Greenwich Life Settlements, Inc. et al v. Viasource Funding Group, L.L.C.

RESPONSE to Petition

S.D.N.Y.April 8, 2008

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------------x GREENWICH LIFE SETTLEMENTS, INC. and GREENWICH SETTLEMENTS MASTER TRUST, Civil Action # 08 CV 03062 (PKL) ECF CASE Plaintiffs, - against - VERIFIED ANSWER VIASOURCE FUNDING GROUP, LLC, Defendant. --------------------------------------------------------------------x The Petitioner, ViaSource Funding Group, LLC (“ViaSource”), by its undersigned attorneys, Kelleher & Dunne LLP, for its answer to plaintiffs’ Verified Complaint (the “Complaint”), respectfully alleges, upon information and belief, as follows: 1. Denies the truth of the allegations in paragraph “1”. 2. Denies the truth of the allegations in paragraph “2”, and refers the Court to the terms and provisions of the documents referenced therein. 3. Denies the allegations in paragraph “3”, and refers the Court to the terms and provisions of the documents referenced therein. 4. Denies knowledge and information sufficient to form a belief as to the truth of the allegations in paragraph “4”. 5. Denies knowledge and information sufficient to form a belief as to the truth of the allegations in paragraph “5”. 6. Admits the allegations in paragraph “6”. Case 1:08-cv-03062-PKL Document 3 Filed 04/08/2008 Page 1 of 13 2 7. Denies knowledge and information sufficient to form a belief as to the truth of the allegations in paragraph “7”. 8. Denies knowledge and information sufficient to form a belief as to the truth of the allegations in paragraph “8”. 9. Denies knowledge and information sufficient to form a belief as to the truth of the allegations in paragraph “9”. 10. Denies knowledge and information sufficient to form a belief as to the truth of the allegations in paragraph “10”. 11. Admits purchased the Policy, but denies information sufficient to form a belief as to the truth of the other allegations in paragraph “11”. 12. Denies Legacy purchased the Policy, denies knowledge and information sufficient to form a belief as to the truth of the balance of the allegations in paragraph “12”, and refers the Court to the terms and provisions of the documents reference therein. 13. Denies knowledge and information sufficient to form a belief as to the truth of the allegations in paragraph “13”, and refers the Court to the terms and provisions of the documents reference therein. 14. Denies the allegations as stated in paragraph “14”, as ViaSource and Legacy never agreed upon the terms and provisions of a sale, and no agreement or contract for sale of the Policy by ViaSource ever came into existence. 15. Denies the allegations as stated in paragraph “15”, and refers the Court to the terms and provisions of the documents referenced therein. 16. Denies the allegations in paragraph “16”. Case 1:08-cv-03062-PKL Document 3 Filed 04/08/2008 Page 2 of 13 3 17. Denies the allegations in paragraph “17” regarding Defendant’s execution, and denies knowledge and information sufficient to form a belief as to the truth of the allegations regarding Greenwich, and refers the Court to the terms and provisions of the documents referenced therein. 18. Denies the truth of the allegations in paragraph “18”. 19. Denies Legacy possessed any right, title and interest in the Policy, and denies knowledge and information sufficient to form a belief as to the truth of the other allegations in paragraph “19”, and refers the Court to the terms and provisions of the documents referenced therein. 20. Denies knowledge and information sufficient to form a belief as to the truth of the allegations in paragraph “20”. 21. Denies knowledge and information sufficient to form a belief as to the truth of the allegations in paragraph “21”. 22. Regarding paragraph “22”, denies as to Legacy, but admits as to Greenwich, because ViaSource was not aware of Greenwich’s purported involvement in the matter, had no communication with Greenwich, and bore no responsibility to Greenwich. 23. Denies the allegations in paragraph “23” as no contract between Defendant and Legacy existed. 24. Denies the allegations in paragraph “24”. 25. Denies the truth of the allegations in paragraph “25”. 26. Denies the allegations in paragraph “26”. 27. Admits the truth of the allegations in paragraph “27”. 28. Denies the allegations in paragraph “28”. Case 1:08-cv-03062-PKL Document 3 Filed 04/08/2008 Page 3 of 13 4 29. As to paragraph “29”, Defendant repeats and reiterates all of its responses in paragraphs “1-28” as if fully set forth at length herein. 30. Denies the allegations in paragraph “30”. 31. Denies the truth of the allegations in paragraph “31”. 32. Denies the allegations in paragraph “32”. 33. Denies the allegations in paragraph “33”. 34. Denies the allegations in paragraph “34”. 35. Denies the allegations in paragraph “35”. 36. As to paragraph “36”, Defendant repeats and reiterates all of its responses in paragraphs “1-35” as if fully set forth at length herein. 37. Denies knowledge and information sufficient to form a belief as to the truth of the allegations in paragraph “37”. 38. Denies knowledge and information sufficient to form a belief as to the truth of the allegations in paragraph “38”, and refers the Court to the terms and provisions of the documents referenced therein. 39. Denies the allegations in paragraph “39”. 40. Denies the allegations in paragraph “40”. 41. Denies the allegations in paragraph “41”. 42. Denies the allegations in paragraph “42”. 43. Denies the allegations in paragraph “43”. 44. Denies the allegations in paragraph “44”. 45. As to paragraph “45”, Defendant repeats and reiterates all of its responses in Case 1:08-cv-03062-PKL Document 3 Filed 04/08/2008 Page 4 of 13 5 paragraphs “1-44” as if fully set forth at length herein. 46. Denies knowledge and information sufficient to form a belief as to the truth of the allegations in paragraph “46”, and refers the Court to the terms and provisions of the documents referenced therein. 47. Denies the allegations in paragraph “47”. 48. Denies the allegation in paragraph “48”. 49. Denies the allegations in paragraph “49”. 50. Denies the allegations in paragraph “50”. 51. Denies the allegations in paragraph “51”. 52. As to paragraph “52”, Defendant repeats and reiterates all of its responses in paragraphs “1-51” as if fully set forth at length herein. 53. Denies the allegations in paragraph “53”. 54. Denies the allegations in paragraph “54”. 55. Denies the allegations in paragraph “55”. 56. Denies the allegations in paragraph “56”. 57. Denies the allegations in paragraph “57”. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 58. The Complaint fails to state a cause of action because, inter alia, there is no privity of contract and/or consideration by or between the parties. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 59. The Complaint must be dismissed, as plaintiffs have failed to satisfy all conditions precedent. Case 1:08-cv-03062-PKL Document 3 Filed 04/08/2008 Page 5 of 13 6 AS AND FOR A THIRD AFFIRMATIVE DEFENSE 60. The Complaint must be dismissed, as defendant had no duty, in law or equity, to plaintiffs. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 61. The Complaint must be dismissed as Plaintiffs failed to name all necessary parties. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 62. Plaintiffs’ claims in equity must be dismissed based upon their unclean hands and the doctrines of waiver, estoppel and laches. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 63. Plaintiffs’ claims must fail, as defendant, at all times, acted in accord with the terms and provisions of the relevant documents that it executed. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 64. Plaintiffs’ claim for tortious interference must fail, as no evidence exists demonstrating ViaSource was aware of the contract between plaintiff and Legacy, and that ViaSource intentionally procured the alleged breach. AS AND FOR AN EIGTH AFFIRMATIVE DEFENSE 65. Plaintiffs’ claim for tortious interference must fail, as the “economic justification” defense defeats the claim, and plaintiffs’ cannot demonstrate actual malice or illegality by defendant. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 66. The allegations set forth in plaintiffs’ complaint do not state a proper cause of action upon which punitive damages can be awarded. Case 1:08-cv-03062-PKL Document 3 Filed 04/08/2008 Page 6 of 13 7 AS AND FOR A TENTH AFFIRMATIVE DEFENSE 67. Plaintiffs’ claim for punitive damages violates, and is therefore barred by the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States of America on grounds including the following: a. it is a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution to impose punitive damages, which are penal in nature, against a civil defendant upon the Plaintiff’s satisfying a burden of proof which is less than the “beyond a reasonable doubt” burden of proof required in criminal cases; b. the procedure pursuant to which punitive damages are awarded may result in the award of joint and several judgments against multiple defendants for different alleged acts of wrongdoing, which infringes the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution; c. the procedures pursuant to which punitive damages are awarded fail to provide a reasonable limit on the amount of the award against defendant, which thereby violates the Due Process of the Fourteenth Amendment of the United States Constitution; d. the procedures pursuant to which punitive damages are awarded fail to provide specific standards for the amount of the award of punitive damages which thereby violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution; e. the procedures pursuant to which punitive damages are awarded result in the imposition of different penalties for the same or similar acts and thus violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; f. the procedures pursuant to which punitive damages are awarded permit the imposition of punitive damages in excess of the maximum criminal fine for the same or similar conduct, which thereby infringes the Due Process Clause of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; g. the award of punitive damages to the Plaintiff in this action would constitute a Case 1:08-cv-03062-PKL Document 3 Filed 04/08/2008 Page 7 of 13 8 deprivation of property without due process of law; and h. the procedures pursuant to which punitive damages are awarded permit the imposition of an excessive fine and penalty. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 68. Plaintiffs’ claim for punitive damages violates, and is therefore barred by the following provisions of the Constitution of the State of New York, Article I, Sections 5, 6, 11, and 12 on grounds including the following: a. it is a violation of the Due Process and Equal Protection Clauses to impose punitive damages, which are penal in nature, against a civil defendant upon the Plaintiff’s satisfying a burden of proof which is less than the “beyond a reasonable doubt” burden of proof required in criminal cases; b. the procedures pursuant to which punitive damages are awarded may result in the award of joint and several judgments against multiple defendants for different alleged acts of wrongdoing; c. the procedures pursuant to which punitive damages are awarded fail to provide a limit on the amount of the award against the defendant; d. the procedures pursuant to which punitive damages are awarded fail to provide specific standards for the amount of award of punitive damages; e. the procedures pursuant to which punitive damages are awarded result in the imposition of different penalties for the same or similar acts; f. the procedures pursuant to which punitive damages are awarded permit the imposition of punitive damages in excess of the maximum criminal fine for the same or similar conduct, which thereby infringes the Due Process Clause of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; g. the award of punitive damages to the Plaintiff in this action would constitute a deprivation of property without due process of law; h. the procedures pursuant to which punitive damages are awarded permit the imposition of an excessive fine and penalty; and Case 1:08-cv-03062-PKL Document 3 Filed 04/08/2008 Page 8 of 13 9 i. the procedures pursuant to which punitive damages are awarded permit the imposition of an excessive fine and penalty. AS AND FOR A TWELVTH AFFIRMATIVE DEFENSE 69. The Complaint must be dismissed as no personal jurisdiction has been obtained over defendant and venue is improper. AS AND FOR A THRITEENTH AFFIRMATIVE DEFENSE 70. Because no meeting of the minds occurred between ViaSource and Legacy, no contract between them existed; therefore, plaintiffs’ claim must be dismissed as, inter alia, it has no standing and its complaint fails to state a cause of action as a matter of law. AS AND FOR A FOURTENTH AFFIRMATIVE DEFENSE 71. Plaintiffs’ claim alleging third-party beneficiary status fails, both legally and factually, as Legacy and ViaSource have discontinued, with prejudice, and released any and all claims against each other. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 72. The Complaint must be dismissed under the doctrine of Release. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 73. The Complaint must be dismissed under the doctrine of Accord and Satisfaction. AS AND FOR A SEVENTENTH AFFIRMATIVE DEFENSE 74. The plaintiffs’ claims, if any, are barred and extinguished by settlement. AS AND FOR AN EIGHTENTH AFFIRMATIVE DEFENSE 75. The plaintiffs’ claims, if any, are barred by res judicata and collateral estoppel. AS AND FOR A NINETENTH AFFIRMATIVE DEFENSE Case 1:08-cv-03062-PKL Document 3 Filed 04/08/2008 Page 9 of 13 10 76. The plaintiffs’ claims, if any, are barred by breach of contract. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 77. The plaintiffs’ claims, if any, are barred by the Statute of Frauds. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 78. The Complaint fails to state a claim upon which relief can be granted. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 79. The plaintiffs lack standing to sue. WHEREFORE, defendant, ViaSource Funding, prays that the above-entitled action be dismissed in its entirety, together with an award of costs and fees, as well as any other, different and further relief as this Court deems just and proper. Dated: New York, New York April 7, 2008 Kelleher & Dunne LLP Attorneys for Defendant By:__________S______________ John W. Dunne (JD 2515) 17 Battery Place, 11th Fl. New York, NY 10004 212-825-1700 TO: Richard G. Haddad, Esq. OTTERBOURG, STEINDLER, HOUSTON & ROSEN, P.C. Attorneys for Plaintiffs 230 Park Ave. New York, NY 10169 Case 1:08-cv-03062-PKL Document 3 Filed 04/08/2008 Page 10 of 13 11 ATTORNEY VERIFICATION STATE OF NEW YORK) ) ss.: COUNTY OF NEW YORK) The undersigned, an attorney admitted to practice before the District Court for the Southern District of New York, does hereby state that I am a member of the firm of Kelleher & Dunne LLP, attorneys for defendant herein. I have read the annexed Verified Answer and know the contents thereof, and the same are true to my knowledge except those matters therein which are stated to be alleged on information and belief. As to those matters, I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon discussions with the client, and books and records maintained in the files at your deponent's office. Affirmant further states that the reason this verification is made by affirmant and not defendant is because said plaintiff does not reside in the county wherein affirmant maintains his office, to wit, New York County. Dated: New York, New York April 8, 2008 _______________/s/___________________ John W. Dunne (JD 2515) Case 1:08-cv-03062-PKL Document 3 Filed 04/08/2008 Page 11 of 13 12 CERTIFICATE OF SERVICE I hereby certify that on this 8th day of April, 2008, a true and correct copy of the foregoing VERIFIED ANSWER was served by first class mail on: Otterbourg, Steindler, Houston & Rosen, P.C. Attorneys for Plaintiff 230 Park Ave. New York, NY 10169 ________s______________ John W. Dunne UNITED STATES DISTRICT COURT Case 1:08-cv-03062-PKL Document 3 Filed 04/08/2008 Page 12 of 13 13 SOUTHERN DISTRICT OF NEW YORK Index No. 08 Civ. 03062 (PKL) ________________________________________________ GREENWICH LIFE SETTLEMENTS, INC.. and GREENWICH SETTLEMENTS MASTER TRUST, Plaintiffs, - v - VIASOURCE FUNDING GROUP, LLC., Defendant. ______________________________________________ VERIFIED ANSWER JOHN W. DUNNE, ESQ KELLEHER & DUNNE LLP Attorneys for Defendant 17 Battery Place, 11th Floor New York, NY 10004 Dated: New York, New York April 8, 2008 Case 1:08-cv-03062-PKL Document 3 Filed 04/08/2008 Page 13 of 13