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651144/2019
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/27/2019

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
……………………………………………………………..x
GUILING GOU, Index No.:
“JOHN DOE 1-10” and all those similarly situated,

Plaintiff / Plaintiff, AFFIDAVIT OF

GUILING GOU IN
- against - SUPPORT OF ORDER TO
SHOW CAUSE
AYB FUNDING 100, LLC ,
AYB FUNDING 100 GP, LLC ,
U.S. IMMIGRATION FUND-NY, LLC,
NICHOLAS A. MASTROIANNI, II,

Defendant / Defendant
………………………………………………………………x

GUILING GOU, hereby deposes and state as follows under the penalty of perjury:
1. I am the Plaintiff (“Plaintiff”) in this action and I make the below statements under

the penalty of perjury.

2. I submit this Affidavit in Support of Plaintiff’s instant Order to Show Cause and

Petition for temporary restraining order and other relief in favor of Plaintiff, including, but not

limited to an entered order,

a. Pursuant to CPLR 7502(c) and 6301, enjoining Defendants from granting the
Developer request of lien release without negotiating an exchange of collateral
and assignment of pledged securities to prevent partial repayment to green-
card seeking investors including Plaintiff;
b. Enjoining Defendants from redeploying and diverting $63,000,000 partial
loan repayment to different project without engaging registered investment
adviser and independent legal counsel for AYB LLC;
c. Compelling Defendants to deposit partial repayments of Plaintiff’s funds and
similarly situated prospective Plaintiffs into AYB LLC’s bank account;

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d. Enjoining Defendants from soliciting Plaintiff and members of AYB LLC

with respect to the Amendment Proposal and Redeployment, directly,
indirectly, or through Defendants' agents; and,
e. Granting such other and further relief as this Court deems just and proper in
favor of Plaintiff.

THE PARTIES

3. Additional Plaintiffs, yet to be named, whose claims against the Defendants are

similarly situated to mine in this action are all Chinese nationals living in the United States of

America or in China.

4. I am a member and investor in AYB FUNDING 100, LLC (“AYB LLC”), along

with other Plaintiffs similarly situated, as part of the U.S. Government's EB-5 investor immigration

program (“EB5 Program”)1. Plaintiff and other members yet to be named each invested

$549,000.00 in AYB LLC between 2014 and 2015 to fund the construction of Stage B of Atlantic

Yards in Brooklyn, New York (the "Atlantic Yard Project").

5. In 2014, I invested in AYB LLC and the Defendants’ collective enterprise in

connection with her EB-5 immigration application to bring my then college-aged children to the

United States.

6. Defendant AYB FUNDING 100, LLC , ("Defendant" and/or “AYB LLC”), is a

limited liability company organized under the laws of the State of Delaware.

7. Defendant AYB FUNDING 100 GP, LLC ("Defendant" and/or “AYB GP “) is a

Delaware limited liability company, and functions as a management function for AYB LLC.

1
The EB-5 program administered by the U.S. Citizenship and Immigration Services ("USCIS") permits qualified
foreign investors to obtain U.S. lawful permanent residence by investing at least $500,000 in a "new commercial
enterprise" ("NCE") that meets certain qualifications, including creating or preserving at least ten jobs per investor.
(See generally www.uscis.gov/eb-5)

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8. Defendant, U.S. IMMIGRATION FUND-NY, LLC, ("Defendant" and/or "USIF"),

is a New York limited liability company.

9. USIF2 is the Regional Center that sponsored the EB5 funds including infrastructure

construction and residential development of Stage B of Atlantic Yards in Brooklyn, New York

(the "AYB Project").

10. Defendant NICHOLAS A. MASTROIANNI, II ("Defendant" and/or

“Mastroianni”) is an individual who, upon information and belief, resides in the State of Florida.

Mastroianni is the owner, operator and/or manager of the named Defendants in this action.3

BACKGROUND OF THE CASE

11. As aforesaid, Plaintiff(s) made applications as part of the EB5 Program, qualified

as foreign investors in new commercial enterprises, with the goal of obtaining lawful permanent

residency in the United States.

12. Plaintiff’s claims against Defendants include breach of fiduciary duty, breach of

operating agreement, and securities fraud, based upon acts and omissions that constitute bad faith

violations of the implied contractual covenant of good faith and fair dealing as well as unjust

enrichment and securities violations.

13. In or about January, 2014, Defendants, their agents, developers and their Chinese

migration agents held road shows in major Chinese cities to promote securities issued by AYB

LLC.

2
www.nicholasmatrionni.com
3
Mr. Mastroianni is the Founder, Chief Executive Officer and Chairman of U.S. Immigration Fund, LLC and its
affiliated companies (USIF), including multiple EB-5 approved regional centers in New York, New Jersey and
Florida (and California pending). Under Mr. Mastroianni’s leadership, USIF has grown into one of the largest EB-5
regional centers in the United States. As of today, USIF is involved in over 20 projects (and growing) totaling over
$3 Billion in EB-5 capital for real estate development. Per recent published reports from the United
States Citizenship and Immigration Services, USIF significantly outpaces its regional center competitors with
respect to EB-5 visa approvals. (Source: http://nicholasmastroianni.com/)

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14. In 2013, Developer Forest City Ratner called the development “Atlantic Yards” and it

was rebranded “Pacific Park Brooklyn” in 2014 after the Chinese government-owned Greenland

Group bought a 70% stake in the project4.

15. During the subscription process, Plaintiffs were not provided with full risk disclosure

of the proposed investment.

16. Plaintiff didn’t receive disclosures including the Confidential Private Placement

Memorandum (“PPM”) dated Jan 2, 2014, even to date5. See Exhibit A, a copy of the PPM which

was received by counsel and not forwarded to Plaintiff as part of her due diligence.

17. The PPM provides that the purpose of AYB LLC was to raise capital through the

EB-5 program and then to loan the EB-5 investments in the form of a mezzanine loan in connection

with the development of Stage B of the Atlantic Yards Project (the “AYB Project”), a mixed-use

commercial and residential development project of some 16 high-rise buildings, under

construction in Prospect Heights, adjacent to Downtown Brooklyn and Fort Greene in Brooklyn,

New York City.

18. AYB LLC and the Defendants also failed to provide to Plaintiff any updates regarding

The construction, or photos showing the construction progress at the AYB Project.

19. Since 2014, Defendants failed to provide to Plaintiff with a complete PPM and the

executed loan agreement with pledge agreement with the developer of the Atlantic Yards project.

20. Defendants also neglected to inform Plaintiff that the borrower and/or developer was

not in compliance with the subject construction plan described in the offering documents and the

construction was very behind schedule.

4
https://atlanticyardsreport.blogspot.com/2018/07/when-will-first-round-of-atlantic-yards.html
5
Counsel obtained a copy of PPM through other sources.

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21. As of 2018, after the arena and four towers were built, Greenland bought out most of

Forest City's stake, then sold three sites to another developer.

22. Unbeknownst to Plaintiff, the borrower and/or developer consequently made

arrangements to sell the collateral.

23. On Jan 21, 2019, the Defendants notified Plaintiff and other member investors of their

decision to grant the request of the borrower and/or developer to release a lien of Lot B15 of

Atlantic Yard Project, in exchange for early repayment of over $63 million dollars intended to be

redeployed to certain projects controlled by Defendant Mastroianni pledged in favor of Company’s

loan to a third-party developer in September 2018. (Exhibit B).

24. If the Amended Proposal is approved and the repayment and redeployment are

effectuated, such change to AYB LLC's permitted business activity would jeopardize and

otherwise adversely impact Plaintiffs’ eligibility of EB-5 immigration benefits due to violation of

1940 Investment Company Act and out AYB LLC at risk of dissolution.

25. Furthermore, the Defendants are not registered as an “investment adviser” under the

Investment Advisers Act of 1940, as amended (the “Advisers Act“).

26. AYB LLC has been advised that the Developer, Manager and/or Regional Center

likely do not need to register as an “investment adviser” under the Advisers Act because the

foregoing definition of “investment adviser” likely does not apply to the Developer, Manager

and/or Regional Center with respect to the services provided by them in connection with this

Offering, including, without limitation, taking into account the fact that all investment advice

under this Offering is being provided to Members by independent, unaffiliated, third party,

licensed and bonded migration agents outside the United States.

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27. However, there can be no assurance that such is the case and that the Developer,

Manager or Regional Center could not otherwise be deemed an “investment adviser” requiring

registration as an “investment adviser” under the Advisers Act.

28. Plaintiff was not given the opportunity to be advised by a registered investment

adviser in US or in China. The licensed and bonded migration agents engaged by Defendants are

not authorized to provide investment advice per Chinese securities regulations.

29. In concert with their Chinese marketing/migration agents, Defendants provided only

signature pages of Subscription Agreement and Operating Agreement without having the chance

to review the complete Subscription Agreement and Operating Agreement.

30. Mastroanni countersigned the Subscription Agreement and Operating Agreement and

doctored executed subscription agreements and operating agreements with papers containing

Plaintiff’s signatures.

31. As part of their investments in AYB LLC, Plaintiff and the other investor members

signed AYB LLC's operating agreement, which was countersigned by Mastroianni on behalf of

the Defendants.

32. Section 21.9 of the Operating Agreement provides that AYB LLC is a limited

liability company organized under the laws of Delaware, and the Operating Agreement provides

that it is governed by Delaware law.

33. Section 4.1 of the Operating Agreement provides that "The Company has been

formed for the sole purpose of lending money for the development and operation of the Project."

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34. Section 8.4 of the Operating Agreement, entitled "Compliance with EB-5

Restrictions," provides: "The Manager shall operate the Company in a manner that is designed to

comply with legal and policy requirements of the [EB-5] Pilot Program administered by USCIS,

as advised by the Regional Center. In particular, the Manager shall: (1) deploy the $500,000

minimum Capital Contribution by Members who are seeking permanent residence through the IIP

only in at risk job creating activity constituting the Project, directly or indirectly, and to keep such

funds invested (including by loan) in job creating activity until all Members have received

adjudication of removal of conditions from permanent residence; "

35. Section 21.9 of the Operating Agreement provides that “Legal counsel for the

Manager or one of its Affiliates may also represent the Company, Developer and/or Borrower in

connection with legal work or issues arising in connection with the Company. Each Member

recognizes and acknowledges that any such counsel will be acting as legal counsel for the

Company, the Manager, Developer and/or Borrower with respect to each such matter and shall not

be acting as the legal counsel of any individual Member. Each Member further recognizes and

accepts that his or her interest with respect to any such matter may be adverse to the interests of

the Manager, Developer, Borrower and the Company. Each Member nevertheless consents to the

representation of the Manager, Company, Developer and Borrower by such counsel with respect

to each such matter and waives for the benefit to such parties of such counsel having any potential

or actual conflict of interest between or among such parties. Each Member acknowledges that in

the event of any future dispute or litigation between or among the Members and/or between any

of the Members and the Company, Manager, Developer and/or Borrower, such counsel may

continue to represent the Manager, the Company, Developer and/or Borrower, notwithstanding

any such dispute and its prior representation of such parties.

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36. The PPM provides:

a. AYB LLC raises $249 million from 498 EB-5 investors and loans $249 million
(the “EB-5 Loan”) to the borrower/developer for the development of stage B of
Atlantic Yards in Brooklyn, New York. The EB-5 Loan maturity date is
December 31, 2020 and the borrower has two options to extend one-year
beyond the maturity date.
b. AYB LLC’s loan will be subordinate to senior construction financing up to
$502 million to construct the buildings located on the Airspace Parcels to
include B15 which parcel is both part of the Project and collateral for the Loan.
Defendants failed to inform Plaintiff that Borrower/Developer didn’t obtain any
senior financing to construct buildings on B15.
c. “the Prospective Investors have not been represented by separate counsel in
connection with the formation of the Company, the drafting of the Operating
Agreement or the Subscription Documents, this Offering, or the proposed Loan
Agreement under the Loan. As a result, the proposed Loan Agreement may not
necessarily be negotiated at arm’s length and may contain terms not in the
interests of the Members.”
d. Migration agents, who are located outside of the United States, may be
providing investment advice to prospective Investors. Respondents fail to
disclose that migration agents are not licensed to provide investment advice per
Chinese securities law.
e. LEGAL COUNSEL TO THE COMPANY AND THE MANAGER WILL
NOT BE ENGAGED TO PROTECT THE INTERESTS OF PROSPECTIVE
INVESTORS OR MEMBERS AND SHOULD NEVER BE VIEWED AS
REPRESENTING ANY PROSPECTIVE INVESTOR OR ANY OTHER
MEMBER OF THE COMPANY. MEMBERS AND PROSPECTIVE
INVESTORS SHOULD CONSULT WITH AND RELY UPON THEIR OWN
COUNSEL CONCERNING INVESTMENT IN THE COMPANY,
INCLUDING, WITHOUT LIMITATION, TAX AND CURRENCY
EXCHANGE CONSEQUENCES TO THEM AND OTHER ISSUES
RELATING TO ANY INVESTMENT IN THE COMPANY.
f. “The Company has not been represented by independent counsel. The attorneys
that provide services relating to the Company perform their services for the
Manager and at its direction. There is no attorney-client relationship or legal
representation of the Company.”
g. AYB Funding 100, LLC (the “Company”) raises $249 million from 498 EB-5
investors. The Company loans $249 million (the “EB-5 Loan”) to the
borrower/developer for the development of stage B of Atlantic Yards in
Brooklyn, New York. The EB-5 Loan maturity date is December 31, 2020 and
the borrower has two options to extend one-year beyond the maturity date.
h. AYB LLC’s loan will be subordinate to senior construction financing up to
$502 million to construct the buildings located on the Airspace Parcels to
include B15 which parcel is both part of the Project and collateral for the Loan.
Respondents fail to inform Petitioners that Borrower/Developer didn’t obtain
any senior financing to construct buildings on B15.

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i. “The Developer shall have the right to release and exchange any real estate
underlying the Mezzanine Pledge for other real estate in the Atlantic Yards
Project of equivalent economic value based upon an appraisal of the relevant
property(ies).” Mastroianni and USIF have the fiduciary duty to negotiate a
substitute and assignment of pledged securities to prevent partial repayment.
j. “The Prospective Investors have not been represented by separate counsel in
connection with the formation of the Company, the drafting of the Operating
Agreement or the Subscription Documents, this Offering, or the proposed Loan
Agreement under the Loan. As a result, the proposed Loan Agreement may not
necessarily be negotiated at arm’s length and may contain terms not in the
interests of the Members.”
k. There is no guarantee that the Loan will be repaid by the Developer or that the
proceeds from the foreclosure of any of the security for the Loan will be
sufficient to cover any non-payment of the Loan. For this reason, the Investment
is deemed fully at risk. No distribution to the Prospective Investors in the
Company will be made until the maturity date of the Loan which will be six
years from Loan being funded, but not earlier than the end of the conditional
residency period and approval of the Prospective Investor’s I-829 petition.

37. Plaintiff asserts that the acceptance of the early prepayment of the Loan brought no

substantive benefit to the green-card seeking members of AYB LLC. Rather, upon information

and belief, the primary purpose of accepting the early prepayment of the Loan was to enable USIF

to use the repayment proceeds to reap higher income and enrich itself.

38. Moreover, USIF failed to inform Plaintiff and others similarly situated that, in one of

the Pre-Identified Investment project, USIF is contracted to earn 10% annual distribution in

contrast to just 3% distribution to member investors who actually provided EB-5 capital.

39. In light of the sale of collateral and partial repayment of the Loan, Defendants owe

contractual and fiduciary obligations to the members of AYB LLC of timely full disclosure and in

Compliance with EB-5 Restrictions without material change.

40. Defendants have flatly ignored Plaintiff and other members’ rights to independent

counsel and registered investment adviser in time of critical decision making.

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41. Instead of simply exchange of EB-5 collateral as contemplated in the

PPM, Defendants and the developer/borrower manufactured the need to redeploy Investor EB-5

capital by initiating and accepting partial prepayment of the Loan.

42. Defendants are now putting into motion a consent solicitation process attempting to

seek a majority vote of the members of the Company to approve their self-interested Proposal, rife

with conflicts 10 of interest and self-dealing as they have done in 2018 with respect to

redeployment process of 701 TSQ Funding 1000 LLC. See Member Consent Letter and Consent

Document Package. dated February 18, 2019, annexed hereto as Exhibit C and marketing materials

annexed hereto as Exhibit D. (Exhibit)

43. USIF manufactured the need to redeploy assets for its own gain. Under the loan

agreements with the Developer, the prepayment of the Loan should not have occurred until the

60th month following the funding of ninety-five percent (95%) of the Loan proceeds, most likely

in 2020, in each case with no prepayment penalty or premium. Nevertheless, USIF made the

decision to accept early prepayment of the Loan and thereby created an artificial need to redeploy

investor EB-5 capital to satisfy the "at-risk" requirement. USIF seeks to exploit this manufactured

crisis to coerce the investors into a proposal that will result in the enrichment of USIF and the

destruction of valuable investor rights.

44. Mastroianni and USIF threatened the members that if the required majority consent

is not received by AYB LLC, then pursuant to the terms of the Operating Agreement, AYB LLC

would rely on the authorization of each Member consenting to the reinvestment of his or her capital

contribution to reinvest such capital into the Pre-Identified Investment selected herein, without the

benefit of the enhanced returns and will hold the EB-5 Loan repayment proceeds allocable on a

pro rata basis to all other members who have not withdrawn from AYB LLC in bank deposits

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without meeting “at risk” requirement and effectively destroy green-card seeking investors’

eligibility for EB-5 immigration benefits.

45. Such actions are a breach of AYB GP ’s responsibility provided in the Operating

Agreement that provides that the manager “shall operate the Company in a manner that is designed

to comply with legal and policy requirements of the Pilot Program administered by USCIS”. The

PPM provides that “The Developer shall have the right to release and exchange any real estate

underlying the Mezzanine Pledge for other real estate in the Atlantic Yards Project of equivalent

economic value based upon an appraisal of the relevant property(ies).”

46. Mastroianni and USIF have the fiduciary duty to negotiate an exchange of collateral

and assignment of pledged securities to prevent partial repayment. They breached that duty.

47. By the manager's own admission, because of shared ownership and/or commonality

of financial interest, any transaction between AYB LLC and AYB GP, the developer and other

agents of the Defendants, shall loan the proceeds of the Offering, as described above, and (d) the

owners, managers, directors, officers, or employees of the foregoing, may be entered into without

the benefit of “arms-length” bargaining, and may involve actual or potential conflicts of interest—

including, without limitation, the loan of Offering proceeds for furtherance of the Project.

48. Legal counsel for AYB GP or one of its Affiliates may also represent the

AYB LLC and/or the developer or borrower in connection with legal work or issues arising in

connection with AYB LLC.

49. Plaintiff and other members recognize and acknowledge that any such counsel will be

acting as legal counsel for AYB LLC, AYB GP, Developer and/or Borrower with respect to each

such matter and would not be acting as the legal counsel of any individual Member.

50. There is a clear conflict of interest.

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51. AYB LLC has not been represented by independent counsel. The attorneys that

provide services relating to AYB LLC perform their services for AYB GP at its direction.

52. Any fiduciary duty to AYB LLC is essentially, eliminated.

53. Plaintiff is seeking injunctive relief herein, in advance of arbitration to follow. In the

ensuing arbitration, Plaintiff will seek relief including an order enjoining Defendants from

releasing the lien from B15 without an exchange of collateral and assigning pledged securities

during the loan period, and directing independent representation in reviewing loan agreements and

removing foreign agent as investment advisor giving investment advice for compensation.

54. Absent the injunction, Defendants will cause partial distribution to green-card

petitioners below the $500,000 minimum requirement in violation of USCIS rules that these

investors are disqualified from getting a green card. Furthermore, by having investors' EB-5

capital partial repaid and, green card eligibility will be destroyed due to material change to AYB

LLC’s sole purpose of providing loans to AYB Project.

55. Absent injunctive relief, Petitioners will also suffer irreparable harm if the Company

receive early repayment in exchange of release of valuable collateral and be cut off from Atlantic

Yard Project and there will be no way to unwind this transaction even if Petitioners prevail on their

claims. Plaintiff and others will be irreparably harmed in that situation because they will be

precluded from ever participating in a fair and non-coercive investment plan formulated by

fiduciaries acting in the best interests of AYB LLC, as is their right. See Oracle Real Estate

Holdings I LLC v. Adrian Holdings Co. I, LLC, 582 F. Supp. 2d 616, 626 (S.D.N.Y. 2008)

(irreparable harm demonstrated where investor rights would be irrevocably lost in the absence of

an injunction).

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56. Finally, Plaintiff will be irreparably harmed by not having independent legal counsel

as the Operating Agreement that eliminates all fiduciary duties owed to them by Defendants.

57. I, along with many other prospective Plaintiffs am a Chinese national who sought to

lawfully immigrate to the United States and who has been mistreated by the Defendants in that

effort. Defendants are only profiteers, at the expense of Plaintiff. They have engaged in

withholding material information from Plaintiff to advance their fraudulent schemes upon

unsuspecting investors.

58. Defendants must be held liable for breach of their obligations under the Operating

Agreement to ensure compliance with EB-5 requirements without material change to Company’s

sole purpose of providing loan to Atlantic Yard Project.

59. Defendants must be held accountable in this action for the breach of contract, breach

of fiduciary duty, fraud and consequently, the severe harm caused to Plaintiffs herein.

60. By reason of all the foregoing, it is respectfully requested that an injunction be

granted and Plaintiff’s application be granted, in its entirety and any such other further relief as

the Court may find to be just and proper.

61. Without the Court’s issuance of a temporary restraining order there will be

continual and irreparable and severe financial harm to your deponent and the yet to be named co-

Plaintiffs. Court intervention is critical at this juncture.

W H E R E F O R E, Plaintiff respectfully request that this Court enter an Order:

a. Pursuant to CPLR 7502(c) and 6301, enjoining Defendants from granting the
Developer request of lien release without negotiating an exchange of collateral
and assignment of pledged securities to prevent partial repayment to green-
card seeking investors including Plaintiff;

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b. Enjoining Defendants from redeploying and diverting $63,000,000 partial

loan repayment to different project without engaging registered investment
adviser and independent legal counsel for AYB LLC;
c. Compelling Defendants to deposit partial repayments of Plaintiff’s funds and
similarly situated prospective Plaintiffs into AYB LLC’s bank account;
d. Enjoining Defendants from soliciting Plaintiff and members of AYB LLC
with respect to the Amendment Proposal and Redeployment, directly,
indirectly, or through Defendants' agents; and,
e. Granting such other and further relief as this Court deems just and proper in
favor of Plaintiff.
/s/
___________________________
Date: February 21, 2019 GUILING GOU

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