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LLC v. Weiss

Court of Appeals of North Carolina

May 6, 2014

GECMC 2006-C1 CARRINGTON OAKS, LLC, Plaintiff,
v.
SAMUEL WEISS and EZRA BEYMAN, Defendants

Heard in the Court of Appeals: February 3, 2014.

Mecklenburg County. No. 12 CVS 3684. W. Robert Bell, Judge.

McGuireWoods, LLP, by William O. L. Hutchinson, Steven N. Baker, and T. Richmond McPherson, III, for plaintiff-appellee.

Copeland, Richards & Anderson, PLLC, by Shawn A. Copeland and Michael F. Anderson, for defendant-appellant Samuel Weiss.

MARTIN, Chief Judge. Judges ELMORE and HUNTER, JR. concur.

OPINION

Page 678

MARTIN, Chief Judge.

Appeal by defendant Samuel Weiss from order entered 17 April 2013 by Judge W. Robert Bell in Mecklenburg County Superior Court.

Defendant Samuel Weiss (" defendant Weiss" ) appeals from an order denying his motion to dismiss the Verified Amended Complaint (" the Complaint" ) filed by plaintiff GECMC 2006-C1 Carrington Oaks, LLC (" GECMC" ) pursuant to N.C.G.S. § 1A-1, Rule 12(b)(2). We affirm.

GECMC, a North Carolina-based limited liability company, filed the Complaint in Mecklenburg County Superior Court against defendant Weiss and against Ezra Beyman (" defendant Beyman" ), both citizens of Monsey, New York. In its Complaint, GECMC alleged that it was the holder of a promissory note (" the Note" ) for $28,290,000.00 made by Empirian at Carrington Place, LLC (" Empirian" ) to Deutsche Bank Mortgage Capital, LLC and its successors and assigns. Defendant Beyman signed the Note as president of Empirian, which is a Delaware-based limited liability company with its principal place of business in Montvale, New Jersey. The Note was secured by a deed of trust " covering certain real property located in Mecklenburg County, North Carolina."

Attached to the Complaint was a Guaranty and Indemnity (" the Guaranty" ) which expressly references the Note executed by defendant Beyman as President of Empirian. The Complaint alleged that such Guaranty was signed by defendants Beyman and Weiss. The document expressly provides that defendants Beyman and Weiss individually " unconditionally and irrevocably guarantee[] up to $6,240,000.00 of the principal balance of the Loan," until such time as certain specified conditions are met, as when there is no event of default continuing. The Guaranty also contains the following provision, entitled " Submission To Jurisdiction" :

EACH GUARANTOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE IN WHICH THE PROPERTY IS LOCATED OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS GUARANTY, (B) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN THE COUNTY AND STATE IN WHICH THE PROPERTY IS LOCATED, (C) SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND (D) AGREES THAT NEITHER OF THEM

Page 679

WILL BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER TO BRING ANY ACTION, ...

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