Court Grants Summary Judgment In Lieu Of Complaint Where Borrower Failed To Pay Origination Fees Required To Trigger Maturity Date Extensions

Posted: June 10, 2026 / Written by: Samuel L. Butt, Channing J. Turner, Ian Weiss, Thomas A. Kissane / Categories Commercial, Summary Judgment, Breach of Contract

Court Grants Summary Judgment In Lieu Of Complaint Where Borrower Failed To Pay Origination Fees Required To Trigger Maturity Date Extensions

On April 10, 2026, in I.B.I Volcano Investments LLC v. Apex South Creek IB, LLC, Index No. 655364/2025, Justice Melissa A. Crane of the New York County Commercial Division granted plaintiffs’ motion for summary judgment in lieu of complaint.

Plaintiffs I.B.I Volcano Investments LLC and West 4 Capital, LP held promissory notes totaling $42,000,000 executed by defendant Apex South Creek IB, LLC in November 2022. The notes matured on November 18, 2023, and defendant failed to make interest payments beginning that month. After plaintiffs served default notices, the parties signed amendments in April 2024 purporting to extend the maturity dates, but those extensions were conditioned on defendant’s payment of origination fees. Defendant conceded it never paid those fees. Defendant argued that plaintiffs had waived its default by entering into the amendments, which recited that no current default existed. The Court rejected that argument, explaining:

Although plaintiffs agreed to waive certain periods of default interest in the Amendments, and agreed in the Amendments that “there is no [current] Default or Event of Default under any of the Loan Documents,” defendant is not entitled to the benefits of the Amendments because it breached its obligations under these agreements. . . . Defendant breached the Amendments by failing to pay the origination fees, and these breaches are material and substantial because the requirements were conditions precedent for the extensions.

The Court awarded plaintiffs $38,134,115 in outstanding principal, unpaid late fees, and unpaid extension fees, plus pre-judgment interest at the contractual default rate of 14% per annum from November 18, 2023. It denied the portion of plaintiffs’ motion seeking attorneys’ fees without prejudice, finding no adequate support in the record for the amount claimed.

The attorneys at Schlam Stone & Dolan LLP frequently litigate matters where summary judgment is sought on an accelerated basis in lieu of complaint. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.