Preview
FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
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M&T BANK, Index No.
Plaintiff, VERIFIED COMPLAINT
-against-
PRESTIGE REALTY GROUP INC.,
NATIONAL BILLING AND FUNDING LLC,
CONSUMER PROTECTION RESTORATION LLC,
and WETZER JEANNOT,
Defendants.
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Plaintiff M&T Bank, by its attorneys, Kurzman Eisenberg Corbin & Lever, LLP,
complaining of Defendants Prestige Realty Group Inc., National Billing and Funding LLC,
Consumer Protection Restoration LLC, and Wetzer Jeannot (collectively, the “Defendants”), as
and for its Complaint alleges as follows:
THE PARTIES
1. At all relevant times hereinafter mentioned, Plaintiff M&T Bank (“M&T Bank”)
was and is a corporation organized under the banking laws of the State of New York, with an
office for the transaction of business located at One M&T Plaza, Buffalo, New York 14203.
2. Upon information and belief, at all relevant times hereinafter mentioned,
Defendant Prestige Realty Group Inc. (“Prestige”) was and is a corporation organized under the
laws of the State of New York, with an office for the transaction of business located at 7 West
Prospect Street, Nanuet, New York 10954 (the “Prestige Premises”).
3. Upon information and belief, at all relevant times hereinafter mentioned,
Defendant National Billing and Funding LLC (“National Billing”) was and is a limited liability
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company organized under the laws of the State of New York, with an office for the transaction of
business located at 7 West Prospect Street, Nanuet, New York 10954 (the “National Billing
Premises”).
4. Upon information and belief, at all relevant times hereinafter mentioned,
Defendant Consumer Protection Restoration LLC (“CPR”, individually a “Borrower” and
collectively with Prestige and National Billing, the “Borrowers”) was and is a limited liability
company organized under the laws of the State of New York, with an office for the transaction of
business located at 261 West Nyack Road, West Nyack, New York 10994 (the “CPR Premises”
and collectively with the Prestige and National Billing Premises, the “Premises”.
5. Upon information and belief, at all relevant times hereinafter mentioned,
Defendant Wetzer Jeannot (“Jeannot”) is an individual who is a resident of the State of New
York with a primary residence located at 8 High Mountain Road, Pomona, New York 10970.
6. Venue is proper in Rockland County because Defendants’ principal places of
business and residence are in this County.
FACTS COMMON TO ALL CAUSES OF ACTION
7. Plaintiff repeats and realleges the allegations contained in Paragraphs “1” through
“6” of this Complaint with the same force and effect as if set forth fully at length herein.
8. On or about January 9, 2020, M&T Bank and Borrowers entered into a Loan
Agreement (the “Loan Agreement”), whereby M&T Bank agreed, from time to time, in its sole
discretion, to make one or more loans to or for the account of Borrowers upon any Borrower’s
request. A true and correct copy of the Loan Agreement is attached hereto as Exhibit A.
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9. Under the terms of the Loan Agreement, the Borrowers agreed that they “will
duly and punctually pay all Obligations becoming due to the Bank and will duly and punctually
perform all Obligations on its part to be done or performed under this Agreement.”
10. Under the terms of the Loan Agreement, “[i]f an Event of Default shall occur, at
the election of the Bank, all Obligations shall become immediately due and payable . . . .”
11. Under the terms of the Loan Agreement, “[e]ach Borrower shall be jointly and
severally liable for payment and/or performance of all Obligations . . . .”
12. Under the terms of the Loan Agreement, the Borrowers agreed that “[e]ach
Borrower shall pay to the Bank on demand any and all costs and expenses (including, without
limitation, reasonable attorneys’ fees and disbursements, court costs, litigation and other
expenses) incurred or paid by the Bank in establishing, maintaining, protecting or enforcing any
of the Bank’s right or the Obligations....”
13. Under the terms of the Loan Agreement, the Borrowers “will at all reasonable
times make its books and records available in its office for inspection, examination and
duplication by [M&T Bank] and [M&T Bank’s] representatives and will permit inspection of the
Collateral and all of its properties by [M&T Bank] and [M&T Bank’s representatives. Each
Borrower will from time to time furnish [M&T Bank] with such information and statements as
[M&T Bank] may request in its sole discretion with respect to the Obligations or [M&T Bank’s]
security interest in the Collateral.”
14. Under the terms of the Loan Agreement, each Borrower is required to furnish to
M&T Bank “as soon as available to such Borrower, but in any event within 45 days after the
close of each quarterly period of its fiscal year, a full and complete signed copy of financial
statements, which shall include a balance sheet of such Borrower, as at the end of such quarter,
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and statement of profit and loss of such Borrower reflecting the results of its operations during
such quarter and shall be prepared by such Borrower and certified by such Borrower’s chief
financial officer as to correctness ins accordance with generally accepted accounting principles,
consistently applied, subject to year-end adjustments . . . .”
15. On or about January 9, 2020, Borrowers executed and delivered a Revolving
Demand Note (the “Revolving Demand Note”) in favor of M&T Bank, as amended from time
to time, in the original principal amount of $1,000,000.00. A true and correct copy of the
Revolving Demand Note is attached hereto as Exhibit B.
16. Under the terms of the Revolving Demand Note, “THE BORROWER
ACKNOWLEDGES THAT THIS NOTE IS A DEMAND NOTE AND THE RIGHT OF THE
BANK TO DEMAND PAYMENT OF THIS NOTE IN WHOLE OR IN PART AT ANY TIME
SHALL BE ABSOLUTE, UNCONDITIONAL AND IN THE SOLE DISCRETION OF THE
BANK.”
17. Under the terms of the Revolving Demand Note, interest accrued on the principal
balance at the Prime Rate (as defined in the Revolving Demand Note) plus one-half percent
(0.50%).
18. Under the terms of the Revolving Demand Note, in the event of default, interest
accrued at the rate provided therein plus five percent (5.0%) (the “Default Rate”).
19. Under the terms of the Revolving Demand Note, the Borrowers are jointly and
severally liable for the obligations due thereunder.
20. On or about January 9, 2020, M&T Bank and Prestige entered into a Security
Agreement, as amended from time to time (the “First Prestige Security Agreement”), pursuant
to which, as security for the payment and performance of all loans, advances, indebtedness,
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notes, liabilities and amounts, liquidated or unliquidated, owed by Prestige to M&T Bank at any
time, Prestige granted M&T Bank a blanket security interest on all of Prestige’s assets, including
but not limited to, its “present and future right, title and interest in and to any and all of the
personal property of [Prestige] whether such property is now existing or hereafter created,
acquired or arising and wherever located from time to time, including without limitation: (i)
accounts; (ii) chattel paper; (iii) goods; (iv) inventory; . . . (xii) deposit accounts. . . .” (the
“Prestige Collateral”.) A true and correct copy of the Prestige Security Agreement is attached
as Exhibit C.
21. On or about January 9, 2020, M&T Bank and National Billing entered into a
Security Agreement, as amended from time to time (the “First National Billing Security
Agreement”), pursuant to which, as security for the payment and performance of all loans,
advances, indebtedness, notes, liabilities and amounts, liquidated or unliquidated, owed by
National Billing to M&T Bank at any time, National Billing granted M&T Bank a priority
blanket security interest on in all of National Billing’s assets, including but not limited to
“present and future right, title and interest in and to any and all of the personal property of
[National Billing] whether such property is now existing or hereafter created, acquired or arising
and wherever located from time to time, including without limitation: (i) accounts; (ii) chattel
paper; (iii) goods; (iv) inventory; . . . (xii) deposit accounts. . . .” (the “National Billing
Collateral”.) A true and correct copy of the First National Billing Security Agreement is
attached as Exhibit D.
22. On or about January 9, 2020, M&T Bank and CPR entered into a Security
Agreement, as amended from time to time (the “First CPR Security Agreement”), pursuant to
which, as security for the payment and performance of all loans, advances, indebtedness, notes,
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liabilities and amounts, liquidated or unliquidated, owed by CPR to M&T Bank at any time, CPR
granted M&T Bank a blanket priority security interest on all of CPR’s assets, including but not
limited to “present and future right, title and interest in and to any and all of the personal
property of [CPR] whether such property is now existing or hereafter created, acquired or arising
and wherever located from time to time, including without limitation: (i) accounts; (ii) chattel
paper; (iii) goods; (iv) inventory; . . . (xii) deposit accounts. . . .” (the “CPR Collateral” and
together with the Prestige Collateral and National Billing Collateral, the “Collateral”.) A true
and correct copy of the First CPR Security Agreement is attached as Exhibit E.
23. In order to induce M&T Bank to make loans, advances, or grant other financial
accommodations to Borrowers, on or about January 9, 2020, Jeannot executed and delivered an
Unlimited Guaranty (the “Jeannot Unlimited Guaranty”) in favor of M&T Bank, pursuant to
which Jeannot absolutely and unconditionally guaranteed Borrowers’ full and punctual payment
of all present and future sums due and owing to M&T Bank. A true and correct copy of the
Jeannot Unlimited Guaranty is attached as Exhibit F.
24. On or about February 12, 2020, M&T Bank and Prestige entered into a certain
M&T Visa Charge Cards and Card Products Agreement (“Charge Card Agreement”), pursuant
to which M&T Bank granted Prestige a charge card line of credit with a limit of $1,183,000.00.
A true and correct copy of the Charge Card Agreement is attached as Exhibit G.
25. Under the terms of the Charge Card Agreement, Prestige agreed to pay M&T
Bank all outstanding balances on the charge card line of credit when due and payable as
specified in the Charge Card Agreement.
26. Under the terms of the Charge Card Agreement, Prestige agreed that the failure to
pay when due any amount payable to M&T shall constitute a default thereunder.
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27. Under the terms of the Charge Card Agreement, Prestige agreed that in the event
of a default thereunder, all amounts due and owing shall immediately become due.
28. Under the terms of the Charge Card Agreement, Prestige agreed to provide M&T
Bank “with financial and other information of [Prestige] and Cardholders as [M&T Bank] may
reasonably request, including, within 60 days after the end of each fiscal year of [Prestige],
statements of income and cash flows and balance sheets of [Prestige] as of the fiscal year end,
certified by an officer of [Prestige] to have been prepared in accordance with generally accepted
principles and to fairly present the result of [Prestige’s] operations and cash flows and its
financial position in conformity with such principles.”
29. In order to further induce M&T Bank to make loans, advances, or grant other
financial accommodations to Borrowers, on or about November 12, 2020, Jeannot executed and
delivered a Continuing Guaranty (the “Jeannot Continuing Guaranty”, together with the
Jeannot Unlimited Guaranty, the “Personal Guaranties”) in favor of M&T Bank, pursuant to
which Jeannot unconditionally guaranteed Borrowers’ full and punctual payment of all present
and future sums due and owing to M&T Bank. A true and correct copy of the Jeannot Continuing
Guaranty is attached as Exhibit H.
30. In furtherance of the Personal Guaranties, Jeannot granted M&T Bank a security
interest in all money, securities and other property of Jeannot in the actual or constructive
possession or control of M&T Bank or its affiliates, including all deposits and other accounts
owing at any time by M&T Bank.
31. For valuable consideration given, on or about November 12, 2020, M&T Bank
and Prestige entered into a General Security Agreement, as amended from time to time (the
“Second Prestige Security Agreement”), pursuant to which, as additional security for the
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prompt and complete payment when due of all Prestige’s indebtedness or other obligations to
M&T Bank, Prestige granted M&T Bank a blanket lien on the Prestige Collateral. A true and
correct copy of the Second Prestige Security Agreement is attached as Exhibit I.
32. On or about November 12, 2020, M&T Bank and National Billing entered into a
General Security Agreement, as amended from time to time (the “Second National Billing
Security Agreement”), pursuant to which, as additional security for the prompt and complete
payment when due of all National Billing’s indebtedness or other obligations to M&T Bank,
National Billing granted M&T Bank a priority blanket lien on the National Billing Collateral. A
true and correct copy of the Second National Billing Security Agreement is attached as Exhibit
J.
33. On or about November 12, 2020, M&T Bank and CPR entered into a General
Security Agreement, as amended from time to time (the “Second CPR Security Agreement”)
(together, with the First Prestige Security Agreement, First National Billing Security Agreement,
First CPR Security Agreement, Second Prestige Security Agreement, and Second National
Billing Security Agreement, the “Security Agreements”) (collectively, the Security Agreements
with the Loan Agreement, Revolving Demand Note, Jeannot Unlimited Guaranty, Charge Card
Agreement, and Jeannot Continuing Guaranty, the “Loan Documents”), pursuant to which, as
additional security for the prompt and complete payment when due of all CPR’s indebtedness or
other obligations to M&T Bank, CPR granted M&T Bank a priority blanket lien on the CPR
Collateral. A true and correct copy of the Second CPR Security Agreement is attached as
Exhibit K.
34. In ordered to perfect its blanket security interest on the Collateral of Borrowers,
M & T caused to be filed UCC-1 Financing Statement Nos. 202003125324905,
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202003125324917, and 202003125324892 with the New York Secretary of State (collectively,
the “UCC Financing Statements”). True and correct copies of the Financing Statements are
attached as Exhibit L.
35. As a result of failing to remit $1,039,150.00 due and owing on the Revolving
Demand Note and failing to provide information due thereunder, Borrowers defaulted
thereunder.
36. As a result of failing to remit $846,279.89 due and owing on the Charge Card
Agreement and failing to produce information due thereunder, Prestige defaulted thereunder.
37. On or about March 27, 2023, M&T Bank sent to Defendants a Notice of Default
and Reservation of Rights, thereby placing Defendants on notice of their defaults under the Loan
Documents. A true and correct copy of the Notice of Default and Reservation of Rights is
attached as Exhibit M.
38. On or about May 30, 2023, M&T Bank sent to Defendants a Notice of Default,
Acceleration, and Demand for Payment, thereby further placing Defendants on notice of their
defaults under the Loan Documents. A true and correct copy of the Notice of Default,
Acceleration, and Demand for Payment is attached as Exhibit N.
39. Despite due and repeated demands, Defendants have failed to cure the defaults.
40. Pursuant to the Loan Documents, Defendants remain obligated and responsible to
M&T Bank for the outstanding balance of $1,039,150.00 on the Revolving Demand Note plus
default interest at the Default Rate per annum from March 12, 2024 that continues to accrue,
costs, expenses, and attorneys’ fees, and Prestige and Jeannot remain obligated and responsible
to M&T Bank for the outstanding balance of $846,279.89 under the Charge Card Agreement
plus default interest as specified therein per annum from October 19, 2023 that continues to
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accrue, costs, expenses, and attorneys’ fees. True and correct copies of the M&T Bank line of
credit statement and credit card statement are attached hereto as Exhibit O and Exhibit P,
respectively, evidencing Defendants’ outstanding balances owed and due to M&T Bank.
41. M&T Bank has performed all its obligations and conditions precedent to enforce
the Loan Documents.
42. M&T Bank is the legal and rightful owner of the Loan Documents and has not
assigned or transferred its rights in the same.
AS AND FOR A FIRST CAUSE OF ACTION
Breach of Contract
(Borrowers)
43. Plaintiff repeats and realleges the allegations contained in Paragraphs “1” through
“42” of this Complaint with the same force and effect as if set forth fully at length herein.
44. M&T Bank is the owner of the Loan Agreement and Revolving Demand Note,
pursuant to which Borrowers promised to make loan payments when due and provide M&T
Bank financial information.
45. Borrowers have breached the Loan Agreement and Revolving Demand Note by
failing to pay all loan payments when due and provide M&T Bank financial information in
accordance with the Loan Documents.
46. On or about March 27, 2023, M&T Bank sent to Borrowers a Notice of Default
and Reservation of Rights, which default was the result of Borrowers’ failure to make all
payments when due and to provide M&T Bank financial information in accordance with the
Loan Documents.
47. On or about May 30, 2023, M&T Bank sent to Borrowers a Notice of Default,
Acceleration and Demand for Payment, demanding payment in full under the Loan Documents.
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48. Pursuant to the Loan Agreement and Revolving Demand Note, Borrowers remain
obligated and responsible to M&T Bank for the outstanding balance of $1,039,150.00 on the
Revolving Demand Note plus default interest at the Default Rate per annum from March 12,
2024 that continues to accrue, costs, expenses, and attorneys’ fees.
49. M&T Bank has retained the law firms of Updike, Kelly & Spellacy, P.C. and
Kurzman Eisenberg Corbin & Lever, LLP, and has agreed to pay said firms a reasonable fee for
their services. Pursuant to the Loan Documents, M&T Bank is entitled to recover from
Borrowers its attorneys’ fees and costs incurred in enforcing the Loan Documents.
50. Borrowers are jointly and severally liable for all amounts due and owing to M&T
Bank resulting from Borrowers’ breach of the Revolving Demand Note and Loan Agreement.
51. M&T has fully complied with its obligations under the Loan Agreement and
Revolving Demand Note.
52. By reason of the foregoing, M&T Bank is entitled to judgment against Borrowers,
jointly and severally, in the amount of $1,039,150.00 plus default interest from March 12, 2024
together with the costs and disbursements of this action, including reasonable attorneys’ fees.
AS AND FOR A SECOND CAUSE OF ACTION
Breach of Contract
(Prestige Realty Group Inc.)
53. Plaintiff repeats and realleges the allegations contained in Paragraphs “1” through
“52” of this Complaint with the same force and effect as if set forth fully at length herein.
54. M&T Bank is the owner of the Charge Card Agreement, pursuant to which
Prestige promised to make credit card payments when due and provide M&T Bank financial
information.
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55. Prestige has breached the Charge Card Agreement by failing to pay all credit card
payments when due and provide M&T Bank financial information in accordance with the Charge
Card Agreement.
56. On or about March 27, 2023, M&T Bank sent to Borrowers a Notice of Default
and Reservation of Rights, which default was the result of Borrowers’ failure to make all
payments and to provide M&T Bank financial information in accordance with the Loan
Documents.
57. On or about May 30, 2023, M&T Bank sent to Borrowers a Notice of Default,
Acceleration and Demand for Payment, demanding payment in full under the Loan Documents.
58. Pursuant to the Charge Card Agreement, Prestige remains obligated and
responsible to M&T Bank for the outstanding balance of $846,279.89 under the Charge Card
Agreement as of October 19, 2023, plus default interest as specified therein that continues to
accrue, costs, expenses, and attorneys’ fees.
59. M&T Bank has retained the law firms of Updike, Kelly & Spellacy, P.C. and
Kurzman Eisenberg Corbin & Lever, LLP, and has agreed to pay said firms a reasonable fee for
their services. Pursuant to the Charge Card Agreement, M&T Bank is entitled to recover from
Borrowers its attorneys’ fees and costs incurred in enforcing the Loan Documents.
60. M&T has fully complied with its obligations under the Charge Card Agreement.
61. By reason of the foregoing, M&T Bank is entitled to judgment against Prestige in
the amount of $846,279.89 plus default interest from October 19, 2023, together with the costs
and disbursements of this action, including reasonable attorneys’ fees.
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AS AND FOR AN THIRD CAUSE OF ACTION
Breach of Guaranty
(Wetzer Jeannot)
62. Plaintiff repeats and realleges the allegations contained in Paragraphs “1” through
“61” of this Complaint with the same force and effect as if set forth fully at length herein.
63. Jeannot executed and delivered the Personal Guaranties to M&T Bank, pursuant
to which Jeannot unconditionally guaranteed Borrowers’ full and punctual payment of all present
and future sums due and owing to M&T Bank under the Loan Documents.
64. Jeannot breached the Personal Guaranties by failing to pay all amounts due under
the Loan Documents after Borrowers failed to pay the same.
65. On or about March 27, 2023, M&T Bank sent to Jeannot a Notice of Default and
Reservation of Rights, which default was the result of Jeannot’s failure to make all payments
when due.
66. On or about May 30, 2023, M&T Bank sent to Jeannot a Notice of Default,
Acceleration and Demand for Payment, demanding payment in full under the Loan Documents.
67. By reason of the foregoing, M & T is entitled to judgment against Jeannot in the
amount of $1,039,150.00 on the Revolving Demand Note as of March 12, 2024, plus default
interest that continues to accrue, costs, expenses, and attorneys’ fees, and $846,279.89 under the
Charge Card Agreement as of October 19, 2023, plus default interest that continues to accrue,
together with the costs and disbursements of this action, including reasonable attorneys’ fees.
AS AND FOR A FOURTH CAUSE OF ACTION
Replevin
(Borrowers)
68. Plaintiff repeats and realleges the allegations contained in Paragraphs “1” through
“67” of this Complaint with the same force and effect as if set forth fully at length herein.
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69. For the purpose of securing any and all obligations due and owing from the
Defendants to M&T Bank, in connection with the Loan Documents, Borrowers executed and
delivered the Security Agreements. Pursuant to the Security Agreements, Borrowers provided
M&T Bank with blanket liens upon the Collateral.
70. M&T Bank perfected its security interest in the Collateral by effectuating the
filing the UCC Financing Statements with the New York Secretary of State.
71. M&T Bank is entitled to immediate possession of the Collateral by virtue of its
blanket lien and the facts set forth herein, insofar as Borrowers have failed and/or refused to
satisfy the indebtedness and are in default under the Loan Documents.
72. On or about March 27, 2023, M&T Bank sent to Borrowers a Notice of Default
and Reservation of Rights, which default was the result of Defendants’ failure to make all
payments when due and provide M&T Bank financial information in accordance with the Loan
Documents.
73. On or about May 30, 2023, M&T Bank sent to Borrowers a Notice of Default,
Acceleration and Demand for Payment, demanding payment in full under the Loan Documents.
74. Despite due and repeated demands, Borrowers have failed and/or refused to cure
the default.
75. M&T Bank has a first priority security interest on the National Billing Collateral
and CPR Collateral, and, upon information and belief, M&T Bank has a security interest on the
Prestige Collateral that is only junior to a first priority security interest held by JPMorgan Chase.
76. By reason of the foregoing, M&T Bank is entitled to judgment against
Borrowers, jointly and severally, in the amount of $1,039,150.00 on the Revolving Demand Note
as of March 12, 2024, plus default interest that continues to accrue, costs, expenses, and
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attorneys’ fees, and $846,279.89 under the Charge Card Agreement as of October 19, 2023, plus
default interest that continues to accrue, costs, expenses, and attorneys’ fees; and an order of
seizure directing Borrowers to deliver the Collateral to M&T Bank, and in the event the
Collateral is not delivered to M&T Bank, the sheriff may break open, enter and search the
Premises and/or any place in which the Collateral may be found, and seize the Collateral
sufficient to satisfy the indebtedness, together with the costs and disbursements of this action,
including reasonable attorneys’ fees.
AS AND FOR A FIFTH CAUSE OF ACTION
Permanent Injunction
(Borrowers)
77. Plaintiff repeats and realleges the allegations contained in Paragraphs “1” through
“76” of this Verified Complaint with the same force and effect as if set forth fully at length
herein.
78. As a result of the foregoing conduct, including, but not limited to, Borrowers’
defaults under the Loan Documents, M&T Bank is entitled to an order permanently enjoining
and restraining Borrowers, along with their officers, directors, members, employees, agents,
representatives and persons working on Borrowers’ behalf, from selling, transferring, pledging,
hypothecating, assigning, negotiating or in any way disposing of the Collateral, on the grounds
that any such acts would be in violation of M&T Bank’s rights and would render any judgment
obtained herein ineffectual and incapable of being enforced.
WHEREFORE, M&T Bank demands judgment against Defendants as follows:
1. On the First Cause of Action against Borrowers, jointly and severally, in the
amount of $1,039,150.00 plus default interest from March 12, 2024 together
with the costs and disbursements of this action, including reasonable
attorneys’ fees;
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2. On the Second Cause of Action against Prestige in the amount of $846,279.89
plus default interest from October 19, 2023, together with the costs and
disbursements of this action, including reasonable attorneys’ fees;
3. On the Third Cause of Action against Jeannot in the amount of in the amount
of $1,039,150.00 on the Revolving Demand Note as of March 12, 2024, plus
default interest that continues to accrue, costs, expenses, and attorneys’ fees,
and $846,279.89 under the Charge Card Agreement as of October 19, 2023,
plus default interest that continues to accrue, together with the costs and
disbursements of this action, including reasonable attorneys’ fees.
4. On the Fourth Cause of Action against Borrowers, jointly and severally, in the
amount of $1,039,150.00 on the Revolving Demand Note as of March 12,
2024, plus default interest that continues to accrue, costs, expenses, and
attorneys’ fees, and $846,279.89 under the Charge Card Agreement as of
October 19, 2023, plus default interest that continues to accrue, costs,
expenses, and attorneys’ fees; and an order of seizure directing Borrowers to
deliver the Collateral to M&T Bank, and in the event the Collateral is not
delivered to M&T Bank, the sheriff may break open, enter and search the
Premises and/or any place in which the Collateral may be found, and seize the
Collateral sufficient to satisfy the indebtedness, together with the costs and
disbursements of this action, including reasonable attorneys’ fees;
5. On the Fifth Cause of Action against Borrowers, an order permanently
enjoining and restraining Borrowers, along with their officers, directors,
members, employees, agents, representatives and persons working on
Borrowers’ behalf, from selling, transferring, pledging, hypothecating,
assigning, negotiating or in any way disposing of the Collateral, on the
grounds that any such acts would be in violation of M&T Bank’s rights and
would render any judgment obtained herein ineffectual and incapable of being
enforced; and
6. For such other and further relief as this Court may deem just and proper.
Dated: White Plains, New York
March 13, 2024
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FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024
KURZMAN EISENBERG
CORBIN & LEVER, LLP
By:_______________________
Bruce W. Bieber, Esq.
Attorneys for Plaintiff
One North Broadway, 12th Fl.
White Plains, New York 10601
(914) 993-6053
bbieber@kelaw.com
Of Counsel:
Evan S. Goldstein
CT No. 418631;
ARDC No. 6341523
(to be admitted pro hac vice)
Updike, Kelly & Spellacy, P.C.
225 Asylum Street, 20th Floor
Hartford, Connecticut 06103
Telephone: 860.548.2600
Facsimile: 860.548.2680
Email: egoldstein@uks.com
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FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024
ATTORNEY VERIFICATION
Bruce W. Bieber, an attorney admitted to practice in the Courts of New York
State, state that I am a member of the firm of Kurzman Eisenberg Corbin & Lever, LLP,
attorneys of record for the Plaintiff in the within action; I have read the foregoing
Complaint and know the contents thereof; the same is true to my own knowledge, except
as to the matters therein stated to be alleged on information and belief, and as to those
matters, I believe them to be true. The reason this Verification is made by me and not by
Plaintiff is that Plaintiff maintains its principal place of business in a county other than
where I maintain my offices. The grounds of my belief as to all matters not stated upon
my own knowledge are as follows: conversations with Plaintiff, conversations with
Plaintiff’s counsel at Updike, Kelly & Spellacy, P.C., and various books and records.
I affirm that the foregoing statements are true under the penalties of perjury.
Dated: White Plains, New York
March 13, 2024
___________________
Bruce W. Bieber
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Preview
FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND -------------------------------------------------------------------X M&T BANK, Index No. Plaintiff, VERIFIED COMPLAINT -against- PRESTIGE REALTY GROUP INC., NATIONAL BILLING AND FUNDING LLC, CONSUMER PROTECTION RESTORATION LLC, and WETZER JEANNOT, Defendants. ------------------------------------------------------------------X Plaintiff M&T Bank, by its attorneys, Kurzman Eisenberg Corbin & Lever, LLP, complaining of Defendants Prestige Realty Group Inc., National Billing and Funding LLC, Consumer Protection Restoration LLC, and Wetzer Jeannot (collectively, the “Defendants”), as and for its Complaint alleges as follows: THE PARTIES 1. At all relevant times hereinafter mentioned, Plaintiff M&T Bank (“M&T Bank”) was and is a corporation organized under the banking laws of the State of New York, with an office for the transaction of business located at One M&T Plaza, Buffalo, New York 14203. 2. Upon information and belief, at all relevant times hereinafter mentioned, Defendant Prestige Realty Group Inc. (“Prestige”) was and is a corporation organized under the laws of the State of New York, with an office for the transaction of business located at 7 West Prospect Street, Nanuet, New York 10954 (the “Prestige Premises”). 3. Upon information and belief, at all relevant times hereinafter mentioned, Defendant National Billing and Funding LLC (“National Billing”) was and is a limited liability 4247903 1 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 company organized under the laws of the State of New York, with an office for the transaction of business located at 7 West Prospect Street, Nanuet, New York 10954 (the “National Billing Premises”). 4. Upon information and belief, at all relevant times hereinafter mentioned, Defendant Consumer Protection Restoration LLC (“CPR”, individually a “Borrower” and collectively with Prestige and National Billing, the “Borrowers”) was and is a limited liability company organized under the laws of the State of New York, with an office for the transaction of business located at 261 West Nyack Road, West Nyack, New York 10994 (the “CPR Premises” and collectively with the Prestige and National Billing Premises, the “Premises”. 5. Upon information and belief, at all relevant times hereinafter mentioned, Defendant Wetzer Jeannot (“Jeannot”) is an individual who is a resident of the State of New York with a primary residence located at 8 High Mountain Road, Pomona, New York 10970. 6. Venue is proper in Rockland County because Defendants’ principal places of business and residence are in this County. FACTS COMMON TO ALL CAUSES OF ACTION 7. Plaintiff repeats and realleges the allegations contained in Paragraphs “1” through “6” of this Complaint with the same force and effect as if set forth fully at length herein. 8. On or about January 9, 2020, M&T Bank and Borrowers entered into a Loan Agreement (the “Loan Agreement”), whereby M&T Bank agreed, from time to time, in its sole discretion, to make one or more loans to or for the account of Borrowers upon any Borrower’s request. A true and correct copy of the Loan Agreement is attached hereto as Exhibit A. 4247903 -2- 2 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 9. Under the terms of the Loan Agreement, the Borrowers agreed that they “will duly and punctually pay all Obligations becoming due to the Bank and will duly and punctually perform all Obligations on its part to be done or performed under this Agreement.” 10. Under the terms of the Loan Agreement, “[i]f an Event of Default shall occur, at the election of the Bank, all Obligations shall become immediately due and payable . . . .” 11. Under the terms of the Loan Agreement, “[e]ach Borrower shall be jointly and severally liable for payment and/or performance of all Obligations . . . .” 12. Under the terms of the Loan Agreement, the Borrowers agreed that “[e]ach Borrower shall pay to the Bank on demand any and all costs and expenses (including, without limitation, reasonable attorneys’ fees and disbursements, court costs, litigation and other expenses) incurred or paid by the Bank in establishing, maintaining, protecting or enforcing any of the Bank’s right or the Obligations....” 13. Under the terms of the Loan Agreement, the Borrowers “will at all reasonable times make its books and records available in its office for inspection, examination and duplication by [M&T Bank] and [M&T Bank’s] representatives and will permit inspection of the Collateral and all of its properties by [M&T Bank] and [M&T Bank’s representatives. Each Borrower will from time to time furnish [M&T Bank] with such information and statements as [M&T Bank] may request in its sole discretion with respect to the Obligations or [M&T Bank’s] security interest in the Collateral.” 14. Under the terms of the Loan Agreement, each Borrower is required to furnish to M&T Bank “as soon as available to such Borrower, but in any event within 45 days after the close of each quarterly period of its fiscal year, a full and complete signed copy of financial statements, which shall include a balance sheet of such Borrower, as at the end of such quarter, 4247903 -3- 3 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 and statement of profit and loss of such Borrower reflecting the results of its operations during such quarter and shall be prepared by such Borrower and certified by such Borrower’s chief financial officer as to correctness ins accordance with generally accepted accounting principles, consistently applied, subject to year-end adjustments . . . .” 15. On or about January 9, 2020, Borrowers executed and delivered a Revolving Demand Note (the “Revolving Demand Note”) in favor of M&T Bank, as amended from time to time, in the original principal amount of $1,000,000.00. A true and correct copy of the Revolving Demand Note is attached hereto as Exhibit B. 16. Under the terms of the Revolving Demand Note, “THE BORROWER ACKNOWLEDGES THAT THIS NOTE IS A DEMAND NOTE AND THE RIGHT OF THE BANK TO DEMAND PAYMENT OF THIS NOTE IN WHOLE OR IN PART AT ANY TIME SHALL BE ABSOLUTE, UNCONDITIONAL AND IN THE SOLE DISCRETION OF THE BANK.” 17. Under the terms of the Revolving Demand Note, interest accrued on the principal balance at the Prime Rate (as defined in the Revolving Demand Note) plus one-half percent (0.50%). 18. Under the terms of the Revolving Demand Note, in the event of default, interest accrued at the rate provided therein plus five percent (5.0%) (the “Default Rate”). 19. Under the terms of the Revolving Demand Note, the Borrowers are jointly and severally liable for the obligations due thereunder. 20. On or about January 9, 2020, M&T Bank and Prestige entered into a Security Agreement, as amended from time to time (the “First Prestige Security Agreement”), pursuant to which, as security for the payment and performance of all loans, advances, indebtedness, 4247903 -4- 4 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 notes, liabilities and amounts, liquidated or unliquidated, owed by Prestige to M&T Bank at any time, Prestige granted M&T Bank a blanket security interest on all of Prestige’s assets, including but not limited to, its “present and future right, title and interest in and to any and all of the personal property of [Prestige] whether such property is now existing or hereafter created, acquired or arising and wherever located from time to time, including without limitation: (i) accounts; (ii) chattel paper; (iii) goods; (iv) inventory; . . . (xii) deposit accounts. . . .” (the “Prestige Collateral”.) A true and correct copy of the Prestige Security Agreement is attached as Exhibit C. 21. On or about January 9, 2020, M&T Bank and National Billing entered into a Security Agreement, as amended from time to time (the “First National Billing Security Agreement”), pursuant to which, as security for the payment and performance of all loans, advances, indebtedness, notes, liabilities and amounts, liquidated or unliquidated, owed by National Billing to M&T Bank at any time, National Billing granted M&T Bank a priority blanket security interest on in all of National Billing’s assets, including but not limited to “present and future right, title and interest in and to any and all of the personal property of [National Billing] whether such property is now existing or hereafter created, acquired or arising and wherever located from time to time, including without limitation: (i) accounts; (ii) chattel paper; (iii) goods; (iv) inventory; . . . (xii) deposit accounts. . . .” (the “National Billing Collateral”.) A true and correct copy of the First National Billing Security Agreement is attached as Exhibit D. 22. On or about January 9, 2020, M&T Bank and CPR entered into a Security Agreement, as amended from time to time (the “First CPR Security Agreement”), pursuant to which, as security for the payment and performance of all loans, advances, indebtedness, notes, 4247903 -5- 5 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 liabilities and amounts, liquidated or unliquidated, owed by CPR to M&T Bank at any time, CPR granted M&T Bank a blanket priority security interest on all of CPR’s assets, including but not limited to “present and future right, title and interest in and to any and all of the personal property of [CPR] whether such property is now existing or hereafter created, acquired or arising and wherever located from time to time, including without limitation: (i) accounts; (ii) chattel paper; (iii) goods; (iv) inventory; . . . (xii) deposit accounts. . . .” (the “CPR Collateral” and together with the Prestige Collateral and National Billing Collateral, the “Collateral”.) A true and correct copy of the First CPR Security Agreement is attached as Exhibit E. 23. In order to induce M&T Bank to make loans, advances, or grant other financial accommodations to Borrowers, on or about January 9, 2020, Jeannot executed and delivered an Unlimited Guaranty (the “Jeannot Unlimited Guaranty”) in favor of M&T Bank, pursuant to which Jeannot absolutely and unconditionally guaranteed Borrowers’ full and punctual payment of all present and future sums due and owing to M&T Bank. A true and correct copy of the Jeannot Unlimited Guaranty is attached as Exhibit F. 24. On or about February 12, 2020, M&T Bank and Prestige entered into a certain M&T Visa Charge Cards and Card Products Agreement (“Charge Card Agreement”), pursuant to which M&T Bank granted Prestige a charge card line of credit with a limit of $1,183,000.00. A true and correct copy of the Charge Card Agreement is attached as Exhibit G. 25. Under the terms of the Charge Card Agreement, Prestige agreed to pay M&T Bank all outstanding balances on the charge card line of credit when due and payable as specified in the Charge Card Agreement. 26. Under the terms of the Charge Card Agreement, Prestige agreed that the failure to pay when due any amount payable to M&T shall constitute a default thereunder. 4247903 -6- 6 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 27. Under the terms of the Charge Card Agreement, Prestige agreed that in the event of a default thereunder, all amounts due and owing shall immediately become due. 28. Under the terms of the Charge Card Agreement, Prestige agreed to provide M&T Bank “with financial and other information of [Prestige] and Cardholders as [M&T Bank] may reasonably request, including, within 60 days after the end of each fiscal year of [Prestige], statements of income and cash flows and balance sheets of [Prestige] as of the fiscal year end, certified by an officer of [Prestige] to have been prepared in accordance with generally accepted principles and to fairly present the result of [Prestige’s] operations and cash flows and its financial position in conformity with such principles.” 29. In order to further induce M&T Bank to make loans, advances, or grant other financial accommodations to Borrowers, on or about November 12, 2020, Jeannot executed and delivered a Continuing Guaranty (the “Jeannot Continuing Guaranty”, together with the Jeannot Unlimited Guaranty, the “Personal Guaranties”) in favor of M&T Bank, pursuant to which Jeannot unconditionally guaranteed Borrowers’ full and punctual payment of all present and future sums due and owing to M&T Bank. A true and correct copy of the Jeannot Continuing Guaranty is attached as Exhibit H. 30. In furtherance of the Personal Guaranties, Jeannot granted M&T Bank a security interest in all money, securities and other property of Jeannot in the actual or constructive possession or control of M&T Bank or its affiliates, including all deposits and other accounts owing at any time by M&T Bank. 31. For valuable consideration given, on or about November 12, 2020, M&T Bank and Prestige entered into a General Security Agreement, as amended from time to time (the “Second Prestige Security Agreement”), pursuant to which, as additional security for the 4247903 -7- 7 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 prompt and complete payment when due of all Prestige’s indebtedness or other obligations to M&T Bank, Prestige granted M&T Bank a blanket lien on the Prestige Collateral. A true and correct copy of the Second Prestige Security Agreement is attached as Exhibit I. 32. On or about November 12, 2020, M&T Bank and National Billing entered into a General Security Agreement, as amended from time to time (the “Second National Billing Security Agreement”), pursuant to which, as additional security for the prompt and complete payment when due of all National Billing’s indebtedness or other obligations to M&T Bank, National Billing granted M&T Bank a priority blanket lien on the National Billing Collateral. A true and correct copy of the Second National Billing Security Agreement is attached as Exhibit J. 33. On or about November 12, 2020, M&T Bank and CPR entered into a General Security Agreement, as amended from time to time (the “Second CPR Security Agreement”) (together, with the First Prestige Security Agreement, First National Billing Security Agreement, First CPR Security Agreement, Second Prestige Security Agreement, and Second National Billing Security Agreement, the “Security Agreements”) (collectively, the Security Agreements with the Loan Agreement, Revolving Demand Note, Jeannot Unlimited Guaranty, Charge Card Agreement, and Jeannot Continuing Guaranty, the “Loan Documents”), pursuant to which, as additional security for the prompt and complete payment when due of all CPR’s indebtedness or other obligations to M&T Bank, CPR granted M&T Bank a priority blanket lien on the CPR Collateral. A true and correct copy of the Second CPR Security Agreement is attached as Exhibit K. 34. In ordered to perfect its blanket security interest on the Collateral of Borrowers, M & T caused to be filed UCC-1 Financing Statement Nos. 202003125324905, 4247903 -8- 8 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 202003125324917, and 202003125324892 with the New York Secretary of State (collectively, the “UCC Financing Statements”). True and correct copies of the Financing Statements are attached as Exhibit L. 35. As a result of failing to remit $1,039,150.00 due and owing on the Revolving Demand Note and failing to provide information due thereunder, Borrowers defaulted thereunder. 36. As a result of failing to remit $846,279.89 due and owing on the Charge Card Agreement and failing to produce information due thereunder, Prestige defaulted thereunder. 37. On or about March 27, 2023, M&T Bank sent to Defendants a Notice of Default and Reservation of Rights, thereby placing Defendants on notice of their defaults under the Loan Documents. A true and correct copy of the Notice of Default and Reservation of Rights is attached as Exhibit M. 38. On or about May 30, 2023, M&T Bank sent to Defendants a Notice of Default, Acceleration, and Demand for Payment, thereby further placing Defendants on notice of their defaults under the Loan Documents. A true and correct copy of the Notice of Default, Acceleration, and Demand for Payment is attached as Exhibit N. 39. Despite due and repeated demands, Defendants have failed to cure the defaults. 40. Pursuant to the Loan Documents, Defendants remain obligated and responsible to M&T Bank for the outstanding balance of $1,039,150.00 on the Revolving Demand Note plus default interest at the Default Rate per annum from March 12, 2024 that continues to accrue, costs, expenses, and attorneys’ fees, and Prestige and Jeannot remain obligated and responsible to M&T Bank for the outstanding balance of $846,279.89 under the Charge Card Agreement plus default interest as specified therein per annum from October 19, 2023 that continues to 4247903 -9- 9 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 accrue, costs, expenses, and attorneys’ fees. True and correct copies of the M&T Bank line of credit statement and credit card statement are attached hereto as Exhibit O and Exhibit P, respectively, evidencing Defendants’ outstanding balances owed and due to M&T Bank. 41. M&T Bank has performed all its obligations and conditions precedent to enforce the Loan Documents. 42. M&T Bank is the legal and rightful owner of the Loan Documents and has not assigned or transferred its rights in the same. AS AND FOR A FIRST CAUSE OF ACTION Breach of Contract (Borrowers) 43. Plaintiff repeats and realleges the allegations contained in Paragraphs “1” through “42” of this Complaint with the same force and effect as if set forth fully at length herein. 44. M&T Bank is the owner of the Loan Agreement and Revolving Demand Note, pursuant to which Borrowers promised to make loan payments when due and provide M&T Bank financial information. 45. Borrowers have breached the Loan Agreement and Revolving Demand Note by failing to pay all loan payments when due and provide M&T Bank financial information in accordance with the Loan Documents. 46. On or about March 27, 2023, M&T Bank sent to Borrowers a Notice of Default and Reservation of Rights, which default was the result of Borrowers’ failure to make all payments when due and to provide M&T Bank financial information in accordance with the Loan Documents. 47. On or about May 30, 2023, M&T Bank sent to Borrowers a Notice of Default, Acceleration and Demand for Payment, demanding payment in full under the Loan Documents. 4247903 -10- 10 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 48. Pursuant to the Loan Agreement and Revolving Demand Note, Borrowers remain obligated and responsible to M&T Bank for the outstanding balance of $1,039,150.00 on the Revolving Demand Note plus default interest at the Default Rate per annum from March 12, 2024 that continues to accrue, costs, expenses, and attorneys’ fees. 49. M&T Bank has retained the law firms of Updike, Kelly & Spellacy, P.C. and Kurzman Eisenberg Corbin & Lever, LLP, and has agreed to pay said firms a reasonable fee for their services. Pursuant to the Loan Documents, M&T Bank is entitled to recover from Borrowers its attorneys’ fees and costs incurred in enforcing the Loan Documents. 50. Borrowers are jointly and severally liable for all amounts due and owing to M&T Bank resulting from Borrowers’ breach of the Revolving Demand Note and Loan Agreement. 51. M&T has fully complied with its obligations under the Loan Agreement and Revolving Demand Note. 52. By reason of the foregoing, M&T Bank is entitled to judgment against Borrowers, jointly and severally, in the amount of $1,039,150.00 plus default interest from March 12, 2024 together with the costs and disbursements of this action, including reasonable attorneys’ fees. AS AND FOR A SECOND CAUSE OF ACTION Breach of Contract (Prestige Realty Group Inc.) 53. Plaintiff repeats and realleges the allegations contained in Paragraphs “1” through “52” of this Complaint with the same force and effect as if set forth fully at length herein. 54. M&T Bank is the owner of the Charge Card Agreement, pursuant to which Prestige promised to make credit card payments when due and provide M&T Bank financial information. 4247903 -11- 11 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 55. Prestige has breached the Charge Card Agreement by failing to pay all credit card payments when due and provide M&T Bank financial information in accordance with the Charge Card Agreement. 56. On or about March 27, 2023, M&T Bank sent to Borrowers a Notice of Default and Reservation of Rights, which default was the result of Borrowers’ failure to make all payments and to provide M&T Bank financial information in accordance with the Loan Documents. 57. On or about May 30, 2023, M&T Bank sent to Borrowers a Notice of Default, Acceleration and Demand for Payment, demanding payment in full under the Loan Documents. 58. Pursuant to the Charge Card Agreement, Prestige remains obligated and responsible to M&T Bank for the outstanding balance of $846,279.89 under the Charge Card Agreement as of October 19, 2023, plus default interest as specified therein that continues to accrue, costs, expenses, and attorneys’ fees. 59. M&T Bank has retained the law firms of Updike, Kelly & Spellacy, P.C. and Kurzman Eisenberg Corbin & Lever, LLP, and has agreed to pay said firms a reasonable fee for their services. Pursuant to the Charge Card Agreement, M&T Bank is entitled to recover from Borrowers its attorneys’ fees and costs incurred in enforcing the Loan Documents. 60. M&T has fully complied with its obligations under the Charge Card Agreement. 61. By reason of the foregoing, M&T Bank is entitled to judgment against Prestige in the amount of $846,279.89 plus default interest from October 19, 2023, together with the costs and disbursements of this action, including reasonable attorneys’ fees. 4247903 -12- 12 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 AS AND FOR AN THIRD CAUSE OF ACTION Breach of Guaranty (Wetzer Jeannot) 62. Plaintiff repeats and realleges the allegations contained in Paragraphs “1” through “61” of this Complaint with the same force and effect as if set forth fully at length herein. 63. Jeannot executed and delivered the Personal Guaranties to M&T Bank, pursuant to which Jeannot unconditionally guaranteed Borrowers’ full and punctual payment of all present and future sums due and owing to M&T Bank under the Loan Documents. 64. Jeannot breached the Personal Guaranties by failing to pay all amounts due under the Loan Documents after Borrowers failed to pay the same. 65. On or about March 27, 2023, M&T Bank sent to Jeannot a Notice of Default and Reservation of Rights, which default was the result of Jeannot’s failure to make all payments when due. 66. On or about May 30, 2023, M&T Bank sent to Jeannot a Notice of Default, Acceleration and Demand for Payment, demanding payment in full under the Loan Documents. 67. By reason of the foregoing, M & T is entitled to judgment against Jeannot in the amount of $1,039,150.00 on the Revolving Demand Note as of March 12, 2024, plus default interest that continues to accrue, costs, expenses, and attorneys’ fees, and $846,279.89 under the Charge Card Agreement as of October 19, 2023, plus default interest that continues to accrue, together with the costs and disbursements of this action, including reasonable attorneys’ fees. AS AND FOR A FOURTH CAUSE OF ACTION Replevin (Borrowers) 68. Plaintiff repeats and realleges the allegations contained in Paragraphs “1” through “67” of this Complaint with the same force and effect as if set forth fully at length herein. 4247903 -13- 13 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 69. For the purpose of securing any and all obligations due and owing from the Defendants to M&T Bank, in connection with the Loan Documents, Borrowers executed and delivered the Security Agreements. Pursuant to the Security Agreements, Borrowers provided M&T Bank with blanket liens upon the Collateral. 70. M&T Bank perfected its security interest in the Collateral by effectuating the filing the UCC Financing Statements with the New York Secretary of State. 71. M&T Bank is entitled to immediate possession of the Collateral by virtue of its blanket lien and the facts set forth herein, insofar as Borrowers have failed and/or refused to satisfy the indebtedness and are in default under the Loan Documents. 72. On or about March 27, 2023, M&T Bank sent to Borrowers a Notice of Default and Reservation of Rights, which default was the result of Defendants’ failure to make all payments when due and provide M&T Bank financial information in accordance with the Loan Documents. 73. On or about May 30, 2023, M&T Bank sent to Borrowers a Notice of Default, Acceleration and Demand for Payment, demanding payment in full under the Loan Documents. 74. Despite due and repeated demands, Borrowers have failed and/or refused to cure the default. 75. M&T Bank has a first priority security interest on the National Billing Collateral and CPR Collateral, and, upon information and belief, M&T Bank has a security interest on the Prestige Collateral that is only junior to a first priority security interest held by JPMorgan Chase. 76. By reason of the foregoing, M&T Bank is entitled to judgment against Borrowers, jointly and severally, in the amount of $1,039,150.00 on the Revolving Demand Note as of March 12, 2024, plus default interest that continues to accrue, costs, expenses, and 4247903 -14- 14 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 attorneys’ fees, and $846,279.89 under the Charge Card Agreement as of October 19, 2023, plus default interest that continues to accrue, costs, expenses, and attorneys’ fees; and an order of seizure directing Borrowers to deliver the Collateral to M&T Bank, and in the event the Collateral is not delivered to M&T Bank, the sheriff may break open, enter and search the Premises and/or any place in which the Collateral may be found, and seize the Collateral sufficient to satisfy the indebtedness, together with the costs and disbursements of this action, including reasonable attorneys’ fees. AS AND FOR A FIFTH CAUSE OF ACTION Permanent Injunction (Borrowers) 77. Plaintiff repeats and realleges the allegations contained in Paragraphs “1” through “76” of this Verified Complaint with the same force and effect as if set forth fully at length herein. 78. As a result of the foregoing conduct, including, but not limited to, Borrowers’ defaults under the Loan Documents, M&T Bank is entitled to an order permanently enjoining and restraining Borrowers, along with their officers, directors, members, employees, agents, representatives and persons working on Borrowers’ behalf, from selling, transferring, pledging, hypothecating, assigning, negotiating or in any way disposing of the Collateral, on the grounds that any such acts would be in violation of M&T Bank’s rights and would render any judgment obtained herein ineffectual and incapable of being enforced. WHEREFORE, M&T Bank demands judgment against Defendants as follows: 1. On the First Cause of Action against Borrowers, jointly and severally, in the amount of $1,039,150.00 plus default interest from March 12, 2024 together with the costs and disbursements of this action, including reasonable attorneys’ fees; 4247903 -15- 15 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 2. On the Second Cause of Action against Prestige in the amount of $846,279.89 plus default interest from October 19, 2023, together with the costs and disbursements of this action, including reasonable attorneys’ fees; 3. On the Third Cause of Action against Jeannot in the amount of in the amount of $1,039,150.00 on the Revolving Demand Note as of March 12, 2024, plus default interest that continues to accrue, costs, expenses, and attorneys’ fees, and $846,279.89 under the Charge Card Agreement as of October 19, 2023, plus default interest that continues to accrue, together with the costs and disbursements of this action, including reasonable attorneys’ fees. 4. On the Fourth Cause of Action against Borrowers, jointly and severally, in the amount of $1,039,150.00 on the Revolving Demand Note as of March 12, 2024, plus default interest that continues to accrue, costs, expenses, and attorneys’ fees, and $846,279.89 under the Charge Card Agreement as of October 19, 2023, plus default interest that continues to accrue, costs, expenses, and attorneys’ fees; and an order of seizure directing Borrowers to deliver the Collateral to M&T Bank, and in the event the Collateral is not delivered to M&T Bank, the sheriff may break open, enter and search the Premises and/or any place in which the Collateral may be found, and seize the Collateral sufficient to satisfy the indebtedness, together with the costs and disbursements of this action, including reasonable attorneys’ fees; 5. On the Fifth Cause of Action against Borrowers, an order permanently enjoining and restraining Borrowers, along with their officers, directors, members, employees, agents, representatives and persons working on Borrowers’ behalf, from selling, transferring, pledging, hypothecating, assigning, negotiating or in any way disposing of the Collateral, on the grounds that any such acts would be in violation of M&T Bank’s rights and would render any judgment obtained herein ineffectual and incapable of being enforced; and 6. For such other and further relief as this Court may deem just and proper. Dated: White Plains, New York March 13, 2024 4247903 -16- 16 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 KURZMAN EISENBERG CORBIN & LEVER, LLP By:_______________________ Bruce W. Bieber, Esq. Attorneys for Plaintiff One North Broadway, 12th Fl. White Plains, New York 10601 (914) 993-6053 bbieber@kelaw.com Of Counsel: Evan S. Goldstein CT No. 418631; ARDC No. 6341523 (to be admitted pro hac vice) Updike, Kelly & Spellacy, P.C. 225 Asylum Street, 20th Floor Hartford, Connecticut 06103 Telephone: 860.548.2600 Facsimile: 860.548.2680 Email: egoldstein@uks.com 4247903 -17- 17 of 18 FILED: ROCKLAND COUNTY CLERK 03/13/2024 04:54 PM INDEX NO. 031398/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/13/2024 ATTORNEY VERIFICATION Bruce W. Bieber, an attorney admitted to practice in the Courts of New York State, state that I am a member of the firm of Kurzman Eisenberg Corbin & Lever, LLP, attorneys of record for the Plaintiff in the within action; I have read the foregoing Complaint and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. The reason this Verification is made by me and not by Plaintiff is that Plaintiff maintains its principal place of business in a county other than where I maintain my offices. The grounds of my belief as to all matters not stated upon my own knowledge are as follows: conversations with Plaintiff, conversations with Plaintiff’s counsel at Updike, Kelly & Spellacy, P.C., and various books and records. I affirm that the foregoing statements are true under the penalties of perjury. Dated: White Plains, New York March 13, 2024 ___________________ Bruce W. Bieber 4247903 -18- 18 of 18