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Longview Fund, L.P v. Stanley J. Costello

October 20, 2011

LONGVIEW FUND, L.P., PLAINTIFF,
v.
STANLEY J. COSTELLO, AND ANGELA L. COSTELLO, DEFENDANTS/THIRD PARTY PLAINTIFFS,
v.
ALL STAFFING, INC., THIRD PARTY DEFENDANT.



The opinion of the court was delivered by: Mannion, M.J.

MEMORANDUM AND ORDER*fn1

Pending before the court is a motion for summary judgment on behalf of plaintiff Longview Fund, L.P. ("Longview Fund"). (Doc. No. 39). For the reasons set forth below, the motion will be GRANTED.

I. FACTS AND PROCEDURAL BACKGROUND*fn2 /*fn3

On November 20, 2007, plaintiff Longview Fund loaned the sum of $800,000 (the "Loan") to third party defendant All Staffing, Inc. ("All Staffing") as evidenced by a promissory note dated November 20, 2011 (the "Note"). Defendant Stanley J. Costello ("S. Costello"), who was Chief Executive Officer of All Staffing, executed the Note on All Staffing's behalf.

On that same day, concurrent with the execution of the Note, both S. Costello and Angela Costello ("A. Costello"), each executed separate unconditional, personal guaranties of All Staffing's performance of its obligations under the Note. In addition, both the S. Costello Guaranty and the

A. Costello Guaranty, provided that the guarantors' obligations survived any change, restructuring or termination of the structure or existence of All Staffing.

By the express terms of the Note, All Staffing was to repay the entire principal of the loan, plus interest, to Longview Fund not later than sixty days from the date of the Note. However, All Staffing did not repay the entire principal, plus interest, to Longview Fund on or before that date.

Consequently, on or about July 14, 2008, Longview Fund and All Staffing agreed that Longview Fund would forbear from deeming All Staffing to be in default of the Note provided that All Staffing made weekly payments of not less than $2,500 to Longview Fund, did not otherwise default, and completely repaid all amounts due under the Note by June 30, 2010. All Staffing then signed that forbearance letter and began making payments to Longview Fund pursuant to the forbearance agreement.

However, All Staffing ceased making such payments before the amount due under the Note was paid. More specifically, All Staffing made its last payment to Longview on or about August 11, 2009, and has made no payments whatsoever since that date. Accordingly, as of that date, Longview Fund deemed All Staffing to be in default of the Note, and Longview Fund was still owed $684,017.85.

In addition, at the time the Loan was made, Longview Fund was one of six members of Fenix Capital, LLC ("Fenix"), which owned all of the stock of All Staffing. In August 2009, the members of Fenix sold Fenix in its entirety to SAC, LLC. According to the plaintiff, that transfer had no effect whatsoever on All Staffing's liability to Longview Fund under the Note and no effect whatsoever upon the defendants' liability to Longview Fund under their respective guaranties.

Based on the foregoing, on February 18, 2010, plaintiff Longview Fund filed a complaint against S. Costello and A. Costello. More specifically, plaintiff claims that (1) pursuant to the S. Costello Guaranty, S. Costello is liable to plaintiff for the amounts due and owing to plaintiff under the Note, and (2) pursuant to the A. Costello Guaranty, A. Costello is liable to plaintiff for the amounts due and owing to plaintiff under the Note.

On April 1, 2010, after having been granted an extension of time, the defendants filed an answer which sought to join All Staffing as a third party defendant. (Doc. No. 6). On August 9, 2010, the plaintiff filed a motion to strike or sever defendants' third party complaint, or in the alternative, to dismiss defendants' third party complaint. (Doc. No. 14). However, by order dated November 30, 2010, the plaintiff's motion was denied. (Doc. No. 27).

However, All Staffing has not appeared in this action or filed an Answer to defendant's third party complaint. Accordingly, on November 3, 2010, the Costello's filed a request for an entry of default against All Staffing, (Doc. No. 25), and on October 18, 2011, default was entered in favor of the Costello's and against All Staffing for failing to answer or otherwise plead, (Doc. No. 47).

On June 20, 2011, the plaintiff filed a motion for summary judgment that was accompanied by a brief in support and a statement of material facts. (Doc. No. 39). On July 14, 2011, the defendants filed an answer to plaintiff's motion for summary judgment, a brief in opposition and an answer to plaintiff's statement of material facts. (Doc. No.'s 40, 41 & 42). On July 28, 2011, the plaintiff filed a reply brief, (Doc. No. 43), and on August 2, 2011, the plaintiff filed an amended reply ...


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