Baker, Leshko, Saline & Drapeau, LLP, answering the complaint of the plaintiff,

Transcription

1 BAKER, LESHKO, SALINE & DRAPEAU, LLP Attorneys for Defendants One North Lexington Avenue White Plains, New York SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK LSQ FUNDING GROUP, L.C., Plaintiff, DANIEL WERTHER and CAROLINE GITTIS WERTHER a/k/a CAROLINE WERTHER, Index No /2017 ANSWER AND COUNTERCLAIMS Defendants. Defendants Daniel Werther and Caroline Gittis Werther, by their attorneys. Baker, Leshko, Saline & Drapeau, LLP, answering the complaint of the plaintiff, allege as follows: 1. Answering paragraph 1 of the complaint, deny knowledge or information sufficient to form a belief as to the allegations 2. Answering paragraph 2 of the complaint, admit the allegations -against of 17

2 3. Answering paragraph 3 of the complaint, admit the allegations 4. Answering paragraph 4 of the complaint, admit the allegations 5. Answering paragraph 5 of the complaint, respectfully refers all conclusion of law to this Honorable Court and otherwise deny the allegations 6. Answering the introductory paragraph of the complaint, cannot admit or deny the allegations therein as it tells a narrative and is violative of Civil Practice Law and Rules 3024(a), but otherwise denies the allegations contained therein. 7. Answering paragraph 6 of the complaint, respectfully refers all conclusion of law to this Honorable Court and otherwise deny the allegations 8. Answering paragraph 7 of the complaint, deny knowledge or information sufficient to form a belief as to the allegations contained. 9. Answering paragraph 8 of the complaint, admit the allegations 2 of 17

3 10. Answering paragraph 9 of the complaint, admit that there was contact between Daniel Werther and certain representatives of plaintiff and deny the remaining allegations 11. Answering paragraph 10 of the complaint, deny knowledge or information sufficient to form a belief as to the allegations 12. Answering paragraph 11 of the complaint, admit that an agreement was entered into between plaintiff and Sorbee, respectfully refers this Honorable Court to the terms and conditions of the agreement, and deny the remaining allegations 13. Answering paragraph 12 of the complaint, respectfully refer this Honorable Court to the agreements referred to therein, and deny the remaining allegations 14. Answering paragraph 13 of the complaint, admit that D. Werther executed a certain guarantee, respectfully refer this Court to the agreements referred to therein, and deny the remaining allegations 15. Answering paragraph 14 of the complaint, deny the allegations 16. Answering paragraph 15 of the complaint, deny the allegations 3 of 17

4 17. Answering paragraph 16 of the complaint, admit that plaintiff filed a lawsuit in the State of Florida, and deny the remaining allegations contained therein. 18. Answering paragraph 17 of the complaint, admit that a Court in Florida entered a judgment against D. Werther, state that the matter is subject to an appeal in the State of Florida, and deny the remaining allegations 19. Answering paragraph 18 of the complaint, admit that plaintiff filed the judgment with the Clerk of New York County, and deny the remaining allegations 20. Answering paragraph 19 of the complaint, deny knowledge or information sufficient to form a belief as to the allegation that it was filed in Suffolk County, and deny the remaining allegations 21. Answering paragraph 20 of the complaint, admit that D. Werther has not paid any monies for the judgment, and deny the remaining allegations 22. Answering paragraph 21 of the complaint, admit the allegations 23. Answering paragraph 22 of the complaint, admit that on or about May 2014 D. Werther transferred his interest in the property to C. Werther, and deny the remaining allegations -4-4 of 17

5 24. Answering paragraph 23 of the complaint, admit that C. Werther is the sole record owner of the property and deny the remaining allegations contained therein. 25. Answering paragraph 24 of the complaint, admit that Sorbee did file for protection under the United States Bankruptcy Court, deny knowledge or information sufficient to form a belief as to whether plaintiff received any distributions from the bankruptcy estate, and deny the remaining allegations 26. Answering paragraph 25 of the complaint, deny knowledge or information sufficient to form a belief as to the allegations 27. Answering paragraph 26 of the complaint, respectfully refer all questions of law to the Honorable Court and deny the remaining allegations 28. Answering paragraph 27 of the complaint, deny the allegations 29. Answering paragraph 28 of the complaint, deny the allegations 30. Answering paragraph 29 of the complaint, deny the allegations 5 of 17

6 31. Answering paragraph 30 of the complaint, deny the allegations 32. Answering paragraph 31 of the complaint, deny the allegations 33. Answering paragraph 32 of the complaint, deny the allegations 34. Answering paragraph 33 of the complaint, deny the allegations 35. Answering paragraph 34 of the complaint, repeats and realleges the statements and allegations contained in all previous paragraphs as more fully set forth herein. 36. Answering paragraph 35 of the complaint, respectfully refers all conclusions of law to this Honorable Court, and deny the remaining allegations 37. Answering paragraph 36 of the complaint, respectfully refer all conclusions of law to this Honorable Court, and deny the remaining allegations 38. Answering paragraph 37 of the complaint, admit that D. Werther was aware of the guarantee, state that due to its usurious nature it is unenforceable, and deny the remaining allegations -6-6 of 17

7 39. Answering paragraph 38 of the complaint, deny the allegations 40. Answering paragraph 39 of the complaint, deny the allegations 41. Answering paragraph 40 of the complaint, deny the allegations 42. Answering paragraph 41 of the complaint, deny the allegations 43. Answering paragraph 42 of the complaint, deny the allegations 44. Answering paragraph 43 of the complaint, deny the allegations 45. Answering paragraph 44 of the complaint, deny the allegations 46. Answering paragraph 45 of the complaint, deny the allegations 47. Answering paragraph 46 of the complaint, repeats and realleges the statements and allegations in all previous paragraphs as if made herein. 48. Answering paragraph 47 of the complaint, deny the allegations 7 of 17

8 49. Answering paragraph 48 of the complaint, deny the allegations 50. Answering paragraph 49 of the complaint, deny the allegations 51. Answering paragraph 50 of the complaint, deny the allegations 52. Answering paragraph 51 of the complaint, deny the allegations 53. Answering paragraph 52 of the complaint, deny knowledge or information sufficient to form a belief what plaintiff seeks, and deny the remaining allegations 54. Answering paragraph 53 of the complaint, deny the allegations 55. Answering paragraph 54 of the complaint, repeat and reallege the statements and allegations contained in all previous paragraphs as if made herein. 56. Answering paragraph 55 of the complaint, deny the allegations 57. Answering paragraph 56 of the complaint, deny the allegations 8 of 17

9 58. Answering paragraph 57 of the complaint, deny the allegations 59. Answering paragraph 58 of the complaint, deny the allegations 60. Answering paragraph 59 of the complaint, deny the allegations 61. Answering paragraph 60 of the complaint, repeat and reallege the statements and allegations contained in all previous paragraphs as if more fully set forth herein. 62. Answering paragraph 61 of the complaint, deny the allegations 63. Answering paragraph 62 of the complaint, deny the allegations 64. Answering paragraph 63 of the complaint, deny the allegations 65. Answering paragraph 64 of the complaint, repeat and reallege the statements and allegations contained in all previous paragraphs as if made herein. 66. Answering paragraph 65 of the complaint, deny the allegations -9-9 of 17

10 67. Answering paragraph 66 of the complaint, deny the allegations granted. As and For a First Affirmative Defense 68. The complaint fails to state causes of action upon which relief can be As and For a Second Affirmative Defense 69. The underlying obligation allegedly due from D. Werther is usurious and otherwise unenforceable against C. Werther. As and for a Third Affirmative Defense 70. The underlying Florida judgment cannot affect the rights of defendant C. Werther as she was not a party to the underlying Florida action. As and For a Fourth Affirmative Defense 71. This action should be stayed as there is an appeal pending the State of Florida regarding the validity of the underlying judgment rendered in the State of Florida. As and For a First Counterclaim and Fifth Affirmative Defense of Caroline Werther 72. This is an action for a declaratory judgment pursuant to Civil Practice Law and Rules of 17

11 73. Defendants D, Weither and C. Weither are citizens and residents of the State of New York. 74. Plaintiff LSQ is, upon information and belief, some form of business entity existing pursuant to a State or Commonwealth other than the State of New York with a principal place of business in a State or Commonwealth other than the State of New York. 75. Upon information and belief, LSQ is in the business of factoring accounts receivables for businesses. 76. Prior hereto LSQ and a company be the name of Sorbee entered into an agreement wherein LSQ would factor receivables of Sorbee. 77. The factoring agreement, while denominated as such, was a loan agreement between LSQ and Sorbee. 78. LSQ did not accept the degree of risk of collection of funds in the factoring agreement as it applied to D. Werther which would allow it to be considered a true factoring agreement. 79. The factoring agreement was nothing more than a disguised loan agreement. 80. The rate of "interest" the factoring agreement was usurious under the laws of the State of Florida of 17

12 81. As part of the transaction with LSQ, D. Werther signed a certain personal guarantee. 82. The rate of interest which D. Werther was called upon to guarantee was usurious under the laws of the State of Florida. 83. Despite language in the guarantee that D. Werther waived all defenses, under the laws of the State of Florida, one cannot waive the defense of usury. 84. C. Werther is entitled to a declaration of this Court that she is not bound by the judgment against D. Werther and that she is entitled to a trial on the issue of whether D. Werther is responsible under the certain guarantee before her rights to the subject property can be affected. 85. C. Werther has no adequate remedy at law. As and for a Second Counterclaim 86. Defendants repeat and reallege the statements and allegations contained in all previous paragraphs of these counterclaims as if more fully set forth herein. 87. At the time that LSQ entered into the arrangement with Sorbee and D. Werther, it was made aware of the net worth of D. Werther and the net worth of C. Werther of 17

13 88. LSQ knew or should have known that the property (as that term is used in the complaint) was owed by C. Werther and D. Werther as tenants by the entirety. 89. LSQ knew or should have known that a property owned in the form of tenants by the entirety is exempt for all intents and purposes from the creditors of one of the tenants by the entirety. 90. Nevertheless, LSQ entered into the transaction. 91. Once LSQ obtained the Florida judgment, it filed the judgment with the Clerk of the County of New York. 92. LSQ subsequently served D. Werther with a subpoena to depose him as well for him to provide documents ranging from personal tax returns, checking and security statements to every check D. Werther has written and any entity in which he has an interest for an undisclosed time period. 93. At the same time, LSQ served C. Werther with a subpoena to depose her and for her to provide documents ranging from personal tax returns, bank and security accounts to basically every check written by her and any entity in which she had any interest for an undisclosed time period. 94. Notwithstanding that C. Werther is not a signatory to guarantee, LSQ is trying to use the enforcement mechanisms provided under the Civil of 17

14 Practice Law and Rules in an attempt to force her to pay her husband's obligations. 95. LSQ then filed an action in New York County alleging that the transfer of the property nearly three years ago was a fraudulent conveyance. 96. The following day, LSQ filed the identical complaint in this action seeking the identical relief. 97. LSQ did file a notice of pendency in Suffolk County in connection with this action against a residence owned by C. Werther in the Town of Southampton. 98. The filing of a notice of pendency was not done in good faith as the filing was motivated for the reason of trying to unlawful force C. Werther to pay her husband's alleged debt. 99. If LSQ were to prevail in this action, the property would be ordered by this Court to be transferred back to D. Werther and C. Werther as tenants by the entirety A property which is held by tenants in the entirety is not available to satisfy the debt of one of the tenants thereof In filing the notice of pendency against the property, LSQ was motivated solely by a desire to embarrass and coerce C. Werther to pay the debt of her husband and not to collect the debt through lawful process of 17

15 102. The filing of the notice of pendency was not done in good faith in violation of Civil Practice Law and Rules 6514(b) Defendants are entitled to cancellation of the notice of pendency, damages, cost and expenses, including, but not limited to, reasonable attorney's fees pursuant to Civil Practice Law and Rules 6514(b). WHEREFORE, defendants demand judgment as follows: 1. Dismissal of the complaint in its entirety; 2. On the first counterclaim, a declaration by this Court that the underlying judgment is unenforceable and otherwise null, void and of no effect and cannot affect any rights of defendant C. Werther; 3. On the second counterclaim, dismissal and cancellation of the notice of pendency together with the damages suffered by defendants, together with costs and expenses, including, but not limited to, reasonable attorney's fees; attorney's fee; 4. Costs and disbursements of this action, including reasonable 5. For such other, further and different relief this Court deems just. Dated: White Plains, New York April 4, of 17

16 BAKER, LESHKO, SALINE & DRAPEAU, LLP Attorneys for Defendants To: By:. Mifchell J. mker One North Lexington Avenue White Plains, New York Bruce W. Bieber. Esq. Kurzman Eisenberg Corbin & Lever, LLP One North Broadway. 12th Floor White Plains, New York of 17

17 Verification Mitchell J. Baker, an attorney duly admitted to practice before the Courts of the State of New York hereby affirms the following to be true pursuant to Civil Practice Law and Rules Section 2106: 1. I am counsel to the defendants herein. 2. I have reviewed the contents of the within Answer and Counterclaims and know the same to be true, exeept as to those things alleged to be upon information and belief, and as to those matters, I believe them to be true. 3. I made this verification as my clients reside in a county other than where I maintain an office. Dated: White Plains, New York April 4,2017 Miichell J. Baker of 17