FILED: NEW YORK COUNTY CLERK 07/25/ :58 PM INDEX NO /2013 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/25/2014 EXHIBIT

Transcription

1 FILED: NEW YORK COUNTY CLERK 07/25/ :58 PM INDEX NO /2013 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/25/2014 EXHIBIT

2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NEXBANK SSB Index No Plaintiff -against- VERIFIED COMPLAINT JEFFREY SOFFER and JACQUELYN SOFFER Defendants Plaintiff Nexbank SSB Texas State Savings Bank Plaintiff by its attorneys Katten Muchin Rosenman LLP for its verified complaint respectfully alleges This is an action to enforce obligations of defendants Jeffrey Soffer and Jacquelyn Soffer Defendants under Non-Recourse Carveout Guaranty dated as of October the Non-Recourse Guaranty attached hereto as Exhibit delivered in connection with Construction Loan Agreement dated October as amended the Loan Agreement between Deutsche Bank Trust Company Americas Initial Agent as administrative agent Agent for certain Lenders as defined in the Loan Agreement and Turnberry/Centra Sub LLC Borrower Parties Plaintiff brings this action as Successor Agent for the Lenders On June The Bank of Nova Scotia New York Agency FormerAgent succeeded Initial Agent as Agent By notice dated September Former Agent resigned Pursuant to Successor Agency Agreement dated as of September Former Agent assigned all of its rights as Agent to Plaintiff

3 At all times relevant hereto Defendants directly or indirectly had interests in and controlled Borrower Jurisdiction and Venue Jurisdiction is proper in New York pursuant to CPLR 302 because Section 21 of the Non-Recourse Guaranty provides that Defendants agree to submit to the jurisdiction of the Courts of the State of New York in any action arising thereunder Venue is proper pursuant to CPLR 501 and 503 Relevant Facts On or about October in order to finance construction of commercial shopping and office mall in Las Vegas Nevada known as Town Square Las Vegas Mall the Property Borrower entered into the Loan Agreement with the Lenders Pursuant to the Loan Agreement the Lenders agreed to lend to Borrower an aggregate principal amount not to exceed $ the Loan As security for the Loan Defendants executed and delivered the Non-Recourse Guaranty pursuant to which Defendants guaranteed payment in full of among other things Any Loss which may include loss of principal or interest and reasonable attorneys fees and collection costs incurred or to be incurred by Agent or Lenders and arising out of or connected with any of the following circumstances the removal or disposal of any portion of the Mortgaged Property other than items of personal property permitted to be removed under any Loan Document or the placing voluntarily of Lien on any portion of the Mortgaged Property by Borrower except to the extent permitted by the Construction Loan Agreement Section 29 of the Non-Recourse Guaranty provides that unless otherwise defined herein capitalized terms shall have the meaning set forth in the Construction Loan Agreement 10 The term Lien is defined in Section 1.1 of the Loan Agreement as

4 any mortgage deed of trust lien statutory or other pledge hypothecation assignment preference priority security interest or other encumbrance or charge on or affecting the Collateral Borrower or any Borrower Party including any conditional sale or other title retention agreement any sale-leaseback any financing lease having substantially the same economic effect as any of the foregoing the filing of any financing statement or similar instrument under the Uniform Commercial Code or comparable Law or Regulation of any other jurisdiction domestic or foreign and mechanics materialmens and other similar liens and encumbrances 11 The Loan Agreement defines Loss as any and all losses liabilities damages punitive damages demands claims actions judgments causes of action assessments penalties costs and expenses including sums paid in settlement of claims liens interest fines or penalties including the fees and disbursements of accountants consultants experts and reasonable legal fees and disbursements and all other costs and expenses of any kind andlor nature 12 Thus under the Non-Recourse Guaranty Guarantors agreed to pay all losses including but not limited to reasonable legal fees and disbursements that Plaintiff incurred as result of Borrowers voluntary placement of any encumbrance on the Property 13 The Loan matured on March 2009 the Maturity Date and was not paid on the Maturity Date or thereafter 14 On or about February Defendant Jeffrey Soffer and Borrower commenced an action against Former Agent in the District Court of Clark County Nevada captioned Soffer The Bank of Nova Scotia New York Agency No A-li C the Nevada Action In the Nevada Action Defendant Jeffrey Soffer acting for and on behalf of Defendants asserted among other things that Former Agent breached an alleged agreement to extend or to restructure the Loan 15 Less than 24 hours prior to foreclosure sale scheduled for March 2011 Defendant Jeffrey offer acting for and on behalf of Defendants and Borrower filed an ex-parte

5 application for temporary restraining order seeking to enjoin the foreclosure sale Application for Preliminary Injunction 16 On March 2011 Defendant Jeffrey Soffer acting for and on behalf of Defendants and Borrower recorded us pendens notice of pendency dated February the Lis Pendens on the Property 17 Thereafter on March Defendant Jeffrey Soffer and Borrower filed First Amended Complaint in the Nevada Action which asserted claim for specific performance as its Fifth Cause of Action requesting that Former Agent be ordered to transfer Town Square to Soffer andlor their new business entity Nevada Complaint After receiving Former Agents opposition to the Application for Preliminary Injunction Defendant Jeffrey Soffer acting for and on behalf of Defendants and Borrower withdrew the Application for Preliminary Injunction but did not withdraw or remove the recorded Lis Pendens or the specific performance claim 19 On March 2011 an affiliate of the Lenders acquired title to the Property at foreclosure sale in partial satisfaction of the amount due on the Loan The pendency of the Nevada Action which included the purported cause of action for specific performance and the recorded Lis Pendens constituted encumbrances that clouded title and impaired the value of the Property thus acquired Former Agent thus was required to continue to defend the Nevada Action in order to among other things clear such cloud on title and remove such encumbrances 20 Litigation in the Nevada Action continued for over 17 months during which exhaustive discovery was conducted and attorneys fees in excess of $ were incurred by Former Agent and Plaintiff the Attorney Fee Amount 21 On August the Nevada District Court granted Former Agents Summary Judgment motion and dismissed the Nevada Complaint in its entirety

6 22 On September 2012 the Nevada District Court ordered that the Lis Pendens be cancelled and expunged That order was not appealed 23 On June Plaintiff forwarded letter to Defendants informing them that they are liable for the Attorney Fee Amount pursuant to the Guaranty and demanding immediate payment of such amount 24 To date Defendants have failed and refused to pay Plaintiff pursuant to their obligations under the Non-Recourse Guaranty FIRST CAUSE OF ACTION Breach of Contract 25 Plaintiff repeats and realleges the allegations contained in paragraphs through 18 hereof 26 The recording of the Lis Pendens constituted the placing voluntarily of Lien on the Property within the meaning of the Non-Recourse Guaranty 27 Additionally the filing of the Nevada Complaint was an encumbrance or charge on or affecting the Collateral created cloud on title and constituted the placing voluntarily of Lien on the Property within the meaning of the Non-Recourse Guaranty 28 Initial Agent Former Agent Plaintiff and Lenders suffered damages including but not limited to over $ in attorneys fees and costs as proximate result of the Nevada Action and the recording of the Lis Pendens 29 By reason of the foregoing Defendants are obligated to pay Plaintiff the Guaranteed Obligations as defined in the Non-Recourse Guaranty including but not limited to all damages attorneys fees and costs incurred by Initial Agent Former Agent Plaintiff or Lenders arising out of or connected with the Nevada Action and the recording of the Lis Pendens

7 WHEREFORE Plaintiff respectfully requests judgment against Defendants jointly and severally Awarding to Plaintiff damages in an amount to be proven at trial plus interest attorneys fees in excess of $ and the costs and disbursements of this action and Granting to Plaintiff such other and further relief as is just and proper Dated New York New York June KATTEN MUCHIN ROSENMAN LLP By Matthew Parrott Arthur Linker Dean Razavi 575 Madison Avenue New York NY Phone Fax Attorneys for PlaintNexbank 5313

8 VERIFICATION STATE OF TEXAS ss DALLAS COUNTY Jeff Scott being duly sworn depose and say am Vice President of Nexbank SSB Texas State Savings Bank have read the foregoing Verified Complaint and know the contents thereof which are true to my own knowledge except as to the matters therein stated to be alleged on information and belief and as to those matters believe them to be true 7% Jeffc Sworn to before me this 2day of June r Public rrrar fljtijj vnntrd