UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA 

Case No. 9:20-cv-81008 - Civ (Judge _______________)

HARLEY-DAVIDSON CREDIT CORP.

assignee of Eaglemark Savings Bank,

Plaintiff,

v.

FOUNTAINHEAD (BAH) LLC and 

KENNETH V. FARINO,

Defendants.

COMPLAINT

Plaintiff Harley-Davidson Credit Corp., assignee of Eaglemark Savings Bank, for its

Complaint against Fountainhead (Bah) LLC and Kenneth V. Farino (collectively “Defendants”)

alleges and states as follows:

PARTIES

1. Plaintiff Harley-Davidson Credit Corp. (“HDCC” or “Plaintiff”) is a company 

organized and existing pursuant to the laws of the State of Nevada, having its principal place of 

business in Carson City, Nevada. 

2. Fountainhead (Bah) LLC (“FHB”) is a limited liability company organized and 

existing pursuant to the laws of the State of Delaware, having its principal place of business 

located at 3511 Silverside Road, Suite 105 Wilmington, New Castle County, DE 19810. All of 

the members of FHB are Kenneth V. Farino and his wife, Kim Farino, who are domiciled in and 

are citizens of the State of Florida, residing specifically at 8060 W. Lake Dr., West Palm Beach, 

Palm Beach County, FL, 33406-8631.

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3. Kenneth V. Farino (“Farino”), as mentioned in paragraph 3 above, is an 

individual who is domiciled in and a citizen of the State of Florida, residing specifically at 8060 

W. Lake Dr. West Palm Beach, Palm Beach County, FL, 33406-8631.

JURISDICTION AND VENUE 

4. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332, as there 

is diversity in citizenship and there is an amount in controversy that exceeds $75,000. 

5. This judicial district is proper venue for this proceeding pursuant to 28 U.S.C. 

§1391(b)(2), as one of the Defendants resides, lives or does business in the Southern District of 

Florida.

STATEMENT OF FACTS

Assignment of Loan Documents to HDCC

6. Effective December 31, 2002, Eaglemark Savings Bank 

(“ESB”) and HDCC entered into a Master Assignment Agreement (“Assignment”) whereby ESB 

agreed to sell, and HDCC agreed to purchase, its right, title and interest in all “Loan 

Documents” relating to indebtedness of borrowers owed to ESB. A true and correct copy of the 

Assignment is attached hereto as Exhibit A, and is incorporated by reference herein. 

7. Pursuant to the Assignment, the term “Loan Documents” includes all of ESB’s 

Promissory Notes and Security Agreements, signed by borrowers and dated December 2002 and 

later. (See Exhibit A.)

FHB’s Promissory Note and Security Agreement

8. On or about April 29, 2008, Farino induced Eaglemark Savings Bank (“ESB”) to 

advance credit to FHB by executing and delivering his Guaranty to ESB. A true and correct copy 

of the Unconditional and Continuing Guaranty (“Guaranty”) is attached hereto as Exhibit B, and 

incorporated herein by reference. 

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9. Pursuant to the Guaranty, Farino “absolutely and unconditionally guarantee[d] the 

prompt and punctual payment, when due, of an Aircraft Secured Promissory Note and a[n] 

Aircraft Security Agreement] in the amount of $277,459.00, dated May 5, 2008” to be advanced 

by ESB to FHB. (See Exhibit B.)

10. In reliance on Farino’s Guaranty, on May 5, 2020, ESB advanced credit in the 

sum of $277,459.00 (“Indebtedness”) to FHB pursuant to the Aircraft Secured Promissory Note 

(hereinafter “Promissory Note”) executed by FHB and delivered to HDCC. A true and correct 

copy of the Promissory Note is attached hereto and incorporated by reference as Exhibit C, and 

incorporated herein by reference.

11. To secure the repayment of the Indebtedness, on May 5, 2008, FHB and HDCC

executed the Aircraft Security Agreement (“Security Agreement”), whereby FHB granted to 

HDCC a security interest in an aircraft more particularly described as follows: FAA Registration 

No.:N350MJ, Manufacturer: Piper, Model: PA-31-350, Serial Number: 31-7952228 

(“Collateral”). A true and correct copy of the Security Agreement is attached hereto and 

incorporated by reference as Exhibit D.

12. HDCC perfected its security interest in the Collateral by filing the Security 

Agreement with the Federal Aviation Administration (“FAA”). True and correct copies of the 

search results pertaining to the Collateral from AREOTitle and the FAA Registry are attached 

hereto and incorporated by reference as Exhibit E. 

13. Pursuant to the Promissory Note, FHB agreed to make equal monthly installment 

payments in the amount of $1,947.99 towards the repayment of the Indebtedness beginning on or 

about June 4, 2008 for a term of 240 months. 

14. Pursuant to paragraph 4 of the Promissory Note, entitled “Events of Default,” 

FHB would be in default under the Promissory Note if it failed to make payment of any 

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obligation due under the Promissory Note at the time and in the manner specific therein or in any 

other agreement between FHB and HDCC, or if FHB breached any of its agreements in the 

Promissory Note or the Security Agreement. (See Exhibit C)

15. Pursuant to paragraph 8 of the Security Agreement, entitled “Default,” FHB will

be in default if it breached any of the terms and conditions set for in either the Promissory Note 

or the Security Agreement. (See Exhibit D)

16. Pursuant to paragraph 5 of the Security Agreement, entitled “Maintenance and 

Repair,” FHB agreed “to keep the Collateral in good condition and repair” and that for the term 

of the Agreement, FHB would, “at its expense, do or cause to be done” certain activities 

including, but not limited to, “(a) maintain and keep the Collateral in as good condition and 

repair as it is on the date of the Agreement, ordinary wear and tear excepted; (b) [m]aintain and 

keep the Collateral in good order and repair and airworthy condition in accordance with the 

requirements of each of the manufacturer’s manuals and mandatory service bulletins and each of 

the manufacturer’s non-mandatory service bulletins which relate to airworthiness” and “(c) 

[r]eplace in or on the Airframe, any and all Engines, parts, appliances, instruments or accessories 

which may be work out, lost, destroyed or otherwise rendered unfit for use, with unencumbered 

title to such replacement parts vesting in [FHB] upon installation.” (See Exhibit D.)

17. Pursuant to paragraph 7 of the Security Agreement, entitled “Further 

Agreements,” FHB agreed “[to] ensure [HDCC’s] interest in the Collateral is shown on the title 

of all Collateral that has a certificate of title, or on the federal documentation of all goods that are 

documented under the laws of the United States” and “[n]ot to do anything to defeat [HDCC’s] 

lien[.]” (See Exhibit D.)

18. Purusant to paragraph 5 of the Promissory Note entitled “Remedies Upon 

Default,” upon default by FHB, HDCC “may, at its election, and without notice and without 

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demand, declare all of [FHB’s] obligations immediately due and payable, together with all costs 

and expenses of the Lender’s collection activity, and proceed with any and all remedies set forth 

in the [Security] Agreement or such other remedies as shall be provided by law.” (See Exhibit 

C.)

19. Pursuant to paragraph 9 of the Security Agreement entitled “Remedies Upon 

Default,” upon default by FHB, HDCC “may, at its election, and without notice and without 

demand” take one of several types of actions, all of which are authorized by FHB, including but 

not limited to, “(a) [declaring] all of [FHB’s] obligations immediately due and payable, together 

will all costs and expenses of the Secured Party’s collection activity including, without 

limitation, all reasonable attorney’s fees[.] (See Exhibit D.)

20. On April 15, 2020, Defendant Farino represented to HDCC that the aircraft that is 

part of the Collateral was parked outside of a hangar on tie-down in the Bahamas when it was 

destroyed during Hurricane Dorian. 

21. On or about April 4, 2020, FHB defaulted under the terms of the Promissory Note 

and Security Agreement by failing to make the minimum monthly payment, and consequently 

accelerated the Indebtedness so that the entire amount was now due.

22. Despite demand, HDCC has not received payment on the Indebtedness from FHB 

or Farino. 

23. Pursuant to the terms of the Promissory Note and Security Agreement, upon an 

Event of Default, and at the discretion of HDCC, all amounts outstanding became immediately 

due and owing, and payment in the entire outstanding principal amount, plus accrued interest, 

must be made by FHB, with time being of the essence. 

24. Pursuant to the Guaranty, Farino is responsible for the Indebtedness of FHB upon 

an Event of Default on any debt or obligation due and owing to HDCC. (See Exhibit B.)

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25. Due to the occurrence of at least one Event of Default by FHB, Farino became 

immediately responsible for the Indebtedness, plus accrued interest, attorneys’ fees and costs due 

and owing form FHB to HDCC. 

26. As of June 26, 2020 FHB and Farino owed HDCC the following amount:

(a) Principal balance: $152,167.01

(b) Accrued Interest: $2,732.75

(c) Late Fees: $150.00

(d) Interest Per Diem: $23.97

Outstanding Balance Due (As of June 26, 2020): $155,049.76, plus 

attorney’s fees.

FIRST CAUSE OF ACTION

(Breach of Contract) 

As Against Defendant Fountainhead (Bah) LLC

27. HDCC hereby incorporates each every allegation contained in Paragraphs 1 

through 27 as if each was fully set forth at length herein. 

28. FHB has breached the terms of Security Agreement and Promissory Note by 

failing to make payments when due thereunder, and is therefore in default for failure to pay. 

29. HDCC has performed all obligations owed to FHB, except those obligations 

HDCC was prevented or excused from performing as a result of FHB’s defaults and breaches. 

30. As direct result of FHB’s defaults and breaches, HDCC has been made to suffer 

pecuniary damages. As of June 26, 2020 HDCC has suffered damages in the amount of 

$155,049.76, plus accruing interest, attorneys’ costs and fees. 

SECOND CAUSE OF ACTION

(Breach of Contract)

As Against Defendant Kenneth V. Farino

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31. HDCC hereby incorporates each and every allegation contained in Paragraphs 1 

through 30 as if each was fully set forth at length herein. 

32. As a result of FHB’s breach of its payment obligation pursuant to the Promissory 

Note and Security Agreement, HDCC has made demand upon Farino for payment of all amounts 

due and owing under his Guaranty, and Farino has refused to fulfill his obligations and 

responsibilities under the Guaranty. 

33. Accordingly, Farino has breached his obligation under the Guaranty and in doing 

so, has caused HDCC to suffer pecuniary damages. 

34. By executing the Guaranty, Farino expressly agreed to, and is so obligated, to pay 

HDCC’s reasonable attorneys’ fees and the costs of any action instituted to collect upon the 

default of FHB. 

35. As a direct result of Farino’s default on the Guaranty, and pursuant to the terms of 

the Promissory Note and Agreement, as of June 26, 2020 here is due and owing from Farino the 

amount of $155,049.76, plus accruing interest, attorneys’ fees and costs. 

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, Harley-Davidson Credit Corporation, respectfully requests 

that this Court enter judgment against Defendants, jointly and severally, as follows:

1. For damages in the minimum amount of $155,049.76, plus accruing interest 

including post-judgment interest at the legal rate of interest;

2. For attorneys’ fees and costs of suit according to proof as provided for by written 

agreement; and 

3. For such other relief as this Court finds equitable and just. 

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Date: June 26, 2020 WONG FLEMING, P.C.

Attorneys for Plaintiff Harley-Davidson Credit 

Corporation

By: /s/ Alexis Turner Garris 

Alexis N. Turner Garris, Esq. 

FL Bar No.: 1011753

821 Alexander Road, Suite 200

Princeton, NJ 08543

Tel: (609) 951-9520

Fax: (609) 951-0270

Email: aturnergarris@wongfleming.com

Secondary Email: dfleming@wongfleming.com

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