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Schlamowitz v. Tirado

United States District Court, E.D. New York

August 22, 2014

MINERVA SCHLAMOWITZ, Plaintiff,
v.
RAQUEL TIRADO, Defendant.

MEMORANDUM AND ORDER

CHERYL L. POLLAK, Magistrate Judge.

On February 2, 2012, Minerva Schlamowitz ("plaintiff") commenced this suit against her sister Raquel Tirado ("defendant"), alleging that defendant owed her repayment on a loan in the amount of $180, 000, [1] no part of which has been repaid to plaintiff despite demands for repayment. (Compl.[2] ΒΆ 4).

On March 14, 2014, the parties consented to have the case tried before the undersigned, and a bench trial was held on May 13, 2014. Having considered the testimony, evidence, and arguments presented by the parties at trial, the Court finds that defendant owes plaintiff a total of $89, 249.48 for the reasons set forth below.

FACTUAL BACKGROUND

During the May 13, 2014 trial, it became clear that both parties agreed that Schlamowitz had lent her sister Tirado monies over a five year period, beginning in 2007. It is also undisputed that the terms of the agreement were never reduced to writing. Thus, the key issues for trial were: 1) how much money had Schlamowitz lent to Tirado; 2) how much, if anything, had Tirado repaid; and 3) whether the parties had reached an agreement as to interest.

During the trial, the parties stipulated that there were transfers in the amount of $142, 500 loaned from plaintiff to defendant. (Tr. at 5). It is plaintiff's position that an additional $77, 900 was loaned to the defendant, for a total amount owed of $220, 400. (Id. at 5-6; Joint Rpt[3]). This additional $77, 900 amount allegedly consists of $60, 000 in undocumented cash loans, a documented $10, 000 cash withdrawal by plaintiff in Massachusetts that she claims was loaned to Tirado, and $7, 900 from two additional documented cash withdrawals plaintiff made in New York that were also allegedly loaned to defendant. (Joint Rpt; Tr. at 6, 12-13; Ex. A[4] at 429; Ex. B at 405; Ex. C at 290).

Defendant denies receiving the $77, 900 in additional cash loans. (Tr. at 22). Instead, defendant contends that not only did she never receive these amounts, but in fact, she repaid a total of $76, 902 to plaintiff. (Joint Rpt; Tr. at 22-23). Tirado alleges that this $76, 902 repayment is comprised of $69, 920 made through deposits to plaintiff's accounts, evidenced by defendant's deposit slips, and a $7, 000 undocumented cash repayment. (Id.; Ex. J). Plaintiff denies receipt of the undocumented $7, 000 in cash, and claims that the $69, 920 in deposits to plaintiff's accounts was in fact interest owed on the loans, and not repayment of principal. (Joint Rpt; Tr. at 19-20).

Set forth in the table below is a summary of the parties' respective positions. Plaintiff believes she is due $220, 400 (the stipulated amount of $142, 500, plus a disputed $77, 900 in additional loans), while defendant believes plaintiff is only due $65, 580 (the stipulated amount of $142, 500, minus the disputed repayment of $76, 902). (Joint Rpt). Plaintiff and defendant were the only witnesses who testified at trial.

[5]

A. Testimony of Minerva Schlamowitz

At trial, plaintiff Minerva Schlamowitz testified that she loaned her sister, Raquel Tirado money for defendant's business expenses. (Tr. at 10). Schlamowitz testified that Tirado promised to withdraw money from a certificate of deposit to pay back the loan in full once the plaintiff needed the money, but, according to plaintiff, her sister did not repay any of the loan when a request for repayment was eventually made. (Id. at 14-15). Schlamowitz stated that defendant did periodically pay her interest on the loan and that defendant's deposit slips, submitted to the Court as Exhibit J, are evidence of these periodic interest payments. (Id. at 10, 14; Ex. J). Schlamowitz claimed that she and her sister had an interest agreement, whereby defendant would pay $2, 500 a month in interest. (Tr. at 19-20). However, Schlamowitz testified that defendant would sometimes pay less than the agreed upon amount, or no interest at all depending on how much money defendant could repay each month. (Id.)

Since the parties stipulated that Schlamowitz lent Tirado at least $142, 500, the testimony at trial focused on the additional $77, 900 that plaintiff claimed she had loaned to defendant and the $76, 920 defendant claimed to have repaid plaintiff. During direct examination, plaintiff's counsel pointed to plaintiff's bank records reflecting three cash withdrawals plaintiff made on July 17, 2008, January 28, 2010, and June 3, 2010, totaling $17, 900. (Id. at 11-13). Schlamowitz testified that these three withdrawals were all cash loans made to the defendant. (Id.) According to plaintiff, the January 28, 2010 withdrawal of $10, 000 was made from plaintiffs account in Massachusetts, where defendant resides. (Id. at 12). The July 2008 and June 2010 withdrawals were made in New York, where plaintiff resides. (Id.) On cross-examination, Schlamowitz claimed that the January 2010 Massachusetts withdrawal was made when plaintiff visited the defendant in Boston for one week and the $10, 000 in cash was given to Tirado as a loan. (Id. at 18-19). Schlamowitz further claimed that the two New York cash withdrawals from July 2008 and June 2010 represent sums loaned to defendant when defendant came to New York to visit. (Id. at 17-18).

Schlamowitz also testified that she loaned defendant an additional $60, 000 dollars in cash that is not reflected as a withdrawal in the bank statements because she saved it at home and not at the bank. (Id. at 13). Schlamowitz claimed that the cash that she saved at home came from her husband's pediatric practice, where she works as an assistant and handles the money. (Id.) On cross-examination, she testified that the $60, 000 in saved cash from her husband's business was loaned to defendant periodically over five years. (Id. at 16, 17).

Schlamowitz conceded that, other than her own sworn testimony and the bank statements introduced into evidence, she has no further evidence to prove that any of the cash payments in dispute were made to the defendant. (Id. at 19). Furthermore, Schlamowitz testified that she has no other evidence to prove that the defendant's $69, 920 in deposits to her account were in fact interest payments. (Id.) In total, Schlamowitz claims that she loaned $220, 400 to the defendant, none of which was repaid. (Id. at 14-15; Joint Rpt).

B. Testimony of Raquel Tirado

The defendant, Raquel Tirado, claimed that plaintiff only loaned her $142, 500. (Tr. at 51). Tirado categorically denied receiving any of the cash payments that plaintiff claimed were made. (Id. at 22). Tirado testified that the only time cash was exchanged in this financial arrangement between plaintiff and defendant was when Tirado made a $7, 000 cash repayment to plaintiff witnessed by their mother, Zulena Calcano, and defendant's assistant in defendant's home in Massachusetts. (Id. at 23, 26). However, Tirado did not call any of these witnesses to testify about this alleged cash repayment and has no records showing that such a cash repayment was made. (Id.)

Tirado also denied the existence of any agreement as to interest, stating repeatedly that "we never talked about interest." (Id. at 23, 41, 43, 44, 48). Instead, she testified that the $69, 920 in deposits she made to plaintiff's account[6] were repayments of principal on the loan, which she made approximately once a month as part of a cycle of loans and repayment agreed upon with her sister. (Id. at 42-44). Tirado claimed that sometimes she borrowed money, repaid it, and borrowed more all in quick succession because sudden, pressing business expenses like "gas" and "insurance" for her transportation company would arise and require her to ask her sister for more money immediately. (Id. at 44). When questioned about scribbled out notes on the deposit slips that she provided as evidence of the repayments, Tirado stated that she did not remember what the notes had said, but that they could have been notes to herself, like phone numbers. (Id. at 48). She testified that she did not tamper with these deposit slips, and that "they were already like this" when she searched and found them for use in this lawsuit. (Id.)

Additionally, Tirado testified that she was in fact mistaken when she testified at her deposition that she had not made deposits to the joint account she shared with the plaintiff. (Id. at 30-33). She did in fact make deposits to the joint account, and both sides stipulate to that. (Id.) Tirado was also questioned about her deposition testimony where she testified that she suspected someone had broken into her home and stolen her bank records. (Id. at 35). When questioned at trial, Tirado confirmed that she had no proof that a break-in had occurred, only suspicions, but she conceded that Schlamowitz's counsel had no involvement in such a crime. (Id. at 35-38).

C. Documentary Evidence

The only documents entered into evidence at trial consist of various Bank of America account statements held in the name of either plaintiff or defendant, defendant's deposit slips, and an accounting report from Shalik, Morris & Company LLP, [7] analyzing the bank statements. The parties stipulate to the accuracy of the exhibits.

DISCUSSION

I. Legal ...


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