JMD Holding Corp. v. Congress Financial Corp.

Appellate Division of the Supreme Court of New York

JMD Holding Corp. v. Congress Financial Corp.

5 A.D.3d 334, 773 N.Y.S.2d 554, 2004 N.Y. App. Div. LEXIS 3531

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 30, 2004

StatusPublished

Cited by1 cases

This text of 5 A.D.3d 334 (JMD Holding Corp. v. Congress Financial Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

JMD Holding Corp. v. Congress Financial Corp., 5 A.D.3d 334, 773 N.Y.S.2d 554, 2004 N.Y. App. Div. LEXIS 3531 (N.Y. Ct. App. 2004).

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Opinion

[335]*335Order and judgment (one paper), Supreme Court, New York County (Marian Lewis, Special Ref.), entered September 2, 2003, which, after a hearing, awarded plaintiff $820,256.41 plus interest, costs and disbursements, unanimously affirmed, with costs.

In light of plaintiffs repayment of the loan and our prior decision that defendant was not entitled to retain plaintiffs cash reserve after repayment (309 AD2d 645 [2003]), defendant was required to refund all fees misappropriated from plaintiffs account following repayment of the loan in full. Contrary to defendant’s contention, there were no “contingent obligations” under the agreement justifying its retention of these fees once plaintiff had repaid the loan. Any obligations that arguably arose out of the loan agreement after repayment of the debt were the result of defendant’s refusal to terminate its security interest or return plaintiffs money. Finally, plaintiffs failure to object to fees wrongfully charged by defendant did not create a liability, under the theory of an account stated, where none existed in the first place (Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995, 996 [1979]). Concur—Nardelli, J.P., Tom, Andrias, Saxe and Marlow, JJ.

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[335]*335Order and judgment (one paper), Supreme Court, New York County (Marian Lewis, Special Ref.), entered September 2, 2003, which, after a hearing, awarded plaintiff $820,256.41 plus interest, costs and disbursements, unanimously affirmed, with costs.

In light of plaintiffs repayment of the loan and our prior decision that defendant was not entitled to retain plaintiffs cash reserve after repayment (309 AD2d 645 [2003]), defendant was required to refund all fees misappropriated from plaintiffs account following repayment of the loan in full. Contrary to defendant’s contention, there were no “contingent obligations” under the agreement justifying its retention of these fees once plaintiff had repaid the loan. Any obligations that arguably arose out of the loan agreement after repayment of the debt were the result of defendant’s refusal to terminate its security interest or return plaintiffs money. Finally, plaintiffs failure to object to fees wrongfully charged by defendant did not create a liability, under the theory of an account stated, where none existed in the first place (Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995, 996 [1979]). Concur—Nardelli, J.P., Tom, Andrias, Saxe and Marlow, JJ.

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Bluebook (online)

5 A.D.3d 334, 773 N.Y.S.2d 554, 2004 N.Y. App. Div. LEXIS 3531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jmd-holding-corp-v-congress-financial-corp-nyappdiv-2004.

Opinion

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