Ed Bank Nassar Mtn for Relief of Stay and Memo

8/3/2019 Ed Bank Nassar Mtn for Relief of Stay and Memo

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UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRIC OF FLORIDAMIAMI DIVISION

In Re: Case No.: 11-12972-BKC-LMIPAUL NASSAR Chapter 7Debtor.

__________________________/

BROTHERS TWO WINDOWS Adv. No. 11-01957-LMI

& SCREENS, INC.

d/b/a HURRICANE WINDOW

& SCREENPlaintiff,

v.

PAUL NASSARDefendant.

________________________/

MOTION OF DEBTOR, DEFENDANT, PAUL NASSAR FOR ENTRY OF AN ORDER

PURSUANT TO 11 U.S.C. SECTION 362(d)(1) GRANTING DEBTOR RELIEF FROM

AUTOMATIC STAY

Defendant, Paul Nassar moves for the entry of an order pursuant to 11 U.S.C. Sec. 362

(d)(1) for relief from the automatic stay with regard to seeking relief from a judgment entered in a state

court action captioned Brothers Two Windows & Screens, Inc. v. AAA Shutter Doctor, Inc. and Paul

Nassar, in the circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida, Case No.

09-00588 CA 31 (“the State court Action”) and, in support thereof, alleges:

1. Debtor, Defendant, Paul Nassar filed under Chapter 7 of Title 11 United States Code

on 02/03/2011 (“the Petition Date”).

2. Prior to the Petition Date, on or about 01/06/2009 the State Court Action was

commenced.

3. On November 9, 2010 Judge Schlesinger granted Plaintiff‟s Motion to Strike

Pleadings and Pleadings and Summary Judgment for failure to file a response to

Plaintiff‟s motions (DE 40-1).

4. The Final Summary Judgment was entered on November 23, 2010 and does not

make any findings of pretenses, false representations and actual fraud perpetrated by



Defendant, Paul Nassar against the Plaintiff, Brothers Two Windows & Screens, Inc.

(DE 1, Page 19).

5. The Affidavit In Support (DE40-2), executed by Mohammed Al-Jamal evidences the

fact that the worthless check was tendered by Defendant, AAA Shutter on a Great

Florida Bank and fails to establish any facts which prove, directly or by inference,

that Defendant, Paul Nassar was responsible for the worthless check or was

responsible for perpetrating pretenses, false representations and actual fraud against

the Plaintiff, Brothers Two Windows & Screens, Inc.

6. The Final Summary Judgment fails to make any findings of false pretenses, false

representations and actual fraud. Under the Bankruptcy Code, such fraud is

nondischargeable only if made in writing. 11 U.S.C. § 523(a)(2)(A

7. There is no denying the fact that the Defendant, Paul Nassar did not issue the check,

tender the check or own the account the check was drawn on.

8. Additionally, there is no denying the Defendant did not have any authority or

ownership of the corporation which did issue the check, tender the check and was the

account holder upon which the check was drawn.

9. On 05/05/2011 Plaintiff, Brothers Two Windows & Screens, Inc. filed this adversary

proceeding under section 523(a)(2) for a determination of dischargeability of the judgment

entered in the State Court Action based on false pretenses, false representations and actual

fraud.

10. A review of the underlying State Court Action, count 3 titled “Bad Check” (DE1, Pages 9-10

of 21), which is the basis for the default Final Summary Judgment is legally insufficient to

support the relief requested and fails to allege an actionable fraud perpetrated by the

Defendant, Paul Nassar.

11. The Defendant needs relief from the stay in order to move to vacate the judgment

which the Plaintiff is relying on as the basis for a determination of dischargeability.

12. It is expressly stated in the Plaintiff‟s Adversary Complaint and Motion to StrikeAffirmative Defenses that the reliance of liability for non dischargeability is res

judicata and collateral estoppels.

13. It is the Defendant‟s contention that the Final Summary Judgment does not make any

findings required to adjudge the court order of the State Court Action as embracing of

any findings of false pretenses, false representations and actual fraud.



14. Even taking Count 3 into consideration, which is insufficient it is not possible to

conclude the issue of false pretenses, false representations and actual fraud have been

determined in the State Court Action.

15. There will be no prejudice to the Plaintiff with regard to the Defendant seeking the

limited relief of vacating, or seeking relief from, the judgment entered in the State

Court Action. Furthermore, the state court is the only court that can grant or deny

such relief.

16. No previous application for the relief requested herein has been made ot this or any

other Court.

MEMORANDUM IN SUPPORT OF MOTION FOR RELIEF FROM

AUTOMATIC STAY

I. JURISDICTION

This Court has jurisdiction to decide this motion pursuant to 28 U.S.C. §§ 157 and 1334. This is

a core proceeding, pursuant to 28 U.S.C. § 157(b)(2)(G). Venue is proper in this Court, pursuant

to 28 U.S.C. §§ 1408 and 1409. The relief requested in this Motion is predicated on 11 U.S.C. §

362(d) and Rules 4001 and 9014 of the Federal Rules of Bankruptcy Procedure.

II. LEGAL STANDARDS

Pursuant to the automatic stay, Section 362(d) provides that a bankruptcy court may lift the

automatic stay to allow pending litigation to proceed in another forum in circumstances such as

those that exist here:

On request of a party in interest and after notice and a hearing, thecourt shall grant relief from the stay provided under subsection (a)

of this section, such as by terminating, annulling, modifying, or

conditioning such stay – (1) for cause, including the lack of

adequate protection of an interest in property of such party in

interest; 11 U.S.C. § 362(d)(1).

The Code does not define “cause” and courts therefore decide motions for relief from stay on a

case-by-case basis. In re Murray Indus., Inc., 121 B.R. 635, 637 (Bankr. M.D. Fla. 1990)

(granting motion for relief from stay to allow creditor to sue on unpaid invoices). The term

“cause” is viewed by courts as a “broad and flexible concept.” In re The Score Board., Inc., 238



B.R. 585, 593 (D. N.J. 1999). The decision to lift the automatic stay is left to the sound

discretion of the Bankruptcy Court. In re Dixie Broad., Inc., 871 F.2d 1023, 1026 (11th Cir.

1989). Relief from the stay may be granted for cause when it is necessary to permit litigation in

another forum to be concluded. Packerland Packing Co. v. Griffith Brokerage Co. (In re

Kemble), 776 F.2d 802, 807 (9th Cir. 1985); accord, Busch v. Busch, 2003 Bankr LEXIS 557, at

(B.A.P. 10th Cir. June 6, 2003). “Allowing a matter to proceed to another forum may constitute

„cause‟ to lift the stay.” Murray Indus., 121 B.R. at 636.

Indeed, the legislative history to Section 362(d)(1) expressly supports this conclusion:

It will often be more appropriate to permit proceedings tocontinue in their place of origin, when no great prejudice to the

bankruptcy estate would result, in order to leave the parties to their

chosen forum and to relieve the bankruptcy court from many

duties that may be handled elsewhere.S. Rep. No. 95-989 at 50 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5836

(emphasis added).

In the Eleventh Circuit, bankruptcy courts consider the totality of the circumstances to determine

whether cause for relief from the automatic stay exists. In re Bryan Road, LLC, 382 B.R. 844,

854-55 (Bankr. S.D. Fla. 2008) (granting creditor motion for relief from automatic stay based on

the totality of the circumstances); In re Laminate Kingdom LLC, 2008 WL 1766637, at *3

(Bankr. S.D. Fla. Mar. 13, 2008) (same). Relevant considerations include “balanc[ing] the

prejudice to the debtor against the hardship to the moving party if the stay remains in effect as

well as . . . the efficient use of judicial resources, the location of witnesses, documents, and other

necessary parties.” In r e Aloisi, 261 B.R. 504, 508 (Bankr. M.D. Fla. 2001).

The Court should consider(1) whether relief would result in a partial or complete resolution of

the issues; (2) lack of any connection with or interference with the bankruptcy case; (3) whether

the other proceeding involves the debtor as a fiduciary; (4) whether a specialized tribunal with

the necessary expertise has been established to hear the cause of action; (5) whether the debtor's

insurer has assumed full responsibility for [a defense]; (6) whether the action primarily involves

third parties; (7) whether litigation in another forum would prejudice the interests of other

creditors; (8) whether the judgment claim arising from the other action is subject to equitable

subordination; (9) whether the movant's success in the other proceeding would result in a

judicial lien avoidable by the debtor; (10) the interests of judicial economy and the expeditious



and economical resolution of litigation; (11) whether the parties are ready for trial in the other

proceeding; and (12)[the] impact of the stay on the parties and the balance of harms.In re

Sonnax Indus., 907 F.2d at 1286.

III. ARGUMENTCause Exists To Lift The Stay And Therefore The Defendant Should Be Permitted Access To

The State Court For Consideration To Vacate The Final Judgment

Relief from the stay may be granted for cause when it is necessary to permit litigation in another

forum to be concluded. Packerland Packing Co. v. Griffith Brokerage Co. (In re Kemble), 776

F.2d 802, 807 (9th Cir. 1985); accord, Busch v. Busch, 2003 Bankr LEXIS 557, at *8 (B.A.P.

10th Cir. June 6, 2003). “Allowing a matter to proceed to another forum may constitute „cause‟

to lift the stay.” Murray Indus., 121 B.R. at 636. Indeed, the legislative history to Section

362(d)(1) expressly supports this conclusion:

It will often be more appropriate to permit proceedings to continue in their place of origin, when

no great prejudice to the bankruptcy estate would result, in order to leave the parties to their

chosen forum and to relieve the bankruptcy court from many duties that may be handled

elsewhere. S. Rep. No. 95-989 at 50 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5836

(emphasis added).

In the Eleventh Circuit, bankruptcy courts consider the totality of the circumstances to determinewhether cause for relief from the automatic stay exists. In re Bryan Road, LLC, 382 B.R. 844,

854-55 (Bankr. S.D. Fla. 2008) (granting creditor motion for relief from automatic stay based on

the totality of the circumstances); In re Laminate Kingdom LLC, 2008 WL 1766637, at *3

(Bankr. S.D. Fla. Mar. 13, 2008) (same).

It is apparent that the State Court should be given the opportunity to review a Motion to Vacate

the Final Summary Judgment, entered after the Defendant‟s pleadings were stricken, as it is

based upon a cause of action which does not properly plead a sufficient cause of action upon

which relief may be based.

It is well settled that a default admits only the well pleaded allegations concerning the issue of

liability. If the pleading is insufficient to state a cause of action then it cannot be said that a

default operates as an admission of liability and is not necessary for the moving party to show

excusable neglect or due diligence in seeking relief from default. Ginsburg v. Lennar Florida



Holdings, Inc., 645 So.2d 490 (Fla. 3DCA 1994); Becerra v. Equity Imports, Inc., 551 So.2d 486

(Fla. 3DCA 1989).

Count III is clearly insufficient as the Defendant, Paul Nassar is not the party alleged to have

issued or tendered the insufficient check and therefore is not legally responsible for the damages.

IV. CONCLUSION

The Defendant, Paul Nassar should be given the opportunity to request the appropriate relief in

the State Court Action which is the basis for the Plaintiff‟s claim of liability based on res

judicata.

Wherefore, the Defendant respectfully requests this Honorable Court grant this motion for relief

of the automatic stay for the limited purpose of filing a motion to vacate the Final Summary

Judgment entered in the Stat Court Action.

Documents

Ed Bank Nassar Mtn for Relief of Stay and Memo