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FILED: KINGS COUNTY CLERK 04/27/2022 02:59 PM INDEX NO. 516989/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/27/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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SLATE ADVANCE Index No.: 516989/2021
Plaintiff,
-against- AFFIDAVIT
MBJ FINISHED SOLUTIONS LLC ; MBJ CONCRETE
FINISHING CORP DBA MBJ FINISHED SOLUTIONS
; MBJ CONCRETE FINISHING and
EBER RAYNALD KERNIZAN and RESLANDE SEUS
Defendants.
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STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
Phillip Klein, being duly sworn, deposes and says:
1. I am an Authorized Representative of SLATE ADVANCE (“SA” or “Plaintiff”). SA is
the plaintiff in this action. I am familiar with the facts of this case and the prior proceedings
herein. I make this affidavit in support of SA’s motion for summary judgment, against
Defendants MBJ FINISHED SOLUTIONS LLC ; MBJ CONCRETE FINISHING CORP DBA
MBJ FINISHED SOLUTIONS ; MBJ CONCRETE FINISHING and EBER RAYNALD
KERNIZAN and RESLANDE SEUS (“Defendants”).
2. SA is engaged in the purchase and sale of future receivables and sales proceeds between
commercial entities. This business is sometimes referred to as “merchant cash advance.”
3. In my capacity as an authorized representative of the Plaintiff I have access to
Plaintiff’s business records, maintained in the ordinary course of regularly conducted business
activity, including the business records for and relating to the Defendants. I make this Affidavit
based upon my review of those records relating to the Defendants and from my own personal
knowledge of how they are kept and maintained. The records for the Defendants are maintained
by Plaintiff in the course of its regularly conducted business activities and are made at or near
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the time of the event, by or from information transmitted by a person with knowledge. As to
Plaintiff’s business records that consist of documents created by third parties, if any, Plaintiff
relies on the accuracy of such records in conducting its business.
4. Defendant MBJ FINISHED SOLUTIONS LLC ; MBJ CONCRETE FINISHING
CORP DBA MBJ FINISHED SOLUTIONS ; MBJ CONCRETE FINISHING (“Merchant”) is
a limited liability company and corporation existing under the laws of the state of Florida with
its principal place of business in West Palm Beach, FL. Exhibit A, Standard Merchant Cash
Advance Agreement.
5. Defendant EBER RAYNALD KERNIZAN and RESLANDE SEUS (“Guarantors”) are
residents of Florida residing in West Palm Beach, FL. They own Merchant and guaranteed that
Merchant would not breach the Agreement which is the subject of this lawsuit and is described
in more detail herein, Exhibit A.
6. On May 5, 2021, SA and Merchant entered into a Standard Merchant Cash Advance
Agreement (the “Agreement”) pursuant to which Defendant Merchant sold future receivables
and sales proceeds with a face value of $299,800.00 to SA for $200,000.00 from SA. The plain
language of the Merchant Agreement states:
Merchant hereby sells, assigns, and transfers to SA (making SA the absolute
owner) in consideration of the funds provided (“Purchase Price”) specified
above, all of each Merchant’s future accounts, contract rights, and other
obligations arising from or relating to the payment of monies from each
Merchant’s customers and/or other third party payors (the “Receivables”,
defined as all payments made by cash, check, credit or debit card, electronic
transfer, or other form of monetary payment in the ordinary course of each
merchant’s business), for the payment of each Merchant’s sale of goods and/or
services until the amount specified above (the “Receivables Purchased
Amount”) has been delivered by Merchant(s) to SA.
Purchase Price: $200,000.00 Purchased Percent: = 25%
Purchased Amount: $299,800.00
Exhibit A, Standard Merchant Cash Advance Agreement.
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7. Under the Agreement, Defendant Merchant agreed to pay SA the purchased
$299,800.00 by ensuring that all of its sales proceeds and receivables were deposited into one
designated deposit account and permitting SA to electronically debit from that account 25%
percent of Defendant Merchant’s daily sales proceeds until such time as SA collected the
purchased $299,800.00. Exhibit A.
8. Merchant and SA memorialized their mutual intent to enter into a true purchase
and sale agreement by expressly stating same in the Agreement. The Agreement states:
Each Merchant and SA agree that the Purchase Price under this Agreement is in
exchange for the Receivables Purchased Amount and that such Purchase Price
is not intended to be, nor shall it be construed as a loan from SA to any
Merchant. SA is entering into this Agreement knowing the risks that each
Merchant’s business may decline or fail, resulting in SA not receiving the
Receivables Purchased Amount. Each Merchant agrees that the Purchase Price
in exchange for the Receivables pursuant to this Agreement equals the fair
market value of such Receivables. SA has purchased and shall own all the
Receivables described in this Agreement up to the full Receivables Purchased
Amount as the Receivables are created. Payments made to SA in respect to the
full amount of the Receivables shall be conditioned upon each Merchant’s sale
of products and services and the payment therefor by each Merchant’s
customers in the manner provided in this Agreement. Although certain
jurisdictions require the disclosure of an Annual Percentage Rate or APR in
connection with this Agreement, those disclosures do not change the fact that
the transaction encompassed by this Agreement is not a loan and does not have
an interest rate.
Exhibit A, Section 15 – Sale of Receivables
9. On May 5, 2021, SA performed its part of the Agreement by depositing
$200,000.00 less applicable fees in accordance with the Agreement to the Merchant in
accordance with the Merchant’s instructions. The disbursement authorization is attached hereto
as Exhibit E.
10. After SA paid the Purchase Price, Defendant Merchant partially performed its
part of the Agreement between May 5, 2021, and June 4, 2021, during this time period where
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Merchant performed, Merchant remitted $53,297.76 of the purchased sales proceed. The
transaction history is attached hereto as Exhibit B.
11. SA did not collect anything other than the sales proceeds the SA was entitled to
collect. SA has complied with all of its obligations under the Agreement.
12. On June 4, 2021, SA was denied access to the account by the Merchant and,
consequently, deprived the 25% of the daily sales proceeds due to SA. All attempts to debit
SA’s 25% of sales proceeds from the designated deposit account result in an ACH debit
rejection notice coded R08.
13. This action for breach of the Agreement was commenced by filing a Summons
and Verified Complaint on July 9, 2021. The Defendants filed an Answer on or about
September 2, 2021. Copies of the Summons, Verified Complaint, and Answer are attached
collectively hereto as Exhibit C.
14. On or about October 15, 2021, Plaintiff served a Notice to Admit, Demand for
Discovery, and Demand for Bill of Particulars on Defendants. A copy of the Notice to Admit,
Demand for Discovery, and Demand for Bill of Particulars are attached collectively hereto as
Exhibit D.
15. Between May 5, 2021, and the present date, Merchant collected at least
$1,199,200.00 in revenue. Exhibit D, Notice to Admit. 25% of the sales proceeds during that
time period is $299,800.00, substantially more than $53,297.76 that was actually remitted to
SA. The Merchant and Guarantor have simply withheld $246,502.24 of sales proceeds lawfully
purchased by SA with the goal of benefitting from both the purchase price paid by SA and the
purchased sales proceeds that SA lawfully purchased. The Merchant tendered $53,297.76 of
the purchased $299,800.00 of receivables leaving a balance of $246,502.24. The Defendants
incurred a default fee in the amount of $2,500.00, NSF fees in the amount of $350.00, and
attorney’s fees in the amount of $98,600.90 (per section 44 - Costs), making the balance due
after fees $347,953.14.
16. SA has been harmed by Merchant’s and Guarantor’s breach of the Agreement.
Equity does not favor the Defendants, who have been enriched to SA’s detriment by breaching
the Agreement and withholding sales proceeds that were purchased by SA in the amount of
$347,953.14.
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NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 04/27/2022
WHEREFORE, the Court should grant the Plaintiff SA's motion for summary
judgment in itsentirety,and award SA damages in the amount $347,953.14, plus pre-judgment
interest at the statutory rate from June 4, 2021, costs taxed by the clerk, and post-judgment
interest at 9%.
PHILLIP KLEIN
Sworn to before this
day of April 2022
Notary 1
JOSHUAOAN
NOTARYPUBUC CF NEW JERSEY
Expires 6/12/2025
My Commission
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