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Frank Bianco and Deborah Bianco v. Nu U of Lincoln Park D/B/A Nu U Med Spa ) A Nevada Limited Liability

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISON


December 8, 2011

FRANK BIANCO AND DEBORAH BIANCO, PLAINTIFFS,
v.
NU U OF LINCOLN PARK D/B/A NU U MED SPA ) A NEVADA LIMITED LIABILITY COMPANY DEFENDANT.

COMPLAINT Plaintiffs, FRANK BIANCO and DEBORAH BIANCO ("Plaintiffs"), by their attorneys, for their Complaint against Defendant, NU U OF LINCOLN PARK ("Defendant"), allege as follows:

Parties

1. Plaintiffs are citizens and residents of Illinois and are the landlords in the commercial lease at issue.

2. Defendant Nu U of Lincoln Park ("Nu U") is a Nevada limited liability company with its principal place of business in Nevada, and is a tenant in the commercial lease at issue.

Jurisdiction and Venue

3. The Court has jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1332, because Plaintiffs and Nu U are of diverse citizenship and the amount in controversy, exclusive of interest and costs, exceeds $75,000.00.

4. Venue is proper is this district and division pursuant to 28 U.S.C. §1391(a) because the contractual breaches and statutory violations giving rise to the claims occurred in this district and division.

Allegations Common to All Counts

5. Plaintiffs and Nu U entered into an Assignment and Modification to a Lease Agreement ("Agreement") on September 28, 2007, for the premises at 908 W. Armitage Ave. Chicago, IL 60614 ("Leased Premises".) A true copy of the original Lease and the Agreement are attached hereto as Exhibit 1 and Exhibit 2.

6. Paragraph F of the Agreement states that the Plaintiffs consented to the assignment of the Lease from Purelight d/b/a Purelight Med Spa to Nu U of Lincoln Park d/b/a/ Nu U Med Spa.

7. Paragraph 6 of the Agreement extended the term of the Lease for an additional five years, until May 31, 2014. See Exhibit 2.

8. Nu U of Lincoln Park is a dissolved limited liability company. See Exhibit 3.

9. Under the Nevada Revised Statutes, the dissolution of a limited-liability company does not impair any remedy or cause of action available to or against it or its managers or members arising before its dissolution and commenced within 2 years after the date of the dissolution. See NRS 86.505.

10. In 2010, Nu U failed to make rent payments to Plaintiffs on time, and submitted several checks which were returned for non-sufficient funds. Plaintiffs filed two five-day-notices demanding full payment of overdue rent on January 19, 2010, February 11, 2010 and March 10, 2010, a copy of which are attached hereto as Exhibit 4, Exhibit 5, and Exhibit 6. Nu U failed to make these payments in a timely fashion, as well as several other rent payments through 2010.

11. On January 12, 2011, Nu U wire transferred a $10,600 rent payment to Plaintiffs, which was more than $2000 short of the necessary payment.

12. Nu U failed to pay the remaining balance for the January rent payment and the full balance of the February rent payment on time.

13. On February 10, 2011, Nu U wire transferred a payment of $12,900 to Plaintiffs, an amount which was $1011.44 less than the amount of the remaining January balance and February rent payment, including interest and late fees.

14. On March 22, 2011, Nu U wire transferred a payment of $12,200.00 to Plaintiffs, an amount which was $985.21 less than the payment due and owing.

15. Nu U failed to remit the overdue $985.21 balance.

16. On April 6, 2011, Plaintiffs informed Nu U that it was overdue on the April 2011 rent payment and had not yet paid the shortage of $985.21 from the overdue March 2011 rent payment. Nu U did not remit payment of the overdue balance.

17. On April 28, 2011, Nu U made a $7,500 cash payment to Plaintiffs.

18. On May 9, 2011, Nu U wire transferred a payment of $7,500 to Plaintiffs.This payment covered the balance of the March 2011 and April 2011 rent payments, including interest and late fees.

19. On May 24, 2011, Nu U wire transferred a $6,000 payment to Plaintiffs, a portion of the May 2011 rent payment. Nu U failed to pay the full May 2011 rent payment.

20. Nu U failed to pay the June 2011 rent payment in its entirety.

21. On June 22, 2011, Plaintiffs sent Nu U a copy of the signed five day notice, which is attached hereto as Exhibit 7.

22. Plaintiff received a check from Nu U on July 5, 2011 in the amount of $7,000.

23. The July 5, 2011 check in the amount of $7,000 was returned for non-sufficient funds and Plaintiffs did not receive any additional checks for the remaining balance. See Exhibit 8.

24. On July 11, 2011, Nu U sent Plaintiffs a $14,000 check for the outstanding rent payments.

25. The July 11, 2011 check for $14,000 was returned for non-sufficient funds. See Exhibit 8.

26. On or about July 20, 2011, Plaintiffs met in person with Nu U to discuss the outstanding rent balance. Nu U requested that Plaintiffs hold off on legal action until the end of July and insisted that they would pay the outstanding balance by the end of July. Plaintiffs agreed to postpone any legal action until August 1, 2011.

27. Nu U has failed to pay the full rent for the months of June 2011, July 2011 and August 2011 and a portion of the rent for February 2011 and May 2011 despite repeatedly promising to do so. Nu U has not attempted to make any additional payments since the July 11, 2011 attempted payment.

28. A portion of the rent for February 2011 and May 2011 and the full rent for June 2011, July 2011 and August 2011 remains unpaid along with interest and late fees, as provided for under the Lease.

29. Paragraph 39 of the Lease entitles Plaintiffs to an award of all costs and attorneys fees expended as a result of Nu U's breaches of the Lease. See Exhibit 1.

Count I -- Breach of Contract

30. Plaintiffs re-allege Paragraphs 1-29 herein.

31. Nu U's failure to pay rent and other monies owed as alleged above constitutes a material breach of the Agreement and Lease.

32. Plaintiffs have complied with all conditions and obligations under the Agreement and Lease.

33. As a direct and proximate result of Nu U's breaches of contract, Plaintiffs have suffered damages in excess of $75,000 for the outstanding rent payments, interest, late fees, attorneys' fees and costs, and the amount of future rent for the remaining term of the Lease.

WHEREFORE, Plaintiffs Frank Bianco and Deborah Bianco (1) seek entry of judgment in their favor and against Defendant, (2) payment of Nu U's overdue rent along with interest and late fees in an amount exceeding $40,000.00, (3) payment of Nu U's expected rent payments through the term of the lease in excess of $75,000.00, and (4) an award of Plaintiffs' reasonable court costs and attorneys' fees, as provided for in the Lease.

Count II -- Forcible Entry and Detainer

34. Plaintiffs incorporate and re-allege paragraphs 1-33 herein.

35. Plaintiffs are entitled to immediate possession of the Leased Premises.

36. Nu U is unlawfully withholding possession of the Leased Premises from Plaintiffs.

WHEREFORE, Plaintiffs Frank Bianco and Deborah Bianco seek entry of judgment in their favor, an order of possession of the Leased Premises, eviction of Nu U and an award of Plaintiff's reasonable court costs and attorneys' fees, as provided for in the Lease.

FRANK BIANCO and DEBORAH BIANCO

By: ___s/Peter S. Lubin

One of their Attorneys

Vincent L. DiTommaso

Peter S. Lubin

Patrick D. Austermuhle DITOMMASO ♦ LUBIN, P.C. 17W 220 22nd Street - Suite 200 Oakbrook Terrace, Illinois 60181 (630) 333-0000

20111208

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