pre-judgment interest accruing at nine-percent (9%) per annum thereon. FILED: NASSAU COUNTY CLERK 06/21/2023 11:55 AM INDEX NO. 609881/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/21/2023 AFFIRMATION Eric B. Gerbert, Esq., the undersigned, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the truth of the foregoing under the penalties of perjury pursuant to CPLR § 2106(a). Dated: New York, New York June 13, 2023 Eric B. Gerbert, Esq Arbitrator To: The Feldman Law Firm, P.C. Attn: Adam J. Feldman, Esq. 147 Willis Avenue Mineola, NY 11501 (212) 244-4422 Attorneys for Claimant Jose Umana Guevara 2515 Malcolm Dr Chester, Virginia 23831 kiloumana@gmail.com For All Respondents