- 44 -
accrued, whereas Alice Berger continued to have her expenses paid
through the Woodbine business account and increased her weekly
draw payments to $1,000, receiving more than $50,000 after March
14, 1989. Alice Berger also received the entire proceeds of sale
of Woodbine in the form of the Kunkowskis' installment note, and
she has been receiving payments of interest and principal on the
note in their entirety ever since.
Alice Berger's assertion that she was merely an
accommodation party is belied by the fact that, without
consulting Howard Berger, who she asserts was the actual owner of
Woodbine, she doubled her draw. She also did not transfer
Woodbine directly to the Kunkowskis, as was required by the sale
agreement and the settlement agreement. Instead, she entered
into a relatively complicated transaction, transferring the
business and property to the Woodbine Association in exchange for
Certificates of Debt in the Woodbine Association, and then
transferring the Certificates of Debt to Gregg and Julia
Kunkowski in exchange for their promissory note. We don't
believe that Alice Berger would have entered into such a
complicated transaction if she were merely an accommodation
party.
Alice Berger was contractually bound to sell Woodbine to
Gregg and Julia Kunkowski, but she had bound herself to sell it
only if and to the extent it was awarded to her. Howard Berger
would have been similarly bound if Woodbine had been awarded to
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