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Corey Friedman v. Mark Schwartz

December 16, 2011

COREY FRIEDMAN, PLAINTIFF,
v.
MARK SCHWARTZ, DEFENDANT.



The opinion of the court was delivered by: Wall, Magistrate Judge:

MEMORANDUM AND ORDER

Plaintiff Corey Friedman ("Plaintiff") commenced this diversity contract action against Mark Schwartz ("Defendant") to recover a $100,000 loan. Plaintiff alleges that he made a personal loan of $100,000 to Defendant.

A "Notice, Consent, and Order of Reference for the Exercise of Jurisdiction by a United States Magistrate Judge" was signed by both parties and approved by District Judge Seybert on February 25, 2011. Docket Entry ("DE") [48]. A non-jury trial was held before the undersigned on June 22, 2011. Prior to the trial, the court received a letter from Defendant stating:

As requested I am notifying you that I will not be able to appear for trial as I do not have the personal financial resources available to appear in person. I again replead my motion for judgment on the pleadings as I believe there is no question there was no meeting of the minds much less any kind of contract to which I was a party. As pleaded and stated time and again all investments, or priority loans, were corporate with Harmony on Broadway LLC, not made to me personally. Sadly, I recognize anyone can sue anyone else and if they have no funds to defend they usually lose, but I adopt all prior pleadings and papers to be asserted in my defense.

DE [53].

At trial, Plaintiff testified, as did Paul Auslander ("Auslander"), CEO of American Financial Advisors and Plaintiff's financial advisor. At the court's request, Plaintiff provided a post-trial supplemental affidavit and evidence of a wire transfer. See DE 56. Defendant failed to appear at trial and subsequently submitted an untimely opposition to Plaintiff's proposed findings of fact and conclusions of law. Based on the evidence presented, as well as the post trial materials submitted by the parties, the court makes the following findings of fact and conclusions of law in accordance with Rule 52 of the Federal Rules of Civil Procedure. To the extent that any of the findings of fact may be deemed a legal conclusion, it shall be deemed a conclusion of law, and vice versa.

I. FINDINGS OF FACT

Plaintiff was introduced to Defendant by Auslander. Trial Transcript ("Tr.") at 4. Defendant was a Broadway producer who was putting together a show to be named "Harmony on Broadway." Tr. 4. Auslander thought Plaintiff would be interested in investing. Id. Plaintiff met with Defendant in summer 2003 at Sardi's restaurant in Manhattan. Tr. 5. Prior to that meeting, Defendant had called Plaintiff to discuss the show, explaining that Barry Manilow had written the music for it, and Barry Sussman had written the book. Tr. 5. Plaintiff and Defendant had another meeting a few weeks later during which Plaintiff introduced Defendant to a colleague who also expressed an interest in investing. Tr. 6.

In late September of 2003, Plaintiff invested $100,000 in Harmony on Broadway LLC. Tr. 6. The funds were wired through Auslander to an account for Harmony on Broadway LLC at JP Morgan Chase, located at 3 Times Square, New York, New York. Tr. 8. He then received a packet in the mail showing him to be a limited partner in the LLC. Tr. 8. Plaintiff's ultimate return would be determined by the show's profits and the final number of investors. Tr. 9.

Defendant solicited additional monies from Plaintiff. Tr. 6. According to Plaintiff, Defendant was anticipating funding from Barry Manilow's record company, Concord Records, and was looking for investors to provide short-term loans until that money came in. Tr. 9-10.

Plaintiff alleges that, on October 3, 2003, he made a loan of $100,000 to Defendant. Tr. 36. According to Plaintiff, Defendant requested the loan as a short-term, personal loan until other investments were received. Tr. 10. Plaintiff testified that Defendant was willing to provide a lien on his residence in Florida to secure the loan and provide Plaintiff with ten percent interest over the life of the loan. Id. According to Plaintiff, Defendant's girlfriend, a Florida attorney, would draft the security document for the loan. Tr. 11. Defendant claimed that he had provided a similar security document for a larger investment and would do the same for Plaintiff. Id.

Similar to the money-transfer process for the investment in the play, the funds were wired from Auslander to an account for Harmony on Broadway LLC. Tr. 13. Plaintiff testified that Defendant needed the money right away to keep the show in business and that time was of the essence. Tr. 13, Tr. 15. Auslander testified that the money was wired to an account for Harmony on Broadway LLC in the interests of time, due to the protocols of Charles Schwab and Company requiring three to five business days to set up wiring instructions for a new account. Tr. 48. According to Auslander, Defendant would not have accepted anything but a personal loan at the time the second investment was made because Defendant did not want to dilute his interest in the production by selling additional units to investors. Tr. 46-47. Furthermore, Auslander stated that Defendant told him that he was "incredibly relieved and very thankful" for the personal loan and admitted to him that Plaintiff "bailed him out and bellied up to the bar." Tr. 49.

On October 27, 2003 Plaintiff emailed Defendant inquiring why he had not yet received the document securing the "$100,000 personal loan that [Defendant] guaranteed with [his] home as collateral." Plaintiff Exhibit ("P. Ex.) 7. Defendant responded to Plaintiff on October 27, 2003 stating, "I agree with you corey [sic], and called you this morning, left a message at yor [sic] home and on your cell, I'll take care of it, promise and sorry you have been great! and you have my word, which is most important." P. Ex. 8. Plaintiff never received legal documentation securing the loan nor any documentation evidencing that the loan was a corporate debt. Tr. 17-18.

Defendant failed to secure financing from Concord Records and the show closed before it was opened. Tr. 18. Plaintiff, like the other investors in the production, lost his $100,000 investment in the show without recovering any money. Tr. 18-19. Plaintiff testified that subsequent to the show closure, Barry Manilow and Bruce Sussman commenced litigation to secure their rights to the show and succeeded in securing those rights. Tr. 19. The producers and investors of the show then sued to win those rights back from Manilow and Sussman, but their claims were denied because they were not filed on time. Tr. 19-20. Subsequently, a legal malpractice suit was commenced by the producers ...


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