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FILED: RICHMOND COUNTY CLERK 07/02/2021 01:09 PM INDEX NO. 150441/2021
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/02/2021
SUPREME COURT OF THE STATE OF NEW YORK Index No.: 150441/2021
COUNTY OF RICHMOND
PEARL DELTA FUNDING, LLC, VERIFIED AFFIRMATION
Plaintiff, IN SUPPORT OF
-against- PLAINTIFF’S MOTION TO
ROSSER ENTERPRISE LLC and DISMISS DEFENDANTS’
ROSSER CATASTROPHE SERVICES and AFFIRMATIVE DEFENSES
ROSSER ROOFING SOLUTIONS and AND FOR
MR. ROOFER LLC and SUMMARY JUDGMENT
JOHNATHON ROSSER,
Defendants.
THEODORE JON COHEN, an attorney admitted to practice before the courts of the State of
New York, hereby affirms under penalty of perjury that I am the attorney of record for the
plaintiff in the above-captioned action, am familiar with all material facts pertaining to this
matter, and that the statements contained in the ensuing Affirmation of Default are true except for
those matters alleged on informationand belief, and as to those matters I believe them to be true. I
base my knowledge on my review of the file and conversations with plaintiff’s employee(s) and
officer(s). This verification is made by plaintiff’s attorney because the Plaintiff is not located
within the State of New York, where I have my offices.
1. I make this Affirmation in Support of Plaintiff’s Motion to Dismiss Defendants’
Affirmative Defenses and for Summary Judgment.
2. On or about November 30, 2020, Plaintiff and Defendants entered into a Revenue
Purchase Agreement with Security Agreement and Guaranty of Performance (hereinafter the
“RPA”) whereby Plaintiff purchased 4% of the future receivables of Defendants ROSSER
ENTERPRISE LLC and ROSSER CATASTROPHE SERVICES and ROSSER ROOFING
SOLUTIONS (collectively, “Merchant”) in exchange for: (a) Merchant’s promise to pay
$144,000.00 (detailed on page 1 of the RPA as the Purchased Amount) to Plaintiff; and, (b) the
guaranty, by Defendants MR. ROOFER LLC and JOHNATHON ROSSER, of the Merchant’s
performance of the RPA. A copy of the RPA is annexed hereto as Exhibit A.
3. Pursuant to the second paragraph above the signature lines on page 1 of the RPA (see
Exhibit A annexed hereto), Defendants agreed to exclusively use one bank account approved by
Plaintiff (the “Account”) into which the Merchant agreed to deposit all of its receipts and from
ATTORNEY’S AFFIRMATION IN SUPPORT, page 1 of 4
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FILED: RICHMOND COUNTY CLERK 07/02/2021 01:09 PM INDEX NO. 150441/2021
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which Plaintiff was authorized to make daily ACH withdrawals until $144,000.00 was fully paid
to Plaintiff.
4. The facts concerning the execution of the RPA and Defendants’ breach thereof are
detailed in: (A) paragraphs 6, 7, 8, 10, 11, 12 and 13 the Verified Complaint (filed with the
Court on February 26, 2021 as Docket Entry No. 1 and annexed hereto Exhibit B; and (B) the
RPA’s Payment History filed simultaneously herewith as Exhibit C.
5. As can be seen from the RPA’s Payment History (see Exhibit C):
A) On February 24, 2021, Defendants blocked Plaintiff’s access to the Account without
Plaintiff’s prior authorization and thereby prevented Plaintiff from making the agreed upon ACH
withdrawals and, as such, Defendants defaulted under the terms of the RPA (see Exhibit A).
B) The payments made by or on behalf of Defendants totaled $44,668.68 [$43,200.00
from the Account prior to February 26, 2021 (the date Plaintiff filed the instant action) and
$1,4778.68 subsequent to February 26, 2021 from third parties on behalf of Merchant], leaving
a balance due and owing by Defendants to Plaintiff equal to $101,866.32, computed as follows:
$144,000.00 Purchased Amount (see RPA, page 1)
-$44,668.68 Payments Made by or on behalf of Defendants
35.00 NSF Fee (see RPA, page 7 section C: 1 NSF at $35.00)
2,500.00 Default Fee (see RPA, page 7 section D)
$101,866.32 Balance Due and Owing
6. The eighth page of the RPA is a form captioned Authorization Agreement for Direct
Deposit (ACH Credit) and Direct Payment (ACH Debits), hereinafter the ACH Form, that
details the actual account number of the Account owned by Defendant ROSSER ENTERPRISE
LLC: (A) into which Plaintiff was required to deposit the Purchase Price detailed on page 1 of
the RPA (see Exhibit A annexed hereto); and, (B) from which the Plaintiff was to withdraw the
daily remittances.
7. As is detailed in paragraph 10 of the Verified Complaint annexed hereto Exhibit B,
Plaintiff “fulfilled all of its Agreement obligations.” This is confirmed by the Proof of Funding
annexed hereto as Exhibit D wherein it can be seen that on December 2, 2020, Plaintiff wired
transferred $97,000.00 into the Account. Said $97,000.00 was computed as follows:
ATTORNEY’S AFFIRMATION IN SUPPORT, page 2 of 4
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FILED: RICHMOND COUNTY CLERK 07/02/2021 01:09 PM INDEX NO. 150441/2021
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/02/2021
$100,000.00 Purchased Price (see RPA, page 1)
-3,000.00 Underwriting Fee (see RPA, page 7 section A)
$97,000.00 Wire transfer amount
8. On May 17, 2021, Defendants filed a Verified Answer and conclusory statements of
affirmative defenses (see Docket Entry No. 4, a copy of which is annexed hereto as Exhibit E).
9. The debt owed by Defendants to Plaintiff has not been securitized.
10. For purposes of this application only, Plaintiff hereby waives: (a) its Third Cause of
Action relating to Unjust Enrichment; and, (b) its claim for attorney’s fees.
11. Defendant JOHNATHON ROSSER is not in the Armed Forces of the United States. A
copy of an Affirmation dated July 2, 2021 by attorney Theodore Jon Cohen attesting to that fact,
was filed with the Court on July 2, 2021 (see Docket Entry No. 12 and is annexed hereto as
Exhibit J.
SERVICE OF PROCESS, JURISDICTION AND VENUE
12. All Defendants were properly served on or before June 14, 2021 and affidavits to that
effect were filed with the Court – see Docket Entries No. 2, 8, 9, 10 and 11, copies of which,
without the respective Summons, Verified Complaint and Notice of Electronic Filing are
annexed hereto as Exhibit F).
13. On April 14, 2021 in an email to me, defendants’ then current attorney, Louis Russo, (a
New York licensed and practicing attorney, registration # 4580189) accepted service on behalf of
all defendants and waived any argument that the defendants were not properly served. Said email
had been filed with this court (see Docket Entry No. 7) and is annexed hereto as Exhibit G. A
copy of Attorney Russo’s registration report from the New York State Unified Court System is
annexed hereto as Exhibit H.
14. By virtue of section 4.5 on page 4 of the RPA and the first paragraph on page 6 of the
RPA (see Exhibit A filed simultaneously herewith), all Defendants: (a) agreed that the RPA
would be governed by and construed in accordance with the laws of New York State; (b) agreed
that this Court is an acceptable forum for the instant action; and, (c) waived any and all
ATTORNEY’S AFFIRMATION IN SUPPORT, page 3 of 4
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objections to jurisdiction and venue.
15. Plaintiff is and has been qualified to do business as a foreign limited liability company in
the State of New York since December 9, 2016 (see the New York State Department of State
Entity Information sheet annexed hereto as Exhibit I)
WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant the instant
motion to dismiss the Defendants’ affirmative defenses and for summary judgment against
Defendants, together with interest from February 26, 2021 (the date of filing), plus $555.00 in
costs and disbursements as taxed by the Clerk and grant Plaintiff such other and further relief as
this Court may deem just and proper.
Dated: Roslyn Heights, NY
July 2, 2021
Theodore Jon Cohen, Esq.
Attorney for Plaintiff
112 West 34th St., 18th Fl., PMB 27813
New York, New York 10120
Phone: (347) 899-4192
Email: t.j.cohen.attorney@gmail.com
ATTORNEY’S AFFIRMATION IN SUPPORT, page 4 of 4
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Preview
FILED: RICHMOND COUNTY CLERK 07/02/2021 01:09 PM INDEX NO. 150441/2021 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/02/2021 SUPREME COURT OF THE STATE OF NEW YORK Index No.: 150441/2021 COUNTY OF RICHMOND PEARL DELTA FUNDING, LLC, VERIFIED AFFIRMATION Plaintiff, IN SUPPORT OF -against- PLAINTIFF’S MOTION TO ROSSER ENTERPRISE LLC and DISMISS DEFENDANTS’ ROSSER CATASTROPHE SERVICES and AFFIRMATIVE DEFENSES ROSSER ROOFING SOLUTIONS and AND FOR MR. ROOFER LLC and SUMMARY JUDGMENT JOHNATHON ROSSER, Defendants. THEODORE JON COHEN, an attorney admitted to practice before the courts of the State of New York, hereby affirms under penalty of perjury that I am the attorney of record for the plaintiff in the above-captioned action, am familiar with all material facts pertaining to this matter, and that the statements contained in the ensuing Affirmation of Default are true except for those matters alleged on informationand belief, and as to those matters I believe them to be true. I base my knowledge on my review of the file and conversations with plaintiff’s employee(s) and officer(s). This verification is made by plaintiff’s attorney because the Plaintiff is not located within the State of New York, where I have my offices. 1. I make this Affirmation in Support of Plaintiff’s Motion to Dismiss Defendants’ Affirmative Defenses and for Summary Judgment. 2. On or about November 30, 2020, Plaintiff and Defendants entered into a Revenue Purchase Agreement with Security Agreement and Guaranty of Performance (hereinafter the “RPA”) whereby Plaintiff purchased 4% of the future receivables of Defendants ROSSER ENTERPRISE LLC and ROSSER CATASTROPHE SERVICES and ROSSER ROOFING SOLUTIONS (collectively, “Merchant”) in exchange for: (a) Merchant’s promise to pay $144,000.00 (detailed on page 1 of the RPA as the Purchased Amount) to Plaintiff; and, (b) the guaranty, by Defendants MR. ROOFER LLC and JOHNATHON ROSSER, of the Merchant’s performance of the RPA. A copy of the RPA is annexed hereto as Exhibit A. 3. Pursuant to the second paragraph above the signature lines on page 1 of the RPA (see Exhibit A annexed hereto), Defendants agreed to exclusively use one bank account approved by Plaintiff (the “Account”) into which the Merchant agreed to deposit all of its receipts and from ATTORNEY’S AFFIRMATION IN SUPPORT, page 1 of 4 1 of 4 FILED: RICHMOND COUNTY CLERK 07/02/2021 01:09 PM INDEX NO. 150441/2021 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/02/2021 which Plaintiff was authorized to make daily ACH withdrawals until $144,000.00 was fully paid to Plaintiff. 4. The facts concerning the execution of the RPA and Defendants’ breach thereof are detailed in: (A) paragraphs 6, 7, 8, 10, 11, 12 and 13 the Verified Complaint (filed with the Court on February 26, 2021 as Docket Entry No. 1 and annexed hereto Exhibit B; and (B) the RPA’s Payment History filed simultaneously herewith as Exhibit C. 5. As can be seen from the RPA’s Payment History (see Exhibit C): A) On February 24, 2021, Defendants blocked Plaintiff’s access to the Account without Plaintiff’s prior authorization and thereby prevented Plaintiff from making the agreed upon ACH withdrawals and, as such, Defendants defaulted under the terms of the RPA (see Exhibit A). B) The payments made by or on behalf of Defendants totaled $44,668.68 [$43,200.00 from the Account prior to February 26, 2021 (the date Plaintiff filed the instant action) and $1,4778.68 subsequent to February 26, 2021 from third parties on behalf of Merchant], leaving a balance due and owing by Defendants to Plaintiff equal to $101,866.32, computed as follows: $144,000.00 Purchased Amount (see RPA, page 1) -$44,668.68 Payments Made by or on behalf of Defendants 35.00 NSF Fee (see RPA, page 7 section C: 1 NSF at $35.00) 2,500.00 Default Fee (see RPA, page 7 section D) $101,866.32 Balance Due and Owing 6. The eighth page of the RPA is a form captioned Authorization Agreement for Direct Deposit (ACH Credit) and Direct Payment (ACH Debits), hereinafter the ACH Form, that details the actual account number of the Account owned by Defendant ROSSER ENTERPRISE LLC: (A) into which Plaintiff was required to deposit the Purchase Price detailed on page 1 of the RPA (see Exhibit A annexed hereto); and, (B) from which the Plaintiff was to withdraw the daily remittances. 7. As is detailed in paragraph 10 of the Verified Complaint annexed hereto Exhibit B, Plaintiff “fulfilled all of its Agreement obligations.” This is confirmed by the Proof of Funding annexed hereto as Exhibit D wherein it can be seen that on December 2, 2020, Plaintiff wired transferred $97,000.00 into the Account. Said $97,000.00 was computed as follows: ATTORNEY’S AFFIRMATION IN SUPPORT, page 2 of 4 2 of 4 FILED: RICHMOND COUNTY CLERK 07/02/2021 01:09 PM INDEX NO. 150441/2021 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/02/2021 $100,000.00 Purchased Price (see RPA, page 1) -3,000.00 Underwriting Fee (see RPA, page 7 section A) $97,000.00 Wire transfer amount 8. On May 17, 2021, Defendants filed a Verified Answer and conclusory statements of affirmative defenses (see Docket Entry No. 4, a copy of which is annexed hereto as Exhibit E). 9. The debt owed by Defendants to Plaintiff has not been securitized. 10. For purposes of this application only, Plaintiff hereby waives: (a) its Third Cause of Action relating to Unjust Enrichment; and, (b) its claim for attorney’s fees. 11. Defendant JOHNATHON ROSSER is not in the Armed Forces of the United States. A copy of an Affirmation dated July 2, 2021 by attorney Theodore Jon Cohen attesting to that fact, was filed with the Court on July 2, 2021 (see Docket Entry No. 12 and is annexed hereto as Exhibit J. SERVICE OF PROCESS, JURISDICTION AND VENUE 12. All Defendants were properly served on or before June 14, 2021 and affidavits to that effect were filed with the Court – see Docket Entries No. 2, 8, 9, 10 and 11, copies of which, without the respective Summons, Verified Complaint and Notice of Electronic Filing are annexed hereto as Exhibit F). 13. On April 14, 2021 in an email to me, defendants’ then current attorney, Louis Russo, (a New York licensed and practicing attorney, registration # 4580189) accepted service on behalf of all defendants and waived any argument that the defendants were not properly served. Said email had been filed with this court (see Docket Entry No. 7) and is annexed hereto as Exhibit G. A copy of Attorney Russo’s registration report from the New York State Unified Court System is annexed hereto as Exhibit H. 14. By virtue of section 4.5 on page 4 of the RPA and the first paragraph on page 6 of the RPA (see Exhibit A filed simultaneously herewith), all Defendants: (a) agreed that the RPA would be governed by and construed in accordance with the laws of New York State; (b) agreed that this Court is an acceptable forum for the instant action; and, (c) waived any and all ATTORNEY’S AFFIRMATION IN SUPPORT, page 3 of 4 3 of 4 FILED: RICHMOND COUNTY CLERK 07/02/2021 01:09 PM INDEX NO. 150441/2021 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/02/2021 objections to jurisdiction and venue. 15. Plaintiff is and has been qualified to do business as a foreign limited liability company in the State of New York since December 9, 2016 (see the New York State Department of State Entity Information sheet annexed hereto as Exhibit I) WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant the instant motion to dismiss the Defendants’ affirmative defenses and for summary judgment against Defendants, together with interest from February 26, 2021 (the date of filing), plus $555.00 in costs and disbursements as taxed by the Clerk and grant Plaintiff such other and further relief as this Court may deem just and proper. Dated: Roslyn Heights, NY July 2, 2021 Theodore Jon Cohen, Esq. Attorney for Plaintiff 112 West 34th St., 18th Fl., PMB 27813 New York, New York 10120 Phone: (347) 899-4192 Email: t.j.cohen.attorney@gmail.com ATTORNEY’S AFFIRMATION IN SUPPORT, page 4 of 4 4 of 4