Ankit Kumar

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OF OSCEOLA COUNTY, FLORIDA FANGHANG CHENG, Plaintiff, Case No. 2022-CA-002265 v. AMENDED COMPLAINT MAGIC VILLAGE 3, LLC, Defendant. COMES NOW Plaintiff, through undersigned counsel, who file this Amended Complaint against Defendant and allege as follows: PARTIES AND JURISDICTION 1. Plaintiff (Plaintiff or Mr. Cheng”) is a party to a contract for the sale and construction of real property located at Magic Village 3 Resort, Building 1, Unit 9 (“Plaintiff’s Townhome or Unit”), Kissimmee, Florida with Defendant, MAGIC VILLAGE 3, LLC. 2. The Court has jurisdiction over the parties and subject matter presented in this action pursuant to Section 26.012, Florida Statutes and because the amount in controversy exceeds the jurisdictional amount of the county court. 3. Venue is proper in this Court pursuant to the venue selection provision in the Purchase Contract between the parties and because the causes of action herein arose in Osceola County, Florida. FACTS 4. Magic Village 3 Resort is a 459-unit townhome residential development project (“the Project”). 5. Defendant began entering into purchase contracts with buyers of the Units/Townhomes of the Project in 2018 and collecting deposits and payments for the same from buyers often collecting 100% of the purchase price for units prior to commencement of construction. 6. Prior to entering into the Contract with Plaintiff, Defendant made representations to Plaintiff that it would begin construction of Plaintiff’s Townhome in a reasonable time and could complete construction of Plaintiff’s Unit within 2 years of the date of the Contract. Upon information and belief, Defendant has not completed the construction of any Unit in the Project. 7. On September 19, 2018, Plaintiff signed and entered into a Purchase Contract (the “Contract”) with Defendant for the construction and sale of Unit 9 in Building 1 of Magic Village 3 Resort. A true and correct copy of the Contract is attached hereto as Exhibit “A.” 8. The Contract was drafted entirely by the Defendant. 9. Defendant breached the Contract by failing to allow Mr CHENG to close on the real property while continuing to retain Mr CHENG’s deposits. 10. The Contract states that the Defendant agreed to complete and sell the real Property described in the Contract to the Plaintiff. To date, Defendant has not completed the construction of the real property described in Plaintiff’s Contract. 11. The purchase price for the real property under the Contract and Plaintiff Unit was $524,195.00. 12. Pursuant to the Contract, Defendant promised to begin construction of Plaintiff’s Townhome in a reasonable time and to construct and perform the work necessary under the Contract to complete Plaintiff’s residential property. 13. As of June 17, 2019, Plaintiff paid a total of $238,225.00 of initial payments under the Contract representing over 45% of the purchase price of the Contract. As of this date and upon information and belief, Defendant had yet to commence construction of Plaintiff’s Unit. As of this date, Defendant was unable to perform the Contract. 14. Plaintiff and other buyers complained to Defendant about Defendant’s failure to timely initiate and complete construction of their Townhomes and demanded that Defendant perform to no avail or return Plaintiff’s payments. 15. Defendant continued in the beach of the Contract by not beginning and completing substantial construction of Plaintiff’s Townhome in a reasonable time and the time required under the Contract. 16. The Contract provides that time is of the essence under the Contract and includes the reasonable time within which to commence construction. See Contract at par. 12. 17. The Contract stated that construction of Plaintiff’s Unit would be completed within two years of the date of the Contract barring only events beyond Declarant’s reasonable control that constitute impossibility of performance under Florida law. See Contract at par. 4 at Exhibit “A”. 18. Two years from the date of Plaintiff’s Contract was September 19, 2020. 19. Upon information and belief, substantial construction of Plaintiff’s Unit was not commenced or completed prior to September 19, 2020. 20. Defendant knew or should have known that Defendant would not complete construction of Plaintiff’s Unit within 2 years as promised in paragraph 4 of the Contract prior to entering into Plaintiff’s Contract. 21. Defendant’s promises of completion of construction within 2 years of the Contract, including as presented in paragraph 4 of the Contract, was an illusory term of the Contract. 22. Defendant was required under the Contract to commence construction of Plaintiff’s Unit within a reasonable time of the date of Plaintiff’s Contract. 23. Defendant was required under the Contract to have begun and substantially completed construction of Plaintiff’s Unit within a reasonable time following Plaintiff’s pre-construction initial payment of 45% of the purchase price of the Contract. 24. Defendant breached the Contract by not commencing construction of Plaintiff’s Unit within a reasonable time. 25. Defendant is in violation of Section 489.126, Florida Statutes, which requires contractors who receive over 10% of a contract price as an initial payment to apply for permits within 30 days and commence work within 90 days. Defendant failed to comply, breaching the Contract as of October 19, 2018. 26. Defendant’s conduct in promising construction services without holding the required contractor licenses renders it an unlicensed contractor pursuant to Section-), Florida Statutes. Such contracts are unenforceable by the unlicensed contractor under Section 489.128, Florida Statutes. 27. On December 27, 2019, January 14, 2020, January 22, 2020 and February 4, 2020, prior to Defendant’s commencement of construction on Plaintiff’s Unit and with Defendant in breach of the Contract, Defendant demanded that Plaintiff make additional payments to Defendant towards the construction and sale of the Townhome under the Contract. At these times, Defendant could not perform its obligations under the Contract and admitted that it was impossible for Defendant to do so. These payments were not due based upon the Defendant’s breach of the Contract and inability to perform the Contract. 28. In July of 2020, Defendant notified Plaintiff that it cancelled Plaintiff’s Contract and that Defendant converted Plaintiff’s deposits and reclaimed Plaintiff’s Unit. As of this date, Defendant was in breach of the Contract for failure to timely or properly commence and substantially complete construction of Plaintiff’s Unit. At this time, Defendant could not perform its obligations under the Contract and admitted that it was impossible for Defendant to do so. 29. On September 19, 2020, the 2-year time frame for completion of Plaintiff’s Unit passed and Plaintiff’s Unit was not commenced or completed. 30. Defendant’s attempted cancellation of the Plaintiff’s contract is ineffective and invalid. 31. Defendant wrongfully and unilaterally converted Plaintiff’s deposits, reclaimed Plaintiff’s real property and upon information and belief sold Plaintiff’s Unit to a third party for the same or higher purchase price as the purchase price in Plaintiff’s Contract. 32. Defendant breached the Contract by not timely applying for permits to begin the work on Plaintiff’s Unit and Building. 33. Defendant breached the Contract by retaining and not returning Plaintiff’s full deposit, reclaiming Plaintiff’s Unit and selling Plaintiff’s Unit to a third party. Defendant breached the Contract by keeping Plaintiff’s deposits totaling in excess of 30% of the purchase price in the Contract. 34. Defendant breached the Contract by not timely completing construction of Plaintiff’s Unit including, but not limited to, within 2 years of the Contract. 35. The liquidated damages provision in the Contract is unenforceable as a penalty. Defendant’s retention of Plaintiff’s deposits exceeds the 30% cap specified in the Contract and is grossly disproportionate to any damages incurred. 36. Defendant retained 45.4% of the total Contract price and resold the property, incurring little to no harm, further demonstrating the penalty nature of the provision. 37. The damages caused by the breaches of the Contract by Defendant are substantial. FIRST CAUSE OF ACTION (BREACH OF CONTRACT) 38. Plaintiff re-allege paragraphs 4 through 37 of the Amended Complaint as if fully set forth herein. 39. The Contract is a valid and enforceable contract between the parties requiring Defendant to timely apply for necessary permits, commence construction within a reasonable time after receiving deposits (and no later than 90 days as required under Florida Statute Section 489.126), and complete construction of Plaintiff’s Unit within two years barring impossibility or events beyond Defendant’s reasonable control. 40. Defendant materially breached the Contract by failing to apply for permits within 30 days of receiving Plaintiff’s deposit as required under Section 489.126, Florida Statutes, failing to commence construction within 90 days or at any reasonable time thereafter, and failing to complete construction of Plaintiff’s Unit within the agreed two-year period. 41. Defendant further breached the Contract by unilaterally cancelling the Contract without justification despite being in material breach for failing to commence construction, retaining Plaintiff’s deposits of $238,225.00 under a liquidated damages clause that functions as an unenforceable penalty, and failing to mitigate its alleged damages by reselling the Unit for the same or a higher price while refusing to refund Plaintiff’s deposits. 42. Defendant breached the Contract causing damages to Plaintiff. 43. Defendant’s breaches were not minor or incidental but went to the heart of the Contract, directly depriving Plaintiff of the benefit of the bargain, including the timely construction and delivery of the Unit and the lawful use of Plaintiff’s deposits for the promised construction services. 44. All conditions precedent to this action were performed by the Plaintiff. 45. Plaintiff is entitled to a final judgment for the return of Plaintiff’s deposit, prejudgment interest, reasonable attorney’s fees as provided in the Contract and costs. WHEREFORE, Plaintiff demand judgment against Defendant including an award of damages for the return of Plaintiff’s payments to Defendant, prejudgment interest on such amounts from the date they were due to be returned, reasonable attorney’s fees, costs and such other relief the Court deems proper, just and available. SECOND CAUSE OF ACTION (RECISSION) 46. Plaintiff re-allege paragraphs 4 through 37 of the Amended Complaint as if fully set forth herein. 47. The relationship of parties was one of trust and confidence in Defendant that was presented to and relied upon by Plaintiff. 48. Based upon this relationship, the parties entered into the Contract. 49. Defendant represented to Plaintiff that Defendant could and would complete construction of Plaintiffs’ Unit within 2 years of the Contract. 50. Defendant represented to Plaintiff that it would begin construction of Plaintiffs’ Unit within a reasonable time. Defendant represented to Plaintiffs that time was of the essence under the Contract including as to the time that Defendant would commence, substantially perform and complete construction of Plaintiffs’ Unit. 51. Defendant made other material representations to Plaintiff prior to the Contract and in the Contract itself related to the liquidated damages provision in paragraph 3. a. of the Contract drafted by Defendant. Defendant stated that the potential damages to Defendant if Plaintiff defaulted under the Contract were impossible to measure or estimate. 52. Such potential damages are readily ascertainable. Defendant could pursue the specific amount of the unpaid purchase price of the Contract from Plaintiff if Plaintiff allegedly defaulted. Defendant could re-sell the Townhome to another buyer. Upon such sale, Defendant could reasonably ascertain and seek the actual amount of Defendant’s alleged damages from Plaintiff that would be the amount of Plaintiff’s purchase price minus the amount of Plaintiff’s payments to Defendant and the amount of the sale by Defendant to another buyer, if any. 53. Defendant further represented that the liquidated damage amounts in the Contract were fair and reasonable and not a penalty to Plaintiff. The only fair and reasonable damage amount if Plaintiffs defaulted is the actual and ascertainable damages. It is not fair and reasonable that Defendant could reclaim and re-sell the Townhome upon Plaintiff’s alleged default, likely suffer no damages and unilaterally retain Plaintiffs’ deposit payments. 54. Defendant represented its ability and intention to perform and complete construction subsequent to the entry into the Contract and through Defendant’s efforts to collect and actual collection of additional payments from Plaintiff. Defendant was unable to perform the Contract during these times. 55. Based on the foregoing representations, Plaintiff made payments to the Defendant. 56. Defendant claims in this and other cases brought by buyers of Defendant’s Townhomes in the Project that it was impossible to perform the construction and sale Contracts. Because it was impossible for Defendant to perform as of the date Defendant entered into the Contract, when it collected Plaintiff’s payments and/or when Defendant claimed a cancellation of the Contract, the Contract must be rescinded and Plaintiff’s payments must be returned with interest. 57. Based upon the stated impossibility of performance of the Defendant to perform and lack of any viable consideration provided by Defendant to the Plaintiff, the Contract must be rescinded. 58. Defendants have taken the position that they could not perform the Project and its Units as required due to the impossibility of performance outside of its control including default by Defendant’s original contractor. Because Defendant could not perform the Contract, it cannot also not seek, collect and keep Plaintiff’s monies. 59. Defendant entered into numerous additional Contracts with other Buyers in the Project for the construction and sale of Townhomes during time periods that it admitted it could not perform. Plaintiff demanded and asserted rescission of the Contract, rescinded the Contract and notified Defendant of such rescission. 60. Plaintiff received no benefit from the Contract that would be subject to return to Defendant upon recission and has only incurred damages, attorney’s fees and costs from the same while Defendant retained Plaintiff’s deposits, reclaimed and re-sold the Plaintiff’s Unit, refuses to return Plaintiff’s monies and declares it was impossible to perform the Contract. 61. Plaintiff has no adequate remedy at law. 62. Defendant made material changes to the Plaintiff’s Lot, the Project’s Property, the Plat, the Magic Property Documents and/or the terms of Plaintiff’s Contract that materially altered or modified the offering to Plaintiff in a manner adverse to Plaintiff requiring a recission of the Contract demanded by the Plaintiffs. 63. Over 5 years have elapsed from the date of Plaintiff’s Contract. Defendant has repeatedly and indefinitely extended the time within which it must commence and complete construction of Plaintiff’s Unit unilaterally without an agreement to such extensions in writing signed by Plaintiff as required by the Contract. WHEREFORE, Plaintiff demand a judgment rescinding the Contract, awarding Plaintiff’s the payments they made under the Contract, prejudgment interest, reasonable attorney’s fees, costs and for such other relief that the Court deems just and proper. THIRD CAUSE OF ACTION (UNJUST ENRICHMENT) 64. Plaintiff re-allege paragraphs 4 through 37 of the Amended Complaint as if fully set forth herein. 65. Plaintiff incorporates paragraphs 1 through 25 as if fully set forth herein. 66. Defendant unjustly retained $238,225.00 paid by Plaintiff under the Contract despite failing to perform the agreed construction services or deliver the Unit as promised. 67. Defendant wrongfully retained Plaintiff’s deposits after unilaterally canceling the Contract, asserting entitlement to the funds under a liquidated damages clause that is unenforceable as a penalty under Florida law. 68. By retaining Plaintiff’s funds, Defendant benefitted financially, including using the funds to finance other operations and construction activities within the Magic Village 3 development. 69. Defendant resold the Unit, intended for Plaintiff, to a third party at the same or a higher price, allowing Defendant to profit while Plaintiff suffered substantial financial loss. 70. Defendant’s retention of these funds and resale of the Unit was inequitable and not supported by any legal or contractual basis, as Defendant materially breached the Contract by failing to commence or complete construction within the agreed timeframe and failing to comply with statutory requirements under Section 489.126, Florida Statutes. 71. Plaintiff conferred a benefit on Defendant by providing these funds, which Defendant accepted and retained unjustly, knowing it would not fulfill its obligations under the Contract. 72. Equity demands that Defendant return the funds to Plaintiff to prevent Defendant’s unjust enrichment at Plaintiff’s expense. WHEREFORE, Plaintiff demands judgment against Defendant for restitution in the amount of $238,225.00, together with prejudgment interest, attorney’s fees, costs, and such other relief as the Court deems just and proper. FORTH CAUSE OF ACTION (EQUITABLE LIEN) 73. Plaintiff re-allege paragraphs 4 through 37 of the Amended Complaint as if fully set forth herein. 74. Plaintiff’s payments totaling $238,225.00 were intended to finance the construction and delivery of Unit 9, Building 1, within Magic Village 3 Resort, as agreed under the Contract. 75. Defendant received and retained these payments but failed to use them for the construction of Plaintiff’s Unit, instead diverting the funds to other uses within the Magic Village 3 development or for its own financial benefit. 76. Defendant’s wrongful retention of Plaintiff’s funds, coupled with its resale of Plaintiff’s Unit to a third party for a profit, creates an inequitable situation where Defendant has been unjustly enriched at Plaintiff’s expense. 77. Florida law recognizes an equitable lien as an appropriate remedy to prevent unjust enrichment and ensure fairness when funds are wrongfully retained or misused. 78. Plaintiff’s equitable lien arose when Plaintiff paid substantial funds under the Contract in reliance on Defendant’s promises to construct and deliver the Unit, which Defendant failed to fulfill. 79. Defendant’s conduct, including retaining Plaintiff’s funds without providing any benefit in return and reselling the Unit, gives Plaintiff a specific and enforceable interest in the funds used for improvements to the Magic Village 3 development or the Unit itself. 80. Equity and fairness require the Court to impose an equitable lien in favor of Plaintiff to secure restitution of the funds wrongfully retained by Defendant. WHEREFORE, Plaintiff demands judgment imposing and enforcing an equitable lien in the Unit, for costs and for such other relief the Court deems just and proper. PRAYER FOR RELIEF Plaintiff prays for Judgment against Defendant as follows: 1. For costs of the suit herein; 2. For damages on Plaintiff’s legal causes of action according to proof including, but not limited to, the amount of her deposit; 3. For pre-judgment interest on identifiable sums according to proof; 4. For interest on all sums awarded; 5. For recession; 6. For attorneys’ fees as permitted by the Contract; and 7. For such other and further relief as the Court may deem just and proper. DATED this 17th day of December 2024. PLAINTIFF DEMANDS A JURY TRIAL ON ISSUES SO TRIABLE. Respectfully submitted, /s/Vincent B. Lynch Vincent B. Lynch, Esq. Florida Bar No- EmailV 7901 Kingspointe Pkwy, Suite 8 Orlando, FL 32819 Phone:- /s/ Carlos J. Bonilla Carlos J. Bonilla, Esq. Fla Bar No:- Email: 7901 Kingspointe Pkwy, Suite 8 Orlando, FL 32819 Phone:- EXHIBIT A