Preview
FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM INDEX NO. E2023006654
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3482314
Book Page CIVIL
Return To: No. Pages: 24
DOMINICK R. DALE
7002 Nansen Street Instrument: MISCELLANEOUS DOCUMENT
New YorkForest Hills, NY 11375
Control #: 202307010006
Index #: E2023006654
Date: 07/01/2023
EBF HOLDINGS, LLC Time: 12:40:27 AM
JULIO CESAR LONDONO
LONDONO, JULIO CESAR
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
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EBF HOLDINGS, LLC D/B/A EVEREST BUSINESS Index No.: E2023006654
FUNDING,
ANSWER AND
Plaintiff, AFFIRMATIVE
DEFENSES AND
-against- COUNTERCLAIMS
JULIO CESAR LONDONO D/B/A DISTRIBUIDORA
DEL VALLE AND JULIO CESAR LONDONO,
Defendant.
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Defendant, DISTRIBUIDORA DEL VALLE ET. AL. by and through its attorneys,
Dominick Dale Esq., as and for Defendant's Answer to the Complaint, states as follows:
The Parties
1. Defendants deny having sufficient knowledge to either admit or deny the allegations contained
in Paragraph 1 of the complaint.
2. Defendants admit the allegations contained in Paragraph 2 of the complaint.
3. Defendants deny the allegations contained in Paragraph 3 of the complaint, specifically
Defendants assert that the “agreement” referred to is a de facto unlawful usurious loan and not
an asset purchase agreement.
4. Defendants deny the allegations contained in Paragraph 4-5 of the complaint, specifically
Defendants deny that the agreement and/or clause in the contract is valid on personal
jurisdiction grounds as well as pursuant to GOL § 5-1402. Additionally, venue is improper for
the same reasons asserted above. Pursuant to CPLR §§503 and 511, venue is not proper.
Plaintiff does not have personal jurisdiction over the defendant. Defendants deny having
sufficient knowledge to either admit or deny the allegations contained in Paragraph 4-5 of the
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complaint. Without waiving objections, the plaintiff failed to obtain upon personal jurisdiction
over the defendant. To the extent a response is required, the Defendants deny the allegations
and demand strict proof thereof.
The Facts
5. Defendants deny the allegations contained in Paragraph 6-14 of the complaint as same require
legal conclusions to which no response is required. To the extent that a response is required
and without waiving any objections, the plaintiff failed to establish facts necessary to establish
breach of contract [ Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804,
806, 921 N.Y.S.2d 260, 263 (2011); Krigsfeld v. Feldman, 115 A.D.3d 712, 712, 982 N.Y.S.2d
487, 488 (2014) ] To the extent a response is required, the Defendants deny the allegations and
demand strict proof thereof.
Answering “As And For A First Cause Of Action—Breach Of Contract”
6. Defendants deny the allegations contained in Paragraph 15-19 of the complaint as same require
legal conclusions to which no response is required. To the extent that a response is required,
defendants object to these allegations because the plaintiff has failed to establish breach of
contract. To the extent that a response is required and without waiving any objections, the
plaintiff failed to properly allege defendant's failure to perform and resulting damage. [
Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804, 806, 921 N.Y.S.2d
260, 263 (2011); Krigsfeld v. Feldman, 115 A.D.3d 712, 712, 982 N.Y.S.2d 487, 488 (2014) ]
To the extent a response is required, the Defendants deny the allegations and demand strict
proof thereof.
Answering “As And For A Second Cause Of Action—Personal Guarantee”
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7. Defendants deny the allegations contained in Paragraph 20-23 of the complaint as same require
legal conclusions to which no response is required. To the extent that a response is required,
defendants object to these allegations because the plaintiff has failed to establish breach of
contract. To the extent that a response is required and without waiving any objections, the
plaintiff failed to properly allege defendant's failure to perform and resulting damage. [
Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804, 806, 921 N.Y.S.2d
260, 263 (2011); Krigsfeld v. Feldman, 115 A.D.3d 712, 712, 982 N.Y.S.2d 487, 488 (2014) ]
To the extent a response is required, the Defendants deny the allegations and demand strict
proof thereof.
AFFIRMATIVE DEFENSES
AND AS FOR A FIRST AFFIRMATIVE DEFENSE
8. The Complaint fails to state a cause of action upon which relief can be granted. Plaintiff failed
to set forth facts sufficient to state or constitute a cause and/or causes of action on which relief
might be granted.
AND AS FOR A SECOND AFFIRMATIVE DEFENSE
9. The contract is unconscionable. The contract is so grossly unreasonable as to be unenforceable
because the terms of the contract completely favored the plaintiff and was completely
unreasonable toward the defendant. The plaintiff used high pressure commercial tactics and
deceptive practices. The agreement contains inflated unlawful and illegal purchase price,
inflated unlawful and illegal percentage of receivables purchased, unfair termination clauses,
unfair limitations on consequential damages, unlawful sale of the business, unlawful, illegal
and unfair attorney fees, and improper disclaimers. Pursuant to UCC § 2-302, this honorable
court deem this agreement unconscionable as a matter of law and deem it unenforceable.
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AND AS FOR A THIRD AFFIRMATIVE DEFENSE
10. Plaintiff is seeking to recover more than its entitled to recover in this case, and an award of the
judgment sought by the claimant would unjustly enrich the plaintiff. Excessive fees charged
by Plaintiff including, but not limited to various liquidated damages clauses in the contract are
attempted to be charged as penalties which are contrary to law to wit would unjustly enrich the
plaintiff. The plaintiff negligently induced the defendant into this unreasonable and predatory
agreement. The plaintiff placed the defendant in a position to breach to wit the plaintiff would
be entitled to attorneys fees. In other words, the defendant was intentionally “set up to fail.”
The plaintiff had no intention of financially assisting the defendant with its business.
AND AS FOR A FOURTH AFFIRMATIVE DEFENSE
11. Plaintiff violated and breached the duty of good faith and fair dealing. Under the implied
covenant of good faith and fair dealing, the plaintiff has recklessly, intentionally, and
negligently damaged and injured the defendant’s business through the service and filing of
UCC liens. The plaintiff misrepresented that this agreement was a cash advance. The
agreement is an unlawful taking and sale of the defendant’s business.
AND AS FOR A FIFTH AFFIRMATIVE DEFENSE
12. The plaintiff is suing for the wrong amount. The plaintiff is not entitled to attorney’s fees or
interest as they are punitive in nature.
AND AS FOR A SIXTH AFFIRMATIVE DEFENSE
13. Plaintiff's filing of this matter against Defendants violates the doctrine of laches. The plaintiff
is barred from the enforcement of a right where there has been an unreasonable and inexcusable
delay that results in prejudice to a party.
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AND AS FOR A SEVENTH AFFIRMATIVE DEFENSE
14. The Plaintiff failed to mitigate damages. It has not been alleged that the funds remitted by the
defendant have been invested in another contract or transaction that would reduce the damages
resulting from the alleged breach of contract.
AND AS FOR A EIGHTH AFFIRMATIVE DEFENSE
15. If a valid, enforceable contract between the defendant and the plaintiff is found, Defendant
asserts that the plaintiff obtained the defendant's consent to the contract or transaction through
fraud, deceit, or misrepresentation by the plaintiff, and that as a result, the contract is invalid.
AND AS FOR A NINTH AFFIRMATIVE DEFENSE
16. The alleged damage of Plaintiff resulted from new and independent, unforeseeable,
superseding and/or intervening causes unrelated to the conduct of answering defendant.
AND AS FOR A TENTH AFFIRMATIVE DEFENSE
17. Upon information and belief, all hazards and risks incident to the circumstances set
forth in the Complaint were obvious and apparent, and were readily assumed by the plaintiff,
If it is determined that the plaintiff assumed the risk, the defendant pleads said facts in
diminution of damages in the proportion which the culpable conduct attributable to the plaintiff
bears to the culpable conduct which caused the alleged resultant damages.
AND AS FOR A ELEVENTH AFFIRMATIVE DEFENSE
18. Plaintiff has not established subject jurisdiction over the defendant. The court lacks jurisdiction
over the defendant. Subject matter jurisdiction is lacking. Complaint to be dismissed based
upon subject matter jurisdiction.
AND AS FOR A TWELFTH AFFIRMATIVE DEFENSE
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19. The complaint fails to state a cause of action upon which relief may be granted. The plaintiff
has failed to establish a breach of contract. The plaintiff has failed to demonstrate the following
(1) formation of a contract between plaintiff and defendant, (2) defendant's failure to perform,
and (3) resulting damage. [ Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d
804, 806, 921 N.Y.S.2d 260, 263 (2011); Krigsfeld v. Feldman, 115 A.D.3d 712, 712, 982
N.Y.S.2d 487, 488 (2014) ]
AND AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE
20. Plaintiff induced Defendant into entering into an unlawful usurious loan and not an asset
purchase agreement.
AND AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE
21. Pursuant to CPLR Article 16, the liability of this Defendant to the Plaintiff for noneconomic
loss shall not exceed the equitable share of this Defendant determined in accordance with the
relative culpability of each person/party causing or contributing to the total liability for non-
economic loss.
AND AS FOR A FIFTEENTH AFFIRMATIVE DEFENSE
22. If the injuries and damages were sustained by the plaintiff at the time and place and in the
manner alleged in the Complaint, such damages and injuries are attributable, in whole or in
part, to the culpable conduct of the plaintiff and if any damages are recoverable the amount of
such damages shall be diminished in the proportion which the culpable conduct attributable to
Plaintiff bears to the culpable conduct which caused the damages.
AND AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE
23. That recovery, if any, on the Complaint of the Plaintiff shall be reduced by the
amounts paid or reimbursed by collateral sources in accordance with CPLR 4545(c)
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AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
24. Plaintiff seeks to enforce an adhesion contract. By using deceptive language, the plaintiff
persuaded the defendant to enter into the agreement. The plaintiff has much greater bargaining
power than the weaker defendant. It is against the public interest for the defendant to be
subjected to such an oppressive relationship.
AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE
25. Plaintiff has failed to join a necessary and indispensable party to this action.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
26. The damages as alleged in the Complaint are not the result of negligent conduct on the part of
Defendant.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
27. If a valid, enforceable contract between the defendant and the plaintiff is found, Defendant
performed all duties owed other than any duties which were prevented or excused, and
therefore never breached the agreement.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
28. The action is devoid of merit because Plaintiff has no basis for recovery against Defendant.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
29. The Complaint fails to provide any information regarding the alleged claim, other
than an unsupported demand amount and an unsupported interest accrual date
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
30. Plaintiff has failed to properly document the cost of the damage
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
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31. Based upon the forgoing, the plaintiff’s claims are barred by the doctrine of unclean hands.
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
32. This Court has no jurisdiction over the person of defendant in that service of process was
insufficient and not perfected under the applicable rules of the Civil Practice Law and Rules.
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
33. Plaintiff acted unethically, unlawfully, or in bad faith and misrepresented significant facts
that pertain to the underlying basis for the subject claim
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
34. The services in dispute were provided by an independent contractor and not by Plaintiff or its
employee, such that Plaintiff is not entitled to receive direct payment from the defendant.
AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
35. Plaintiff engaged in deceptive acts and practices unlawful.
AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
36. The acts or omissions of the plaintiff were the sole proximate cause of the damages asserted.
AS AND FOR AN THIRTIETH AFFIRMATIVE DEFENSE
37. Complaint is barred by the doctrine of waiver.
AS AND FOR AN THIRTY-FIRST AFFIRMATIVE DEFENSE
38. The plaintiff violated its fiduciary duty pursuant to GOL § 5-1505.
AS AND FOR AN THIRTY-SECOND AFFIRMATIVE DEFENSE
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39. The sale of reasonableness was not done in a commercially reasonable manner and the plaintiff
is precluded from recovering the deficiency from the defendant debtor as damages pursuant to
see UCC § 9-626.
AS AND FOR AN THIRTY-THIRD AFFIRMATIVE DEFENSE
40. The defendant hereby gives notice that they intend to rely upon such other and further
defenses as may become available or apparent during discovery proceedings in this action and
hereby reserve the right to amend their Answer and to assert any such defense. Defendant
therefore reserves the right to assert any additional defenses that may be applicable and to
withdraw any defenses that are inapplicable once the precise nature of the claims are
ascertained through discovery and investigation.
COUNTERCLAIMS
Counter-Plaintiffs, DISTRIBUIDORA DEL VALLE ET.AL. jointly and individually, sue
Counter-Defendant jointly and individually, sue Counter-Defendant EBF HOLDINGS, LLC
D/B/A EVEREST BUSINESS FUNDING and allege as follows:
1. At all relevant times, Counter-Plaintiff was and is an LLC operating DISTRIBUIDORA
DEL VALLE
2. Upon information and belief, Counter-Plaintiff, DISTRIBUIDORA DEL VALLE ET AL
is Limited Liability Company organized and existing under the laws of the State of Texas.
3. Upon information and belief, Counter-Plaintiff Julio Lodono an individual residing in the
State of Texas.
4. The responses of the Counter-Plaintiffs to the complaint filed by the Counter-Defendant,
as well as the affirmative defenses thereto, are incorporated herein in their entirety.
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5. Upon information and belief, Counter-Plaintiffs and Counter-Defendant entered into a
contract which referenced in the complaint filed herein is incorporated herein in its entirety, but
its admissibility is not admitted.
6. Counter-plaintiff failed to produce a sufficient amount of receivables to remit payment, to
wit the counter-plaintiff did not breach the alleged agreement.
7. The counter-defendant breached the fiduciary duty as counter-plaintiff’s attorney in fact.
8. The counter-defendant falsely, intentionally and negligently, represented that the
agreement was cash advance
FIRST CAUSE OF ACTION
(COMMON LAW FRAUD)
9. The preceding paragraphs are incorporated herein.
10. Counter-Defendant represented, advertised, marketed, and otherwise promoted that their
business financial services and products, including but not limited to loan products; cash advances,
purchase and sale of future receivables, and/or business loan related funding were compliant,
lawful, correct. and true under federal and state banking, lending, consumer protection, and
business regulations and laws.
11. Those representations were false and known to be false by the Counter-Defendant at the
time they were made and said business financial services and products, including but not limited
to loan products, cash advances, purchase and sale of future receivables, and/or business loan
related funding, were non-compliant, illicit, unlawful, untrue, and false as contained within the
agreement but also pursuant to federal and state banking, lending, and business regulations and
laws.
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12. The representations by Counter-Defendant were intentionally made for the purpose of
creating business financial services and products that were based on false, misrepresented,
noncompliant, illicit, incorrect, and false as contained within the agreement but also pursuant to
federal and state banking, lending, and business regulations and laws.
13. The representations by Counter-Defendant were intentionally made for the purpose of
creating business financial services and products, that were based on false, misleading, confusing,
predatory, manipulative, and otherwise intended and designed to deceive, exploit, obtain gain, and
advantage of Counter-Plaintiffs including but not limited to exorbitant interest rate payments, fees,
costs and/or illicit business financial, banking, and/or lending practices with respect to Plaintiff
sales of future receivables and/or business loan related funding.
14. The representations were material as but for Counter-Defendant' expressions of them,
Counter-Plaintiffs would not have undertaken the course of conduct that it did including applying,
purchasing, and obtaining Counter-Defendant' business financial services and products, including
but not limited to loan products, cash advances, purchase and sale of future receivables, and/or
business loan related funding.
15. Counter-Defendant knew that the representations were false when expressed.
16. Counter-Defendant intended that Counter-Plaintiffs act on the representations in the
manner reasonably contemplated by Counter-Plaintiffs.
17. Counter-Defendant, individually and in collusion with others, intentionally advertised,
marketed, and promoted their business lending, bank, and loan financial services and products to
businesses in financial distress, and using predatory business practices, to entice purported
vulnerable and industrious businesses toward Counter-Defendant's goods and services.
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18. Counter-Plaintiffs did not know and could not have known the representations were
false when made.
19. Counter-Plaintiffs reasonably relied on the representations as truthful.
20. Counter-Defendant made the fraudulent representations egregiously, willfully,
purposefully, maliciously and with wanton disregard for Counter-Defendant's rights.
21. In addition to the foregoing, Counter-Defendant purposefully concealed material facts
from Counter-Plaintiffs namely, those relating to their true reasons for advertising, marketing, and
promoting, applying, purchasing, and obtaining, Counter-Defendant' business financial services
and products, including but not limited to loan products, cash advances, purchase and sale of future
receivables, and/or business loan related funding as otherwise set forth at length hereinbefore.
22. Counter-Defendant purposefully concealed the same intending and knowing Counter
Plaintiffs would rely on the same concealment to associate with and accept influence
from Counter-Defendant as alleged hereinbefore.
23. Counter-Plaintiffs reasonably relied on Counter-Defendant' concealment. Counter-
Defendant' concealment was motivated by their actual malice and wanton and
purposeful disregard of Counter-Plaintiffs' rights.
24. The above-described acts of Counter-Defendant constitute fraud.
25. As a direct and proximate result of Counter-Defendant fraud, Counter-Plaintiffs
sustained harm.
SECOND CAUSE OF ACTION
(INTENTIONAL MISREPRESENTATION)
26. The preceding paragraphs are incorporated herein
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27. Counter-Defendant intentionally, willfully, and knowingly misrepresented, advertised,
marketed, and otherwise promoted that their business financial services and products, including
but not limited to loan products, cash advances, purchase and sale of future receivables, and/or
business loan related funding was compliant, lawful, correct, and as contained within the
agreement but also pursuant to federal and state banking, lending, and business regulations and
laws.
28. Those misrepresentations were intentionally, willfully, and knowingly false and
known to be false by the Counter-Defendant at the time they were made and said
bank loan was not lawful.
29. Counter-Defendant, individually and in collusion with each other, intentionally advertised,
marketed, and promoted their business lending, bank, and loan financial service and products to
businesses in the distressed communities, and using predatory business practices, to entice
purported vulnerable and industrious businesses toward Counter-Defendant' goods and services.
30. Counter-Defendant has no reasonable grounds to believe that these misrepresentations
were true, especially where their business financial services and products, including but not limited
to loan products, cash advances, purchase and sale of future receivables, and/or business loan
related funding, where such documents, including but not limited to advertising, promotional
materials, contracts, applications. and/or disclosure documents used in conjunction with Counter-
Defendant' business financial services and product, were either not true or intentionally, willfully,
and knowingly fabricated by Counter-Defendant, including the documents used herein.
31. Counter-Defendant intentionally, willfully, and knowingly sought to induce Counter-
Plaintiffs to rely on its misrepresentations and Counter-Defendant knew, because of their
misrepresentations, that Counter-Plaintiffs would use their financial services and products,
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including but not limited to loan products, cash advances, purchase and sale of future receivables,
and/or business loan related funding. Counter-Defendant had reason to expect that Counter
Plaintiffs would rely on the misrepresentations that it made to Counter Plaintiffs because of the
continuous relationship prior, during business financial services and products, loan applications
and final closing.
32. Counter-Plaintiffs reasonably relied upon the representations Counter-Defendant
made.
33. Counter-Plaintiffs were justified in relying upon Counter-Defendant's representations that
they were making and otherwise providing such business financial services and products, including
but not limited to loan products, cash advances, purchase and sale of future receivables, and/or
business loan related funding, and business based loans in accordance with banking, 'lending, and
consumer protection laws because Counter-Defendant was duly authorized to do business under
such banking, lending, and/or consumer protection laws.
34. Counter-Plaintiffs have and continue to be substantially harmed by Counter-Defendant's
intentional, willful and malicious misrepresentations because they induced and elicited Counter
Plaintiffs to apply, consent to, purchase, buy, and otherwise utilize, Counter-Defendant's business
financial services and products, including but not limited to loan products, cash advances, purchase
and sale of future receivables, and/or business loan related funding.
THIRD CAUSE OF ACTION
(NEGLIGENT MISREPRESENTATION)
35. The preceding paragraphs are incorporated herein.
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36. Counter-Defendant negligently misrepresented represented, advertised, marketed, and
otherwise promoted that their business financial services and products, including but not limited
to loan products, cash advances, purchase and sale of future receivables, and/or business loan
related funding was compliant, lawful, correct, and true under federal and state banking, lending,
consumer protection, and business regulations and laws.
37. Counter-Defendant negligently advertised, marketed, and promoted their business lending,
banking and loan financial services and products to businesses in the vulnerable communities, and
using predatory business practices, to entice purported vulnerable and industrious businesses
toward Counter-Defendant's goods and services.
38. Those misrepresentations were negligent and knowingly false and known to be false
by the Counter-Defendant at the time they were made and said bank loan was not
lawful.
39. Counter-Defendant has no reasonable grounds to believe that these misrepresentations
were true, especially where their business financial services and products, including but not limited
to loan products, cash advances, purchase and sale of future receivables, and/or business loan
related funding, where such documents, including but not limited to advertising, promotional
materials, contracts, applications, and/or disclosure documents used in conjunction with
CounterDefendant business financial services and product, were either not true or
intentionally, willfully, and knowingly fabricated by Counter-Defendant, including the documents
used herein.
40. Counter-Defendant negligently sought to induce Counter-Plaintiffs to rely on their
misrepresentations and Counter-Defendant knew, because of their misrepresentations, that
Counter-Plaintiffs would use their business financial services and products, including but not
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limited to loan products, cash advances, purchase and sale of future receivables, and/or business
loan related funding. Counter-Defendant had reason to expect that Counter-Plaintiffs would rely
on the misrepresentations that they made to Counter-Plaintiffs because of the continuous
relationship prior, during business financial services and products, loan applications and final
closing.
41. Counter-Plaintiffs reasonably relied upon the representations Counter-Defendant
made.
42. Counter-Plaintiffs were justified in relying upon Counter-Defendant' representations
that they were making and otherwise providing such business financial services and products,
including but not limited to loan products, cash advances, purchase and sale of future receivables,
and/or business loan related funding, and business based loans in accordance with banking,
lending, and consumer protection laws because Counter-Defendant were duly authorized to do
business under such banking, lending, and/or consumer protection laws.
43. Counter-Plaintiffs have and continue to be substantially harmed by Counter-Defendant'
intentional, willful and malicious misrepresentations because it induced and elicited Counter-
Plaintiffs to apply, consent to, purchase, buy, and otherwise utilize, Counter-Defendant' business
financial services and products, including but not limited to loan products, cash advances, purchase
and sale of future receivables, and/or business loan related funding.
FOURTH CAUSE OF ACTION
(UNJUST ENRICHMENT)
44. The preceding paragraphs are incorporated herein.
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45. Counter-Defendant came into possession of Counter-Plaintiffs' fees, costs, business
receivables, interest and/or principal payments, including but not limited to a result of Counter-
Defendant's loan products, cash advances, purchase and sale of future receivables, and/or business
loan related funding and have been unjustly enriched thereby to Counter-Plaintiffs detriment.
46. Counter-Defendant enjoyed the use, benefits, and privileges of possession of the
aforesaid sum and used it in their banking, financing and/or lending business activities deriving
substantial revenues and profits there from.
47. Counter-Plaintiffs have been deprived of said monies.
48. Counter-Defendant has been unjustly enriched by their possession and use of the
aforesaid sum.
FIFTH CAUSE OF ACTION
(MONIES HAD AND RECEIVED)
49. The preceding paragraphs are incorporated herein.
50. Counter-Defendant received substantial profits, revenue, fees, costs, business receivables,
interest and/or principal payments, including but not limited to a result of Counter-Defendant loan
products, cash advances, purchase and sale of future receivables, and/or business loan related
funding.
51. Counter-Defendant did not perform and/or provide commensurate financing, banking,
and/or lending related services related to the profits, revenue, fees, costs, business receivables,
interest and/or principal payments, including but not limited to a result of their loan products, cash
advances, purchase and sale of future receivables, and/or business loan related funding.
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E2023006654
FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023
52. Counter-Defendant has refused to return these sums to Counter-Plaintiffs despite their
repeated demands for same.
SIXTH CAUSE OF ACTION
(BREACH OF GOOD FAITH AND FAIR DEALING)
53. The preceding paragraphs are incorporated herein.
54. At all material times, Counter-Defendant extended and arranged the extension of credit, or
offered to extend or arrange for the extension of such credit, including but not limited to Counter-
Defendant loan products, cash advances, purchase and sale of future receivables. and/or business
loan related funding.
55. Counter-Defendant maintained a duty of good faith and fair dealing with respect to their
contractual loans and banking business and activities with respect to Counter-Plaintiffs, and based
upon the course of conduct involving misrepresentation, fraud, and deceit, breached their duty of
good faith and fair dealing. causing Counter-Plaintiffs undue economic harm and damages.
56. The counter-plaintiff was not in breach of the agreement yet was deprived of the use of its
business.
SEVENTH CAUSE OF ACTION
(BREACH OF FIDUCIARY DUTY)
57. The preceding paragraphs are incorporated herein.
58. At all times relevant hereto, Counter-Defendant were de facto fiduciaries and owed a
fiduciary duty and quasi-fiduciary duties to Counter-Plaintiffs, obliging the lender, financing,
and/or credit company to deal honestly, fairly, and in affirmative good faith toward the Counter
Plaintiffs to advise it competently affecting matters in their relationship, and to refrain from actions
19 of 24
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FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM
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that would otherwise constitute conflicts of interest. self-dealing, misrepresentation, fraud, and/or
other course of conduct that would breach their ethical and fiduciary duties with respect to
Counter-Plaintiffs.
59. The Counter-Defendant breached their fiduciary duty and quasi-fiduciary duties to
Counter-Plaintiffs by their pattern of wrongful acts and omissions as set forth herein, including but
not limited to:
a. representing that the loan, lending, and/or financing documents were lawful,
correct and true under the banking, usury, financing, and lending laws and
when such representations were false and known to be false;
b. making false representations for the purpose of creating banking, usury,
financing, and lending products and/or services, including but not limited to
loan products, cash advances, purchase and sale of future receivables,
and/or business loan related funding;
c. designing, applying. effectuating, underwri
Preview
FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM INDEX NO. E2023006654 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3482314 Book Page CIVIL Return To: No. Pages: 24 DOMINICK R. DALE 7002 Nansen Street Instrument: MISCELLANEOUS DOCUMENT New YorkForest Hills, NY 11375 Control #: 202307010006 Index #: E2023006654 Date: 07/01/2023 EBF HOLDINGS, LLC Time: 12:40:27 AM JULIO CESAR LONDONO LONDONO, JULIO CESAR Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 24 202307010006 Index # INDEX : E2023006654 NO. E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE --------------------------------------------------------------------X EBF HOLDINGS, LLC D/B/A EVEREST BUSINESS Index No.: E2023006654 FUNDING, ANSWER AND Plaintiff, AFFIRMATIVE DEFENSES AND -against- COUNTERCLAIMS JULIO CESAR LONDONO D/B/A DISTRIBUIDORA DEL VALLE AND JULIO CESAR LONDONO, Defendant. --------------------------------------------------------------------X Defendant, DISTRIBUIDORA DEL VALLE ET. AL. by and through its attorneys, Dominick Dale Esq., as and for Defendant's Answer to the Complaint, states as follows: The Parties 1. Defendants deny having sufficient knowledge to either admit or deny the allegations contained in Paragraph 1 of the complaint. 2. Defendants admit the allegations contained in Paragraph 2 of the complaint. 3. Defendants deny the allegations contained in Paragraph 3 of the complaint, specifically Defendants assert that the “agreement” referred to is a de facto unlawful usurious loan and not an asset purchase agreement. 4. Defendants deny the allegations contained in Paragraph 4-5 of the complaint, specifically Defendants deny that the agreement and/or clause in the contract is valid on personal jurisdiction grounds as well as pursuant to GOL § 5-1402. Additionally, venue is improper for the same reasons asserted above. Pursuant to CPLR §§503 and 511, venue is not proper. Plaintiff does not have personal jurisdiction over the defendant. Defendants deny having sufficient knowledge to either admit or deny the allegations contained in Paragraph 4-5 of the 2 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 complaint. Without waiving objections, the plaintiff failed to obtain upon personal jurisdiction over the defendant. To the extent a response is required, the Defendants deny the allegations and demand strict proof thereof. The Facts 5. Defendants deny the allegations contained in Paragraph 6-14 of the complaint as same require legal conclusions to which no response is required. To the extent that a response is required and without waiving any objections, the plaintiff failed to establish facts necessary to establish breach of contract [ Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804, 806, 921 N.Y.S.2d 260, 263 (2011); Krigsfeld v. Feldman, 115 A.D.3d 712, 712, 982 N.Y.S.2d 487, 488 (2014) ] To the extent a response is required, the Defendants deny the allegations and demand strict proof thereof. Answering “As And For A First Cause Of Action—Breach Of Contract” 6. Defendants deny the allegations contained in Paragraph 15-19 of the complaint as same require legal conclusions to which no response is required. To the extent that a response is required, defendants object to these allegations because the plaintiff has failed to establish breach of contract. To the extent that a response is required and without waiving any objections, the plaintiff failed to properly allege defendant's failure to perform and resulting damage. [ Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804, 806, 921 N.Y.S.2d 260, 263 (2011); Krigsfeld v. Feldman, 115 A.D.3d 712, 712, 982 N.Y.S.2d 487, 488 (2014) ] To the extent a response is required, the Defendants deny the allegations and demand strict proof thereof. Answering “As And For A Second Cause Of Action—Personal Guarantee” 3 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 7. Defendants deny the allegations contained in Paragraph 20-23 of the complaint as same require legal conclusions to which no response is required. To the extent that a response is required, defendants object to these allegations because the plaintiff has failed to establish breach of contract. To the extent that a response is required and without waiving any objections, the plaintiff failed to properly allege defendant's failure to perform and resulting damage. [ Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804, 806, 921 N.Y.S.2d 260, 263 (2011); Krigsfeld v. Feldman, 115 A.D.3d 712, 712, 982 N.Y.S.2d 487, 488 (2014) ] To the extent a response is required, the Defendants deny the allegations and demand strict proof thereof. AFFIRMATIVE DEFENSES AND AS FOR A FIRST AFFIRMATIVE DEFENSE 8. The Complaint fails to state a cause of action upon which relief can be granted. Plaintiff failed to set forth facts sufficient to state or constitute a cause and/or causes of action on which relief might be granted. AND AS FOR A SECOND AFFIRMATIVE DEFENSE 9. The contract is unconscionable. The contract is so grossly unreasonable as to be unenforceable because the terms of the contract completely favored the plaintiff and was completely unreasonable toward the defendant. The plaintiff used high pressure commercial tactics and deceptive practices. The agreement contains inflated unlawful and illegal purchase price, inflated unlawful and illegal percentage of receivables purchased, unfair termination clauses, unfair limitations on consequential damages, unlawful sale of the business, unlawful, illegal and unfair attorney fees, and improper disclaimers. Pursuant to UCC § 2-302, this honorable court deem this agreement unconscionable as a matter of law and deem it unenforceable. 4 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 AND AS FOR A THIRD AFFIRMATIVE DEFENSE 10. Plaintiff is seeking to recover more than its entitled to recover in this case, and an award of the judgment sought by the claimant would unjustly enrich the plaintiff. Excessive fees charged by Plaintiff including, but not limited to various liquidated damages clauses in the contract are attempted to be charged as penalties which are contrary to law to wit would unjustly enrich the plaintiff. The plaintiff negligently induced the defendant into this unreasonable and predatory agreement. The plaintiff placed the defendant in a position to breach to wit the plaintiff would be entitled to attorneys fees. In other words, the defendant was intentionally “set up to fail.” The plaintiff had no intention of financially assisting the defendant with its business. AND AS FOR A FOURTH AFFIRMATIVE DEFENSE 11. Plaintiff violated and breached the duty of good faith and fair dealing. Under the implied covenant of good faith and fair dealing, the plaintiff has recklessly, intentionally, and negligently damaged and injured the defendant’s business through the service and filing of UCC liens. The plaintiff misrepresented that this agreement was a cash advance. The agreement is an unlawful taking and sale of the defendant’s business. AND AS FOR A FIFTH AFFIRMATIVE DEFENSE 12. The plaintiff is suing for the wrong amount. The plaintiff is not entitled to attorney’s fees or interest as they are punitive in nature. AND AS FOR A SIXTH AFFIRMATIVE DEFENSE 13. Plaintiff's filing of this matter against Defendants violates the doctrine of laches. The plaintiff is barred from the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party. 5 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 AND AS FOR A SEVENTH AFFIRMATIVE DEFENSE 14. The Plaintiff failed to mitigate damages. It has not been alleged that the funds remitted by the defendant have been invested in another contract or transaction that would reduce the damages resulting from the alleged breach of contract. AND AS FOR A EIGHTH AFFIRMATIVE DEFENSE 15. If a valid, enforceable contract between the defendant and the plaintiff is found, Defendant asserts that the plaintiff obtained the defendant's consent to the contract or transaction through fraud, deceit, or misrepresentation by the plaintiff, and that as a result, the contract is invalid. AND AS FOR A NINTH AFFIRMATIVE DEFENSE 16. The alleged damage of Plaintiff resulted from new and independent, unforeseeable, superseding and/or intervening causes unrelated to the conduct of answering defendant. AND AS FOR A TENTH AFFIRMATIVE DEFENSE 17. Upon information and belief, all hazards and risks incident to the circumstances set forth in the Complaint were obvious and apparent, and were readily assumed by the plaintiff, If it is determined that the plaintiff assumed the risk, the defendant pleads said facts in diminution of damages in the proportion which the culpable conduct attributable to the plaintiff bears to the culpable conduct which caused the alleged resultant damages. AND AS FOR A ELEVENTH AFFIRMATIVE DEFENSE 18. Plaintiff has not established subject jurisdiction over the defendant. The court lacks jurisdiction over the defendant. Subject matter jurisdiction is lacking. Complaint to be dismissed based upon subject matter jurisdiction. AND AS FOR A TWELFTH AFFIRMATIVE DEFENSE 6 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 19. The complaint fails to state a cause of action upon which relief may be granted. The plaintiff has failed to establish a breach of contract. The plaintiff has failed to demonstrate the following (1) formation of a contract between plaintiff and defendant, (2) defendant's failure to perform, and (3) resulting damage. [ Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 A.D.3d 804, 806, 921 N.Y.S.2d 260, 263 (2011); Krigsfeld v. Feldman, 115 A.D.3d 712, 712, 982 N.Y.S.2d 487, 488 (2014) ] AND AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE 20. Plaintiff induced Defendant into entering into an unlawful usurious loan and not an asset purchase agreement. AND AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE 21. Pursuant to CPLR Article 16, the liability of this Defendant to the Plaintiff for noneconomic loss shall not exceed the equitable share of this Defendant determined in accordance with the relative culpability of each person/party causing or contributing to the total liability for non- economic loss. AND AS FOR A FIFTEENTH AFFIRMATIVE DEFENSE 22. If the injuries and damages were sustained by the plaintiff at the time and place and in the manner alleged in the Complaint, such damages and injuries are attributable, in whole or in part, to the culpable conduct of the plaintiff and if any damages are recoverable the amount of such damages shall be diminished in the proportion which the culpable conduct attributable to Plaintiff bears to the culpable conduct which caused the damages. AND AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE 23. That recovery, if any, on the Complaint of the Plaintiff shall be reduced by the amounts paid or reimbursed by collateral sources in accordance with CPLR 4545(c) 7 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 24. Plaintiff seeks to enforce an adhesion contract. By using deceptive language, the plaintiff persuaded the defendant to enter into the agreement. The plaintiff has much greater bargaining power than the weaker defendant. It is against the public interest for the defendant to be subjected to such an oppressive relationship. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE 25. Plaintiff has failed to join a necessary and indispensable party to this action. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 26. The damages as alleged in the Complaint are not the result of negligent conduct on the part of Defendant. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 27. If a valid, enforceable contract between the defendant and the plaintiff is found, Defendant performed all duties owed other than any duties which were prevented or excused, and therefore never breached the agreement. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 28. The action is devoid of merit because Plaintiff has no basis for recovery against Defendant. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 29. The Complaint fails to provide any information regarding the alleged claim, other than an unsupported demand amount and an unsupported interest accrual date AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 30. Plaintiff has failed to properly document the cost of the damage AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 8 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 31. Based upon the forgoing, the plaintiff’s claims are barred by the doctrine of unclean hands. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 32. This Court has no jurisdiction over the person of defendant in that service of process was insufficient and not perfected under the applicable rules of the Civil Practice Law and Rules. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 33. Plaintiff acted unethically, unlawfully, or in bad faith and misrepresented significant facts that pertain to the underlying basis for the subject claim AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 34. The services in dispute were provided by an independent contractor and not by Plaintiff or its employee, such that Plaintiff is not entitled to receive direct payment from the defendant. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 35. Plaintiff engaged in deceptive acts and practices unlawful. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 36. The acts or omissions of the plaintiff were the sole proximate cause of the damages asserted. AS AND FOR AN THIRTIETH AFFIRMATIVE DEFENSE 37. Complaint is barred by the doctrine of waiver. AS AND FOR AN THIRTY-FIRST AFFIRMATIVE DEFENSE 38. The plaintiff violated its fiduciary duty pursuant to GOL § 5-1505. AS AND FOR AN THIRTY-SECOND AFFIRMATIVE DEFENSE 9 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 39. The sale of reasonableness was not done in a commercially reasonable manner and the plaintiff is precluded from recovering the deficiency from the defendant debtor as damages pursuant to see UCC § 9-626. AS AND FOR AN THIRTY-THIRD AFFIRMATIVE DEFENSE 40. The defendant hereby gives notice that they intend to rely upon such other and further defenses as may become available or apparent during discovery proceedings in this action and hereby reserve the right to amend their Answer and to assert any such defense. Defendant therefore reserves the right to assert any additional defenses that may be applicable and to withdraw any defenses that are inapplicable once the precise nature of the claims are ascertained through discovery and investigation. COUNTERCLAIMS Counter-Plaintiffs, DISTRIBUIDORA DEL VALLE ET.AL. jointly and individually, sue Counter-Defendant jointly and individually, sue Counter-Defendant EBF HOLDINGS, LLC D/B/A EVEREST BUSINESS FUNDING and allege as follows: 1. At all relevant times, Counter-Plaintiff was and is an LLC operating DISTRIBUIDORA DEL VALLE 2. Upon information and belief, Counter-Plaintiff, DISTRIBUIDORA DEL VALLE ET AL is Limited Liability Company organized and existing under the laws of the State of Texas. 3. Upon information and belief, Counter-Plaintiff Julio Lodono an individual residing in the State of Texas. 4. The responses of the Counter-Plaintiffs to the complaint filed by the Counter-Defendant, as well as the affirmative defenses thereto, are incorporated herein in their entirety. 10 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 5. Upon information and belief, Counter-Plaintiffs and Counter-Defendant entered into a contract which referenced in the complaint filed herein is incorporated herein in its entirety, but its admissibility is not admitted. 6. Counter-plaintiff failed to produce a sufficient amount of receivables to remit payment, to wit the counter-plaintiff did not breach the alleged agreement. 7. The counter-defendant breached the fiduciary duty as counter-plaintiff’s attorney in fact. 8. The counter-defendant falsely, intentionally and negligently, represented that the agreement was cash advance FIRST CAUSE OF ACTION (COMMON LAW FRAUD) 9. The preceding paragraphs are incorporated herein. 10. Counter-Defendant represented, advertised, marketed, and otherwise promoted that their business financial services and products, including but not limited to loan products; cash advances, purchase and sale of future receivables, and/or business loan related funding were compliant, lawful, correct. and true under federal and state banking, lending, consumer protection, and business regulations and laws. 11. Those representations were false and known to be false by the Counter-Defendant at the time they were made and said business financial services and products, including but not limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding, were non-compliant, illicit, unlawful, untrue, and false as contained within the agreement but also pursuant to federal and state banking, lending, and business regulations and laws. 11 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 12. The representations by Counter-Defendant were intentionally made for the purpose of creating business financial services and products that were based on false, misrepresented, noncompliant, illicit, incorrect, and false as contained within the agreement but also pursuant to federal and state banking, lending, and business regulations and laws. 13. The representations by Counter-Defendant were intentionally made for the purpose of creating business financial services and products, that were based on false, misleading, confusing, predatory, manipulative, and otherwise intended and designed to deceive, exploit, obtain gain, and advantage of Counter-Plaintiffs including but not limited to exorbitant interest rate payments, fees, costs and/or illicit business financial, banking, and/or lending practices with respect to Plaintiff sales of future receivables and/or business loan related funding. 14. The representations were material as but for Counter-Defendant' expressions of them, Counter-Plaintiffs would not have undertaken the course of conduct that it did including applying, purchasing, and obtaining Counter-Defendant' business financial services and products, including but not limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding. 15. Counter-Defendant knew that the representations were false when expressed. 16. Counter-Defendant intended that Counter-Plaintiffs act on the representations in the manner reasonably contemplated by Counter-Plaintiffs. 17. Counter-Defendant, individually and in collusion with others, intentionally advertised, marketed, and promoted their business lending, bank, and loan financial services and products to businesses in financial distress, and using predatory business practices, to entice purported vulnerable and industrious businesses toward Counter-Defendant's goods and services. 12 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 18. Counter-Plaintiffs did not know and could not have known the representations were false when made. 19. Counter-Plaintiffs reasonably relied on the representations as truthful. 20. Counter-Defendant made the fraudulent representations egregiously, willfully, purposefully, maliciously and with wanton disregard for Counter-Defendant's rights. 21. In addition to the foregoing, Counter-Defendant purposefully concealed material facts from Counter-Plaintiffs namely, those relating to their true reasons for advertising, marketing, and promoting, applying, purchasing, and obtaining, Counter-Defendant' business financial services and products, including but not limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding as otherwise set forth at length hereinbefore. 22. Counter-Defendant purposefully concealed the same intending and knowing Counter Plaintiffs would rely on the same concealment to associate with and accept influence from Counter-Defendant as alleged hereinbefore. 23. Counter-Plaintiffs reasonably relied on Counter-Defendant' concealment. Counter- Defendant' concealment was motivated by their actual malice and wanton and purposeful disregard of Counter-Plaintiffs' rights. 24. The above-described acts of Counter-Defendant constitute fraud. 25. As a direct and proximate result of Counter-Defendant fraud, Counter-Plaintiffs sustained harm. SECOND CAUSE OF ACTION (INTENTIONAL MISREPRESENTATION) 26. The preceding paragraphs are incorporated herein 13 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 27. Counter-Defendant intentionally, willfully, and knowingly misrepresented, advertised, marketed, and otherwise promoted that their business financial services and products, including but not limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding was compliant, lawful, correct, and as contained within the agreement but also pursuant to federal and state banking, lending, and business regulations and laws. 28. Those misrepresentations were intentionally, willfully, and knowingly false and known to be false by the Counter-Defendant at the time they were made and said bank loan was not lawful. 29. Counter-Defendant, individually and in collusion with each other, intentionally advertised, marketed, and promoted their business lending, bank, and loan financial service and products to businesses in the distressed communities, and using predatory business practices, to entice purported vulnerable and industrious businesses toward Counter-Defendant' goods and services. 30. Counter-Defendant has no reasonable grounds to believe that these misrepresentations were true, especially where their business financial services and products, including but not limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding, where such documents, including but not limited to advertising, promotional materials, contracts, applications. and/or disclosure documents used in conjunction with Counter- Defendant' business financial services and product, were either not true or intentionally, willfully, and knowingly fabricated by Counter-Defendant, including the documents used herein. 31. Counter-Defendant intentionally, willfully, and knowingly sought to induce Counter- Plaintiffs to rely on its misrepresentations and Counter-Defendant knew, because of their misrepresentations, that Counter-Plaintiffs would use their financial services and products, 14 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 including but not limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding. Counter-Defendant had reason to expect that Counter Plaintiffs would rely on the misrepresentations that it made to Counter Plaintiffs because of the continuous relationship prior, during business financial services and products, loan applications and final closing. 32. Counter-Plaintiffs reasonably relied upon the representations Counter-Defendant made. 33. Counter-Plaintiffs were justified in relying upon Counter-Defendant's representations that they were making and otherwise providing such business financial services and products, including but not limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding, and business based loans in accordance with banking, 'lending, and consumer protection laws because Counter-Defendant was duly authorized to do business under such banking, lending, and/or consumer protection laws. 34. Counter-Plaintiffs have and continue to be substantially harmed by Counter-Defendant's intentional, willful and malicious misrepresentations because they induced and elicited Counter Plaintiffs to apply, consent to, purchase, buy, and otherwise utilize, Counter-Defendant's business financial services and products, including but not limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding. THIRD CAUSE OF ACTION (NEGLIGENT MISREPRESENTATION) 35. The preceding paragraphs are incorporated herein. 15 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 36. Counter-Defendant negligently misrepresented represented, advertised, marketed, and otherwise promoted that their business financial services and products, including but not limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding was compliant, lawful, correct, and true under federal and state banking, lending, consumer protection, and business regulations and laws. 37. Counter-Defendant negligently advertised, marketed, and promoted their business lending, banking and loan financial services and products to businesses in the vulnerable communities, and using predatory business practices, to entice purported vulnerable and industrious businesses toward Counter-Defendant's goods and services. 38. Those misrepresentations were negligent and knowingly false and known to be false by the Counter-Defendant at the time they were made and said bank loan was not lawful. 39. Counter-Defendant has no reasonable grounds to believe that these misrepresentations were true, especially where their business financial services and products, including but not limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding, where such documents, including but not limited to advertising, promotional materials, contracts, applications, and/or disclosure documents used in conjunction with CounterDefendant business financial services and product, were either not true or intentionally, willfully, and knowingly fabricated by Counter-Defendant, including the documents used herein. 40. Counter-Defendant negligently sought to induce Counter-Plaintiffs to rely on their misrepresentations and Counter-Defendant knew, because of their misrepresentations, that Counter-Plaintiffs would use their business financial services and products, including but not 16 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding. Counter-Defendant had reason to expect that Counter-Plaintiffs would rely on the misrepresentations that they made to Counter-Plaintiffs because of the continuous relationship prior, during business financial services and products, loan applications and final closing. 41. Counter-Plaintiffs reasonably relied upon the representations Counter-Defendant made. 42. Counter-Plaintiffs were justified in relying upon Counter-Defendant' representations that they were making and otherwise providing such business financial services and products, including but not limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding, and business based loans in accordance with banking, lending, and consumer protection laws because Counter-Defendant were duly authorized to do business under such banking, lending, and/or consumer protection laws. 43. Counter-Plaintiffs have and continue to be substantially harmed by Counter-Defendant' intentional, willful and malicious misrepresentations because it induced and elicited Counter- Plaintiffs to apply, consent to, purchase, buy, and otherwise utilize, Counter-Defendant' business financial services and products, including but not limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding. FOURTH CAUSE OF ACTION (UNJUST ENRICHMENT) 44. The preceding paragraphs are incorporated herein. 17 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 45. Counter-Defendant came into possession of Counter-Plaintiffs' fees, costs, business receivables, interest and/or principal payments, including but not limited to a result of Counter- Defendant's loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding and have been unjustly enriched thereby to Counter-Plaintiffs detriment. 46. Counter-Defendant enjoyed the use, benefits, and privileges of possession of the aforesaid sum and used it in their banking, financing and/or lending business activities deriving substantial revenues and profits there from. 47. Counter-Plaintiffs have been deprived of said monies. 48. Counter-Defendant has been unjustly enriched by their possession and use of the aforesaid sum. FIFTH CAUSE OF ACTION (MONIES HAD AND RECEIVED) 49. The preceding paragraphs are incorporated herein. 50. Counter-Defendant received substantial profits, revenue, fees, costs, business receivables, interest and/or principal payments, including but not limited to a result of Counter-Defendant loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding. 51. Counter-Defendant did not perform and/or provide commensurate financing, banking, and/or lending related services related to the profits, revenue, fees, costs, business receivables, interest and/or principal payments, including but not limited to a result of their loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding. 18 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 52. Counter-Defendant has refused to return these sums to Counter-Plaintiffs despite their repeated demands for same. SIXTH CAUSE OF ACTION (BREACH OF GOOD FAITH AND FAIR DEALING) 53. The preceding paragraphs are incorporated herein. 54. At all material times, Counter-Defendant extended and arranged the extension of credit, or offered to extend or arrange for the extension of such credit, including but not limited to Counter- Defendant loan products, cash advances, purchase and sale of future receivables. and/or business loan related funding. 55. Counter-Defendant maintained a duty of good faith and fair dealing with respect to their contractual loans and banking business and activities with respect to Counter-Plaintiffs, and based upon the course of conduct involving misrepresentation, fraud, and deceit, breached their duty of good faith and fair dealing. causing Counter-Plaintiffs undue economic harm and damages. 56. The counter-plaintiff was not in breach of the agreement yet was deprived of the use of its business. SEVENTH CAUSE OF ACTION (BREACH OF FIDUCIARY DUTY) 57. The preceding paragraphs are incorporated herein. 58. At all times relevant hereto, Counter-Defendant were de facto fiduciaries and owed a fiduciary duty and quasi-fiduciary duties to Counter-Plaintiffs, obliging the lender, financing, and/or credit company to deal honestly, fairly, and in affirmative good faith toward the Counter Plaintiffs to advise it competently affecting matters in their relationship, and to refrain from actions 19 of 24 202307010006 IndexNO. INDEX #: E2023006654 E2023006654 FILED: MONROE COUNTY CLERK 07/01/2023 12:38 AM NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/01/2023 that would otherwise constitute conflicts of interest. self-dealing, misrepresentation, fraud, and/or other course of conduct that would breach their ethical and fiduciary duties with respect to Counter-Plaintiffs. 59. The Counter-Defendant breached their fiduciary duty and quasi-fiduciary duties to Counter-Plaintiffs by their pattern of wrongful acts and omissions as set forth herein, including but not limited to: a. representing that the loan, lending, and/or financing documents were lawful, correct and true under the banking, usury, financing, and lending laws and when such representations were false and known to be false; b. making false representations for the purpose of creating banking, usury, financing, and lending products and/or services, including but not limited to loan products, cash advances, purchase and sale of future receivables, and/or business loan related funding; c. designing, applying. effectuating, underwri