CORDIUS TRUST, Plaintiff-Appellee, v. KUMMERFELD ASSOCIATES, INC., and ELIZABETH KUMMERFELD, Defendants-Appellants., (2nd Cir. 2000)

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR THE PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 30th day of November , two thousand.

PRESENT:

Hon. John M. Walker, Jr., Chief Judge, Hon. James L. Oakes, Hon. Pierre N. Leval, Circuit Judges.

CORDIUS TRUST, Plaintiff-Appellee, v.

No. 00-

KUMMERFELD ASSOCIATES, INC., and ELIZABETH KUMMERFELD, Defendants-Appellants.

SHELDON FARBER, Esq., New York, NY APPEARING FOR APPELLANTS:

JAMES A. WADE, Esq., Hartford, CT APPEARING FOR APPELLEE:

Appeal from the United States District Court for the Southern District of New York (Cote, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Appellants Elizabeth Kummerfeld ("Kummerfeld") and Kummerfeld Associates, Inc. ("KA") appeal from the April 11, 2000 judgment of the district court, following a bench trial, awarding appellee Cordius Trust ("Cordius") $1,418,000 plus interest, attorneys fees, and legal costs. The award was based on the district court's finding that the appellants had defaulted on their payment obligations to Cordius pursuant to a promissory note ("Note") they had executed. On appeal, the appellants argue that the district court erred in excluding Kummerfeld's testimony regarding (a) usury in an earlier investment transaction that gave rise to the financial obligation the Note was intended to cover, and (b) economic duress in executing the Note due to Cordius's threatened litigation on the earlier business transaction. Appellants also contend that the district court erred in not considering their unconscionability defense.

For substantially the reasons set forth in the district court's opinion read into the record from the bench at the close of trial on February 7, 2000, the judgment of the district court is hereby AFFIRMED.


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