Complaint — Cross River Bank v. 3 Bea’s Assisted Living LLC (No. 8:21-cv-03210, D. Md.)

Summary

A civil complaint filed December 17, 2021 as Document 1 in Cross River Bank v. 3 Bea's Assisted Living LLC and Connie Stewart, Case No. 8:21-cv-03210, in the U.S. District Court for the District of Maryland. Cross River alleges that Connie Stewart, for 3 Bea's, certified eight (8) employees and an average monthly payroll of $8,272, which the complaint says supported a maximum PPP loan of $20,680, while the loan documents stated $1,706,711. It states that Cross River funded $1,706,711 by wire and later recovered $4,717.53, leaving $1,701,399.47 outstanding, and that no payments have been made. The complaint pleads breach of contract, money had and received, and unjust enrichment, and seeks return of $1,701,399.47 with interest, fees and costs. It is signed by Blake W. Frieman of Bean, Kinney & Korman, P.C. for Cross River Bank.

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“Complaint — Cross River Bank v. 3 Bea’s Assisted Living LLC (No. 8:21-cv-03210, D. Md.).” Original at ecf.mdd.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/complaint-against-all-defendants-no-8-21-cv-03210-dkt-1-d-md-56f2115987/, SHA-256 3c596e19839a58fb4800263190ea8c1612ca86c8ce34ebe65fcb6048dedb736f.

Full text

Case 8:21-cv-03210-TJS Document 1 Filed 12/17/21 Page 1 of 14

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

COMPLAINT

Plaintiff Cross River Bank (“Cross River”), by and through its attorneys, submits this

complaint against defendants 3 Bea’s Assisted Living LLC a/k/a Three Bea’s Assisted Living (“3

Bea’s”) and Connie Stewart and states as follows:

THE PARTIES

1. Cross River is a New Jersey business entity having its principal place of business

at 400 Kelby Street, 14th Floor, Fort Lee, New Jersey 07024.

2. 3 Bea’s is a Maryland limited liability company having its principal place of

business at 544 Barnacle Lane, Lusby, Maryland 20657.

3. Connie Stewart, residing at 2050 Peace Ct. St. Leonard, Maryland 20685, is a

principal, owner, officer, managing member, and registered agent for 3 Bea’s.
Case 8:21-cv-03210-TJS Document 1 Filed 12/17/21 Page 2 of 14

JURISDICTION AND VENUE

4. This is a civil action for damages which significantly exceed $75,000.00, exclusive

of interest and costs. Subject matter jurisdiction exists by virtue of 28 U.S.C. § 1332, diversity of

citizenship.

5. This Court has personal jurisdiction over 3 Bea’s, which is located in Maryland,

and over Connie Stewart, who resides and works in Maryland.

6. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(1) because 3 Bea’s

is located in Maryland and Connie Stewart resides and works in Maryland. Venue is also proper

in this District pursuant to 28 U.S.C. § 1391(b)(2) because this is a judicial District in which a

substantial part of the events or omissions giving rise to the claim occurred.

STATEMENT OF FACTS

7. The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) is a

federal law enacted in or around March 2020 and designed to provide assistance to businesses

suffering from the economic effects cause by the COVID-19 pandemic for employee job retention

and certain other expenses, through the Paycheck Protection Program (“PPP”). PPP loans are

administered by the United States Small Business Administration (“SBA”).

8. In order to obtain a PPP loan, a qualifying business must submit a PPP loan

application, which is signed by an authorized representative of the business. The PPP loan

application requires the business through its authorized representative to acknowledge the program

rules and make multiple affirmative certifications on the Borrower Application Form, and on other

loan documents, as well as to execute a promissory note and other documents, in order to be

eligible to obtain the PPP loan. PPP loan applications are processed by a participating financial

institution, such as plaintiff Cross River Bank.

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9. PPP loan proceeds may be used by the business for certain permissible expenses,

including payroll costs, interest on mortgages, rent, utilities and other listed expenses.

10. On the Borrower Application Form, the business, through its authorized

representative, must state, among other things, its average monthly payroll expenses and the

number of employees. These figures are used to calculate the amount of money the business is

eligible to receive under the PPP. In addition, businesses applying for a PPP loan must provide

documentation supporting their payroll expenses, such as tax forms and bank statements.

11. On or about April 23, 2020, defendant Connie Stewart on behalf of 3 Bea’s

submitted an online application for a PPP loan from Cross River that misrepresented 3 Bea’s

average monthly payroll to be $1,266,967 and sought from Cross River an improper PPP loan

amount of $1,706,711. Elsewhere in the application the loan amount was stated to be $20,680.

12. In order to fund an approved PPP loan with Cross River, the borrower electronically

signs (via the DocuSign program) a number of certifications and loan documents. The borrower

is also required to electronically initial (via the DocuSign program) a number of specific

certifications and statements on various loan documents.

13. On May 5, 2020, Connie Stewart certified on the Borrower Application Form,

among other things, that the average monthly payroll of the business was $8,272; that the business

had eight (8) employees; that the loan amount requested was $20,680; that the business was in

operation on February 15, 2020 and had employees for whom it paid salaries and payroll taxes or

paid independent contractors, as reported on Form(s) 1099-MISC; that the loaned funds would be

used to retain workers and maintain payroll or make mortgage interest payments, lease payments,

and utility payments, as specified under the PPP Rule; that she understood that if the funds were

knowingly used for unauthorized purposes, the federal government could hold her legally liable,

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including for charges of fraud; and that the information provided in the application and in all

supporting documents and forms was true and accurate in all material respects, and that knowingly

making a false statement to obtain a guaranteed loan from the SBA is punishable under the law

pursuant to several federal statutes.

14. On May 5, 2020, Connie Stewart certified on the Resolution to Borrow that she is

an officer of 3 Bea’s and among other things that the borrower is a duly formed entity which is,

and at all times was, duly organized, validly existing and in good standing under the laws of the

State of its organization. She also certified separately as president, manager or managing member

of the borrower that she was duly elected, appointed, or employed by or for the borrower, and

occupied the position set opposite her name, and that the resolution now stands of record on the

books of the borrower.

15. On May 5, 2020, Connie Stewart also initialed the top section of the Resolution to

Borrow which stated the loan principal was $1,706,711, the Loan Date was 04/30/20, the Loan

Number was 7535127309 and that she was an officer of the borrower.

16. On May 5, 2020, Connie Stewart certified on the U.S. Small Business Settlement

Sheet (“Settlement Sheet”) that all of the above statements were accurate to the best of her

knowledge and that submitting false information to the government may result in criminal

prosecution and fines. She certified that the note amount was $1,706,117, that the SBA Loan

Number was 7535127309, that the lender was Cross River, that the loan type was a term loan, and

that there would be full disbursement.

17. On May 5, 2020, Connie Stewart signed the U.S. Small Business Administration

Note (“Note”) immediately below the words “Three Bea’s Assisted Living, Borrower” and below

a sentence which reads: “BORROWER’S NAME(S) AND SIGNATURE(S): By signing below,

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Case 8:21-cv-03210-TJS Document 1 Filed 12/17/21 Page 5 of 14

each individual or entity becomes obligated under this Note as Borrower.” Among numerous

provisions contained in the Note is one which states “All individuals and entities signing this Note

are jointly and severally liable.” The Note set forth the amount of the loan as $1,706,117, the date

of the Note as April 30, 2020, the SBA Loan Number as 7535127309, the SBA Loan Name as

Three Bea’s Assisted Living, the lender as Cross River, and the interest rate as one (1) percent per

annum. The first numbered paragraph of the Note, titled “Promise to Pay,” states: “[i]n return for

the Loan, Borrower promises to pay to the order of Lender the amount of one million, seven

hundred six thousand, one hundred seventeen Dollars, interest on the unpaid principal balance,

and all other amounts required by this Note.”

18. In addition, the Note required the borrower to make payments of principal and

interest following a six-month period of payment deferral consisting of eighteen (18) monthly

consecutive principal and interest payments, beginning seven months from the date of initial

disbursement, with interest at a rate of one (1) percent per annum payable to Cross River at its

address at 400 Kelby Street, 14th Floor, Fort Lee, New Jersey 07024, Attention: Loan Servicing

Department.

19. On May 5, 2020, Connie Stewart signed an Authorization to Release Information,

Re-Execution Certificate and Covenant to Deliver Financial Information, which were included in

the PPP loan application materials.

20. 3 Bea’s and Connie Stewart’s PPP loan application documents, including

electronically submitted materials, contained false and misleading statements, including, but not

limited to, that 3 Bea’s qualified for a PPP loan in the amount of $1,706,711.

21. Having certified that 3 Bea’s had eight (8) employees and an average monthly

payroll of $ 8,272, Connie Stewart falsely certified repeatedly on various loan documents that 3

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Bea’s was eligible for a PPP loan of $1,706,711. The maximum PPP loan amount pursuant to the

Rule’s formula was $20,680 ($8,272 x 2.5).

22. After 3 Bea’s and Connie Stewart submitted the fully executed loan documents on

or about May 5, 2020, Cross River funded the PPP loan by wire to 3 Bea’s Bank of America bank

account in the amount of $1,706,711.

23. Despite demands for return of the PPP loan funds, beginning on or about July and

August of 2020, 3 Bea’s and Connie Stewart have failed and refused to return any of the funds.

24. After demand by Cross River, Bank of America voluntarily remitted $4,717.53 out

of 3 Bea’s account leaving an outstanding PPP loan balance of $1,701,399.47, excluding interest.

25. The Note expressly provides that a borrower is in default under the Note if a

borrower, or anyone acting on its behalf, makes a materially false or misleading representation to

the Lender or the SBA, or if a borrower does not disclose, or anyone acting on its behalf does not

disclose, any material fact to the Lender or the SBA.

26. 3 Bea’s and Connie Stewart are in default under the Note for falsely certifying on

various loan documents that 3 Bea’s was eligible for a $1,706,711 PPP loan.

27. The Note expressly provides that a borrower is also in default if a borrower does

not make a payment when due under the Note. To date neither 3 Bea’s nor Connie Stewart have

remitted any payments pursuant to the terms of the Note.

28. 3 Bea’s and Connie Stewart are in default of the Note due to failure to make

required payments of principal and interest.

29. Upon information and belief, to date neither 3 Bea’s nor Connie Stewart have

applied for PPP loan forgiveness pursuant to the applicable Rules, nor could they, because given

the minimal number of employees and payroll level represented on the Borrower Loan

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Case 8:21-cv-03210-TJS Document 1 Filed 12/17/21 Page 7 of 14

Application, the loan far exceeded the amount 3 Bea’s qualified for ($20,680).

30. Cross River has demanded payment of the outstanding amount pursuant to the Note

and has not received payment.

31. The Note specifically provides that in the event of default, Cross River is entitled

to recover its reasonable attorneys’ fees and costs, in addition to other remedies.

CAUSES OF ACTION

FIRST CAUSE OF ACTION AGAINST BOTH DEFENDANTS
(Breach of Contract)

32. Cross River Bank repeats, realleges, and incorporates by reference the foregoing

allegations as though fully set forth herein.

33. On or about May 6, 2020, Cross River funded a PPP loan to 3 Bea’s and Connie

Stewart in the amount of $1,706,711.

34. To evidence their indebtedness for all borrowings made on the PPP loan, on May 5,

2020 Connie Stewart and 3 Bea’s executed in favor of and delivered to Cross River a Note in the

principal sum of $1,706,711. Pursuant to the Note, both Connie Stewart and 3 Bea’s are jointly

and severally liable.

35. Defendants are in default under the Note for, among other things, making false

statements in connection with its application for the PPP loan.

36. Defendants are in default under the Note for, among other things, failing to deliver

payments of principal and interest as and when such payments have become due and payable.

37. Cross River Bank has the right under the Note to require immediate payment of all

amounts owing under the Note.

38. In breach of their obligations under the Note, Connie Stewart and 3 Bea’s have

failed to pay all amounts due thereunder. Only $4,717.53 has been obtained via a 3 Bea's bank

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Case 8:21-cv-03210-TJS Document 1 Filed 12/17/21 Page 8 of 14

account with Bank of America.

39. Upon information and belief, neither Connie Stewart nor 3 Bea’s have applied for

loan forgiveness.

40. Cross River has demanded payment of sums owed pursuant to the Note.

41. Despite the demands for payment, Connie Stewart and 3 Bea’s have failed to make

any payment to Cross River, in breach of the Note and other loan documents.

42. Cross River is entitled to judgment against defendants, jointly and severally, for

return of $1,701,399.47 in PPP loan funds, plus one (1) percent interest, reasonable attorneys’ fees

and costs, any and all late charges and related fees in accord with the subject loan documents, for

pre-judgement interest, and for such other damages and relief as the Court may deem just and

proper.

SECOND CAUSE OF ACTION AGAINST BOTH DEFENDANTS
(Money Had and Received)

43. Cross River Bank repeats, realleges, and incorporates by reference the foregoing

allegations as though fully set forth herein.

44. 3 Bea’s and Connie Stewart received $1,706,117 in PPP loan funds to which they

were not entitled to or qualified for.

45. Equity and good conscience militates against permitting 3 Bea’s and Connie

Stewart to retain the loan funds.

46. On July 16, 2020, Cross River recovered $4,717.53 from 3 Bea’s’ account at Bank

of America, leaving a balance due of $1,701,399.47, excluding interest.

47. Cross River made demand for return of the PPP loan funds in question, but 3

Bea’s and Connie Stewart have failed and refused to do so.

48. Cross River is entitled to judgment against defendants, jointly and severally, for

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Case 8:21-cv-03210-TJS Document 1 Filed 12/17/21 Page 9 of 14

return of $1,701,399.47 in PPP loan funds, interest on the PPP loan funds for the duration that they

remained with 3 Bea’s and/or Connie Stewart, for reasonable costs and expenses incurred in this

action, including attorneys’ fees and costs, for pre-judgment interest, and for such other damages

and relief as the Court may deem just and proper.

THIRD CAUSE OF ACTION AGAINST BOTH DEFENDANTS
(Unjust Enrichment)

49. Cross River Bank repeats, realleges, and incorporates by reference the foregoing

allegations as though fully set forth herein.

50. 3 Bea’s and Connie Stewart induced and encouraged Cross River to confer PPP

loan funds upon them in significant excess of the amount to which 3 Bea's qualified, and for which

they are now liable.

51. 3 Bea’s and Connie Stewart were unjustly enriched at the expense of Cross River

by requesting, receiving, and wrongfully retaining $1,701,399.47 in PPP loan funds, to which they

were not entitled or qualified for.

52. Equity and good conscience militates against permitting 3 Bea’s and Connie

Stewart to retain the loan funds.

53. Cross River is entitled to judgment against defendants, jointly and severally, for

return of $1,701,399.47 in PPP loan funds, interest on the PPP loan funds for the duration that they

remained with 3 Bea’s and/or Connie Stewart, for reasonable costs and expenses incurred in this

action, including attorneys’ fees and costs, for pre-judgment interest, and for such other damages

and relief as the Court may deem just and proper.

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Case 8:21-cv-03210-TJS Document 1 Filed 12/17/21 Page 10 of 14

FOURTH CAUSE OF ACTION AGAINST BOTH DEFENDANTS
(Conversion)

54. Cross River Bank repeats, realleges, and incorporates by reference the foregoing

allegations as though fully set forth herein.

55. 3 Bea’s and Connie Stewart have and are continuing to exercise unauthorized

ownership and/or dominion over the personal property of Cross River, specifically identified as

$1,701,399.47 in PPP loan funds provided by Cross River ($1,706,711 - $4,717.53 recovered from

Bank of America = $1,701,399.47).

56. These PPP loan funds have been or should have been segregated for the particular

purposes identified in 85 FR 20811, Interim Final Rule Relating to Implementation of Sections

1102 and 1106 of the CARES Act, and have been wrongfully obtained and retained.

57. Despite Cross River’s demands that 3 Bea’s and Connie Stewart return the PPP

loan funds in question, they have refused to do so.

58. Cross River demands judgment against defendants, jointly and severally, for return

of $1,701,399.47 in PPP loan funds, interest on the PPP loan funds for the duration that they

remained with 3 Bea’s and/or Connie Stewart, for reasonable costs and expenses incurred in this

action, including attorneys’ fees and costs, for pre-judgment interest, and for such other damages

and relief as the Court may deem just and proper.

FIFTH CAUSE OF ACTION AGAINST BOTH DEFENDANTS
(Fraud/Misrepresentation)

59. Cross River Bank repeats, realleges, and incorporates by reference the foregoing

allegations as though fully set forth herein.

60. In order to induce Cross River to provide a PPP loan, on or about April 23, 2020,

Connie Stewart on behalf of 3 Bea’s knowingly and with intent to defraud Cross River made a

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Case 8:21-cv-03210-TJS Document 1 Filed 12/17/21 Page 11 of 14

number of intentionally false statements on the electronically submitted PPP loan application,

including, but not limited to, a statement that $1,266,967 was 3 Bea’s’ average monthly payroll

and that the appropriate requested PPP loan amount was $1,706,117.

61. In order to induce Cross River to provide a PPP loan in the grossly inflated

amount of $1,706,117, on or about May 5, 2020, Connie Stewart on behalf of 3 Bea’s knowingly

and with intent to defraud Cross River made a number of intentionally false certifications and

false statements, including but not limited to, on the Borrower Application Form, Resolution to

Borrower, Settlement Sheet, and the Note connected to the PPP loan issued to Three Bea’s.

62. Connie Stewart falsely certified that 3 Bea’s was eligible for $1,706,711 in PPP

loan funds, and elsewhere within the application contradicted herself by certifying that 3 Bea's

was only eligible for $20,680 in PPP loan funds. Connie Stewart falsely certified on the

Borrower Application Form that “[t]he funds would be used to retain workers and maintain

payroll or make mortgage interest payments, lease payments, and utility payments, as specified

under the Paycheck Protection Program Rule” because 3 Bea’s received approximately eighty-

two (82) times the amount it was eligible for in PPP loan funds.

63. In addition, Connie Stewart falsely certified on behalf of 3 Bea’s on the Borrower

Application Form that “I further certify that the information provided in this application and the

information provided in all supporting documents and forms is true and accurate in all material

respects.”

64. Among other things, certifying that 3 Bea’s was eligible for a $1,706,711 PPP

loan on multiple documents, including the Resolution to Borrower, the Settlement Sheet, and the

Note, among others, was false, and done knowingly and with the intention to induce Cross River

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to provide a grossly inflated $1,706,711 PPP loan, and with the intention that Cross River rely to

its detriment on the false certifications.

65. The aforesaid certifications and statements were false. Connie Stewart and 3

Bea’s knew they were false at the time they were made, and said certifications and statements

were made with the intent to deceive Cross River.

66. Defendants made such false certification knowingly or, at a minimum, with

reckless indifference to its truth.

67. The first numbered paragraph of the Note, titled “Promise to Pay,” stated “[i]n

return for the Loan, Borrower promises to pay to the order of Lender the amount of one million,

seven hundred six thousand, one hundred seventeen Dollars, interest on the unpaid principal

balance, and all other amounts required by this Note.”

68. Beginning in or about July and August of 2020, Cross River has requested return

of the PPP loan funds, which has been wrongfully refused.

69. Cross River reasonably and justifiably relied to its detriment on the aforesaid false

certifications and statements made by Connie Stewart and 3 Bea’s on the loan documents

certifying eligibility for a grossly inflated PPP loan in the amount of $1,706,711.

70. As a result of Connie Stewart’s and 3 Bea’s’ fraudulent conduct as aforesaid,

Cross River has and will continue to sustain damages and compensable injury.

71. Upon information and belief, the SBA will not guarantee the full $1,706,711

funded but only possibly $20,680.

72. Cross River is entitled to judgment against defendants, jointly and severally, for

return of $1,701,399.47 in PPP loan funds, interest on the PPP loan funds for the duration that they

remained with 3 Bea’s and/or Connie Stewart, for reasonable costs and expenses incurred in this

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action, including attorneys’ fees and costs, for pre-judgment interest, and for such other damages

and relief as the Court may deem just and proper.

SIXTH CAUSE OF ACTION AGAINST BOTH DEFENDANTS
(Negligent Misrepresentation)

73. Cross River Bank repeats, realleges, and incorporates by reference the foregoing

allegations as though fully set forth herein.

74. 3 Bea's and Connie Stewart made the aforesaid misrepresentations with the

knowledge and intent that they would be relied upon by Cross River Bank.

75. Defendants were negligent in making the aforesaid misrepresentations.

76. Plaintiff reasonably and justifiably relied upon the aforesaid misrepresentations to

its detriment.

77. By reason of the foregoing, plaintiff has been damaged.

78. Cross River is entitled to judgment against defendants, jointly and severally, for

return of $1,701,399.47 in PPP loan funds, interest on the PPP loan funds for the duration that they

remained with 3 Bea’s and/or Connie Stewart, for reasonable costs and expenses incurred in this

action, including attorneys’ fees and costs, for pre-judgment interest, and for such other damages

and relief as the Court may deem just and proper.

WHEREFORE, Cross River demands judgment against 3 Bea’s and Connie Stewart:

A. Ordering 3 Bea’s and Connie Stewart to return to Cross River the PPP loan funds

procured totaling $1,701,399.47;

B. Ordering 3 Bea’s and Connie Stewart to pay interest on the PPP loan funds

wrongfully obtained for the duration that they remained with 3 Bea’s and/or Connie Stewart;

C. Ordering 3 Bea’s and Connie Stewart to pay the Note amount of $1,706,711 less

the $4,717.53 recovered from Bank of America, plus one (1) percent interest;

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D. Ordering 3 Bea’s and Connie Stewart to pay any and all late charges and related

fees in accord with the subject loan documents;

E. Awarding reasonable costs and expenses incurred in this action, including

reasonable attorneys’ fees and costs;

F. Awarding pre-judgment interest;

G. Awarding compensatory damages;

H. Awarding any other applicable consequential damages; and

I. Awarding such other relief as the Court may deem just and proper.

Dated: December 17, 2021 Respectfully submitted,

/s/
Blake W. Frieman, MD. Fed. No. 20959
Bean, Kinney & Korman, P.C.
2311 Wilson Blvd., Suite 500
Arlington, VA 22201
Tel: 703.525.4000
Fax: 703.525.2207
bfrieman@beankinney.com

JONATHAN J. LERNER, ESQ.
Pro Hac Vice Application to be Submitted
Starr, Gern, Davison & Rubin, P.C.
105 Eisenhower Parkway, Suite 401
Roseland, NJ 07068-1640
Tel: 973.403.9200
Fax: 973.364.1403
JLerner@starrgern.com

ATTORNEYS FOR CROSS RIVER BANK

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