Nekoma Farms, LLC v. Bio-Sunn Technologies, Inc.

2023 U.S. Dist. LEXIS 231709 (2023)

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Nature of the Case

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Facts

In 2017, D and P signed a contract for deed under which D agreed to buy the property for $1,600,000. The contract stated that $10,000 was due at signing, $800,000 was due on November 1, 2017, and $790,000 was due on January 6, 2018. On November 8, 2017, the parties entered into an extension agreement. In return for payment of $4,000, P agreed to extend the first payment deadline from November 1, 2017, to December 15, 2017. D did not comply with the terms of the extension agreement, and the parties entered into an amended contract for deed on January 25, 2018. The amended contract increased the purchase price to $1,800,000 with $10,000 due at signing, $1,790,000 was due by March 31, 2018, and D was to pay P 'interest costs on a loan of approximately $1,600,000.00) at the rate of six percent per annum from the 15th day of December 2017 to the date of closing.' On April 19, 2018, the parties entered into a second extension agreement. D would continue to pay interest as agreed in the amended contract, and D would pay $50,000 to be applied either on the principal or on the interest. D did not make the payment by July 2, and the deadline was extended to August 1. On July 31, 2018, D told P it expected to have its financing in place within the next week. On August 15, 2018, D hoped to have its investors in place by the end of August. A meeting was scheduled for October 4, 2019, rescheduled to October 25, 2019, then to November 2, 2019, and finally to December 4, 2019, but the meeting never occurred. On March 4, 2020, D said was getting very close to wrapping up project funding, and funds were anticipated to arrive in the next several weeks. On June 16, 2020, D said funding would be ready in the next thirty to forty-five days. On April 27, 2021, D said would be visiting with a banker the next day to check on the status of a loan. On January 6, 2022, D said the full purchase price was anticipated to be available in forty-five days. On January 6, 2022, D said the full purchase price was anticipated to be available in forty-five days. On January 11, 2022, and again on May 2, 2022, P informed D how much D owed on the contract. On July 26, 2022, D told P an investor had agreed to provide $30 million. And on and on the mantra goes. On December 23, 2022, P informed D $2,236,964.70 was due by December 31, 2022. After a few more promises of funding, P informed D if payment was not received by January 13, 2023, it would initiate litigation. On January 17, 2023, P filed a complaint arguing the contracts should be canceled. In its August 17, 2023 response to the summary judgment motion, D stated 'the funding process will likely be consummated within no later than 60 days' and it would timely advise the court if completion of that funding was delayed while the motion for summary judgment is pending. D argues its actions did not show it abandoned the contract and it should be afforded a reasonable redemption period.