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any portion thereof after each default; and (4) petitioner did not
have the financial ability to repay the funds wire transferred by
NCPL to SSI. Petitioner reported earning a modest income of only
$58,736, $76,560, $84,000, $67,850, $75,000, $52,059, $49,866 in
1998, 1999, 2000, 2001, 2002, 2003, and 2004, respectively.
Furthermore, contrary to the loan agreement and the
promissory note, the September 9, 2004, memorandum of confirmation
stated that petitioner and NCPL formed a joint venture to develop
the Rivercliff property, the Talmages’ names on the Rivercliff
property’s title indicated that they served as nominees for NCPL’s
ownership interest, and at a future date petitioner planned to
convert NCPL’s advances into an ownership interest. Also contrary
to the loan agreement and the promissory note, petitioner
repeatedly testified that until the characterization of the wire
transfer advances was fixed by him and NCPL, he was not required
and did not intend to make any payments on the advanced funds.
Petitioner testified that he and NCPL officially characterized
NCPL’s advances to SSI as a loan on June 30, 2005, when he
transferred the Rivercliff property to RFI as repayment for NCPL’s
advances.
For the foregoing reasons, the Court finds that neither
petitioner nor NCPL intended to comply with the terms of the loan
agreement or the promissory note. Thus, the Court gives the loan
agreement and the promissory note little weight.
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