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FILED: NEW YORK COUNTY CLERK 04/17/2014 INDEX NO. 153660/2014
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/17/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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EILEEN S. FUSCO, :
:
Plaintiff, :
: Index No. 153660/2014
- against - :
: AFFIDAVIT OF
: EILEEN S. FUSCO IN SUPPORT
DREAMBUILDER INVESTMENTS, LLC, : OF PLAINTIFF’S MOTION FOR
: SUMMARY JUDGMENT
Defendant. : IN LIEU OF COMPLAINT
:
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
EILEEN S. FUSCO, being duly sworn, deposes and says:
1. I am the plaintiff in the above-captioned action. I make this affidavit in
support of my motion pursuant to CPLR § 3213 for summary judgment in lieu of complaint in
this action based upon an instrument for the payment of money only.
2. I have personal knowledge of the facts set forth herein.
3. I am a resident of New York County.
4. Defendant Dreambuilder Investments, LLC (“DBI”) is a limited liability
company formed under the laws of the State of New York with its principal place of business
located at 30 Wall Street, New York, New York 10005. To the best of my knowledge, DBI’s
Chief Executive Officer is Peter Andrews, and its President and Chief Financial Officer is Greg
Palmer. Also, Elizabeth Eiss was the Chief Operating Officer during certain time periods
relevant to this matter.
HF 9120538v.1
THE LOAN
5. On December 12, 2008, I loaned $250,000 (the "Loan") to DBI.
6. DBJ holds itself out as a private mortgage investment company
specializing in the nationwide acquisition, management and liquidation of defaulted residential
mortgages.
7. As evidence of DBI's indebtedness, DBI, as the "Maker", executed and
delivered to me a promissory note in the principal amount of $250,000 (the "2008 Note"). A
true and accurate copy of the 2008 Note is annexed hereto as Exhibit A.
8. The 2008 Note carries interest accruing at the rate of twenty-one percent
(2 1%) per annum.
9. Pursuant to the terms of the 2008 Note, DBI agreed to pay the interest in
monthly installments, and to pay all outstanding indebtedness, including the principal and
accrued interest, within forty-five (45) days of the maturity date of December 31, 2010.
THE 2010 NOTE
10. In connection with maturity of the 2008 Note without the payment of
principal, DBI executed and delivered to me a new promissory note in the principal sum of
$267,500 (the "2010 Note"). A true and accurate copy of the 2010 Note is annexed hereto as
Exhibit B.
11. The 2010 Note was evidence of DBJ's indebtedness on the Loan
($250,000) and certain unpaid interest thereon for the calendar year 2009 ($17,500).
12. The 2010 Note carries interest accruing at the rate of twenty-one percent
(21%) per annum.
2
13. Pursuant to the terms of the 2010 Note, DBI agreed to repay pay all
outstanding indebtedness, including the principal and accrued interest, within forty-five (45)
days of the maturity date of December 31, 2011.
14. By Letter-Agreement dated March 28, 2012, as executed by me (as
"Lender") and DBT (as "Maker"), the maturity date for the 2010 Note was extended through
December 31, 2013 (the "Letter-Agreement"). A true and accurate copy of the Letter-
Agreement is annexed hereto as Exhibit C.
15. As such, under the terms of the 2010 Note, as extended by the Letter-
Agreement, full repayment of the outstanding balance of the Loan was due and payable by
Noteholder within forty-five (45) days of December 31, 2013 - i.e.,February 14, 2014.
DBI'S DEFAULT ON THE 2010 NOTE
16. On December 31, 2013, the 2010 Note matured.
17. As of February 14, 2014, and continuing to this day, DBJ has failed to
repay any portion of the $267,500 principal due under the 2010 Note.
18. In addition, though DBJ has made a few sporadic interest payments, it has
failed to pay the vast majority of the outstanding interest.
19. The 2010 Note makes clear that this non-payment of matured principal
and interest each constitute a default:
Upon Maker's failure to pay any amount due hereunder when due.
• . Payee may exercise all rights and remedies available to a
secured party under the laws of the State of New York or
otherwise. Payee may exercise its right hereunder from time to
time without notice to Maker...
Maker shall be in default hereunder upon the occurrence of any of
the follow events:
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(i) The nonpayment when due of any amount payable hereunder
or the nonperformance or failure of any representation, warranty or
covenant hereunder..
20. As a result of DBI's defaults under the 2010 Note, I, through counsel,
served DBI with a Notice of Default on March 24, 2014 (even though not I was not required to
do so under the terms of the Note). A true and correct copy of the Notice of Default, dated
March 19, 2014 and sent on March 24, 2014, is attached hereto as Exhibit D.
21. Despite the Notice of Default, DBI failed and refused to cure its defaults
under the Note, which defaults have remained uncured for a period in excess of the 60-day cure
period provided in the Note ("Upon any such default, Maker shall have sixty (60) days to remedy
such default"). In fact, neither DBI nor its counsel (who was provided with a courtesy copy)
responded in any manner to the Notice of Default.
22. On April 15, 2014, after the expiration of the 60-day cure period, I,
through counsel, notified DBI that I declared to be due and payable the entire unpaid principal,
all accrued interest but unpaid interest, and all other amounts due under the 2010 Note ("the
"Demand Notice"). A true and correct copy of the Demand Notice, dated and sent on April 15,
2014, is annexed hereto as Exhibit E.
23. The sums due under the 2010 Note - through March 31, 2014 - are
itemized in the Accounting Spreadsheet annexed hereto as Exhibit F, and are as follows:
Outstanding and Unpaid Principal: $267,5000
Accrued and Unpaid Interest $186,445.75
Total Amount due under Note A: $453945 751
24. Interest continues to accrue at a daily rate of $153.90.
25. DBI is liable to me for the payment of the outstanding principal balance
plus accrued but unpaid interest and unpaid legal fees and expenses in accordance with the
express terms of the Note.
In cormection with Noteholder's 2012 tax return preparation, and as required by the Note's custodian for Internal
Revenue Service reporting, DBI certified a fair market valuation of the 2010 Note to me and the custodian. The fair
market value of the 2010 Note, as of December 2012, composed of both outstanding principal and interest, was
$399,422,45. A true and correct copy of this "Fair Market Valuation Form" in annexed hereto as Exhibit G. Since
that date, DBI's interest payments have totaled only approximately $20,000.
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WHEREFORE, it is respectfully requested that this Court enter an Order:
a) granting summary judgment in favor of Plaintiff against Defendant, and
entering judgment, pursuant to CPLR 5016, against Defendant in the principal
amount of $267,500.00, together with interest through March 31, 2014, in the
amount of $186,445.75, plus interest accrued thereon through the date of
judgment;
b) awarding Plaintiff the costs and disbursements of this action, including
reasonable attorneys' fees, together with such other and further relief as the
Court deems just and proper.
Eileen S. Fusco
Sworn to before me this
Sday of April 2014
Nary Public
ROSS L. HJRSCH
Notary Public, State of New York
No. 02H16059752
Qualified in Kings County
Commission Expires August 24, 2018
no
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FILED: NEW YORK COUNTY CLERK 04/17/2014 INDEX NO. 153660/2014 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/17/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------- x EILEEN S. FUSCO, : : Plaintiff, : : Index No. 153660/2014 - against - : : AFFIDAVIT OF : EILEEN S. FUSCO IN SUPPORT DREAMBUILDER INVESTMENTS, LLC, : OF PLAINTIFF’S MOTION FOR : SUMMARY JUDGMENT Defendant. : IN LIEU OF COMPLAINT : ---------------------------------- x STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) EILEEN S. FUSCO, being duly sworn, deposes and says: 1. I am the plaintiff in the above-captioned action. I make this affidavit in support of my motion pursuant to CPLR § 3213 for summary judgment in lieu of complaint in this action based upon an instrument for the payment of money only. 2. I have personal knowledge of the facts set forth herein. 3. I am a resident of New York County. 4. Defendant Dreambuilder Investments, LLC (“DBI”) is a limited liability company formed under the laws of the State of New York with its principal place of business located at 30 Wall Street, New York, New York 10005. To the best of my knowledge, DBI’s Chief Executive Officer is Peter Andrews, and its President and Chief Financial Officer is Greg Palmer. Also, Elizabeth Eiss was the Chief Operating Officer during certain time periods relevant to this matter. HF 9120538v.1 THE LOAN 5. On December 12, 2008, I loaned $250,000 (the "Loan") to DBI. 6. DBJ holds itself out as a private mortgage investment company specializing in the nationwide acquisition, management and liquidation of defaulted residential mortgages. 7. As evidence of DBI's indebtedness, DBI, as the "Maker", executed and delivered to me a promissory note in the principal amount of $250,000 (the "2008 Note"). A true and accurate copy of the 2008 Note is annexed hereto as Exhibit A. 8. The 2008 Note carries interest accruing at the rate of twenty-one percent (2 1%) per annum. 9. Pursuant to the terms of the 2008 Note, DBI agreed to pay the interest in monthly installments, and to pay all outstanding indebtedness, including the principal and accrued interest, within forty-five (45) days of the maturity date of December 31, 2010. THE 2010 NOTE 10. In connection with maturity of the 2008 Note without the payment of principal, DBI executed and delivered to me a new promissory note in the principal sum of $267,500 (the "2010 Note"). A true and accurate copy of the 2010 Note is annexed hereto as Exhibit B. 11. The 2010 Note was evidence of DBJ's indebtedness on the Loan ($250,000) and certain unpaid interest thereon for the calendar year 2009 ($17,500). 12. The 2010 Note carries interest accruing at the rate of twenty-one percent (21%) per annum. 2 13. Pursuant to the terms of the 2010 Note, DBI agreed to repay pay all outstanding indebtedness, including the principal and accrued interest, within forty-five (45) days of the maturity date of December 31, 2011. 14. By Letter-Agreement dated March 28, 2012, as executed by me (as "Lender") and DBT (as "Maker"), the maturity date for the 2010 Note was extended through December 31, 2013 (the "Letter-Agreement"). A true and accurate copy of the Letter- Agreement is annexed hereto as Exhibit C. 15. As such, under the terms of the 2010 Note, as extended by the Letter- Agreement, full repayment of the outstanding balance of the Loan was due and payable by Noteholder within forty-five (45) days of December 31, 2013 - i.e.,February 14, 2014. DBI'S DEFAULT ON THE 2010 NOTE 16. On December 31, 2013, the 2010 Note matured. 17. As of February 14, 2014, and continuing to this day, DBJ has failed to repay any portion of the $267,500 principal due under the 2010 Note. 18. In addition, though DBJ has made a few sporadic interest payments, it has failed to pay the vast majority of the outstanding interest. 19. The 2010 Note makes clear that this non-payment of matured principal and interest each constitute a default: Upon Maker's failure to pay any amount due hereunder when due. • . Payee may exercise all rights and remedies available to a secured party under the laws of the State of New York or otherwise. Payee may exercise its right hereunder from time to time without notice to Maker... Maker shall be in default hereunder upon the occurrence of any of the follow events: 3 (i) The nonpayment when due of any amount payable hereunder or the nonperformance or failure of any representation, warranty or covenant hereunder.. 20. As a result of DBI's defaults under the 2010 Note, I, through counsel, served DBI with a Notice of Default on March 24, 2014 (even though not I was not required to do so under the terms of the Note). A true and correct copy of the Notice of Default, dated March 19, 2014 and sent on March 24, 2014, is attached hereto as Exhibit D. 21. Despite the Notice of Default, DBI failed and refused to cure its defaults under the Note, which defaults have remained uncured for a period in excess of the 60-day cure period provided in the Note ("Upon any such default, Maker shall have sixty (60) days to remedy such default"). In fact, neither DBI nor its counsel (who was provided with a courtesy copy) responded in any manner to the Notice of Default. 22. On April 15, 2014, after the expiration of the 60-day cure period, I, through counsel, notified DBI that I declared to be due and payable the entire unpaid principal, all accrued interest but unpaid interest, and all other amounts due under the 2010 Note ("the "Demand Notice"). A true and correct copy of the Demand Notice, dated and sent on April 15, 2014, is annexed hereto as Exhibit E. 23. The sums due under the 2010 Note - through March 31, 2014 - are itemized in the Accounting Spreadsheet annexed hereto as Exhibit F, and are as follows: Outstanding and Unpaid Principal: $267,5000 Accrued and Unpaid Interest $186,445.75 Total Amount due under Note A: $453945 751 24. Interest continues to accrue at a daily rate of $153.90. 25. DBI is liable to me for the payment of the outstanding principal balance plus accrued but unpaid interest and unpaid legal fees and expenses in accordance with the express terms of the Note. In cormection with Noteholder's 2012 tax return preparation, and as required by the Note's custodian for Internal Revenue Service reporting, DBI certified a fair market valuation of the 2010 Note to me and the custodian. The fair market value of the 2010 Note, as of December 2012, composed of both outstanding principal and interest, was $399,422,45. A true and correct copy of this "Fair Market Valuation Form" in annexed hereto as Exhibit G. Since that date, DBI's interest payments have totaled only approximately $20,000. 5 WHEREFORE, it is respectfully requested that this Court enter an Order: a) granting summary judgment in favor of Plaintiff against Defendant, and entering judgment, pursuant to CPLR 5016, against Defendant in the principal amount of $267,500.00, together with interest through March 31, 2014, in the amount of $186,445.75, plus interest accrued thereon through the date of judgment; b) awarding Plaintiff the costs and disbursements of this action, including reasonable attorneys' fees, together with such other and further relief as the Court deems just and proper. Eileen S. Fusco Sworn to before me this Sday of April 2014 Nary Public ROSS L. HJRSCH Notary Public, State of New York No. 02H16059752 Qualified in Kings County Commission Expires August 24, 2018 no