Defendants further argue that plaintiff Krusch's affidavit does not cure these defects, because it admittedly is not based on personal knowledge. Defendants argue that the second cause of action should be dismissed because champerty is a defense to an action on a note or a debt, not an affirmative cause of action. They assert that more than three years have passed since Affordable acquired the Coby entity, and that neither it nor the other defendants have commenced an action to enforce or foreclose on the Coby Notes. However, defendants submit a copy of Affordable's Articles of Organization to demonstrate that it was not formally organized until October 1995, months after Westreich was disbarred. See , Exhibit 5 to Affirmation of Mark R. Kook.
Defendants seek dismissal of the breach of fiduciary duty claim on several grounds.
In this regard, defendants argue that the complaint alleges that Affordable breached its duty as general partner of Minnethan as a consequence of Coby seeking to foreclose on the Coby Notes in November 1995. See , Exhibit 7 to Kook Affirm. Thus, defendants contend, Affordable had no fiduciary duty to Minnethan when Coby sent the default notices in November 1995. In their cross motion and in opposition to defendants' motion, plaintiffs contend that the complaint and the Krusch affidavit are sufficient to meet the pleading requirements for a fraud claim. Plaintiffs assert that Coby was a party to the various agreements that evidence the Coby debt, and that Coby never granted Minnethan any consideration for the Notes.