case 1:10 cv 00333 shs

8/14/2019 Case 1:10 Cv 00333 SHS

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JIJIlnn crg qiqIINITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK---------- xRICHMOND MCCOY : ffiffini e- s QQ.J J AJ

PlaintiftIndex No::- agarnst -

JOHN O. UTENDAHL,Defendant. :----- x

Plaintift Richmond McCoy, by his attorneys,('EBG'), by way of Cornplaint against Defendant, John O. Utendahl ("Defendanf') alleges asfollows:

TIIE PARTIES1. At all tirnes relevant hereto, Mr. McCoy was and is an individual and

resident ofthe State of Texas with an address at7937 BlerflLeim Place, Fort Worth, Texas 76120.2. Upon information and belief, at all times relevant hereto, Defendant wasand is an individual and a resident of the Stte of New York, with an address at 47 Columbia

Place, Brooklyn, New York I 1201.JURISDICTION AND VENTJE

3. Jurisdiction in this court is proper based upon diversity pursuant to 28U.S.C. $ 1332, tn that the parties are citizens of different states and the matter in controversyexceeds $75,000.

i-;i --:-*r{tlil\rf..-..-..;.j _::..li JAN 14 2010

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4. Venue is proper located in the United States District Court for theSoutlem District of New York, pursuant to 28 U.S.C. $ 139 i, because a substantial part of theevents and decision-rnaking giving rse to this action occurred in New York, New York.

THEF'ACTS5. On or about May 7,2009, Mr. McCoy loaned Defendant a sum of onehundred fifty thousand dollars ($150,000.00).6. On or about May 7,2009, Defendat made and delivered to Mi. McCoyfor value received, a certain promissory note in writing, whereby Defendant promised to repay toMr: McCoy the sum of one hundred fifty thousand dollars ($150,000.00), together with allaccrued and unpaid interest on or about July 6, 2009 ("Initial Note").7. On or about August 6, 2009, Defendant made verbal assurances to M.McCoy that he would repay the one hundred fifty thousand dollar loan, and requested anextension on the repayment term of the Initial Note and a loan of an additional one hundredthousand dollars ($I 00,000.00).

8. Accordingly, on or about August 6,2009, the Initial Note was amendedand replaced by a second promissory note ('Note"), whereby Defendant promised to pay to Mr.McCoy the sum of two hundred fifty thousand dollars ($250,000.00), together witl all accruedand unpaid interest on or before September 30, 2O0g- A copy of the Note is annexed, markedExhibit "4.' and made a part ofthis Complaint by reference.9. Under the terms of the Note, all sums owed by Defendant rmder the Notebecame due and payable forthwith on September 30, 2009, with interest accruing on all unpaidprincipat at the rate of eight percent (8%) per arurum.

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10. Defendant failed to pay Mr. McCoy the two hundred fifty thousand dollars($250,000.00), together with all accrued and unpaid interest owed by September 30,2009, asagreed under the terms of the Note-

11. Thereafte on or about December 29, 2009, Mr. McCoy, through hisattomeys, sent a letter to Defendant demaading payment of all sums due under the Note andadvising that Defendant was in default ofhis obligations under the Note.12. Despite Mr. McCoy's demand for payment from Defendant for theoutstanding balance due, Defendant has failed to pay the same or any pat thereof.13. Under the terms of the Note, Mr. McCoy is entitled to payment fromDefendant of all reasonable costs and expenses incurred in enforcing Defendant's obligationsunder the Note, and in connection with collection efforts related thereto, including Mr. McCoy'sreasonable attomeys' fees.

X'IRST COTJNT(Bre*ch of Contract)14. Mr. McCoy repeats and realleges the allegations listed in paragraphs Ift16rrgh 11 as set forth in 11 herein.15. The Note constitutes a valid and enforceable contract between I\,4r. McCoyand the defendant.16. Under the Note, efendant agreed to pay Mr. McCoy two hundred fifrythousand dollars ($250,000.00), together with all accrued and unpaid inteest on or beforeSeptember 30,2009.17. Despite l\zlr. McCoy's demand, Defendant faileal to pay Mr. McCoy twohundred fifty thousand dollars ($250,000.00), togetle with all accrued and unpaid interest that isowed under the Note.

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18. Defendant has breached his agreement with Mr. McCoy by failing to makethe payment required under the Note.19. Mr. McCoy has been damaged by Defendant's beach in an amount to bedetermined at trial, but not less than the sum of$250,000, plus interst, attorreys' fees and costs.

SECONDCOT]NT(Uniust Enrichment)20. Mr. McCoy repeats and realleges the allegations listed in pangaphs 12through 16 as set forth in frll herein.21. Mr. McCoy's loan to Defendant has increased the financial resourcesDefendant has had to spend for his living expenses, including expenses for Defendant's personaluse and enjoyment.22. Although Defendant promised to repay the loan under the terms agreed toin the Note, Defendant has refused to repay the loan.23. It is against equity and good conscience for Defendant to retain the fruitsofthe loan without paying the loan.

24. As a result of Defendant's failure to repay the loan, Defendant has beenrmjustly enriched at Mr. McCoy's expense.

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WHEREFORE, the plaintiff respectfully requests that the Court enter judgrnentagainst Defendant fur: (a) the sum of two hundred fifty thousand dollars ($250,000.00), plusinterest since September 30,2009 at aa eight percent (8%) interest rate; (b) all reasonable costsand expenses incuned in this proceeding ard in connection /itl collection efforts related thereto,including without limitation, plaintiffs reasonable attomeys fees and disbursements; and (c)such other reliefas the Court deems just and equitable.Dated: January 14,2010

250 Park AvenueNew York, New Yotk 10177-1211Qr2)3st4500Attomeys for PlaintiffRichmond McCoy

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Exhibit A


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FIRr AMENED ANp RESTATEI mOSSRy NOTE,$26t0t.00 l{bqr,Y

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Ioeaid l'fbis,th So'tS{rB,.kio rf rh:Sti ofNd york-

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.1t* TflBgS st@Wo tb.insgl1d :Boirbier ! (did rgitu:iot a,otftidq B,Ed,.& aor' $@"


case 1:10 cv 00333 shs

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