Preview
INDEX NO. 150279/2014
(FILED: NEW YORK COUNTY CLERK 0171372014)
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
we enn enee! Index No.:
STRATEGIC FUNDING SOURCE, INC., Date Filed:
Plaintiff, SUMMONS
- against- Plaintiff's Place of Business:
1501 Broadway, Suite 1515
RIPTIDE, INC. d/b/a RIPTIDE BAR RESTAURANT New York, New York 10036
& MARINA, and RYAN R. BENGE,
Plaintiff designates New York
Defendants. County as the place of trial. Venue
wana nn nnn nnn mene nnn nn nn nnn neem nn enn anne emenenenennenenensX is based upon Plaintiff's place of
business and pursuant to Agreement.
TO THE ABOVE-NAMED DEFENDANT(S):
YOU ARE HEREBY SUMMONED to appear in the Supreme Court of the City of New
York , County of New York at the office of the Clerk of said county at 60 Centre Street, New York,
New York 10013, and to answer the Complaint in this action and serve a copy of your Answer or, if
the Complaint is not served with the Summons, to serve a Notice of Appearance, on the plaintiff's
attorney within 20 days after the service of this Summons, exclusive of the day of service; or within
30 days after the service is complete if this Summons is not personally delivered to you within the
State of New York. In case of your failure to appear or answer, judgment will be taken against you
by default for the relief demanded in the Complaint.
Dated: New York, New York
January (0), 2014
Je ifer Ballard, Esq.
By: a
NJ Os =,
mney for Plaintiff
.
1$01 Broadwa 'Y> wite 1515
lew York, New York 10036
Tel: (212) 354- os
Fax: (800) 581-3615
Riptide, Inc. d/b/a
Riptide Bar Restaurant & Marina
9079 Old Richmond Rd.
Lexington, KY 40515
Ryan R. Benge
1067 Heathcliff Drive
Richmond, KY 40475
SUPREME COURT OF THE STATE OF NEW YORK
Index No.:
COUNTY OF NEW YORK
isn tates eae meena
Date Filed:
STRATEGIC FUNDING SOURCE, INC.,
VERIFIED COMPLAINT
Plaintiff,
Plaintiff's Place of Business:
- against- 1501 Broadway, Suite 1515
New York, New York 10036
RIPTIDE, INC. d/b/a RIPTIDE BAR RESTAURANT
& MARINA, and RYAN R. BENGE, Plaintiff designates New York
County as the place of trial. Venue
Defendants. is based upon Plaintiff’s place of
tenets oninninneentebetentresterne business and pursuant to Agreement.
Plaintiff, Strategic Funding Source, Inc., by its attorney, Jennifer Ballard, Esq., complaining
of the Defendants Riptide, Inc. d/b/a Riptide Bar Restaurant & Marina, and Ryan R. Benge, alleges
upon information and belief, as follows:
PARTIES
Plaintiff, Strategic Funding Source, Inc. (“SFS” or “Plaintiff’) is a New York Corporation
with its principal place of business at 1501 Broadway, Suite 1515, New York, New York
10036.
Upon information and belief, Defendant Riptide, Inc. d/b/a Riptide Bar Restaurant & Marina,
(‘Riptide Bar Restaurant & Marina”) is a company incorporated and existing under the laws
of the state of Kentucky, with a last known address of 9079 Old Richmond Rd., Lexington,
KY 40515.
Defendant Ryan R. Benge (“Benge”) is a natural person, the owner and guarantor of
defendant Riptide Bar Restaurant & Marina, and upon information and belief, at all times
hereinafter mentioned, was and is a resident of the State of Kentucky, residing at 1067
Heathcliff Drive, Richmond, KY 40475.
Riptide Bar Restaurant & Marina and Benge are hereinafter referred to collectively as
“Defendants”.
Defendants have consented to the jurisdiction of this Court pursuant to the Agreement
referenced below.
FACTUAL ALLEGATIONS
By way of the Merchant Cash Advance Agreement for the Purchase and Sale of Future
Receivables dated June 4, 2013, (the “Agreement”) Plaintiff purchased $69,450.00 of Riptide
Bar Restaurant & Marina’s future credit card receivables generated in the course of its
business (the “Receivables”). A true and accurate copy of the Agreement is annexed hereto
as “Exhibit A”.
On June 5, 2013, Plaintiff paid Riptide Bar Restaurant & Marina the amount of $50,000.00 as
the agreed upon purchase price for the Receivables.
Plaintiff was to collect 22% of the daily batch amount of receivables collected by Riptide Bar
Restaurant & Marina, from Riptide Bar Restaurant & Marina’s credit card processor.
Agreement pg. |, line 21, and pg. 3, sec. 2.7.
As noted in the Agreement, a primary condition of this transaction was that Riptide Bar
Restaurant & Marina was to use a single, specified third-party credit card processor, to be
designated by the parties (the “Processor”). Agreement pg. 1, lines 15-20 & pg. 2, sec. 2.5.
10. Any changes of the Processor were to be made only with the express written consent of
Plaintiff. Agreement pg. 2, sec. 2.5.
li Additionally, Riptide Bar Restaurant & Marina made numerous warranties, representations
and covenants within Section 2 of the Agreement including, inter alia,
a To provide to Plaintiff
an accurate representation of the financial state of the business
and to proactively and continually apprise Plaintiff
of any material adverse changes
thereto.
To settle or “batch out” its credit card receipts with the Processor on a daily basis.
c. Not to change the credit card Processor through which credit cards accepted by
Riptide Bar Restaurant & Marina in course of its business are settled without
Plaintiff's written consent.
12, In direct contradiction of the afore-mentioned warranties, representations and covenants, by
October 22, 2013, Riptide Bar Restaurant & Marina diverted its Receivables to a non-
designated and unauthorized credit card processor.
13 As aresult, Plaintiff has been unable to collect its daily percentage of Receivables purchased
from Riptide Bar Restaurant & Marina, since the date of said diversion.
14, Of the $69,450.00 of Receivables purchased, Riptide Bar Restaurant & Marina has delivered
a total of $27,946.26 in Receivables to Plaintiff, leaving a balance of $41,503.74, of
Receivables outstanding under the Agreement.
15 Moreover, Sections 3.5 and 3.6 of the Agreement provide for a total of $7,500.00 in
“Processor Change and Default Fees” to be applied to defendant’s balance in the event
Riptide Bar Restaurant & Marina made an unauthorized change of its credit card processor.
16 The combined sum of outstanding Receivables due to Plaintiff and the processor change fee,
provide for a total balance of $49,003.74 due and owing to Plaintiff.
17. Moreover, defendant Benge executed a personal guaranty of Riptide Bar Restaurant &
Marina’s full performance of all terms and obligations under the Agreement. “Guaranty”
annexed to Agreement as pgs. 6 & 7.
18. Nevertheless, Benge has not fulfilled his obligation as guarantor, to cure the debt owed to
Plaintiff.
19, Whereas, Defendants are jointly and severally liable to Plaintiff for the amount of
$49,003.74, pursuant to the Agreement, plus costs, and interest from October 22, 2013, the
date of default, through entry of judgment herein.
AS AND FOR A FIRST CAUSE OF ACTION
AGAINST DEFENDANT RIPTIDE BAR RESTAURANT & MARINA:
(Breach of Contract)
20. Plaintiff repeats and reaffirms the allegations contained in paragraphs “1” through “19” as
though fully set forth herein at length.
21 The Agreement provides that Riptide Bar Restaurant & Marina shall be in default of the
Agreement if, inter alia, it breaches any of the terms, covenants or conditions contained
therein or makes any representation or warranty proving to have been incorrect, false or
misleading. Agreement Section 3.1(a) and (b).
22, As a result of Riptide Bar Restaurant & Marina’s breach of the terms and Section 2
provisions set forth above, Riptide Bar Restaurant & Marina has defaulted under the
Agreement.
23, Section 3.2, the Agreement provides that in the event of a default, all future Receivables
purchased by Plaintiff shall immediately become due and owing to Plaintiff.
24, Further, Section 3.2 of the Agreement provides that in the event of a default under the
Agreement, Plaintiff shall have the right to enforce its rights and remedies by suit in equity or
action by law.
25 No Receivables have been transmitted to Plaintiff since October 22, 2013, leaving a balance
of Receivables as of this date in the amount of $41,503.74. Further as stated above, a fee of
$7,500.00 is to apply to the balance due in the event Riptide Bar Restaurant & Marina
changed credit card processors.
26. By reason of the foregoing, Riptide Bar Restaurant & Marina is liable to SFS in the amount
of $49,003.74, plus costs and interest at the statutory rate from October 22, 2013, through the
entry of judgment herein.
AS AND FOR A SECOND CAUSE OF ACTION
AGAINST DEFENDANT RIPTIDE BAR RESTAURANT & MARIN,
(Account Stated)
27. Plaintiff repeats and reaffirms the allegations contained in paragraphs “1” through “26”
above as though fully set forth herein at length.
28. SFS periodically mailed notices to Riptide Bar Restaurant & Marina reflecting the current
balance due and demanding payment of the same (“Statements of Account”).
29. Riptide Bar Restaurant & Marina received and accepted these Statements of Account without
timely objection, protest, or dispute.
30. The last Statements of Account were mailed to Riptide Bar Restaurant & Marina on or
around December 6, 2013.
31 By reason of the foregoing, an account has been stated between SFS and Riptide Bar
Restaurant & Marina, in the sum of $49,003.74.
AS AND FOR A THIRD CAUSE OF ACTION
AGAINST DEFENDANT BENGE:
(Breach of Guaranty)
32 Plaintiff repeats and reaffirms the allegations contained in paragraphs “1” to “31” above as
though fully set forth herein at length.
33 In connection with the Agreement, Benge made and delivered to SFS a separately executed
and unconditional, written personal guaranty of Riptide Bar Restaurant & Marina’s
performance of all representations, warranties and covenants under the Agreement. Said
guaranty states, inter alia, : “The undersigned Guarantor(s) hereby guarantys...Merchant’s
payment and performance of all of the representations, warranties, covenants made by
Merchant in this Agreement...a: ..may be renewed, amended, extended or otherwise
modified...” Agreement pgs. 6 & 7.
34 Pursuant to the guaranty, Plaintiff has the right to enforce its rights under the Agreement
severally against Benge in the event of Riptide Bar Restaurant & Marina’s default.
Agreement pg. 6.
35, Riptide Bar Restaurant & Marina failed to perform under the terms and conditions of the
Agreement, rendering Benge personally and fully liable for the balance of owed to Plaintiff.
36 Benge, as guarantor of Riptide Bar Restaurant & Marina’s performance, and having failed to
render payment of the full balance due and owing SFS as of the date herein, is currently in
default of the Agreement’s guaranty.
37. By reason of the foregoing, Benge is liable to SFS in the sum of $49,003.74 plus costs, and
interest at the statutory rate from October 22, 2013 through the entry of judgment herein.
AS AND FOR A FOURTH CAUSE OF ACTION
AGAINST DEFENDANTS RIPTIDE BAR RESTAURANT & MARINA AND BENGE,
JOINTLY AND SEVERALLY:
(Attorney’s Fees)
38 Plaintiff repeats and reaffirms the allegations contained in paragraphs “1” to “37” above as
though fully set forth herein at length.
39. Section 3.3 of the Agreement provides that in addition to all payments owed under the
Agreement, Benge as guarantor agrees to pay all costs associated with a default and the
enforcement of remedies thereof, including but not limited to, court costs and disbursements
and attorney’s fees.
40. Plaintiff has incurred and continues to incur expenses including attorney’s fees, which cannot
be finally determined at this date but which will be capable of determination at such time as
judgment may be entered herein.
41 By reason of the foregoing, Defendants are jointly and severally liable to SFS for SFS’s
expenses in regard to this litigation, including costs, disbursements and attorney’s fees, in
such amount as may be determined.
WHEREFORE, Plaintiff demands judgment:
a) On the FIRST CAUSE OF ACTION against Riptide Bar Restaurant & Marina in the sum of
$49,003.74, plus interest at the statutory rate from October 22, 2013 through the entry of the
judgment herein;
b) On the SECOND CAUSE OF ACTION against Riptide Bar Restaurant & Marina in the sum of
$49,003.74, plus costs, and interest at the statutory rate from October 22, 2013 through the entry
of the judgment herein;
°) On the THIRD CAUSE OF ACTION against Benge in the sum of $49,003.74, plus interest at the
statutory rate from October 22, 2013 through the entry of the judgment herein;
qd) On the FOURTH CAUSE OF ACTION against Riptide Bar Restaurant & Marina and Benge,
jointly and severally, awarding SFS costs and expenses, together with attorney’s fees incurred in
prosecuting this action in an amount to be determined by the Court, and;
e) For such other and further relief as this court may deem just and proper.
Dated: New York, New York
January 0), 2014
)
Jennifer Ballard, Esq.
ehnifer Ballard, Esq. yorty,
ttorney for Plainti
1501 Broadway, Suithan |)
New York, New York 10036—~
Tel: (212) 354-1400
Fax:(800) 581-3615
VERIFICATION
STATE OF NEW YORK }
} ssi:
COUNTY OF NEW YORK }
David Wolfson, first being duly sworn, says that he is employed as the Vice President of Risk
Management and Asset Recovery of Strategic Funding Source, Inc., that he has read the Verified
Complaint and knows the contents thereof; that the same is true to his own knowledge, except as to
those matters therein stated to be upon information and belief and as to those matters, he believes
them to be true.
Sworn to before me
This day of January, 2014
(Bae
NTE David olfson,
NOTARY PUBLIC Vice President of Risk Management
BRONX COUNTY, NEW YORK and Asset Recovery,
LIC. #02BA6256393 Strategic Funding Source Inc.
MY COMM. EXPIRES 02-27-16
EXHIBIT “A”
LEE Contracté# 310621
Sales Partner: EZ Business
STRATEGIC Cash Advance/ Isaac Sterns
FUNDING
MERCHANT CASH ADVANCE AGREEMENT
Agreement dated Dune o4 2013 between Strategie Fonding Source tne. (*SRSI") and the merchant listed below (“ihe Merehant”).
(Mouth) (Day) (Year)
_MERCUANT INFORMATION.
Merchant's Legal Name: Riptide, Inq.
D/B/A: Riptid
Re e Bor
stourn
& at
Marina State of Incocporationvorgauizatio
Type of enti (X) Corporation( ) Limited Liability Company (_) Limited Partnership (_) Limited Liability Partnership (_ ) Sole Proprietor
Physical Address:
9079 Old Richmond Rd City: Lexington State: KY Zip: 40515
Mailing Address: Ci State: Zip:
Date business starled (rmrn/yy): O05. Federal Tow
Monthly Total Sales Monthly Card Sates. Monthly Cash Sales
URCUASE AND SALE OF FUTURE RECEIPTS,
Merchant hereby sell, ssigns and transfers to SPAI (making SFSI the absolute owner) in consideration ofthe purchase prico specified below (the “Pusshese Price"), alt of
Mecchont’s fisture a cetunts, contract ei iglits nad vihor rights to payment
eds, prepaid cards, mobile ‘sAyments ond other similar payment methodsarisingthe from or reloling to the use by Merchant's customers of eu ‘eredit curds, charge cords, debit
of yoods or rendition af sen vices unti the purchased amount ape fied heavein (the: ordinary conese of Merchant's business (Whe "Recedpts") he payment of Merchants sale
Mice, the Specified Perecninge (9s delined below) andr the Purchased Amount my be adjusted by ‘SPSLhuesanclbeenMerchant
deliverest by Merchant to SE'SI, provided that the Pui
in writing if one ur more card processing conditions
°
are not satisfied.
‘The Porckused Amount shall he paid to S¥ST by Merchant's ve svocably authorizing only ong cued processor noceptable to SPST (“Processoe”) to remit to of for the benefit of
SFSI the percentage specified helow (the" " OF Merchant's setflement amounts duc from each card issuer with respect fo the Receipts, until such tine
15 SUSI receives payment in full of the Purchased Amount Pur thermore
Agreement during the term of this contract. Notwithslanding ‘anything to the contrary willin this
Merchant ant enjer into another cash advance agreement or any other type of factoring
Agseoment or any other agreement between SFS) and Merchant, upon the.
eccurrence of an Event of Defiult under Section 3 of the MI IERCHANT CASH ADVANCE AGREEMENT TERMS AND CONDITIONS, the Specified Percentage shell
equal 100%,
Porchase Prtee: $50,000.00 Specified Percentage: 22 % Receipts Parchased Amon 8 00
TILE TERMS, DEFINITIONS, CONDITIONS AND INFORMATION SET FORTH IN THE “MERCHANT CASIE ADVANCE AGREEMENT TERMS AND
TIONS”, THE “MERCHANT SECURITY AGREEMENT AND GUARANTY" AND THE “ADMINISTRATIVE FORM” EACIt OV WITCH IS
APTACIED HERETO, ARE HERERY INCORPORATED IN AND MADE A PARTOF TINIS AGRTEMENT,
ruonie RYOM) eMge Quant < Sign Here
MERCUANT#2 (Signor
by
(Print Name and‘ Title)
WNESUGUARANTOR
By Bynn Bi
i
Frac)
C- FEE
ee ipeor
{
OWRERIGUARANTOR (Signature)
(Print Name) < Sign Here
‘Sianature)
syJATIN USNONE SOURCE, INC.
By Adi aviv Associate Nome,
\—arroascees7aaai Stra jegue Funding Souree, tne Officer) ‘Bransture)
Each person signing this Agreement on bohal!'of Merchant represents that he or she is nuthotized (0 sige this Agreemeat on behalf
Agrcement oa hehstf of Merchant aadior as OwnersGunrantor represents thal the information provided herein and sn all of SFST's offorms
Merchant, ned each person signing this
is true, accurate and complete In alt
‘respects. SES may produce a monthly stolenvent reflecting the delivery ofthe Specified Percentage of Receipts (ran Merchant to SPSI via Processor,
ANY MISREPRESEN TATION MADE RY M1 ERCHANT OR ANY OWNEM/GUARANTOR IN CONNECTION WITH ‘THIS AGREEMENT MAY
CONSTTrU ITE A SEPARATE CAUSE. OF ACTION TOR FRAUD OR INFENTIONAL MISREPRESENTATION,
SFS-MA 09-12-42 Page 1 of 7
MEKCUANT CASH ADVANCE AGREIMENT TERMS AND CONDITIONS
T. TERMS OF ENROLLMENT IN PROGRAM isclosure of information as pernplted by this
AL Merchant Cash Adeynce Aproement. These ‘any legal opportunities, theory for Tost profits, lost revenues, lost
terms and conditions shall be incorporated in aad made business exemplacy, punitive, special, Agreement,
‘2 part of the alliched Merchant Cash Advance which is indirect widental,
waive
of consequential damages, each of
‘Merchont ‘and cach
1.13 Confidentlatity. Merchant understonds aad agrees
that the terms and conduions of the products and
Agreentent (such Merchant Cash Advance Agreement, Owner/Guaremer secviees olfered by Sk including this Agreement, the
supplemented by these fermis and conditions, this 1.9 Rellanes on Terms, Sections 1.2, Fy 1B 25, Merchant Security Agrecment and Guaranty nnd any
“Anicement’), and 4.6 hereof are ugeced tn for the benefit of other docunenis executed in connection with such
1.2 Mere Pec sing Ay ut, Merchant sha Merchay
exceute an agitement (the “Merchant Processing notwtthstnndlingSUSYthe factandthat Processor Processar, and agreements or related (0 such ogreements (collectively,
Axnceemen{") acceploble lo SES, with a eard processor party to thls Agreement, Pracessne niay relyiy notuponn “Confidential Information”) sre proprietory nnd
confidential information of SFSI. Accordingly, unless
acceptable to SFSI, to obtain card processing services, thelr ferms nud rnise them as a defense hr any disclosure is requiced by lay or eoust order, Merchnnd
Merchant shall authorize Processor to deduct the action, shall nat disclose Confidentist Information lo any
amounts owed to SPST for the Rectipls as specified 1,10 Sate af }tecelpts, Merchant and SFSI intend thet person alter than an. atlorney, accountant, financial
herein from settlement amounts which would otherwise the transfer of the interest im the Receipls From advisor ar employee of Merchant who needs to eoow
be de to Meschant fiom Processor card trenszetions Merchant to SFSI consiitute a sale, and nol a lox, for stich information forthe purpose of advising Merchant
and to pay such amounts to SFSI pursuant to SFSI's all pucposes. Merchant agrees that the Purchase Price {'Auiviser"), provided such Advisor uses such
structions {0 Processor. ‘The authorization shall
evocuble withou! the wrilten consent of SPSLbe equals the tive market value of such interest If,
sotwithstanding su cofent, such wansfer is not
inforenation sole Yor the purpose of advising
Merchant ond first agrees in writing (0 not disclose
Processor may rely upon the instryctions of SFSt, deemed to constitu sale, Merchant hereby grants to Canfidential twformation to eny person in accordance
without eny independent verification, in making such
deductions and payments, and Merchant waives any SFS) security interest inall ight, ttle and interest of
Merchant n and to the Receipts, which security interest
wath the teems of this Section 9.13
1.44 Publicity, Merchant and each Owner/Guarantor
ctoims for damages it may Nave agains! Processor i shall secure the payment a the Purchased Amount andl authorize SFSU to use their respective names in a listing
conncetion with such acts unless such damages were atl other obhyntions of Merchant under thi Agreement of clients and In advenizing wad mucketing materials,
due to Processor’s failure t0 foliow SSIs instructinns. Tivno event sholl the ayysegate of all amounts decmed 1.15 DARA's, Merehant ond each Owner‘Guarantor
13 By Jucfion, SFSI may, in ts sole interest hereunder nnd charged oF collected hereunder hereby acknowledge and egrce that SFSI may he using
discretion, cedtice the Purchase. Prie Hone of more exceed the highest rate permissible af law. In the event “doing business as” or “d/b/a” names in connection
cart processing cunditions are nat si
1 irlgge 1 Control Account, Merchant may be that a court determines tat SEST has charged ot swith vartous matters relating to the transaction between
required (0 open o new bunk vecount into which 100% received interest hevennder in excess of the highest SFSI and Merchant, including the fiting of UCC-1
Of the settlement amounts wall be deposited and the applicable automatically
rote, the rate in effect hereunder shall
be reduccd ta the maxhoum sale
Sinanoing statements und other notices or tilings,
4.16 Eivancial_Suformntion, Merchont and each
Speed Peteen tage collected by SFSU (the “Bridge/ permitted by applicable law and SFS¥ shall promptly Owner/Guarantor sbull provide 1s SFS1 upon request
P). Merchant appaints SFSC as fefand to Merchant any interest received by SESE in copies of financial statemenis representing the financzal
“Acting Agent” over the Bridge /Contro) Account, excess of the maximum lavsful rate, It being intended conuition of Merctiant and/or such Owner/Guavantor,
and shall instraet Processor tn designate the Bridge/ that Merchant nat pay ar contract lo pay, and that SFSI
Cantrot Account ns the deposit aecount for wll of ‘ol receive oF contractto receive, diréclly or indicectly Mm REPRESENTATIONS, WARRANTIES AND
‘Merchant's customers" card transactions. Merchant in any manner whalsoover, interest ia excess of that COVE} ns
assumes ull responsibility for all fees, costs, eharge- which may be paid by Merchant uader applicable law Merehanl and each OwneriGuamnler tach represents,
baths or suspicious items processed through (he Merchant hereby authorizes SPST to file any financing. warrants and covenants that ag of the Uae of this
Bridge / Couto! Acconnl (xe ” fscellaneous Service statements deemed neccesary by SRSI to perfect or Agreement and on eacis date during the ferm of this
Fees" paragraph 3.7), Merchant agrees to inaiitaia n marntumn SPSIs interest in the Receipts Agreement:
minimum balance in the Bridge J Control Account 1.11 Power of Attorney, ‘Merchant. jerevocably 2 inne fon nun 1 Lint
(he "Bélnimum Balance") equal to the per-month
avernge of all feet charged to Merchaat by appoints SPST nnd ony assignee of SFSI as its agent
and altorney-tn-fact with full authority to take any
Its financial statements, copies of which lave been
farnished to SFSI, ond any financial statements
Pepeisios averaged over ashxemvinth jeriod, action of execute any instrument oF document to sete furnished to SFSI hercadter, fairly represcnt the
sitlon, Merchant ond ench all obligations duc to SPS} from Peacessor, oF upon the financial condition of Merchant and cench
OwnerGuarantor suihonze SESt, its agents and occurrence of un tivent of Default under Section 3.1 OwnerdGunrantor at such dates, and since those dates
Ieprezeniotives, and any eredit ‘reporting agenay hereof, to setile all obligntions duc tv S¥SI fom there has been no reaterial ndverse change, financlal or
engaged by SFSI, to investigate thei exeditwortiness, Merchant, under this Agreemenl, including without otherwise, in such condition or in the operation oF
financial responsibilicy and history, and they agree to tiow (i) 10 obtain andl adwust insurance; (ii) (o ownership of Meschant. Merchant has a continuing,
Provide SFSI any Financial statements, tax returns, collect monies tue or to become due under or in affirmative obligetion to a: ise SSK of any material
references, oF other credit o¢ financial saforenation as sespect of any of the Collateral fas detined the adverse change in its financial eondi \n, operatian or
SFSI deems necessary prior to of afler execution of this
Agreement, A photocopy of this authorization will be ‘Mecchnnt Security Ageeement end Guoranty), (iii) 10, veneeship,
deemed as acceptable for release of eredit and finauceal Teceive, endorse and collect any checks, notes, deals,
jasicuments, documents ar chattel paperin connection Governmental Appruvils, Merchant is nod will
vos in complisnce with alt laws and hes valid
formation, Merchant and each Owner/Guarantor
authorize SFSI to updote their credit and financul swith clause (0) or clause (ii) abave; (iv) to sign
Merchont’s name on any invoice, bill of Inding, ot
permits, authorizations and Neanses to own, operate
anul least fia properties and to eondvet the business in
profile [rom time to time in the future, as SESL deems ‘assigament directing customers or account deblors to. ‘which itis presently engaged
‘oppropriate. An investigative or constimer report may make puyment dirccily to SFSI; and (v) to tile any 23° Aythortention, Mecchant, and the person(s)
be minde or obtamned in connectenn with this Agreement, claims ar take ny action of inslitule any proceed signing this Agreement on behulf of Merchant, have
1 em iil Mistry, Merchant authorizes which SFST may deem necessary for the collection of full powerand authority to exevute this Agreement and.
Pencessor and cach of Merchant's tanks (0 provide ‘ony unpaid Purchased Aniouni from the Colfnteral, or to incur and pesform the obligalions under this
SUSE upon request with Merchant's cord history or otherwise to enforce its rights with respect to payment Agreement It of which have been duly authorized,
‘ank statements, ns applicable of the Paechased Amount, 24 Insurance, Merchant has ond will maomtoin
7 tou mifi m. Merchant and each 1.12 Protection af huformation, Merchant und euch. husinessanlerruption insumnce naming SFSL ns loss
OwnerdGuaronior jointly anc severally ievlemnily and petson signing this Agreewent on behall of Merchanl payee and addiltonal ensured in such amounis and
hold harmless Processor, its officers, directors and and/or as OwneriGuorautor, in respect of humselt oF against such risks as are satisfactory to SPS! and shall
shi jolders against all losses, damages, clare, herself pecsonaily, authorizes SFSU lo disclose 10 any provide SFSI proof of such insurance upon request.
es and expenses Ginciuding teasoneble third pany information conce ing Merchant"s ond 25 Merehar rent
attorney's fees) curred by Procescor resulting from
(a) claims asserted by SFSI for monies owe to SFSL euch Ovmer'yGuarantnc’s credit standing (including
credit bureau reports that SSC oblains) and business
Arrangentents, Without ‘STSTa pron itten consent,
Meiclant will not: (i) change the card processor
from Merchant anu (b) actions taken hy Peacessor in ‘conduct
feliance upon informntion of instructions provided by ‘waive to Merchant and cach Owner/Guarancor hereby
the meximam extent permitted by law any
through which the Receipts are settled from Processor
Aw aanather ened processur; Gi) penn any event 0 occur
SFSI claim for damages against SFST or any af is affitiates that could cause diversion of any of Merchant's eard
is nb In no event will Processor of SFSt relating to ony (i) invest ion undeitaken by or on transactions feom Processor 10 another processor; (iil)
be liable for any chums asserted by Mecchane under ‘behalf of SEST as pormitted hy this Agreement or (ii) change its arrangements with Processor or amend the
SFS-MA 02-42 Page 2 of 7
Merchant Processing Agreement in aay way that 1s 2.14 Delivery uf Confession af tiulpment. Upon intetest granted in the Addnional Colt ral under the
adverse to SFSI; (iv) add card processing terminals, (v} execution af ths Agreement, Merchant shall it Merchant Security Agreement and Guaranty; or (i)
vse moltiple ocessing teeminals, (vi) change its requested by SFSI deliver to SFSI an executed Mercha ‘orany Owner/Guarantor files any petition for
financial tution of bank account(s) (including, if Confession of Judgment {the “Confession bankrupiey under the United States code or en
applicable, the Bridge £ Control Account); (vi) take sRudgrneng"}, i the formy provided by SFSI, in favor of involuntary petition for bankruptcy has been brought or
any other action that could-have any adverse effect SFSI in the amount uf the Parchased Amount is pending against Merchant or any Owner/Guarantoc,
‘upon Merchao'"s obligations urxter is Agreement oF 2.15 Delivery of Assignment of Lease, Mecehora and (k)Merchant or any Owner/Guarantor dotauhs under
SESI's interest in the Receipts; or (vil take any ection, each OvnerGoarentor authorize SPS) to receive ny of Ihe terms, eoverants and conditions ofany ofiee
fail to ake ony action, OF offer any incentive pertinent mntorniation regarding the commercial Tease agreement with SFSU including thase with aflillated7
economic or otherwise—the result of which could be to {or the physical locetiangs) of Mecchont's business (the associated businesses,
discourage the use of cards that are settled through “Lremises") from ony applicable leasing company and 4.2 Kemevies, Upon the occurence of an Fvent of
Reocessor, of to induce any customers t pay for oragent Merchant may be usked ta deliver to SPSI an Default that 1$ not waived pursuant ta Section 44
Merchant's servicer witl any menns other that cards execiiled Astignment of Lense assigning alt of hereof, SESE muy proceed to protect nd enforce its
‘hat are setled through Processuc, or permit ony event Merchant's right, tile and interest in and 10 the fights or remedies by suit in emuily or by uclion at law,
{o occur that could hive an adverse effect an the use, Premises ond undee the lease fur the Premises to SFSI of both, whether for the specific perfarmance of any
‘acceptance, or author tion af cards for the purchase (ihe “Assignment of Lease" covenant, ogreerment ar other provision contained
of Merchant's services and products 2.16 Smle_of Business, Merchant shall not sell, erein, oF to enforce the performance of Merchant's
2.6 Change of Name or Lacation, Merchunt will noc Aispose, transfer or athanwise convey sis business oF and ench Owner's/Gwaranior’s obliyations hereunder,
conduct its businesses under any name other than as ‘ssels without (i) the exncess prior writlen consent of under the Mecchont Security Agreement ond Quieranty,
disclosed ta Processor and SFSU or change simy of its SFSI, and (ii) the written agrecment of any purchaser ‘oF pursuant 10 any other legal or equitable right or
places of bu oF vansferee ussuming oll of Merchare’s obligations remedy. Upon SFSI's notice to Merchant of any Event
2.7 Dolly Batet Dui, Merchant will batch oul recenpts under this Agreement pursvan! to docurmentation of Defoult, the entire Receipts Purchased Antount and
With Processor cn a daily basis. sntisfuclory to SRST unpaid fees not alceady paid to SFSC shall become
2.8 Estoppel Ceriificnte, Merchant will at any time, 2.17 Bridge 1 Control Account, I Merchant is immedistely due ond guyuble to SFSI, In addition,
and from: time to tins, upon at least one (1) day’s prior required to open a Bridge 7 Control Account, (i) upon on Event af ckault (i) SFSt may enforce the
hnolice from SFSI to Merchant, exceute, acknowledge Merchant will not, unless othecwise dicected in writing provisions of the Merchant Security Agreement and
and deliver to SFSI and/or to any other person, firm o¢ hy SES), take ony netion to cause he Specified Guaranty ogninst cach Owner/Cuarentor, (ii) SFSI may
corporation specified by SSI, a statement certifying Percentage of the selgkement umounts to be settled ar enforce ils socatty interest in the Collateral and
thot this Agreement is wnmadified and in fall force and
Aelyered to any account other than the Bridge / Additional Collater (ii) SFST may debst Merchant's
effect (or. if there have been modifications, that the Control Account and (li) Merchant will at all times depasit accounts wherever situated by means of ACH
‘samme is in full Yorce and effect as motified and stating uoiotnin the Minimum Balance in the Bridge# Control debit or facsimile signature on n compoler-genernted
the modifications) and stat 1g the dates on which the Account. ‘check drawn on Merchant's bank account oF vikerw'
Purchased Amount or any portion thereot has been 2.18 Use of Proceeds, Merchant will conduct ats (iv) SES inay enter tie Confession of Judgment os «
paid business and use the Purchase Price in the ordinary judgment with the appropriate Clerk of Courl and
2.9 No_Bankeuptey. Neither Merchant nor any course pf its business, consistent with past practice. execute thercar ind (¥) SPST niay exercise its rights
Owner/Ganeantor has filed any petitivn for bankruptcy 2.19 Accurney of Information, Al formation under the Ai imentof Lanse. All rights, powers and
protection under Tile 11 of the United Stotes Cade, no provided by Merchant and cach Owner larantor 10. remedies of SFST in connection with this Agreement
involuntary petitton for bankrupley has been brought oF SFSI herein, n the Merchant Sceucity Agreement and and the Merchant Sceurlty Agrcenteat and Guaranty
is pending ogamst Merchant or any Owner/Guaranter, Guamnly, und in all other documents excevied ia may be exercised at any time by SPSt alter the
neither Merchant nor any OwneriGuarantar hss connection with such agreements of related 10 such ocourence of ant Event of Default, are cumulative acd
ied! in weiting its inability to pay its debis ar made preements is \ue, accuesto end complete in all not exclusive, and stall be in addition 10 any other
«8 general aysignment for the beneCit of creditors, and no respects, rights, p
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Ruling
Y.P. VS. WELLS FARGO & COMPANY, ET AL
Jul 10, 2024 |
CGC24613065
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 12. DEFENDANT EARL IGNACIO AND WELLS FARGO BANK, N.A.'s Motion To Compel Arbitration. Defendants Wells Fargo Bank, N.A. and Earl Ignacio's motion to compel arbitration and stay is denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
ADAM AMER VS RITA NORIEGA, ET AL.
Jul 09, 2024 |
23STCV10432
Case Number:
23STCV10432
Hearing Date:
July 9, 2024
Dept:
54
Superior Court of California
County of Los Angeles
Adam Amer,
Plaintiff,
Case No.:
23STCV10432
vs.
Tentative Ruling
Rita Noriega, et al.,
Defendants.
Hearing Date: July 9, 2024
Department 54, Judge Maurice A. Leiter
Motion to Determine Good Faith Settlement
Moving Party
: Defendants On Central Realty Inc. dba Coldwell Banker Hallmark Realty, Sevada Mkrdichian, Redfin Corporation, and Alin Glogovicean
Responding Party
: None
T/R
:
DEFENDANTS MOTION TO FOR APPROVAL OF GOOD FAITH SETTLEMENT IS GRANTED.
DEFENDANTS TO NOTICE.
If the parties wish to submit on the tentative, please email the courtroom at¿
SMCdept54@lacourt.org
¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.
The Court considers the moving papers.
No opposition was filed.
Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors upon giving notice in the manner provided in Code of Civil Procedure, section 1005(b).
(CCP § 877.6(a)(1).)
A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.
(CCP § 877.6 (c).)
The party contesting the settlement bears the burden of proving that the settlement is in bad faith.
(CCP § 877.6 (d).)
Defendants On Central Realty Inc. dba Coldwell Banker Hallmark Realty, Sevada Mkrdichian, Redfin Corporation, and Alin Glogovicean apply for approval of their good faith settlement with Plaintiffs. After extensive negotiations Defendants agreed to settle with Plaintiffs for $30,000. Defendants admit no fault, and state the settlement is proportionate to their potential share of liability. Only one cause of action was brought against them. There is no challenge to the settlement, and the non-settling defendants have defaulted. The Court finds that the settlement is in good faith.
The application is GRANTED.
Ruling
JONATHAN NEIL & ASSOCIATES, INC. VS HEALING HANDS CARE, INC., A CALIFORNIA CORPORATION, ET AL.
Jul 09, 2024 |
23STCV20520
Case Number:
23STCV20520
Hearing Date:
July 9, 2024
Dept:
40
Superior Court of California
County of Los Angeles
Department 40
Jonathan Neil & Associates, Inc.,
Plaintiff,
v.
Healing Hands Care, Inc., a California Corporation; Ara Tovmassian aka Ara Mesrop Tovmassian and DOES 1 through 50, inclusive,
Defendants.
Case No.:
23STCV20520
Hearing Date:
7/9/24
Trial Date:
12/6/24
[TENTATIVE] RULING RE:
Plaintiff
Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191].
I.
Background
On January 2, 2024, Plaintiff purportedly served Requests for Admission (RFAs), Set One, on Defendant Tovmassian. Responses to RFAs, Set One, were purportedly due on February 6, 2024, 35 days after purported service by mail on January 2, 2024.
Defendant Tovmassian allegedly failed to serve responses to RFAs, Set One, by February 6, 2024.
On March 20, 2024, based on Defendant Tovmassians alleged non-response to RFAs, Set One, Plaintiff filed a motion to deem the truth of RFAs, Set One, admitted as against Defendant Tovmassian. Plaintiffs motion also requests monetary sanctions in the amount of $850 against Defendant Tovmassian. Plaintiff served the motion on Defendant Tovmassian by mail that same day.
Defendant Tovmassian has failed to oppose Plaintiffs motion despite service.
Plaintiffs motion is now before the Court.
II.
Motion to Deem Truth of RFAs Admitted and Request for Sanctions
A.
Motion to Deem Truth of RFAs Admitted
:
GRANTED.
1.
Legal Standard
The discovering party can make a motion to deem as admitted any unanswered requests for admission or any requests answered in a late or unverified response. (See Code Civ. Proc., § 2033.280, subd. (b); Code Civ. Proc., § 2033.240, subd. (a) [RFA responses must be signed by responding party under oath]; see
Appleton v. Superior Court
(1988) 206 Cal.App.3d 632, 636 [unsworn response to RFAs is treated like no response].) These requests are not automatically deemed admitted; the discovery party must make the motion. (See Code Civ. Proc., § 2033.280, subd. (b).)
To establish this ground, a movant must show:
(1) Proper service (see Code Civ. Proc., § 2033.070);
(2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., § 2033.250, subds. (a), (b)); and
(3) That (a) the responding party served no response (Code Civ. Proc., § 2033.280, subd. (b)), (b) the propounding party served a late response (Code Civ. Proc., § 2033.280, subd. (b)); or (3) the responding party served an unsworn response (see
Appleton v. Superior Court
,
supra
, 206 Cal.App.3d at p. 636 [unsworn response to RFAs is treated like no response]).
A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (See
CBS, Inc. v. Superior Court
(1968) 263 Cal.App.2d 12, 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery].)
2.
Courts Determination
The Court finds in favor of Plaintiff.
The moving papers points and authorities contend that RFAs, Set One, was served on Defendant Tovmassian on January 2, 2024. (Mot., pp. 3 [service], 5 [signature, not sworn].) However, the points and authorities are unsworn and not entitled to evidentiary credence. (
In re Zeth S.
(2003) 31 Cal.4th 396, 413 [the unsworn statements of counsel are not evidence];
South Sutter, LLC v. LJ Sutter Partners, L.P.
(2011) 193 Cal.App.4th 634, 668, fn. 14 [unsworn arguments of counsel in a legal memorandum are not evidence].)
The original Natalia A. Minassian counsel declaration filed on March 20, 2024 did not support service on January 2, 2024, as to RFAs, Set One. However, at the initial hearing on July 2, 2024, the Court pointed out what appeared to
be an inadvertent failure to include substance in that declaration. The Court continued the hearing to July 9, 2024 to allow Plaintiffs counsel to address the error.
On July 3, 2024, Plaintiffs counsel filed a notice of errata and a revised Declaration of Natalia Minassian. It included both averments by counsel as well as attaching the Requests for Admission, along with the Proof of Service, showing service by mail on the Defendant on January 2, 2024. For this reason, the Court finds that service has been shown. Moreover, the evidence supports the fact that the discovery was served on the date alleged in the motion, and thus the Court finds no prejudice from the initial failure to attach the proof of service to the motion.
Second, Defendant has failed to oppose this motion, and did not appear at the initial hearing on July 2, 2024. The evidence in the moving papers sets forth that the Defendant did not respond, and this evidence is thus unrebutted.
Third, the court finds that the 17 RFAs are relevant to the facts involved in this case and are otherwise appropriate, clear and unambiguous.
Given these findings, the Court GRANTS Plaintiffs motion.
B.
Request for Sanctions
:
GRANTED.
1.
Legal Standard
The Court must award sanctions when a partys response is untimely, and the discovering party makes a motion to deem the requests admitted. (Code Civ. Proc., § 2033.280, subd. (c); see
Stover v. Bruntz
(2017) 12 Cal.App.5th 19, 31-32; see e.g.,
Appleton v. Superior Court
,
supra
, 206 Cal.App.3d at pp. 635-636 [sanctions are mandatory].)
The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)
2.
Courts Determination
The motion to deem admitted has been denied without prejudice, and Defendant has failed to respond or oppose this motion in any way. The requested sanctions of $850 for legal fees of $790 at an hourly rate of $395 and the $60 filing fee for the motion are eminently reasonable. Accordingly, the Court grants sanctions in the amount of $850.
III.
Conclusion
Plaintiff
Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191] is GRANTED.
Sanctions in the amount of $850 are ordered to be paid to Hatkoff & Minassian within 30 days of this Order. Failure to do so could result in further sanctions as ordered by the Court.
Ruling
TALAL ALTAMIMI, ET AL. VS LIEF ORGANICS, LLC
Jul 10, 2024 |
23CHCV02417
Case Number:
23CHCV02417
Hearing Date:
July 10, 2024
Dept:
F47 Dept. F47
Date: 7/10/24
Case #23CHCV02417
MOTION TO STRIKE
Motion filed on 5/28/24.
MOVING PARTY: Defendant Lief Organics, LLC
RESPONDING PARTY: Plaintiff Mankind Essentials, Inc.
NOTICE: ok
RELIEF REQUESTED
: An order
striking the Second Amended Complaint filed by Plaintiff Mankind Essentials, Inc. and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5.
RULING
: The motion is denied.
SUMMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of an agreement entered into by former plaintiffs Talal Altamimi, III (Altamimi) and Plaintiff Mankind Essentials, Inc. (Mankind/Plaintiff) and Defendant Lief Organics, LLC (Defendant) for the manufacture of fertility and dietary products for Mankind.
Based on three orders, Altamimi and Plaintiff paid Defendant deposits totaling $22,787.50.
Plaintiff alleges that Defendant failed to perform under the agreement.
On 8/11/23, Altamimi and Mankind filed this action against Defendant for: (1) Breach of Contract, (2) Fraudulent Deceit, (3) Breach of the Covenant of Good Faith and Fair Dealing, (4) Promissory Fraud and (5) Negligence.
After attempts to meet and confer regarding the issues Defendant had with the complaint were unsuccessful, on 11/20/23, Defendant filed and served a demurrer to the
original complaint.
On 12/28/23, 9 court days before the 1/11/24 hearing date on the demurrer, Plaintiff Mankind Essentials, Inc. (Plaintiff), alone, filed and served a First Amended Complaint which rendered the demurrer moot.
(
See
1/11/24 Minute Order citing CCP 472(a); CCP 1005(b)).
After meet and confer efforts failed to resolve the issues Defendant had with the First Amended Complaint, pursuant to an extension of time to respond to the First Amended Complaint, on 2/9/24, Defendant filed and served a demurrer to the 2
nd
, 4
th
and 5
th
causes of action in the First Amended Complaint.
On 3/7/24, the date a reply was due to be filed and served, Defendant filed and served a Notice of Non-Opposition to the demurrer.
See
CCP 1005(b)
On that same date and without any explanation, Plaintiff filed and served a late opposition to the demurrer.
On 3/8/24, Defendant filed and served a reply to the opposition.
On 3/14/24, the Court sustained the demurrer with 30 days leave to amend making a Second Amended Complaint due on or before 4/15/24.
(
See
3/14/24 Minute Order).
Plaintiff filed and served its Second Amended Complaint on 5/2/24.
Thereafter, Defendant contacted Plaintiff regarding the impropriety of filing the Second Amended Complaint beyond the deadline set by the Court and asked Plaintiffs counsel to withdraw the Second Amended Complaint.
(Bamford Decl. ¶¶6-7, Ex.C).
Plaintiff did not directly respond to the request to withdraw the Second Amended Complaint and has not withdrawn the pleading.
(Bamford Decl. ¶¶6-7).
On 5/28/24, Defendant filed and served the instant motion seeking an order striking the Second Amended Complaint filed by Plaintiff and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5.
At the 5/29/24 Case Management Conference, former plaintiff Talal Altamimi represented that Plaintiff was no longer represented by counsel, although a substitution of attorney had not been filed.
(
See
5/29/24 Minute Order).
On 6/14/24, at the hearing on Defendants Motion to Compel Arbitration, Plaintiffs counsel represented that Plaintiffs counsel had substituted out; however, a substitution of attorney had still not been filed.
(
See
6/14/24 Minute Order).
At the same hearing, defense counsel represented to be in contact with Plaintiff; the parties had entered into a settlement agreement and requested the hearing on the motion be continued.
Id
.
Therefore, the hearing on the motion to compel arbitration was continued to 8/14/24.
Id
.
Despite the foregoing, on 7/2/24, Defendant filed a Notice of Non-Opposition to the instant motion to strike.
Also, on 7/2/24, Plaintiff filed a substitution of attorney indicating that former plaintiff, Talal Altamimi, is substituted in as counsel for Plaintiff.
As noted on the Substitution of Attorney form itself, unless Altamimi is an attorney, Altamimi cannot represent the corporate Plaintiff in court.
ANALYSIS
Defendant seeks to strike the Second Amended Complaint on the ground that it was not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court because it was filed beyond the 30-day deadline set forth in the Courts 3/14/24 order sustaining Defendants demurrer with 30 days leave to amend.
See
CCP 436(b).
Defendant also seeks sanctions against Plaintiff and Plaintiffs (former) counsel on the ground that the filing of the Second Amended Complaint beyond the court ordered deadline constitutes frivolous conduct.
See
CCP 128.5.
While the Second Amended Complaint was filed and served beyond the court-ordered deadline, Defendant has not shown that it has suffered any prejudice as a result of the late filing and service.
Similarly, the Court does not find the late filing and service of the Second Amended Complaint constitutes frivolous conduct which warrants the imposition of sanctions.
CONCLUSION
Based on the foregoing, the motion is denied.
As noted above, unless Talal Altamimi is an attorney, Altamimi cannot represent Plaintiff Mankind Essentials, Inc. in court.
Therefore, Altamimi cannot appear on behalf of Plaintiff at this hearing or any future hearing.
If Altamimi is not an attorney, Plaintiff
must obtain counsel before the next scheduled court hearing or the Court will set an Order to Show Cause as to why the action should not be dismissed.
Ruling
Edwards, et al. vs. General Motors LLC
Jul 10, 2024 |
22CV-0200334
EDWARDS, ET AL. VS. GENERAL MOTORS LLC
Case Number: 22CV-0200334
Tentative Ruling on Motion for Attorney Fees and Costs: Plaintiffs David and Stephanie
Edwards filed this action alleging violation of the Song-Beverly Consumer Warranty Act (“Act”)
against General Motors, LLC (“GM”) and Taylor Motors, Inc. (“TMI”) on August 4, 2022.
Following extensive motion practice, primarily concerning discovery issues, the parties settled the
matter on May 7, 2024. Pursuant to the Act, and the terms of the settlement agreement, Plaintiffs
are the prevailing party entitled to recover reasonable attorney fees and costs. Plaintiffs seek a total
of $319,464.80 in attorney fees and costs. This request consists of $149,773.50 in attorney fees
for 269.3 hours of work litigating this matter from August 5, 2022 to the present, a 2.0 multiplier,
and $19,917.80 in costs.
Objections to Evidence: Plaintiffs have raised 10 Objections to portions of the Declaration of
Cameron Major on the grounds that certain statements and supporting exhibits are improper
argument, lack foundation, are conclusory, and lack personal knowledge. The Objections are
OVERRULED.
Song-Beverly: The Song-Beverly Act contains a cost-shifting provision that specifically allows
prevailing buyers to recover their costs, including attorney’s fees. Civ. C. § 1794(d). The
attorney’s fee award is limited to the amount the court determines was reasonably incurred by the
buyer in commencing and prosecuting the action, based on actual time expended. The prevailing
buyer has the burden of proving the fees were both reasonably necessary to conduct the litigation
and reasonable in amount. Civil Code § 1794(d); Robertson v. Fleetwood Travel Trailers of
California, Inc., (2006) 144 Cal. App. 4th 785. The lodestar method applies to determining
attorney’s fees under the Song-Beverly Act. Id. at 817. When determining a reasonable attorney's
fee award, using the lodestar method, the judge begins by deciding the reasonable hours the
prevailing party's attorney spent on the case and multiplies that number by the prevailing hourly
rate for private attorneys in the community who conduct non-contingent litigation of the same
type. Doppes v Bentley Motors, Inc. (2009) 174 CA4th 967, 998. Plaintiff is entitled to be
compensated at rates that reflect the reasonable market value of their services in the community.
Serrano v. Unruh (1982) 32 Cal.3d 621, 643. In determining the amount of attorney's fees to
which a litigant is entitled, an experienced trial judge is the best judge of the value of professional
services rendered in his or her court. Granberry v. Islay Investments (1995) 9 Cal. 4th 738, 752.
Reasonableness of Hours: The court has discretion to decide which of the hours expended by the
attorneys were reasonably spent on litigation. Hammond v. Agran (2002) 99 Cal.App.4th 115,
133. The predicate of any attorney fee award is the necessity and usefulness of the conduct for
which compensation is sought. Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819,
846. The court’s focus in evaluating the fee request should be to provide a fee award reasonably
designed to completely compensate attorneys for the services provided. The starting point for this
determination is the attorney’s time records. Absent clear indication they are erroneous, verified
time records are entitled to credence. Horsford v. Board of Trustees of Calif. State Univ. (2005)
132 Cal.App.4th 359, 395-397.
Plaintiffs seek a total of $149,773.50 in attorney’s fees associated with 269.3 hours of work
performed by four attorneys and one unknown individual. Plaintiffs have submitted detailed time
records to support their request. Defendant challenges numerous specific entries. (Opposition pp.
8 – 11.) The Court has reviewed the billing records in detail, as well as Defendant’s objections.
Counsel billed a total of 269.3 hours to this litigation, which commenced August 4, 2022. The
parties engaged in extensive law and motion practice over 22 months of litigation. The matter
settled on the eve of trial for the maximum possible recovery under the law. The Court finds the
time spent was reasonably expended, with the following exceptions: 1) time billed by Erika
Kavicky – no information regarding this attorney’s qualifications and experience has been
provided, a total of 0.6 hours will be stricken for Ms. Kavicky’s time, and 2) time billed by Angela
Mason – no information regarding this individual’s position, qualifications or experience has been
provided, a total of 1.7 hours will be stricken for Ms. Mason’s time. The billing records Plaintiffs
provided show the following hours were reasonably expended: 133.9 by Deborah Horowitz, 115.4
by Joseph Kaufman and Associates, and 18.4 for the Kaufman and Kavicky firm. The total hours
reasonably expended on this matter are therefore 267.7.
Reasonableness of Rates: A reasonable hourly rate is determined by the prevailing rate charged
to attorneys of similar skill and experience in the relevant community. See PLCM Group, Inc. v.
Drexler (2000) 22 Cal.4th 1084, 1095. However, the court may also consider the attorney’s skill
and expertise, the nature of the work performed, the relevant area of expertise and the attorney’s
customary billing rates. Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632.
A plaintiff seeking to recover hourly rates for out-of-town counsel that are higher than the local
rates must show (1) a good faith effort to find local counsel, and (2) demonstrate that hiring local
counsel was impracticable. Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1243.
The Court is the best judge of the value of professional services provided and may use its discretion
to apply rates in line with the market rates for the services provided. Ketchum v. Moses (2001) 24
Cal.4th 1122, 1132. This Court has extensive experience in presiding over Song Beverly actions
including motions for attorney’s fees, costs and expenses under Song Beverly. As such this Court
is aware of the reasonable hourly rates charged in actions of this nature. It is also aware of the
prior hourly rates found to be reasonable. Based on the Court’s extensive knowledge and
experience, it finds that reasonable hourly rates are $400 per hour for the partners, and $350 per
hour for the associate (Isaac Agyeman - 10 years of experience). The Court notes that Plaintiff
Anthony Edwards has submitted a Declaration indicating that he made a good faith effort to find
local counsel but was unable to do so. The Court has reviewed this voluminous case file, which
contains numerous discovery motions supported by attorney declarations regarding fees. It
appears that Plaintiff has not previously submitted a declaration regarding inability to find local
counsel in support of hourly rates above reasonable local rates. The Court has previously,
consistently, found a rate of $400 per hour a reasonable rate for partners in this matter. In the
interest of consistency within this case, and fairness to Defendants who have previously been
ordered to pay sanctions at the rate of $400 per hour, the Court will again find that $400 per hour
is a reasonable rate for partners in this matter. The Court finds that $350 per hour is a reasonable
rate for the associate in this matter. The Court notes that the billing records submitted do not break
out total hours billed by each individual partner and associate. Considering the large number of
billing entries, it is impractical for the Court to recalculate the correct billing at the approved rates.
Plaintiffs are ordered to submit recalculated totals using the Court’s approved rates.
Multiplier: Plaintiffs seek a 2.0 multiplier based on the results obtained and the contingent risks.
Adjustment factors that may be considered in awarding a multiplier include: 1) the novelty and
difficulty of the questions involved, 2) the skill displayed in presenting them, 3) the extent to which
the litigation precluded other employment, 4) the contingent nature of the fee award. Komarova
v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 348. Plaintiff has not
demonstrated a multiplier is warranted in this case. The issues involved in this litigation were
neither novel nor difficult. Counsel have demonstrated they are specialists, who are experienced
and skilled in this area of law, but this case involved routine issues under Song-Beverly. This
litigation precluded other employment to the extent any litigation would. The matter was taken on
a contingent fee basis as is all Song-Beverly litigation. The Court acknowledges Plaintiffs’
Counsel obtained the maximum award for the client. However, simply obtaining a positive result
in a factually and legally standard Song-Beverly case does not warrant a multiplier.
Costs and Expenses: The Song-Beverly Act provides that the court will award a successful
plaintiff a sum equal to the aggregate amount of costs and expenses, which have been determined
to have been reasonably incurred. Civil Code § 1794(d). Plaintiffs have requested an award of
costs and expenses in the amount of $19,917.80. However, the declarations submitted in support
of the moving papers only include itemized costs for a total of $16,247.81. The discrepancy is
addressed only in the Reply materials. (Plaintiffs submitted a Supplemental Declaration of Isaac
Agyeman which attaches a record of costs of $3,730 as Exhibit 6.) GM did not have the
opportunity to review and oppose those costs, as they were raised for the first time in the Reply
brief. Therefore, they will not be awarded. The remaining amount of $16,247.81 appears
reasonably incurred with the following exceptions, which will be stricken: 1) $602.26 for
Plaintiff’s mistakenly filing the Complaint twice, 2) $304.99 for Plaintiff’s “Re-Filing” Motion for
Leave to Amend, as it is a duplicate entry without explanation, 3) $180.16 and $592.73 for
Plaintiff’s Notice of Association of Counsel and Substitution of Attorney, respectively, as they are
business expenses of Counsel, not proper litigation expenses.
As for costs related to Taylor Motors, the Court notes the parties’ settlement agreement is between
and among David Edwards and Stephanie Edwards (“Plaintiffs”) and General Motors LLC and
Taylor Motors, Inc (“Defendants”). The agreement provides “Defendants shall pay Plaintiffs
attorney’s fees, costs, and expenses in an amount determined by the Court, by way of a single
noticed motion…” (Decl. Kaufman Ex. 1.) The Court finds the parties’ agreement contemplates
that Plaintiffs’ costs related to Taylor Motors would be included in the instant motion for fees and
costs. The total costs and expenses reasonably incurred are $14,567.67.
The Motion for Fees and Costs is GRANTED in part, as detailed above. Plaintiff is ordered to
prepare a proposed order consistent with the Court’s ruling. Plaintiff is also ordered to file and
serve a declaration which includes the recalculated totals for attorney fees using the Court-
approved rates detailed above. This matter is set for Monday August 12, 2024, at 8:30 a.m. in
Department 64 for review regarding the supplemental declaration and proposed order. If a
satisfactory supplemental declaration and proposed order are submitted at least five court days
prior to the continued date, the hearing may be vacated.
P.J. MCAULIFFE FAMILY PARTNERSHIP, L.P. VS. THE
TESTATE OR INTESTATE SUCCESSORS OF NORA
Ruling
BILLY SNOW VS DLK CONTRACTING, INC., ET AL.
Jul 09, 2024 |
6/18/2022 |
23SMCV00120
Case Number:
23SMCV00120
Hearing Date:
July 9, 2024
Dept:
I Code of Civil Procedure requires that a party suing a licensed architect for malpractice must obtain a certificate of merit (with certain exceptions not relevant here) before bringing suit.
The moving party, Fenske, contends that cross-complainant does not have such a certificate and brought a motion to dismiss on that basis.
Cross-complainant has filed no opposition, presumably because there is no such certificate.
Accordingly, the motion is GRANTED.
The cross-complaint against Fenske is DISMISSED.
Fenske to recover his costs.
Because Fenske is no longer a party, any motion involving him is MOOT and the stay, having served its purpose, is lifted.
Fenske is to prepare the written order of dismissal and lodge it with the court within 20 days.
Ruling
Miguel Aguilar vs General Motors, LLC.
Jul 10, 2024 |
23CV-03969
23CV-03969 Michael Aguilar v. General Motors, LLC
Demurrer by General Motors, LLC to Plaintiff’s First Amended Complaint’s Fifth Cause of Action
for Fraudulent Inducement (Concealment) because (1) It is barred by the statute of limitations,
(2) Fails to state facts sufficient to establish a cause of action, and (3) Fails to allege a
transactional relationship giving rise to a duty to disclose.
The Demurrer by General Motors, LLC to Plaintiff’s First Amended Complaint’s Fifth
Cause of Action for Fraudulent Inducement (Concealment) because (1) It is barred by the
statute of limitations, (2) Fails to state facts sufficient to establish a cause of action, and
(3) Fails to allege a transactional relationship giving rise to a duty to disclose is
SUSTAINED ON ALL GROUNDS WITH LEAVE TO AMEND to provide Plaintiff with an
opportunity to (1) Plead around the statute of limitations, (2) Plead fraudulent inducement
with specificity, and (3) Establish a relationship giving rise to a duty to disclose. The
Second Amended Complaint will be filed by November 29, 2024, to give Plaintiff sufficient
time to conduct discovery to obtain the facts necessary for Plaintiff to amend.
Motion by Defendant General Motors, LLC too Strike Punitive Damages Claim
The Motion by Defendant General Motors, LLC too Strike Punitive Damages Claim is
SUSTAINED WITH LEAVE TO AMEND to state a cause of action that supports a claim for
punitive damages and to allege the facts necessary to establish a punitive damages
claim. The Second Amended Complaint will be filed by November 29, 2024, to give
Plaintiff sufficient time to conduct discovery to obtain the facts necessary for Plaintiff to
amend.
Ruling
PHILLIP PHARELL MCGOWAN, ET AL. VS FAME GARDENS, LP
Jul 15, 2024 |
23STCV24498
Case Number:
23STCV24498
Hearing Date:
July 15, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
July 15, 2024
Case Name:
McGowan, et al. v. Fame Gardens LP
Case No.:
23STCV24498
Matter:
OSC re: Default Judgment
Ruling:
The Default Judgment Application is denied without prejudice.
Plaintiffs to give notice.
This is a habitability matter. Plaintiffs
Phillip Pharell Mcgowan, Devon Monique Martinez, Joseph Manuel Eddins, and Cereniti Claire Martinez Mcgowan
seek a default judgment against Defendant Fame Gardens LP.
While Plaintiffs request $540,000 in damages, the Complaint fails to make any
specific
request for damages against Defendant.
This is problematic as [t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . . . (Code Civ. Proc. § 580.) Further, phrases such as in an amount not less than do not give notice for the purposes of Code Civ. Proc. § 580. (
Electronic Funds Solutions, LLC v. Murphy
(2005) 134 Cal.App.4
th
1161, 1173-1174.) Code Civ. Proc. § 580 applies even when a defendant has defaulted after having filed an answer and having participated in discovery. (See
Greenup v. Rodman
(1986) 42 Cal.3d 822, 828;
Elec. Funds Sols., LLC v. Murphy
(2005) 134 Cal.App.4th 1161, 1175.) That a statement of damages was served is irrelevant as this is not a personal injury or wrongful death action.
Thus, Plaintiffs can either accept the jurisdictional minimum of $25,001
in damages or else amend the Complaints allegations as to damages, which would be a material change opening Defendants default. (
Cole v. Roebling Const. Co.
(1909) 156 Cal. 443;
Leo v. Dunlap
(1968) 260 Cal.App.2d 24, 27-28.)
Accordingly
, the Default Judgment Application is denied without prejudice.
Plaintiffs to give notice.
Preview
INDEX NO. 150279/2014 (FILED: NEW YORK COUNTY CLERK 0171372014) NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/13/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK we enn enee! Index No.: STRATEGIC FUNDING SOURCE, INC., Date Filed: Plaintiff, SUMMONS - against- Plaintiff's Place of Business: 1501 Broadway, Suite 1515 RIPTIDE, INC. d/b/a RIPTIDE BAR RESTAURANT New York, New York 10036 & MARINA, and RYAN R. BENGE, Plaintiff designates New York Defendants. County as the place of trial. Venue wana nn nnn nnn mene nnn nn nn nnn neem nn enn anne emenenenennenenensX is based upon Plaintiff's place of business and pursuant to Agreement. TO THE ABOVE-NAMED DEFENDANT(S): YOU ARE HEREBY SUMMONED to appear in the Supreme Court of the City of New York , County of New York at the office of the Clerk of said county at 60 Centre Street, New York, New York 10013, and to answer the Complaint in this action and serve a copy of your Answer or, if the Complaint is not served with the Summons, to serve a Notice of Appearance, on the plaintiff's attorney within 20 days after the service of this Summons, exclusive of the day of service; or within 30 days after the service is complete if this Summons is not personally delivered to you within the State of New York. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. Dated: New York, New York January (0), 2014 Je ifer Ballard, Esq. By: a NJ Os =, mney for Plaintiff . 1$01 Broadwa 'Y> wite 1515 lew York, New York 10036 Tel: (212) 354- os Fax: (800) 581-3615 Riptide, Inc. d/b/a Riptide Bar Restaurant & Marina 9079 Old Richmond Rd. Lexington, KY 40515 Ryan R. Benge 1067 Heathcliff Drive Richmond, KY 40475 SUPREME COURT OF THE STATE OF NEW YORK Index No.: COUNTY OF NEW YORK isn tates eae meena Date Filed: STRATEGIC FUNDING SOURCE, INC., VERIFIED COMPLAINT Plaintiff, Plaintiff's Place of Business: - against- 1501 Broadway, Suite 1515 New York, New York 10036 RIPTIDE, INC. d/b/a RIPTIDE BAR RESTAURANT & MARINA, and RYAN R. BENGE, Plaintiff designates New York County as the place of trial. Venue Defendants. is based upon Plaintiff’s place of tenets oninninneentebetentresterne business and pursuant to Agreement. Plaintiff, Strategic Funding Source, Inc., by its attorney, Jennifer Ballard, Esq., complaining of the Defendants Riptide, Inc. d/b/a Riptide Bar Restaurant & Marina, and Ryan R. Benge, alleges upon information and belief, as follows: PARTIES Plaintiff, Strategic Funding Source, Inc. (“SFS” or “Plaintiff’) is a New York Corporation with its principal place of business at 1501 Broadway, Suite 1515, New York, New York 10036. Upon information and belief, Defendant Riptide, Inc. d/b/a Riptide Bar Restaurant & Marina, (‘Riptide Bar Restaurant & Marina”) is a company incorporated and existing under the laws of the state of Kentucky, with a last known address of 9079 Old Richmond Rd., Lexington, KY 40515. Defendant Ryan R. Benge (“Benge”) is a natural person, the owner and guarantor of defendant Riptide Bar Restaurant & Marina, and upon information and belief, at all times hereinafter mentioned, was and is a resident of the State of Kentucky, residing at 1067 Heathcliff Drive, Richmond, KY 40475. Riptide Bar Restaurant & Marina and Benge are hereinafter referred to collectively as “Defendants”. Defendants have consented to the jurisdiction of this Court pursuant to the Agreement referenced below. FACTUAL ALLEGATIONS By way of the Merchant Cash Advance Agreement for the Purchase and Sale of Future Receivables dated June 4, 2013, (the “Agreement”) Plaintiff purchased $69,450.00 of Riptide Bar Restaurant & Marina’s future credit card receivables generated in the course of its business (the “Receivables”). A true and accurate copy of the Agreement is annexed hereto as “Exhibit A”. On June 5, 2013, Plaintiff paid Riptide Bar Restaurant & Marina the amount of $50,000.00 as the agreed upon purchase price for the Receivables. Plaintiff was to collect 22% of the daily batch amount of receivables collected by Riptide Bar Restaurant & Marina, from Riptide Bar Restaurant & Marina’s credit card processor. Agreement pg. |, line 21, and pg. 3, sec. 2.7. As noted in the Agreement, a primary condition of this transaction was that Riptide Bar Restaurant & Marina was to use a single, specified third-party credit card processor, to be designated by the parties (the “Processor”). Agreement pg. 1, lines 15-20 & pg. 2, sec. 2.5. 10. Any changes of the Processor were to be made only with the express written consent of Plaintiff. Agreement pg. 2, sec. 2.5. li Additionally, Riptide Bar Restaurant & Marina made numerous warranties, representations and covenants within Section 2 of the Agreement including, inter alia, a To provide to Plaintiff an accurate representation of the financial state of the business and to proactively and continually apprise Plaintiff of any material adverse changes thereto. To settle or “batch out” its credit card receipts with the Processor on a daily basis. c. Not to change the credit card Processor through which credit cards accepted by Riptide Bar Restaurant & Marina in course of its business are settled without Plaintiff's written consent. 12, In direct contradiction of the afore-mentioned warranties, representations and covenants, by October 22, 2013, Riptide Bar Restaurant & Marina diverted its Receivables to a non- designated and unauthorized credit card processor. 13 As aresult, Plaintiff has been unable to collect its daily percentage of Receivables purchased from Riptide Bar Restaurant & Marina, since the date of said diversion. 14, Of the $69,450.00 of Receivables purchased, Riptide Bar Restaurant & Marina has delivered a total of $27,946.26 in Receivables to Plaintiff, leaving a balance of $41,503.74, of Receivables outstanding under the Agreement. 15 Moreover, Sections 3.5 and 3.6 of the Agreement provide for a total of $7,500.00 in “Processor Change and Default Fees” to be applied to defendant’s balance in the event Riptide Bar Restaurant & Marina made an unauthorized change of its credit card processor. 16 The combined sum of outstanding Receivables due to Plaintiff and the processor change fee, provide for a total balance of $49,003.74 due and owing to Plaintiff. 17. Moreover, defendant Benge executed a personal guaranty of Riptide Bar Restaurant & Marina’s full performance of all terms and obligations under the Agreement. “Guaranty” annexed to Agreement as pgs. 6 & 7. 18. Nevertheless, Benge has not fulfilled his obligation as guarantor, to cure the debt owed to Plaintiff. 19, Whereas, Defendants are jointly and severally liable to Plaintiff for the amount of $49,003.74, pursuant to the Agreement, plus costs, and interest from October 22, 2013, the date of default, through entry of judgment herein. AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT RIPTIDE BAR RESTAURANT & MARINA: (Breach of Contract) 20. Plaintiff repeats and reaffirms the allegations contained in paragraphs “1” through “19” as though fully set forth herein at length. 21 The Agreement provides that Riptide Bar Restaurant & Marina shall be in default of the Agreement if, inter alia, it breaches any of the terms, covenants or conditions contained therein or makes any representation or warranty proving to have been incorrect, false or misleading. Agreement Section 3.1(a) and (b). 22, As a result of Riptide Bar Restaurant & Marina’s breach of the terms and Section 2 provisions set forth above, Riptide Bar Restaurant & Marina has defaulted under the Agreement. 23, Section 3.2, the Agreement provides that in the event of a default, all future Receivables purchased by Plaintiff shall immediately become due and owing to Plaintiff. 24, Further, Section 3.2 of the Agreement provides that in the event of a default under the Agreement, Plaintiff shall have the right to enforce its rights and remedies by suit in equity or action by law. 25 No Receivables have been transmitted to Plaintiff since October 22, 2013, leaving a balance of Receivables as of this date in the amount of $41,503.74. Further as stated above, a fee of $7,500.00 is to apply to the balance due in the event Riptide Bar Restaurant & Marina changed credit card processors. 26. By reason of the foregoing, Riptide Bar Restaurant & Marina is liable to SFS in the amount of $49,003.74, plus costs and interest at the statutory rate from October 22, 2013, through the entry of judgment herein. AS AND FOR A SECOND CAUSE OF ACTION AGAINST DEFENDANT RIPTIDE BAR RESTAURANT & MARIN, (Account Stated) 27. Plaintiff repeats and reaffirms the allegations contained in paragraphs “1” through “26” above as though fully set forth herein at length. 28. SFS periodically mailed notices to Riptide Bar Restaurant & Marina reflecting the current balance due and demanding payment of the same (“Statements of Account”). 29. Riptide Bar Restaurant & Marina received and accepted these Statements of Account without timely objection, protest, or dispute. 30. The last Statements of Account were mailed to Riptide Bar Restaurant & Marina on or around December 6, 2013. 31 By reason of the foregoing, an account has been stated between SFS and Riptide Bar Restaurant & Marina, in the sum of $49,003.74. AS AND FOR A THIRD CAUSE OF ACTION AGAINST DEFENDANT BENGE: (Breach of Guaranty) 32 Plaintiff repeats and reaffirms the allegations contained in paragraphs “1” to “31” above as though fully set forth herein at length. 33 In connection with the Agreement, Benge made and delivered to SFS a separately executed and unconditional, written personal guaranty of Riptide Bar Restaurant & Marina’s performance of all representations, warranties and covenants under the Agreement. Said guaranty states, inter alia, : “The undersigned Guarantor(s) hereby guarantys...Merchant’s payment and performance of all of the representations, warranties, covenants made by Merchant in this Agreement...a: ..may be renewed, amended, extended or otherwise modified...” Agreement pgs. 6 & 7. 34 Pursuant to the guaranty, Plaintiff has the right to enforce its rights under the Agreement severally against Benge in the event of Riptide Bar Restaurant & Marina’s default. Agreement pg. 6. 35, Riptide Bar Restaurant & Marina failed to perform under the terms and conditions of the Agreement, rendering Benge personally and fully liable for the balance of owed to Plaintiff. 36 Benge, as guarantor of Riptide Bar Restaurant & Marina’s performance, and having failed to render payment of the full balance due and owing SFS as of the date herein, is currently in default of the Agreement’s guaranty. 37. By reason of the foregoing, Benge is liable to SFS in the sum of $49,003.74 plus costs, and interest at the statutory rate from October 22, 2013 through the entry of judgment herein. AS AND FOR A FOURTH CAUSE OF ACTION AGAINST DEFENDANTS RIPTIDE BAR RESTAURANT & MARINA AND BENGE, JOINTLY AND SEVERALLY: (Attorney’s Fees) 38 Plaintiff repeats and reaffirms the allegations contained in paragraphs “1” to “37” above as though fully set forth herein at length. 39. Section 3.3 of the Agreement provides that in addition to all payments owed under the Agreement, Benge as guarantor agrees to pay all costs associated with a default and the enforcement of remedies thereof, including but not limited to, court costs and disbursements and attorney’s fees. 40. Plaintiff has incurred and continues to incur expenses including attorney’s fees, which cannot be finally determined at this date but which will be capable of determination at such time as judgment may be entered herein. 41 By reason of the foregoing, Defendants are jointly and severally liable to SFS for SFS’s expenses in regard to this litigation, including costs, disbursements and attorney’s fees, in such amount as may be determined. WHEREFORE, Plaintiff demands judgment: a) On the FIRST CAUSE OF ACTION against Riptide Bar Restaurant & Marina in the sum of $49,003.74, plus interest at the statutory rate from October 22, 2013 through the entry of the judgment herein; b) On the SECOND CAUSE OF ACTION against Riptide Bar Restaurant & Marina in the sum of $49,003.74, plus costs, and interest at the statutory rate from October 22, 2013 through the entry of the judgment herein; °) On the THIRD CAUSE OF ACTION against Benge in the sum of $49,003.74, plus interest at the statutory rate from October 22, 2013 through the entry of the judgment herein; qd) On the FOURTH CAUSE OF ACTION against Riptide Bar Restaurant & Marina and Benge, jointly and severally, awarding SFS costs and expenses, together with attorney’s fees incurred in prosecuting this action in an amount to be determined by the Court, and; e) For such other and further relief as this court may deem just and proper. Dated: New York, New York January 0), 2014 ) Jennifer Ballard, Esq. ehnifer Ballard, Esq. yorty, ttorney for Plainti 1501 Broadway, Suithan |) New York, New York 10036—~ Tel: (212) 354-1400 Fax:(800) 581-3615 VERIFICATION STATE OF NEW YORK } } ssi: COUNTY OF NEW YORK } David Wolfson, first being duly sworn, says that he is employed as the Vice President of Risk Management and Asset Recovery of Strategic Funding Source, Inc., that he has read the Verified Complaint and knows the contents thereof; that the same is true to his own knowledge, except as to those matters therein stated to be upon information and belief and as to those matters, he believes them to be true. Sworn to before me This day of January, 2014 (Bae NTE David olfson, NOTARY PUBLIC Vice President of Risk Management BRONX COUNTY, NEW YORK and Asset Recovery, LIC. #02BA6256393 Strategic Funding Source Inc. MY COMM. EXPIRES 02-27-16 EXHIBIT “A” LEE Contracté# 310621 Sales Partner: EZ Business STRATEGIC Cash Advance/ Isaac Sterns FUNDING MERCHANT CASH ADVANCE AGREEMENT Agreement dated Dune o4 2013 between Strategie Fonding Source tne. (*SRSI") and the merchant listed below (“ihe Merehant”). (Mouth) (Day) (Year) _MERCUANT INFORMATION. Merchant's Legal Name: Riptide, Inq. D/B/A: Riptid Re e Bor stourn & at Marina State of Incocporationvorgauizatio Type of enti (X) Corporation( ) Limited Liability Company (_) Limited Partnership (_) Limited Liability Partnership (_ ) Sole Proprietor Physical Address: 9079 Old Richmond Rd City: Lexington State: KY Zip: 40515 Mailing Address: Ci State: Zip: Date business starled (rmrn/yy): O05. Federal Tow Monthly Total Sales Monthly Card Sates. Monthly Cash Sales URCUASE AND SALE OF FUTURE RECEIPTS, Merchant hereby sell, ssigns and transfers to SPAI (making SFSI the absolute owner) in consideration ofthe purchase prico specified below (the “Pusshese Price"), alt of Mecchont’s fisture a cetunts, contract ei iglits nad vihor rights to payment eds, prepaid cards, mobile ‘sAyments ond other similar payment methodsarisingthe from or reloling to the use by Merchant's customers of eu ‘eredit curds, charge cords, debit of yoods or rendition af sen vices unti the purchased amount ape fied heavein (the: ordinary conese of Merchant's business (Whe "Recedpts") he payment of Merchants sale Mice, the Specified Perecninge (9s delined below) andr the Purchased Amount my be adjusted by ‘SPSLhuesanclbeenMerchant deliverest by Merchant to SE'SI, provided that the Pui in writing if one ur more card processing conditions ° are not satisfied. ‘The Porckused Amount shall he paid to S¥ST by Merchant's ve svocably authorizing only ong cued processor noceptable to SPST (“Processoe”) to remit to of for the benefit of SFSI the percentage specified helow (the" " OF Merchant's setflement amounts duc from each card issuer with respect fo the Receipts, until such tine 15 SUSI receives payment in full of the Purchased Amount Pur thermore Agreement during the term of this contract. Notwithslanding ‘anything to the contrary willin this Merchant ant enjer into another cash advance agreement or any other type of factoring Agseoment or any other agreement between SFS) and Merchant, upon the. eccurrence of an Event of Defiult under Section 3 of the MI IERCHANT CASH ADVANCE AGREEMENT TERMS AND CONDITIONS, the Specified Percentage shell equal 100%, Porchase Prtee: $50,000.00 Specified Percentage: 22 % Receipts Parchased Amon 8 00 TILE TERMS, DEFINITIONS, CONDITIONS AND INFORMATION SET FORTH IN THE “MERCHANT CASIE ADVANCE AGREEMENT TERMS AND TIONS”, THE “MERCHANT SECURITY AGREEMENT AND GUARANTY" AND THE “ADMINISTRATIVE FORM” EACIt OV WITCH IS APTACIED HERETO, ARE HERERY INCORPORATED IN AND MADE A PARTOF TINIS AGRTEMENT, ruonie RYOM) eMge Quant < Sign Here MERCUANT#2 (Signor by (Print Name and‘ Title) WNESUGUARANTOR By Bynn Bi i Frac) C- FEE ee ipeor { OWRERIGUARANTOR (Signature) (Print Name) < Sign Here ‘Sianature) syJATIN USNONE SOURCE, INC. By Adi aviv Associate Nome, \—arroascees7aaai Stra jegue Funding Souree, tne Officer) ‘Bransture) Each person signing this Agreement on bohal!'of Merchant represents that he or she is nuthotized (0 sige this Agreemeat on behalf Agrcement oa hehstf of Merchant aadior as OwnersGunrantor represents thal the information provided herein and sn all of SFST's offorms Merchant, ned each person signing this is true, accurate and complete In alt ‘respects. SES may produce a monthly stolenvent reflecting the delivery ofthe Specified Percentage of Receipts (ran Merchant to SPSI via Processor, ANY MISREPRESEN TATION MADE RY M1 ERCHANT OR ANY OWNEM/GUARANTOR IN CONNECTION WITH ‘THIS AGREEMENT MAY CONSTTrU ITE A SEPARATE CAUSE. OF ACTION TOR FRAUD OR INFENTIONAL MISREPRESENTATION, SFS-MA 09-12-42 Page 1 of 7 MEKCUANT CASH ADVANCE AGREIMENT TERMS AND CONDITIONS T. TERMS OF ENROLLMENT IN PROGRAM isclosure of information as pernplted by this AL Merchant Cash Adeynce Aproement. These ‘any legal opportunities, theory for Tost profits, lost revenues, lost terms and conditions shall be incorporated in aad made business exemplacy, punitive, special, Agreement, ‘2 part of the alliched Merchant Cash Advance which is indirect widental, waive of consequential damages, each of ‘Merchont ‘and cach 1.13 Confidentlatity. Merchant understonds aad agrees that the terms and conduions of the products and Agreentent (such Merchant Cash Advance Agreement, Owner/Guaremer secviees olfered by Sk including this Agreement, the supplemented by these fermis and conditions, this 1.9 Rellanes on Terms, Sections 1.2, Fy 1B 25, Merchant Security Agrecment and Guaranty nnd any “Anicement’), and 4.6 hereof are ugeced tn for the benefit of other docunenis executed in connection with such 1.2 Mere Pec sing Ay ut, Merchant sha Merchay exceute an agitement (the “Merchant Processing notwtthstnndlingSUSYthe factandthat Processor Processar, and agreements or related (0 such ogreements (collectively, Axnceemen{") acceploble lo SES, with a eard processor party to thls Agreement, Pracessne niay relyiy notuponn “Confidential Information”) sre proprietory nnd confidential information of SFSI. Accordingly, unless acceptable to SFSI, to obtain card processing services, thelr ferms nud rnise them as a defense hr any disclosure is requiced by lay or eoust order, Merchnnd Merchant shall authorize Processor to deduct the action, shall nat disclose Confidentist Information lo any amounts owed to SPST for the Rectipls as specified 1,10 Sate af }tecelpts, Merchant and SFSI intend thet person alter than an. atlorney, accountant, financial herein from settlement amounts which would otherwise the transfer of the interest im the Receipls From advisor ar employee of Merchant who needs to eoow be de to Meschant fiom Processor card trenszetions Merchant to SFSI consiitute a sale, and nol a lox, for stich information forthe purpose of advising Merchant and to pay such amounts to SFSI pursuant to SFSI's all pucposes. Merchant agrees that the Purchase Price {'Auiviser"), provided such Advisor uses such structions {0 Processor. ‘The authorization shall evocuble withou! the wrilten consent of SPSLbe equals the tive market value of such interest If, sotwithstanding su cofent, such wansfer is not inforenation sole Yor the purpose of advising Merchant ond first agrees in writing (0 not disclose Processor may rely upon the instryctions of SFSt, deemed to constitu sale, Merchant hereby grants to Canfidential twformation to eny person in accordance without eny independent verification, in making such deductions and payments, and Merchant waives any SFS) security interest inall ight, ttle and interest of Merchant n and to the Receipts, which security interest wath the teems of this Section 9.13 1.44 Publicity, Merchant and each Owner/Guarantor ctoims for damages it may Nave agains! Processor i shall secure the payment a the Purchased Amount andl authorize SFSU to use their respective names in a listing conncetion with such acts unless such damages were atl other obhyntions of Merchant under thi Agreement of clients and In advenizing wad mucketing materials, due to Processor’s failure t0 foliow SSIs instructinns. Tivno event sholl the ayysegate of all amounts decmed 1.15 DARA's, Merehant ond each Owner‘Guarantor 13 By Jucfion, SFSI may, in ts sole interest hereunder nnd charged oF collected hereunder hereby acknowledge and egrce that SFSI may he using discretion, cedtice the Purchase. Prie Hone of more exceed the highest rate permissible af law. In the event “doing business as” or “d/b/a” names in connection cart processing cunditions are nat si 1 irlgge 1 Control Account, Merchant may be that a court determines tat SEST has charged ot swith vartous matters relating to the transaction between required (0 open o new bunk vecount into which 100% received interest hevennder in excess of the highest SFSI and Merchant, including the fiting of UCC-1 Of the settlement amounts wall be deposited and the applicable automatically rote, the rate in effect hereunder shall be reduccd ta the maxhoum sale Sinanoing statements und other notices or tilings, 4.16 Eivancial_Suformntion, Merchont and each Speed Peteen tage collected by SFSU (the “Bridge/ permitted by applicable law and SFS¥ shall promptly Owner/Guarantor sbull provide 1s SFS1 upon request P). Merchant appaints SFSC as fefand to Merchant any interest received by SESE in copies of financial statemenis representing the financzal “Acting Agent” over the Bridge /Contro) Account, excess of the maximum lavsful rate, It being intended conuition of Merctiant and/or such Owner/Guavantor, and shall instraet Processor tn designate the Bridge/ that Merchant nat pay ar contract lo pay, and that SFSI Cantrot Account ns the deposit aecount for wll of ‘ol receive oF contractto receive, diréclly or indicectly Mm REPRESENTATIONS, WARRANTIES AND ‘Merchant's customers" card transactions. Merchant in any manner whalsoover, interest ia excess of that COVE} ns assumes ull responsibility for all fees, costs, eharge- which may be paid by Merchant uader applicable law Merehanl and each OwneriGuamnler tach represents, baths or suspicious items processed through (he Merchant hereby authorizes SPST to file any financing. warrants and covenants that ag of the Uae of this Bridge / Couto! Acconnl (xe ” fscellaneous Service statements deemed neccesary by SRSI to perfect or Agreement and on eacis date during the ferm of this Fees" paragraph 3.7), Merchant agrees to inaiitaia n marntumn SPSIs interest in the Receipts Agreement: minimum balance in the Bridge J Control Account 1.11 Power of Attorney, ‘Merchant. jerevocably 2 inne fon nun 1 Lint (he "Bélnimum Balance") equal to the per-month avernge of all feet charged to Merchaat by appoints SPST nnd ony assignee of SFSI as its agent and altorney-tn-fact with full authority to take any Its financial statements, copies of which lave been farnished to SFSI, ond any financial statements Pepeisios averaged over ashxemvinth jeriod, action of execute any instrument oF document to sete furnished to SFSI hercadter, fairly represcnt the sitlon, Merchant ond ench all obligations duc to SPS} from Peacessor, oF upon the financial condition of Merchant and cench OwnerGuarantor suihonze SESt, its agents and occurrence of un tivent of Default under Section 3.1 OwnerdGunrantor at such dates, and since those dates Ieprezeniotives, and any eredit ‘reporting agenay hereof, to setile all obligntions duc tv S¥SI fom there has been no reaterial ndverse change, financlal or engaged by SFSI, to investigate thei exeditwortiness, Merchant, under this Agreemenl, including without otherwise, in such condition or in the operation oF financial responsibilicy and history, and they agree to tiow (i) 10 obtain andl adwust insurance; (ii) (o ownership of Meschant. Merchant has a continuing, Provide SFSI any Financial statements, tax returns, collect monies tue or to become due under or in affirmative obligetion to a: ise SSK of any material references, oF other credit o¢ financial saforenation as sespect of any of the Collateral fas detined the adverse change in its financial eondi \n, operatian or SFSI deems necessary prior to of afler execution of this Agreement, A photocopy of this authorization will be ‘Mecchnnt Security Ageeement end Guoranty), (iii) 10, veneeship, deemed as acceptable for release of eredit and finauceal Teceive, endorse and collect any checks, notes, deals, jasicuments, documents ar chattel paperin connection Governmental Appruvils, Merchant is nod will vos in complisnce with alt laws and hes valid formation, Merchant and each Owner/Guarantor authorize SFSI to updote their credit and financul swith clause (0) or clause (ii) abave; (iv) to sign Merchont’s name on any invoice, bill of Inding, ot permits, authorizations and Neanses to own, operate anul least fia properties and to eondvet the business in profile [rom time to time in the future, as SESL deems ‘assigament directing customers or account deblors to. ‘which itis presently engaged ‘oppropriate. An investigative or constimer report may make puyment dirccily to SFSI; and (v) to tile any 23° Aythortention, Mecchant, and the person(s) be minde or obtamned in connectenn with this Agreement, claims ar take ny action of inslitule any proceed signing this Agreement on behulf of Merchant, have 1 em iil Mistry, Merchant authorizes which SFST may deem necessary for the collection of full powerand authority to exevute this Agreement and. Pencessor and cach of Merchant's tanks (0 provide ‘ony unpaid Purchased Aniouni from the Colfnteral, or to incur and pesform the obligalions under this SUSE upon request with Merchant's cord history or otherwise to enforce its rights with respect to payment Agreement It of which have been duly authorized, ‘ank statements, ns applicable of the Paechased Amount, 24 Insurance, Merchant has ond will maomtoin 7 tou mifi m. Merchant and each 1.12 Protection af huformation, Merchant und euch. husinessanlerruption insumnce naming SFSL ns loss OwnerdGuaronior jointly anc severally ievlemnily and petson signing this Agreewent on behall of Merchanl payee and addiltonal ensured in such amounis and hold harmless Processor, its officers, directors and and/or as OwneriGuorautor, in respect of humselt oF against such risks as are satisfactory to SPS! and shall shi jolders against all losses, damages, clare, herself pecsonaily, authorizes SFSU lo disclose 10 any provide SFSI proof of such insurance upon request. es and expenses Ginciuding teasoneble third pany information conce ing Merchant"s ond 25 Merehar rent attorney's fees) curred by Procescor resulting from (a) claims asserted by SFSI for monies owe to SFSL euch Ovmer'yGuarantnc’s credit standing (including credit bureau reports that SSC oblains) and business Arrangentents, Without ‘STSTa pron itten consent, Meiclant will not: (i) change the card processor from Merchant anu (b) actions taken hy Peacessor in ‘conduct feliance upon informntion of instructions provided by ‘waive to Merchant and cach Owner/Guarancor hereby the meximam extent permitted by law any through which the Receipts are settled from Processor Aw aanather ened processur; Gi) penn any event 0 occur SFSI claim for damages against SFST or any af is affitiates that could cause diversion of any of Merchant's eard is nb In no event will Processor of SFSt relating to ony (i) invest ion undeitaken by or on transactions feom Processor 10 another processor; (iil) be liable for any chums asserted by Mecchane under ‘behalf of SEST as pormitted hy this Agreement or (ii) change its arrangements with Processor or amend the SFS-MA 02-42 Page 2 of 7 Merchant Processing Agreement in aay way that 1s 2.14 Delivery uf Confession af tiulpment. Upon intetest granted in the Addnional Colt ral under the adverse to SFSI; (iv) add card processing terminals, (v} execution af ths Agreement, Merchant shall it Merchant Security Agreement and Guaranty; or (i) vse moltiple ocessing teeminals, (vi) change its requested by SFSI deliver to SFSI an executed Mercha ‘orany Owner/Guarantor files any petition for financial tution of bank account(s) (including, if Confession of Judgment {the “Confession bankrupiey under the United States code or en applicable, the Bridge £ Control Account); (vi) take sRudgrneng"}, i the formy provided by SFSI, in favor of involuntary petition for bankruptcy has been brought or any other action that could-have any adverse effect SFSI in the amount uf the Parchased Amount is pending against Merchant or any Owner/Guarantoc, ‘upon Merchao'"s obligations urxter is Agreement oF 2.15 Delivery of Assignment of Lease, Mecehora and (k)Merchant or any Owner/Guarantor dotauhs under SESI's interest in the Receipts; or (vil take any ection, each OvnerGoarentor authorize SPS) to receive ny of Ihe terms, eoverants and conditions ofany ofiee fail to ake ony action, OF offer any incentive pertinent mntorniation regarding the commercial Tease agreement with SFSU including thase with aflillated7 economic or otherwise—the result of which could be to {or the physical locetiangs) of Mecchont's business (the associated businesses, discourage the use of cards that are settled through “Lremises") from ony applicable leasing company and 4.2 Kemevies, Upon the occurence of an Fvent of Reocessor, of to induce any customers t pay for oragent Merchant may be usked ta deliver to SPSI an Default that 1$ not waived pursuant ta Section 44 Merchant's servicer witl any menns other that cards execiiled Astignment of Lense assigning alt of hereof, SESE muy proceed to protect nd enforce its ‘hat are setled through Processuc, or permit ony event Merchant's right, tile and interest in and 10 the fights or remedies by suit in emuily or by uclion at law, {o occur that could hive an adverse effect an the use, Premises ond undee the lease fur the Premises to SFSI of both, whether for the specific perfarmance of any ‘acceptance, or author tion af cards for the purchase (ihe “Assignment of Lease" covenant, ogreerment ar other provision contained of Merchant's services and products 2.16 Smle_of Business, Merchant shall not sell, erein, oF to enforce the performance of Merchant's 2.6 Change of Name or Lacation, Merchunt will noc Aispose, transfer or athanwise convey sis business oF and ench Owner's/Gwaranior’s obliyations hereunder, conduct its businesses under any name other than as ‘ssels without (i) the exncess prior writlen consent of under the Mecchont Security Agreement ond Quieranty, disclosed ta Processor and SFSU or change simy of its SFSI, and (ii) the written agrecment of any purchaser ‘oF pursuant 10 any other legal or equitable right or places of bu oF vansferee ussuming oll of Merchare’s obligations remedy. Upon SFSI's notice to Merchant of any Event 2.7 Dolly Batet Dui, Merchant will batch oul recenpts under this Agreement pursvan! to docurmentation of Defoult, the entire Receipts Purchased Antount and With Processor cn a daily basis. sntisfuclory to SRST unpaid fees not alceady paid to SFSC shall become 2.8 Estoppel Ceriificnte, Merchant will at any time, 2.17 Bridge 1 Control Account, I Merchant is immedistely due ond guyuble to SFSI, In addition, and from: time to tins, upon at least one (1) day’s prior required to open a Bridge 7 Control Account, (i) upon on Event af ckault (i) SFSt may enforce the hnolice from SFSI to Merchant, exceute, acknowledge Merchant will not, unless othecwise dicected in writing provisions of the Merchant Security Agreement and and deliver to SFSI and/or to any other person, firm o¢ hy SES), take ony netion to cause he Specified Guaranty ogninst cach Owner/Cuarentor, (ii) SFSI may corporation specified by SSI, a statement certifying Percentage of the selgkement umounts to be settled ar enforce ils socatty interest in the Collateral and thot this Agreement is wnmadified and in fall force and Aelyered to any account other than the Bridge / Additional Collater (ii) SFST may debst Merchant's effect (or. if there have been modifications, that the Control Account and (li) Merchant will at all times depasit accounts wherever situated by means of ACH ‘samme is in full Yorce and effect as motified and stating uoiotnin the Minimum Balance in the Bridge# Control debit or facsimile signature on n compoler-genernted the modifications) and stat 1g the dates on which the Account. ‘check drawn on Merchant's bank account oF vikerw' Purchased Amount or any portion thereot has been 2.18 Use of Proceeds, Merchant will conduct ats (iv) SES inay enter tie Confession of Judgment os « paid business and use the Purchase Price in the ordinary judgment with the appropriate Clerk of Courl and 2.9 No_Bankeuptey. Neither Merchant nor any course pf its business, consistent with past practice. execute thercar ind (¥) SPST niay exercise its rights Owner/Ganeantor has filed any petitivn for bankruptcy 2.19 Accurney of Information, Al formation under the Ai imentof Lanse. All rights, powers and protection under Tile 11 of the United Stotes Cade, no provided by Merchant and cach Owner larantor 10. remedies of SFST in connection with this Agreement involuntary petitton for bankrupley has been brought oF SFSI herein, n the Merchant Sceucity Agreement and and the Merchant Sceurlty Agrcenteat and Guaranty is pending ogamst Merchant or any Owner/Guaranter, Guamnly, und in all other documents excevied ia may be exercised at any time by SPSt alter the neither Merchant nor any OwneriGuarantar hss connection with such agreements of related 10 such ocourence of ant Event of Default, are cumulative acd ied! in weiting its inability to pay its debis ar made preements is \ue, accuesto end complete in all not exclusive, and stall be in addition 10 any other «8 general aysignment for the beneCit of creditors, and no respects, rights, p