smart business v. synergy law llc et al, 610073/2019, 2 (n ......synergy and maresca confessed...

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NASSAU

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SMART BUSINESS,

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VERIFIED COMPLAINT

Index No.

Plaintiff,

- against -

SYNERGY LAW LLC, SYNERGY

ATTORNEY SERVICES, LLC d/b/a

SYNERGY ATTORNEY SERVICES,

SYNERGY CONSULTING SERVICES, LLC

d/b/a SYNERGY CONSULTING SERVICES,

SINERGY SWEETS LLC d/b/a SINERGY

SWEETS, THEMIS LAW PLLC, DAVID D. MARESCA, and SAM BABBS III,

Defendants.

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Plaintiff Smart Business (“Smart Business” or “Petitioner”), by and through its attorneys,

Ershowsky P.C., as and for its Verified Complaint, alleges as follows:

1. This is an action to enforce a judgment, previously entered against Synergy Law

LLC, Synergy Attorney Services LLC, Synergy Consulting Services, LLC, and Sinergy Sweets

LLC (collectively, “Synergy”), and David Maresca (“Maresca”) in favor of Plaintiff Smart

Business, against Synergy’s successor, Themis Law PLLC (“Themis”) and Sam Babbs III

(“Babbs”), who is a co-manager with Maresca of Themis and co-conspirator with Maresca

(collectively, “Defendants”), and to recover damages from the Defendants.

2. Maresca and Synergy were in the business of providing services to individuals who

were in danger of losing their homes to foreclosure.

3. On or about April 9, 2019, Synergy entered into an Agreement for the Purchase and

Sale of Future Receivables with Smart Business under which Synergy agreed to sell $444,970 of

FILED: NASSAU COUNTY CLERK 07/24/2019 07:42 PM INDEX NO. 610073/2019

NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/25/2019

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their future receivables in exchange for an advance payment of $300,000 (the “MCA Agreement”).

Pursuant to the MCA Agreement, Synergy authorized Smart Business to debit from its Capital

One bank account each business day, by means of an online ACH debit, a fixed daily payment in

the amount of $4,299.00 with a reconciliation to take place at the end of each month at Synergy’s

request, whereby Smart Business would ensure that 12% of Synergy’s accounts-receivable for

each calendar month was debited, until the purchased amount of receivables was paid in full.

4. Maresca personally guaranteed Synergy’s performance under the MCA

Agreement.

5. Synergy and Maresca confessed judgment in favor of Smart Business in the amount

of $444,970.00 less payments made, plus interest thereon at 16% per annum from the date of

default and plus attorneys’ fees in the amount of 33% plus costs and disbursements.

6. On or about June 12, 2019, Synergy and Maresca breached the MCA Agreement.

Up to that point, Synergy had made payments of $186,750 under the MCA Agreement, leaving a

balance due in the amount of $258,220.

7. Accordingly, Smart Business converted the Affidavit of Confession of Judgment to

a Judgment, dated June 12, 2019 (the “Judgment”) in the amount of $258,220.00, plus attorneys’

fees in the amount of $85,212.60, together with costs and disbursements as taxed by the clerk in

the amount of $225.00 for a total sum of $343,657.60. The Judgment was entered by the Steuben

County Clerk on June 12, 2109 under index number E2019-0803CV.

8. After the Judgment was entered, Synergy and Maresca began negotiations with

Smart Business and convinced Smart Business to forbear on collection actions related to the

$343,657.60 Judgment. Specifically, on June 18, 2019, Smart Business entered into an agreement

with Synergy and Maresca, under which Smart Business agreed to forbear on collections efforts



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and accept payment of the Judgment amount, exclusive of poundage (the “Forbearance

Agreement”).

9. However, on July 16, 2019, Synergy and Maresca stopped remitting payment to

Smart Business, leaving a balance owed on the Judgment of $283,943.01.1

10. Unbeknownst to Smart Business, while Smart Business was forbearing on

collection of the Judgment, Synergy, Maresca, and Babbs caused the organization of Themis, a

professional limited liability company, under the laws of the District of Columbia on or about June

20, 2019, only two days after entering into the Forbearance Agreement.

11. Upon information and belief, Maresca and Babbs caused Synergy to fraudulently

transfer its assets to Themis in order to frustrate Smart Business’s ability to enforce the Judgment

against Synergy and Maresca. Indeed, Maresca and Babbs have been funneling money through

Themis into Synergy’s accounts and using those funds to pay Synergy’s payroll and expenses and

divert funds to Maresca. All the while, Synergy’s revenues are directed to Themis to avoid

payment under the MCA Agreement, Judgment, and Forbearance Agreement and to hide those

assets from attachment under the Judgment.

12. Accordingly, as set forth below, the transfer of assets from Synergy to Themis must

be set aside and Themis and Babbs should be held liable for the Judgment as successors to and

alter ego of Synergy. In addition, Smart Business is entitled to damages for fraudulent inducement,

tortious interference with contract, breach of contract, and civil conspiracy.

PARTIES AND VENUE

13. Smart Business is in the merchant cash advance business and maintains a principal

place of business in Nassau County, New York.

1 This amount assumes recovery of $18,874.09 through a city marshal.



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14. Upon information and belief, Synergy Law LLC is a limited liability company

organized and existing under the laws of the District of Columbia with a principal place of business

at 8801 Sudley Road, Suite 4017, Manassas, Virginia 20110 or 1101 Connecticut Ave NW, Suite

450, Washington, D.C. 20036. On information and belief, Synergy Law LLC does business

nationwide, including in New York.

15. Upon information and belief, Synergy Attorney Services, LLC is a limited liability

company organized and existing under the laws of the Commonwealth of Virginia with a principal

place of business at 10562 Talisa Lane, Manassas, Virginia 20112. On information and belief,

Synergy Attorney Services, LLC does business nationwide, including in New York.

16. Upon information and belief, Synergy Consulting Services, LLC is a limited

liability company organized and existing under the laws of the Commonwealth of Virginia with a

principal place of business at 10562 Talisa Lane, Manassas, Virginia 20112.

17. Upon information and belief, Sinergy Sweets LLC is a limited liability company

organized and existing under the laws of the Commonwealth of Virginia with a principal place of

business at 10562 Talisa Lane, Manassas, Virginia 20112.

18. Upon information and belief, Themis is a professional limited liability company

organized and existing under the laws of the District of Columbia. Themis’s purported principal

place of business, according to public filings, 1701 Pennsylvania Avenue NW, Suite 200,

Washington, D.C. 20006. According to public filings, Maresca and Babbs are the organizers and

governors of Themis.

19. Upon information and belief, Defendant Maresca is an individual residing at 13159

Lakehill Drive, Nokesville, Virginia 20181.



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20. Upon information and belief, Defendant Babbs is an individual who is admitted as

an attorney in Florida and the District of Columbia. According to public filings, Babbs is the

executing officer of Themis.

21. This Court has jurisdiction over Synergy and Maresca because they consented to

jurisdiction pursuant to the MCA Agreement and attendant confession of judgment.

22. This Court has jurisdiction over Themis because as successor to Synergy, Themis

inherited Synergy’s jurisdictional status through its de facto merger with Synergy, its consolidation

with Synergy, and its status as a mere continuation of Synergy.

23. This Court has jurisdiction over Defendant Babbs because he has committed and

conspired to commit torts without the State that have caused, and he reasonably knew would cause,

damages within the State of New York.

24. Venue is proper pursuant to CPLR 503(a) because Smart Business maintains an

office in Nassau County.

FURTHER SUBSTANTIVE ALLEGATIONS

25. On or about April 9, 2019, Synergy entered into the MCA Agreement under which

Synergy agreed to sell $444,970 of their future receivables in exchange for an advance payment

of $300,000. Pursuant to the MCA Agreement, Synergy authorized Smart Business to debit from

its Capital One bank account each business day, by means of an online ACH debit, a fixed daily

payment in the amount of $4,299.00 with a reconciliation to take place at the end of each month

at Synergy’s request, whereby Smart Business would ensure that 12% of Synergy’s accounts-

receivable for each calendar month was debited, until the purchased amount of receivables was

paid in full.



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26. Maresca personally guaranteed Synergy’s performance under the MCA

Agreement.

27. Synergy and Maresca confessed judgment in favor of Smart Business in the amount

of $444,970.00 less payments made, plus interest thereon at 16% per annum from the date of

default and plus attorneys’ fees in the amount of 33% plus costs and disbursements.

28. On or about June 12, 2019, Synergy and Maresca breached the MCA Agreement.

Up to that point, Synergy had made payments of $186,750 under the MCA Agreement, leaving a

balance due in the amount of $258,220.

29. Accordingly, Smart Business converted the Affidavit of Confession of Judgment to

a Judgment, dated June 12, 2019 in the amount of $258,220.00, plus attorneys’ fees in the amount

of $85,212.60, together with costs and disbursements as taxed by the clerk in the amount of

$225.00 for a total sum of $343,657.60. The Judgment was entered by the Steuben County Clerk

on June 12, 2109 under index number E2019-0803CV.

30. After the Judgment was entered, Synergy and Maresca began negotiations with

Smart Business and convinced Smart Business to forbear on collection actions related to the

$343,657.60 Judgment. Specifically, on June 18, 2019, Smart Business entered into the

Forbearance Agreement with Synergy and Maresca, under which Smart Business agreed to forbear

on collections efforts and accept payment of the Judgment amount, exclusive of poundage. In

exchange for forbearance, Synergy and Maresca represented that they would remit payment to

Smart Business as follows:

a. Initial release of $20,000 from funds held at Capital One.

b. Daily debit of $2,149.50 from June 19, 2019 through July 3, 2019.



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c. Daily debit of $4,299 from July 4, 2019 until the balance of the Judgment was paid

in full.

31. Pursuant to the Forbearance Agreement, if Synergy and Maresca defaulted on the

payments, Smart Business could continue enforcing its rights under the MCA Agreement, bring

any claims against Synergy and Maresca, and demand the full outstanding balance less payments.

32. In the Forbearance Agreement, in order to induce Smart Business to enter into the

Forbearance Agreement, Synergy “represent[ed] and warrant[ed] to [Smart Business] that . . . it

has accurately and truthfully disclosed all pertinent information related to this Agreement.

[Synergy] understands that [Smart Business] is relying on [Synergy]’s representations, and it is a

material reason for [Smart Business] entering into this Agreement.”

33. However, on July 16, 2019, Synergy and Maresca stopped remitting payment to

Smart Business, leaving a balance owed on the Judgment of $283,943.01.2

34. Unbeknownst to Smart Business, while Smart Business was forbearing on

collection of the Judgment, Synergy, Maresca, and Babbs caused the organization of Themis on

or about June 20, 2019, only two days after entering into the Forbearance Agreement.

35. Upon information and belief, Maresca and Babbs caused Synergy to fraudulently

transfer its assets to Themis in order to frustrate Smart Business’s ability to enforce the Judgment

against Synergy and Maresca.

36. As of the date of this filing, Synergy’s website content has been removed.

37. Indeed, Themis is continuing the same business as Synergy in the very same form.

Themis is merely an entity to provide a front to conduct Synergy’s business. Synergy’s employees

and other expenses are currently being paid through money that is transferred from Themis to

2 This amount assumes recovery of $18,874.09 from a city marshal.



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Synergy Law LLC’s client trust account, which is then transferred to Synergy Law LLC’s

operating accounts. That is, Synergy’s revenue is paid to the front company – Themis – which then

transfers piecemeal amounts to Synergy Law’s attorney trust account. Then the funds are

transferred to Synergy Law’s operating accounts, from which expenses are paid and otherwise

dispersed to Maresca, which keeps Synergy Law’s operating account balances minimal and thus

protected from attachment under the Judgment.

38. For example, for the two weeks beginning July 5, 2019, all 13 credits, and all of the

total funds, deposited into Synergy Law’s client trust account came from Themis, and these funds

were then quickly transferred to one of Synergy Law’s operating accounts (with the exception of

one deposit that was withdrawn by Maresca):

• $7,160.05 deposited on July 5, 2019 by Themis and then transferred to operating

account on July 8, 2019.

• $700, $200, $3,910, and $7,472.50 deposited on July 9, July 9, July 10, and July 11,

2019, respectively, by Themis and then the total of $12,282.50 transferred to an

operating account on July 11, 2019.

• $5,576.31 deposited by Themis on July 12, 2019 and then withdrawn by Maresca

on the same day.

• $11,168.50, $25,554.12, $5,107.50, $2,485, and $12,235.10 deposited on July 15,

July 16, July 16, July 16, and July 17, respectively, by Themis and then the total of

$56,550.22 transferred to an operating account on July 17, 2019.

• $6,926 deposited by Themis on July 18, 2019 and then transferred to an operating

account on July 19, 2019.



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• $10,315.21 deposited by Themis on July 19, 2019 and then transferred to an

operating account on the same day.

39. After the funds were transferred to one of Synergy Law’s operating accounts (-

2768), Defendants quickly disperse the funds to protect from attachment and levy under the

Judgment:

Date of Transfer Amount ($) To/From Balance ($)

July 8, 2019 7,160.05 From IOLA 7,165.05

July 9, 2019 -7,165.05 To Acct -0777 0

July 11, 2019 12,282.50 From IOLA 12,282.50

July 11, 2019 -7,282.50 To Acct -0777 5,000

July 12, 2019 5,576.31 From Maresca 10,576.31

July 12, 2019 -10,576.31 To Acct -0777 0

40. Then, on July 17, 2019, after $56,550.22 was transferred to Synergy Law’s

operating account (-2768) from its client trust account (which originally came from Themis),

$46,156.22 was used to pay Synergy Law’s payroll expenses.

41. After $10,5761.31 were transferred from the account ending -2768 to the account

ending -0777, Synergy paid $42,063.94 in wages and transferred $5,075.26 to Maresca.

42. Themis must be acknowledged as the successor in interest to Synergy and held

accountable under the MCA Agreement, the Judgment, and the Forbearance Agreement. Further,

as a result of the Defendants’ actions, Smart Business has been damaged.

AS AND FOR A FIRST CAUSE OF ACTION

43. Smart Business repeats and realleges each of the allegations above as if fully set

forth herein.

44. Smart Business is a creditor of Synergy and Maresca.

45. Maresca and Babbs transferred the assets of Synergy to Themis for the purpose of

defrauding Smart Business. Indeed, Themis is funding Synergy



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46. Upon information and belief, Themis did not provide fair consideration to Synergy

for its assets.

47. By causing Synergy to transfer its assets to Themis and allow Themis to generate

revenue otherwise due to Synergy, Maresca and Babbs rendered Synergy insolvent and unable to

satisfy the Judgment.

48. By transferring Synergy’s assets to Themis, Maresca and Babbs acted with actual

intent to hinder, delay, or defraud Smart Business.

49. Based on the foregoing, pursuant to CPLR 5225 and Article 10 of the Debtor and

Creditor Law, Smart Business is entitled to an order and judgment setting aside the conveyance of

Synergy’s assets to Themis to the extent necessary to satisfy the Judgment, plus its reasonable

attorneys’ fees pursuant to Article 10 of the Debtor and Creditor Law.

AS AND FOR A SECOND CAUSE OF ACTION


forth herein.

51. Themis may be held liable as a successor to Synergy because Themis absorbed

Synergy in a de facto merger and Themis is a mere continuation of Synergy.

52. Indeed, Themis is funding Synergy’s payroll and other expenses.

53. Further, Maresca has an actual or constructive ownership interest in Themis, and is

listed as an organizer and governor of Themis.

54. Themis was formed only two days after the signing of the Forbearance Agreement,

a week after the entry of the Judgment.

55. Themis’s business constitutes a change in form, but not in substance, from the

business of Synergy.



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56. Pursuant to CPLR 5225 and Article 10 of the Debtor and Creditor Law, Smart

Business is entitled to an order and judgment directing Themis to satisfy the Judgment, and if the

amount to be so paid is insufficient to satisfy the Judgment, to deliver any other personal property,

or so much of it as is of sufficient value to satisfy the Judgment, to a designated sheriff.

AS AND FOR A THIRD CAUSE OF ACTION


forth herein.

58. Synergy and Maresca fraudulently induced Smart Business to enter into the

Forbearance Agreement.

59. In the Forbearance Agreement, in order to induce Smart Business to enter into the

Forbearance Agreement, Synergy “represent[ed] and warrant[ed] to [Smart Business] that . . . it

has accurately and truthfully disclosed all pertinent information related to this Agreement.

[Synergy] understands that [Smart Business] is relying on [Synergy]’s representations, and it is a

material reason for [Smart Business] entering into this Agreement.”

60. Synergy and Maresca had not, however, disclosed that they planned to organize

Themis, to transfer assets to Themis, and otherwise to evade payments owed under the Judgment.

61. Smart Business reasonably relied on the representations made by Synergy and

Maresca when entering into the Forbearance Agreement.

62. Smart Business was harmed by Synergy and Maresca’s fraudulent conduct by

forbearing on attaching available assets and otherwise forbearing on exercising its legal rights.

AS AND FOR A FOURTH CAUSE OF ACTION


forth herein.



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64. Themis and Babbs tortuously interfered with Smart Business’s contractual

relationship with Synergy and Maresca.

65. Synergy and Maresca entered into the MCA Agreement and Forbearance

Agreement with Smart Business. The MCA Agreement and the Forbearance Agreement are valid

and enforceable contracts.

66. Themis and Babbs were aware that Synergy and Maresca were bound by these

agreements. Indeed, Maresca himself is an organizer and governor of Themis, and therefore his

knowledge is imputed to Themis. Babbs participated in the organization of Themis, is listed as an

executing officer of Themis (whereas Maresca is not) and has allowed the transfers of money from

Themis to Synergy, which has then been used to pay for Synergy’s expenses and to distribute to

Maresca.

67. Themis and Babbs intentionally procured the breach of Synergy and Maresca’s

duties. Babbs cooperated with the organization of Themis, which was effectuated specifically to

circumvent the obligations owed by Synergy and Maresca to Smart Business under the MCA

Agreement and the Forbearance Agreement.

68. Smart Business has been damaged by the tortious interference in an amount at least

equal to the shortfall on satisfaction of the Judgment.

AS AND FOR A FIFTH CAUSE OF ACTION


forth herein.

70. Synergy and Maresca entered into the MCA Agreement and Forbearance

Agreement with Smart Business. The MCA Agreement and the Forbearance Agreement are valid

and enforceable contracts.



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71. The MCA Agreement and the Forbearance Agreement are governed by New York

law.

72. Synergy and Maresca willfully breached each of the contracts with Smart Business.

73. Smart Business performed all of its duties under the MCA Agreement by providing

the funding provided for therein.

74. Smart Business performed all of its duties under the Forbearance Agreement by

forbearing on any collection efforts under the Judgment for as long as Synergy and Maresca

complied with their obligations under the Forbearance Agreement.

75. As a result of Synergy and Maresca’s breaches of the MCA Agreement and the

Forbearance Agreement, Smart Business has been damaged.

76. Smart Business is entitled to all attorneys’ fees incurred as a result of Synergy and

Maresca’s breaches.

77. In addition, Synergy and Maresca have breached the implied covenant of good faith

and fair dealing that is implied under all contracts, including the Forbearance Agreement. Indeed,

within two days of entering into the Forbearance Agreement, Maresca effectuated the organization

of Themis and directed revenues that rightfully belong to Synergy to Themis in order to avoid

Synergy’s obligations under the Forbearance Agreement.

78. Smart Business has been damaged by the breaches of contract and breach of the

implied covenant of good faith in an amount at least equal to the shortfall on satisfaction of the

Judgment.

AS AND FOR A SIXTH CAUSE OF ACTION


forth herein.



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80. Smart Business has been damaged by the civil conspiracy conducted by Maresca

and Babbs. Maresca and Babbs conspired to organize Themis for the purpose of interfering with

the contracts between Maresca and Synergy and Smart Business and to effectuate the fraudulent

inducement of Smart Business.

81. The timing of Themis’s organization implies the connection between Themis and

the tortious conduct alleged herein.

82. Smart Business has been damaged by the civil conspiracy in an amount at least

equal to the shortfall on satisfaction of the Judgment.

WHEREFORE, Plaintiff Smart Business respectfully requests that this Court enter

judgment in its favor as follows: (1) entering a judgment against Defendant Themis in an amount

of at least $283,943.01, plus interest; (2) pursuant to CPLR 5225 and Article 10 of the Debtor and

Creditor Law, setting aside the conveyance of Synergy’s assets to Themis to the extent necessary

to satisfy the Judgment, plus interest; (3) pursuant to CPLR 5225 and Article 10 of the Debtor and

Creditor Law, directing Themis to satisfy the Judgment, plus interest, and if the amount to be so

paid is insufficient to satisfy the Judgment, plus interest, to deliver any other personal property, or

so much of it as is of sufficient value to satisfy the Judgment, plus interest, to a designated sheriff;

(4) awarding damages to Smart Business for fraudulent inducement, tortious interference with

contractual relations, breach of contract, and civil conspiracy in an amount of at least $283,943.01;

(5) awarding Smart Business its reasonable attorneys’ fees, costs, disbursements, and expenses;

and (6) awarding Smart Business such other and further relief as the Court shall deem just and

equitable.

Dated: July 24, 2019 Ershowsky P.C.

New York, New York

By: ________________________



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Michael B. Ershowsky, Esq

483R Central Avenue

Cedarhurst, New York 11516

(347) 346-0207

[email protected]

Attorneys for Plaintiff Smart Business



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VERIFICATION

STATE OF CALIFORNIA ): ss:

COUNTY OF LOS ANGELES )

Gabriel Askarinam being duly sworn, deposes and says:

Deponet is a m-..mse of Smart Business. I have read the artnered Verified Complaint

and the cõütests thereof and I know the same to be true, of my own knowledge, except as to

matters therein stated on information and belief and, as to the latter, I believe them to be true.

This verification is made by the deponent because the Plaintiff is a business organization

authorized to do business in New York.

Gabriel Askarinam

Sworn to before me this

21th day of July, 2019

Notary Public



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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMEiNT CIVIL CODE § 1189

A notary iniblic or other officer cci..i |st:r.g this certificate verifies only the identity of the!ndMdua!whosigned thedocumentto which this certificate is attached, and not the truthfü|riess, accuracy, or validity of that document.

State of California

County of L.o5 A µ3c/cs

On ) rW 9019 beforeme, Rea r, ntz .DdÈe Here Insert Name and Title of the Officer

personally appeared 9 4Name(s) of Signer(s)

who proved to me on the basis of sat!sfedory evidence to be the perscñ(s) whose name(s) Is/are subscribedto the within instrument and âckmaniedged to me that he/shê/they executed the same in his/her/theirauthorized capacity(les), and that by his/her/their signature(s) on the instrument the person(s), or the entityupon behalf of which the person(s) acted, executed the instrument.

. .

I certify under PENALTY OF PERJURY under the

laws of the State of California that the foregoing. paragraph is true and correct.

LosAngelesCountyC°"""

2,²','2 WITNESS my hand and official seal.

Signature ..>

Place Notary Seal and/or Stamp Above Signa u of Èotary Public

OPTIONAL

Completing this information can deter alteration of the document orfraudulent.reattachment of this form to an unintended d ment.

Description of Attached Docu ent

Title or Type of Document: ÛDocument Date: Th GM ,401 9 Number of Pages:

Signer(s) Other Than Nam d Above O

Capacity(ies) Claimed by Signer(s)Signer's Name: S1gner's Name:O Corporate Officer - Title(s): O Corporate Officer - Title(s)·

O Partner - O Limited O General O Partner - O Limited O GeneralO Individual O Attorney in Fact O Individual O Attorney In Fact

O Trustee O Guardian of Conservator O Trustee O Guardian of Conscrvator

O Other: O OtherSigner is Representing: Signer is Representing:

©2017 National Notary Association .



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