Preview
FILED: NEW YORK COUNTY CLERK 07/18/2023 01:13 AM INDEX NO. 653430/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/18/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ROBIN FUNDING GROUP LLC,
Plaintiff, Index No.:
-against-
SOUTHERN ELITE ROOFING, INC., AFFIDAVIT OF FACTS
TEVOR P. MOORE and VINCENT J.
MERCALDO III,
Defendants.
STATE OF NEW YORK }
} ss.:
COUNTY OF ROCKLAND }
EKATERINA MARCIANTE being duly sworn deposes and says the following, subject to the
penalties of perjury:
1. I am the Collections Manager for Plaintiff Robin Funding Group LLC ("Robin
Funding Group") and supervise all aspects of Robin Funding Group's business operations. As
such, I have personal knowledge as to Robin Funding Group's procedures and business
practices, including the making, using and maintenance of business records. I have reviewed
Robin Funding Group's books and records as they pertain to Defendants Southern Elite Roofing,
Inc. ("Southern Roofing"), Tevor P. Moore and Vincent J. Mercaldo III ("Mr. Moore and Mr.
Mercado") and am fully familiar with such.
2. This affidavit is based on my personal knowledge, except as to those matters
stated upon information and belief, and as to those matters, I believe them to be true.
3. I make this Affidavit in support of Robin Funding Group's Order to Show Cause
pursuant to the Civil Practice Law and Rules (CPLR) § 6301 for (a) a temporary restraining
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Order restraining the funds in all accounts of Defendants Southern Roofing, Mr. Moore and Mr.
Mercado at Bank of America, the account in 4054,
NA, including ending up to the sum of
$144,109.14, or such other amount as the Court deems just and the and 4
proper, pending hearing
determination of this application, and (b) a preliminary injunction Order for the same relief,
pending the resolution of this action, respectively, and until further Order of the Court, and for
such other and further relief as this Court deems just and proper.
Defendants'
4. This action arises from default and persistent failure to honor their
contractual obligations and facilitate the transfer of purchased future revenue to Robin Funding
Group, as designated by the Revenue Purchase Agreement ("RPA") dated July 5, 2023. A true
and correct copy of the RPA is annexed hereto at Exhibit A.
5. The business records annexed to this Affidavit at Exhibit B were made in the
regular course of business and are maintained under my supervision and control.
6. It is respectfully requested that the Court grant this application based on
Defendants'
breaches and actions in this matter as verified in the complaint at Exhibit C and as
further set forth below.
Jurisdiction and Venue
7. Robin Funding Group is a New York entity duly authorized to conduct business
in New York with its principal place of business within New York State.
8. The RPA contains a forum selection clause choice of law provision designating
State."
New York Exhibit A at Paragraph 43.
9. As the RPA contains a forum selection clause choice of law provision designating
New York State, and as Defendants have consented to the RPA, maintaining the present action in .
New York Supreme Court, New York County is proper. Moreover, the RPA provision contains
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a clause waiving any objection on the basis of the forum inconvenient or the venue
being being
improper.
10. Furthermore, as Robin Funding Group is located in New York State, the present
action has a strong nexus to New York State. For example, the RPA was entered into in New
Defendants'
York State, the purchase price for future revenue was made from Robin Funding
Group in New York State, and payments of the future revenue purchased from Defendants were
contracted by the RPA to be made to Robin Funding Group in New York State.
11. Moreover, prior to default, Defendants made payments of the purchased future
revenue to Robin Funding Group in New York State.
12. For the reasons set forth herein, Robin Funding Group respectfully submits that
this Court has and maintains both subject matter and personal jurisdiction in this action, and
Defendants'
motion to dismiss should therefore be denied.
Summary of Facts and Claims
13. Pursuant to the RPA, Robin Funding Group purchased $152,000.00 of future
revenue ("purchased revenue") generated in the course of Southern Roofing's business. Exhibit
A at pg. 1.
14. Robin Funding Group paid Southern Roofing the amount of $100,000.00 as the
agreed upon purchase price for the purchased revenue (Exhibit A at pg. 1) minus contractual
underwriting and/or origination fees in the amount of $8,000.00. Exhibit A at Paragraphs 17-19,
29 and Rider 2. Defendants accepted payment for the purchased revenue without comment or
objection.
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15. Pursuant to the RPA, Southern agreed to provide payments ,
Roofing daily (M-F)
of Roofing'
$2,171.43, which represents 12 percent (12%) of Southern future revenue until the
purchase price for the purchased revenue was paid in full. Exhibit A at pg. 1.
16. Southern Roofing also made numerous warranties, representations and covenants
pursuant to the RPA, including:
a. To provide Robin Funding Group an accurate representation of the financial
state of Southern Roofing's business and to proactively and continually
appraise Robin Funding Group of any material adverse changes thereto.
Exhibit A at Paragraphs 21a and 34.
b. To designate and maintain a bank account for electronic fund transfers to
Robin Funding Group to facilitate payment for the purchased revenue,
including accounts receivable. Exhibit A at Paragraphs 7-9.
c. Not to change, alter or discontinue the bank account used for electronic fund
transfers to Robin Funding Group. Exhibit A at Paragraphs 21h-i.
17. Southern Roofing agreed that in the event of default under the RPA, the full
uncollected purchased revenue, plus all fees under the RPA would become immediately due and
payable in full to Robin Funding Group. Exhibit A at Paragraphs 27-30.
18. Furthermore, Mr. Moore and Mr. Mercado submitted to Robin Funding Group a
separately executed, personal guaranty of performance, securing Southern Roofing's
performance of all the covenants and obligations under the RPA. Exhibit A at pgs. 16-18.
19. On at least July 13, 2023, Southern Roofing breached the RPA by non-payment of
the percentage of revenue due.
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20. Moreover, upon information and belief, in direct contradiction of the
aforementioned warranties, representations and covenants, by July 13, 2023, Southern Roofing
failed to remit payments of its revenue and ceased depositing all of its purchased revenue to the
designated account, despite continuing to collect revenue, in at least the form of accounts
receivable.
21. Upon information and belief, Southern Roofing further breached the RPA by
defaulting on its representations and warranties to Robin Funding Group under the RPA by
failing to deposit Southern Roofing's revenue into the bank account designated for that purpose,
by disposing of Southern Roofing's revenue and assets without Robin Funding Group's prior
express written consent, and/or by depositing purchased revenue into a bank account other than
the bank account designated for that purpose, thereby blocking the designated account from
which ACH debit payments were to be made.
22. As a result of Southern Roofing's actions, Robin Funding Group has been unable
to collect its daily (M-F) pe centage of revenue purchased from Robin Funding Group since the
date of said diversion.
23. Southern Roofing's failure to enable the transfer of purchased revenue to Robin
in accordance with the RPA continues despite notice and demands from Robin
Funding Group
Funding Group to both Southern Roofing and Mr. Moore and Mr. Mercado.
24. As a result of Southern Roofing's breach of the terms of the RPA set forth above,
Southern Roofing has defaulted under the RPA.
25. Nevertheless, Defendants Mr. Moore and Mr. Mercado have not fulfilled their
obligation as guarantor, to cure the debt owed to Robin Funding Group and abide by the
provisions of the guaranty.
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26. The RPA provides, that in the event of default, Robin Funding Group shall have
the right to enforce the provisions of the RPA and the personal guaranty and enforce its rights
and remedies by suit in equity or action by law. Exhibit A at Paragraphs 27-30.
Itemization of Claim Amount
27. Pursuant to the RPA, in the event of a default, Robin Funding Group is entitled to
recover a refund of the $152,000.00 purchased revenue amount from Southern Elite Roofing,
Inc. and Mr. Moore and Mr. Mercado less any amounts paid. Exhibit A at Paragraphs 27-30.
28. Of the $152,000.00 of revenue purchased, Southern Roofing have delivered a
total of $8,685.72 of revenue to Robin Funding Group prior to default, leaving a purchased
.
revenue balance of $141,142.85.
29. An itemization of Southern Roofing's account with Robin Funding Group is
attached as Exhibit B.
30. Pursuant to the RPA, Robin Funding Group is entitled to collect fees related to
Southern Roofing's actions regarding the designated account from which ACH debit payments
were to be made. Exhibit A at Paragraphs 17-19, 29 and Rider 2.
31. Southern Roofing incurred $2,966.29 in Fees, itemized as follows:
Non-Sufficient Fund Fees -
a) (NSF) $100.00;
Default Fee - $2,866.29.
b)
Exhibit B; Exhibit A at Paragraphs 17-19, 29 and Rider 2.
32. The total amount due at the time of default is the remaining unpaid purchased
revenue balance of $141,142.85 and the Fee amount of $2,966.29. Therefore, the total amount
due at the time of default is $144,109.14.
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33. In the event of a default, Robin Funding is also entitled to interest and
Group
costs, including attorney's fees. Exhibit A at Paragraph 29.
34. Accordingly, Robin Funding Group anticipates that Defendants Southern Elite
Roofing, Inc., Tevor P. Moore and Vincent J. Mercaldo III will be found liable, and
jointly
severally, to Robin Funding Group LLC for the amount of $144,109.14, pursuant to the RPA,
plus costs, attorney's fees and interest from July 13, 2023, the date of default.
Facts Relating to In junctive Relief
35. Southern Roofing maintains at least one bank account ending in 4054 with Bank
of America, NA. Exhibit A at pg. 4. This bank account was designated in the RPA by
Defendants for payment of the revenue purchased by Robin Funding Group pursuant to the RPA.
Exhibit A at Paragraphs 7-9.
36. Upon information and belief, Southern Roofing, Mr. Moore and Mr. Mercado
have fraudulently withdrawn and/or transferred funds from the Bank of America, NA account to
avoid their obligation to Robin Funding Group under the RPA, and to prevent Robin Funding
Group from receiving the future revenue it has purchased from Southern Roofing.
37. on or about Robin received an R08 -
Moreover, July 13, 2023, Funding Group
Payment Stopped response to the ACH payment scheduled on Southern Roofing's bank account
designated for ACH withdrawals, thus blocking Robin Funding Group from merchant's bank
account.
38. Southern Roofing, Mr. Moore and Mr. Mercado have ignored Robin Funding
Group's attempts to resolve this matter.
39. In Robin Funding Group's experience, when an account defaults within days of
funding, as this account has, the merchant is clearly attempting to deny rightful payment to
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Robin Funding Group. Unless Southern Roofing, Mr. Moore and Mr. Mercado's bank account
at Bank of America, NA is not restrained immediately, Defendants will, upon information and
belief, fraudulently transfer or otherwise dispose of revenue and assets properly belonging to
Robin Funding Group pursuant to the RPA and Robin Funding Group's purchase of Defendants
revenue.
40. For these reasons, Robin Funding requests this application be
Group respectfully
granted, and that Robin Funding Group LLC receive such other and thrther relief as may be just
and proper.
Ekaterina Mar ante
Collections M ager
Robin Fundin roup LLC
On this ay of , 2023, before me personally appeared EKATERINA
MARCIANTE, personally kn wn to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and acknowledged to me
that she executed the same in his capacity, and that by her signature on the instrument, the
individual, or the person or entity upon behalf of w ch the dividual acted, executed the
instrument.
Notary Public, State of New York
My Commission Expires:
Notary Stamp/Seal:
DAVID J. AUSTIN, ESQ.
Notary PuMic, State of New York
No. 02AU6403326
Qualified iri Kings County
My Commission Expires Jan. 21, 2024
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Preview
FILED: NEW YORK COUNTY CLERK 07/18/2023 01:13 AM INDEX NO. 653430/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/18/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ROBIN FUNDING GROUP LLC, Plaintiff, Index No.: -against- SOUTHERN ELITE ROOFING, INC., AFFIDAVIT OF FACTS TEVOR P. MOORE and VINCENT J. MERCALDO III, Defendants. STATE OF NEW YORK } } ss.: COUNTY OF ROCKLAND } EKATERINA MARCIANTE being duly sworn deposes and says the following, subject to the penalties of perjury: 1. I am the Collections Manager for Plaintiff Robin Funding Group LLC ("Robin Funding Group") and supervise all aspects of Robin Funding Group's business operations. As such, I have personal knowledge as to Robin Funding Group's procedures and business practices, including the making, using and maintenance of business records. I have reviewed Robin Funding Group's books and records as they pertain to Defendants Southern Elite Roofing, Inc. ("Southern Roofing"), Tevor P. Moore and Vincent J. Mercaldo III ("Mr. Moore and Mr. Mercado") and am fully familiar with such. 2. This affidavit is based on my personal knowledge, except as to those matters stated upon information and belief, and as to those matters, I believe them to be true. 3. I make this Affidavit in support of Robin Funding Group's Order to Show Cause pursuant to the Civil Practice Law and Rules (CPLR) § 6301 for (a) a temporary restraining 1 of 8 FILED: NEW YORK COUNTY CLERK 07/18/2023 01:13 AM INDEX NO. 653430/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/18/2023 Order restraining the funds in all accounts of Defendants Southern Roofing, Mr. Moore and Mr. Mercado at Bank of America, the account in 4054, NA, including ending up to the sum of $144,109.14, or such other amount as the Court deems just and the and 4 proper, pending hearing determination of this application, and (b) a preliminary injunction Order for the same relief, pending the resolution of this action, respectively, and until further Order of the Court, and for such other and further relief as this Court deems just and proper. Defendants' 4. This action arises from default and persistent failure to honor their contractual obligations and facilitate the transfer of purchased future revenue to Robin Funding Group, as designated by the Revenue Purchase Agreement ("RPA") dated July 5, 2023. A true and correct copy of the RPA is annexed hereto at Exhibit A. 5. The business records annexed to this Affidavit at Exhibit B were made in the regular course of business and are maintained under my supervision and control. 6. It is respectfully requested that the Court grant this application based on Defendants' breaches and actions in this matter as verified in the complaint at Exhibit C and as further set forth below. Jurisdiction and Venue 7. Robin Funding Group is a New York entity duly authorized to conduct business in New York with its principal place of business within New York State. 8. The RPA contains a forum selection clause choice of law provision designating State." New York Exhibit A at Paragraph 43. 9. As the RPA contains a forum selection clause choice of law provision designating New York State, and as Defendants have consented to the RPA, maintaining the present action in . New York Supreme Court, New York County is proper. Moreover, the RPA provision contains 2 of 8 FILED: NEW YORK COUNTY CLERK 07/18/2023 01:13 AM INDEX NO. 653430/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/18/2023 a clause waiving any objection on the basis of the forum inconvenient or the venue being being improper. 10. Furthermore, as Robin Funding Group is located in New York State, the present action has a strong nexus to New York State. For example, the RPA was entered into in New Defendants' York State, the purchase price for future revenue was made from Robin Funding Group in New York State, and payments of the future revenue purchased from Defendants were contracted by the RPA to be made to Robin Funding Group in New York State. 11. Moreover, prior to default, Defendants made payments of the purchased future revenue to Robin Funding Group in New York State. 12. For the reasons set forth herein, Robin Funding Group respectfully submits that this Court has and maintains both subject matter and personal jurisdiction in this action, and Defendants' motion to dismiss should therefore be denied. Summary of Facts and Claims 13. Pursuant to the RPA, Robin Funding Group purchased $152,000.00 of future revenue ("purchased revenue") generated in the course of Southern Roofing's business. Exhibit A at pg. 1. 14. Robin Funding Group paid Southern Roofing the amount of $100,000.00 as the agreed upon purchase price for the purchased revenue (Exhibit A at pg. 1) minus contractual underwriting and/or origination fees in the amount of $8,000.00. Exhibit A at Paragraphs 17-19, 29 and Rider 2. Defendants accepted payment for the purchased revenue without comment or objection. 3 of 8 FILED: NEW YORK COUNTY CLERK 07/18/2023 01:13 AM INDEX NO. 653430/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/18/2023 15. Pursuant to the RPA, Southern agreed to provide payments , Roofing daily (M-F) of Roofing' $2,171.43, which represents 12 percent (12%) of Southern future revenue until the purchase price for the purchased revenue was paid in full. Exhibit A at pg. 1. 16. Southern Roofing also made numerous warranties, representations and covenants pursuant to the RPA, including: a. To provide Robin Funding Group an accurate representation of the financial state of Southern Roofing's business and to proactively and continually appraise Robin Funding Group of any material adverse changes thereto. Exhibit A at Paragraphs 21a and 34. b. To designate and maintain a bank account for electronic fund transfers to Robin Funding Group to facilitate payment for the purchased revenue, including accounts receivable. Exhibit A at Paragraphs 7-9. c. Not to change, alter or discontinue the bank account used for electronic fund transfers to Robin Funding Group. Exhibit A at Paragraphs 21h-i. 17. Southern Roofing agreed that in the event of default under the RPA, the full uncollected purchased revenue, plus all fees under the RPA would become immediately due and payable in full to Robin Funding Group. Exhibit A at Paragraphs 27-30. 18. Furthermore, Mr. Moore and Mr. Mercado submitted to Robin Funding Group a separately executed, personal guaranty of performance, securing Southern Roofing's performance of all the covenants and obligations under the RPA. Exhibit A at pgs. 16-18. 19. On at least July 13, 2023, Southern Roofing breached the RPA by non-payment of the percentage of revenue due. 4 of 8 FILED: NEW YORK COUNTY CLERK 07/18/2023 01:13 AM INDEX NO. 653430/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/18/2023 20. Moreover, upon information and belief, in direct contradiction of the aforementioned warranties, representations and covenants, by July 13, 2023, Southern Roofing failed to remit payments of its revenue and ceased depositing all of its purchased revenue to the designated account, despite continuing to collect revenue, in at least the form of accounts receivable. 21. Upon information and belief, Southern Roofing further breached the RPA by defaulting on its representations and warranties to Robin Funding Group under the RPA by failing to deposit Southern Roofing's revenue into the bank account designated for that purpose, by disposing of Southern Roofing's revenue and assets without Robin Funding Group's prior express written consent, and/or by depositing purchased revenue into a bank account other than the bank account designated for that purpose, thereby blocking the designated account from which ACH debit payments were to be made. 22. As a result of Southern Roofing's actions, Robin Funding Group has been unable to collect its daily (M-F) pe centage of revenue purchased from Robin Funding Group since the date of said diversion. 23. Southern Roofing's failure to enable the transfer of purchased revenue to Robin in accordance with the RPA continues despite notice and demands from Robin Funding Group Funding Group to both Southern Roofing and Mr. Moore and Mr. Mercado. 24. As a result of Southern Roofing's breach of the terms of the RPA set forth above, Southern Roofing has defaulted under the RPA. 25. Nevertheless, Defendants Mr. Moore and Mr. Mercado have not fulfilled their obligation as guarantor, to cure the debt owed to Robin Funding Group and abide by the provisions of the guaranty. 5 of 8 FILED: NEW YORK COUNTY CLERK 07/18/2023 01:13 AM INDEX NO. 653430/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/18/2023 26. The RPA provides, that in the event of default, Robin Funding Group shall have the right to enforce the provisions of the RPA and the personal guaranty and enforce its rights and remedies by suit in equity or action by law. Exhibit A at Paragraphs 27-30. Itemization of Claim Amount 27. Pursuant to the RPA, in the event of a default, Robin Funding Group is entitled to recover a refund of the $152,000.00 purchased revenue amount from Southern Elite Roofing, Inc. and Mr. Moore and Mr. Mercado less any amounts paid. Exhibit A at Paragraphs 27-30. 28. Of the $152,000.00 of revenue purchased, Southern Roofing have delivered a total of $8,685.72 of revenue to Robin Funding Group prior to default, leaving a purchased . revenue balance of $141,142.85. 29. An itemization of Southern Roofing's account with Robin Funding Group is attached as Exhibit B. 30. Pursuant to the RPA, Robin Funding Group is entitled to collect fees related to Southern Roofing's actions regarding the designated account from which ACH debit payments were to be made. Exhibit A at Paragraphs 17-19, 29 and Rider 2. 31. Southern Roofing incurred $2,966.29 in Fees, itemized as follows: Non-Sufficient Fund Fees - a) (NSF) $100.00; Default Fee - $2,866.29. b) Exhibit B; Exhibit A at Paragraphs 17-19, 29 and Rider 2. 32. The total amount due at the time of default is the remaining unpaid purchased revenue balance of $141,142.85 and the Fee amount of $2,966.29. Therefore, the total amount due at the time of default is $144,109.14. 6 of 8 FILED: NEW YORK COUNTY CLERK 07/18/2023 01:13 AM INDEX NO. 653430/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/18/2023 33. In the event of a default, Robin Funding is also entitled to interest and Group costs, including attorney's fees. Exhibit A at Paragraph 29. 34. Accordingly, Robin Funding Group anticipates that Defendants Southern Elite Roofing, Inc., Tevor P. Moore and Vincent J. Mercaldo III will be found liable, and jointly severally, to Robin Funding Group LLC for the amount of $144,109.14, pursuant to the RPA, plus costs, attorney's fees and interest from July 13, 2023, the date of default. Facts Relating to In junctive Relief 35. Southern Roofing maintains at least one bank account ending in 4054 with Bank of America, NA. Exhibit A at pg. 4. This bank account was designated in the RPA by Defendants for payment of the revenue purchased by Robin Funding Group pursuant to the RPA. Exhibit A at Paragraphs 7-9. 36. Upon information and belief, Southern Roofing, Mr. Moore and Mr. Mercado have fraudulently withdrawn and/or transferred funds from the Bank of America, NA account to avoid their obligation to Robin Funding Group under the RPA, and to prevent Robin Funding Group from receiving the future revenue it has purchased from Southern Roofing. 37. on or about Robin received an R08 - Moreover, July 13, 2023, Funding Group Payment Stopped response to the ACH payment scheduled on Southern Roofing's bank account designated for ACH withdrawals, thus blocking Robin Funding Group from merchant's bank account. 38. Southern Roofing, Mr. Moore and Mr. Mercado have ignored Robin Funding Group's attempts to resolve this matter. 39. In Robin Funding Group's experience, when an account defaults within days of funding, as this account has, the merchant is clearly attempting to deny rightful payment to 7 of 8 FILED: NEW YORK COUNTY CLERK 07/18/2023 01:13 AM INDEX NO. 653430/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/18/2023 Robin Funding Group. Unless Southern Roofing, Mr. Moore and Mr. Mercado's bank account at Bank of America, NA is not restrained immediately, Defendants will, upon information and belief, fraudulently transfer or otherwise dispose of revenue and assets properly belonging to Robin Funding Group pursuant to the RPA and Robin Funding Group's purchase of Defendants revenue. 40. For these reasons, Robin Funding requests this application be Group respectfully granted, and that Robin Funding Group LLC receive such other and thrther relief as may be just and proper. Ekaterina Mar ante Collections M ager Robin Fundin roup LLC On this ay of , 2023, before me personally appeared EKATERINA MARCIANTE, personally kn wn to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in his capacity, and that by her signature on the instrument, the individual, or the person or entity upon behalf of w ch the dividual acted, executed the instrument. Notary Public, State of New York My Commission Expires: Notary Stamp/Seal: DAVID J. AUSTIN, ESQ. Notary PuMic, State of New York No. 02AU6403326 Qualified iri Kings County My Commission Expires Jan. 21, 2024 8 of 8