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Filing # 108968679 E-Filed 06/17/2020 09:08:05 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
HARRY BIEBERSTEIN,
Plaintiff,
Vv. Case No. 17-CA-917
GABRIEL KIRCHBERGER, CAROL DEVILLE,
SOUTHERN SHORES ENTERPRISES, LLC,
a Florida limited liability company, and
MOONSTONE HOLDINGS, LLC, a Nevada
limited liability company,
Defendants.
/
MEMORANDUM IN OPPOSITION TO DEFEDANTS’ MOTIONS TO DISSOLVE
NOTICE OF LIS PENDENS
Plaintiff, Harry Bieberstein (“Bieberstein”), files this Memorandum in Opposition to (1)
Niclas X. Kirchberger’s Motion to Discharge Lis Pendens (filed 07/09/2019); and (2) Carol
DeVille and Southern Shores Enterprises, LLC’s Motion to Discharge Lis Pendens (filed
(07/01/2019)! and in support thereof states:
Introduction
1 This is an action whereby a creditor, Bieberstein, seeks (a) to collect amounts that
are owed, (b) to set aside classic-fraudulent transfers made by the debtor, Gabriel Kirchberger
(“Gabriel”) in order to collect those amounts, (c) to have the entities which were established in
order to hide Gabriel’s assets from Bieberstein declared Gabriel’s alter ego so that their assets will
' Although Golden Key Properties, LLC and Andreas Kirchberger also filed a Motion to Discharge
Lis Pendens or, alternatively, to Require a Bond on August 5, 2019, said Motion was mooted when
Plaintiff filed an Amended Notice of Lis Pendens on June 11, 2020 which did not include any of
the properties owned by Golden Key Properties, LLC that were previously subject to the Notice
of Lis Pendens. Bieberstein has never subjected any property owned by Andreas Kirchberger
60738697-1 1
be immediately available for satisfaction of Gabriel’s debt to Bieberstein, and, with the filing of
the Third Amended Complaint, (d) set aside a further fraudulent transfer made by the initial
transferee. The relevant facts are remarkably similar to those in LB Judgment Holdings, LLC v.
Boschetti, 271 So. 2d 115 (Fla. 3d DCA 2019) and Bieberstein’s claims are modeled after the
plaintiff's claims therein.
2 Defendant, Niclas Kirchberger (“Niclas”), owns one (1) property that is subject to
the lis pendens. Defendant, Southern Shores Enterprises, LLC (“Southern”) owns twelve (12)
properties that are subject to the lis pendens. Defendant Moonstone Holdings, LLC (“Moonstone”)
owns 29 properties that are subject to the lis pendens”. On June 15, 2020, the Intervenors, who
own two (2) properties conveyed by Moonstone, filed a notice of joinder in the motions.
3 In advance of the hearing on June 17", Bieberstein’s counsel has conferred with
counsel for Southern and Moonstone/Niclas regarding the procedure for the hearing. Counsel are
in substantial agreement regarding the procedure and burdens for the hearing. The main points of
contention are (a) whether Bieberstein can meet the requirements to sustain his lis pendens and, if
so, (b) the amount of the lis pendens bond. There is no dispute that Bieberstein’s claim is not
founded upon a duly recorded instrument or that Niclas and Southern are entitled to a bond posted
by Bieberstein in order to protect them in the event that the court ultimately decides that the lis
pendens was wrongfully filed.
? Moonstone has not moved to dissolve the lis pendens against its properties or requested that this
Court set a bond. Pursuant to Rule 1.100(b) of the Florida Rules of Civil Procedure, “application
to the court for an order must be by motion which must be made in writing unless made during a
hearing or trial, must state with particularity the grounds for it, and must set forth the relief or order
sought.” Despite the lack of a motion having been filed on behalf of Moonstone, Bieberstein is
prepared to argue the propriety of the lis pendens against Moonstone’s properties.
60738697-1 2
Requirements to Sustain a Lis Penden:
4 Section 48.23, Fla. Stat. authorizes the recording of a notice of lis pendens when a
suit is filed that could affect title in property. The notice of lis pendens serves two purposes: (1) it
protects purchasers or encumbrancers from becoming embroiled in the suit; and (2) it protects the
plaintiff from intervening liens that could impair property rights claimed or extinguish the
plaintiffs unrecorded interest. /.B.J. Inv. of So. Fla., Inc. v. Maslanka, 163 So. 3d 726, 728 (Fla
5th DCA 2015) (citing Chiusolo v. Kennedy, 614 So. 2d 491, 492 (Fla. 1993)).
5 In order to sustain a lis pendens, a plaintiff must demonstrate a “fair nexus” between
the apparent legal or equitable interest in the property and the dispute embodied in the lawsuit. /d.
“Tf alienation of the property or the imposition of intervening liens conceivably could disserve the
purposes for which lis pendens exists, a fair nexus must be found.” /d.
6. Establishing a fair nexus requires the showing of a “good faith, viable claim.” Nu-
Vision, LLC y. Corporate Convenience, Inc., 965 So. 2d 232, 234 (Fla. 3d DCA 2007)
(“Establishing a ‘fair nexus’ between a claim in litigation and the property’s title requires a little
more than simply pleading a theoretical nexus.”)
7
Because it is impracticable to require a proponent of a lis pendens to fully prove
each element of its claim in an evidentiary hearing where the parties have not completed discovery,
the proponent is only required to make “a minimal showing that there is at least some basis for the
underlying claim and show that he or she has a good faith basis to allege facts supporting a claim
and that the facts alleged would at least state a viable claim.” Regents Park Inv., LLC v. Bankers
Lending Sves., Inc., 197 So. 3d 617, 621 (Fla. 3d DCA 2016) (quoting Nu-Vision, LLC v.
Corporate Convenience, Inc., 965 So. 2d 232, 236 (Fla. 5th DCA 2007)). “Importantly, at the
preliminary procedural point of a motion to dismiss the lis pendens before trial, the evaluation of
60738697-1
‘fair nexus’ is not a trial or mini-trial on the merits of all elements of the lis pendens proponent’s
claims. Rather, ‘the relevant question is whether alienation of the property or the imposition of
intervening liens conceivably could disserve the purposes for which the lis pendens exists. Where
the answer is yes, fair nexus must be found.’”” LB Judgment Holdings, LLC, 271 So. 3d at 119.
8 In LB Judgment Holdings, LLC, the District Court reversed a trial court’s
dissolution of a lis pendens where the creditor ascertained that some of the debtor’s assets had
been transferred to his wife, his brother, and his brother’s wife and daughter, through single-
purpose entitles controlled by them. In support of its claims, the proponent filed over 1,000 pages
of corporate and property records, a spreadsheet of “ties to Luis Boschetti” for the impleaded
single-purpose entities, as well as website screenshots of advertisements for a Boschetti company
and its portfolio of properties owned by the impleaded defendants. 271 So. 2d at 120-21.
9. In Regents Park Investments, LLC, the proponent of the lis pendens filed in
connection with an action for specific performance of a contract to sell real property was able to
meet its burden by showing that its claims arose out of a written contract, its interrogatory answers
swearing that it was ready, willing and able to close on the closing date, and evidence that the
seller was not able to close due to outstanding liens. 197 So. 3d at 621.
10. In Porter Homes, Inc. v. Soda, the Second District affirmed a trial court’s holding
that a lis pendens should not be dissolved where the plaintiff alleged that the judgment debtor was
the president and owner of the defendant whose property was subject to the lis pendens despite the
property owner’s claim that there was no connection between it and the subject property or the
judgment debtor and the subject property. 540 So. 2d 195, 195-96 (Fla. 2d DCA 1989).
60738697-1
11. Bieberstein contends that a proffer of evidence is sufficient to meet his burden.
Defendants may contend that evidence is required. In any event, Bieberstein is prepared to present
evidence supporting the existence of good-faith, viable claims.
Plaintiff's Complaint and Showing of a Fair Nexu:
A “Fair Nexus” is Established by the Complaint
12. The underlying facts are substantially similar and the claims are identical to those
in LB Judgment Holdings, LLC v. Boschetti. A “fair nexus” was found to exist therein. Therefore,
a “fair nexus” exists herein. Like Gabriel, Boschetti engaged in fraudulent transfers to his family
members while a collections action was pending against him. Like Bieberstein, LB Judgment
holdings was forced to chase down multiple fraudulent transfers to multiple family members and
filed a lis pendens in order to prevent additional fraudulent transfers while the litigation to set aside
Boshetti’s transfers was pending.
13. Moreover, alienation of the property or the imposition of intervening liens would
absolutely disserve the purposes for which lis pendens exists. In fact, the need for a lis pendens
has already been demonstrated by Moonstone. Bieberstein’s Lis Pendens was filed on May 31,
2019. In June 2019, Moonstone acquired a new property at 18320 Paulson Drive for $1,355,000.
In December 2019, Moonstone fraudulently transferred the property to Blue Breeze, LLC, a newly
formed entity with the same address as Moonstone and which purports to have two of Niclas’
friends from Brantford, Ontario as its managers for $25,000. As a result of the fraudulent transfer,
Bieberstein has had to amend his complaint and add Blue Breeze, LLC as a defendant to set aside
the fraudulent transfer.
The Plaintiff's Third Amended Complaint States Causes of Action Related to the Propertie:
14. The Third Amended Complaint alleges claims for:
60738697-1
Count I- A money judgment against Gabriel Kirchberger (“Gabriel”) based
upon his failure to pay indebtedness in the principal amount of €7,314,892.25
plus interest since December 2009;
Counts II and II] — A money judgment against Southern Shores Enterprises,
LLC (“Southern”) based upon fraudulent transfer;
Counts IV and V — To void the fraudulent transfer of Gabriel’s 100%
membership interest in Moonstone Holdings, LLC (“Moonstone”) to Niclas X.
Kirchberger (“Niclas”), attachment against said membership interest, an
injunction against further disposition of said membership interest, appointment
of a receiver, and execution on said membership interest;
Count VI — Declaration that Southern is Gabriel’s alter ego and that its assets
are available for execution;
Count VII -— Declaration that Moonstone is Gabriel’s alter ego and that its assets
are available for execution;
Count VIII — To void the fraudulent transfer of Gabriel’s business opportunities
and funds to Andreas Kirchberger (“Andreas”) and Golden Key Properties,
LLC (“Golden Key”), attachment against Andreas’ membership interest in
Golden Key, an injunction against further disposition of said membership
interest, appointment of a receiver, and execution on said membership interest;
Counts IX and X — To void the fraudulent transfer of 15213 Leipzig Circle from
Gabriel to Niclas;
Counts XI — To void the fraudulent transfer of Gabriel’s 47% membership
interest in Southern to Carol DeVille (“DeVille”) or, in the alternative, for
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damages based upon the difference in the value of the membership interest and
the consideration actually paid;
Counts XII and XIII — To void the fraudulent transfer of 18320 Paulson Drive
from Moonstone to Blue Breeze;
15. Counts I-X of the Third Amended Complaint are substantially similar to Counts I-
V and VII of the Second Amended Complaint. Defendants initially responded to Second Amended
Complaint by moving to dismiss it. Their motions were all denied by the Court. Based upon the
case law provided by Defendants in anticipation of the June 17" hearing, Plaintiff expects the
Defendants to renew their arguments that Bieberstein’s Complaint fails to state a cause of action.
However, these arguments were properly rejected when the Court denied their Motions to Dismiss
and should be rejected again.
16. Defendants argue that Bieberstein’s claims are not yet ripe. However, it is well
established that a creditor can pursue claims against the transferees under fraudulent transfers even
before a judgment has been obtained against the debtor. Friedman v. Heart Institute of Port St.
Lucie, Inc., 863 So. 2d 189 (Fla. 2003). The case law relied upon by Defendants in support of their
arguments is inapposite:
a. Martinez v. Scanlan, 582 So. 2d 1167 (Fla. 1991) and Williams v. Howard, 329
So, 2d 277 (Fla. 1976) both involved the constitutionality of then-recently
enacted statutes. In each case, the Florida Supreme Court held that the plaintiffs
lacked standing because the plaintiffs did not know how their rights would be
adversely affected and the nature or type of injury that would be sustained.
Santa Rosa County v. Administration Commission Division of Administrative
Hearings, 661 So. 2d 1190 (Fla. 1995) involved a party that continued litigating
60738697-1
a dispute after a settlement mooted the pending controversy, claiming that it
needed guidance in the event that the same dispute arose in the future.
17. In contrast, this action involves a suit on seven (7) debt acknowledgements which
a Canadian Court has already found are valid and has enforced in Ontario, Canada as well as
multiple fraudulent transfers from the debtor under said debt acknowledgments, Gabriel, to his
fiancée, DeVille, and his sons, Niclas and Andreas. Like the plaintiff/ereditor in LB Judgment
Holdings, LLC v. Boschetti, in conjunction with the fraudulent transfer action, Bieberstein also
seeks a declaration that limited liability companies that were formed after Bieberstein’s litigation
against Gabriel began and which received fraudulent transfers from Gabriel are Gabriel’s alter ego
and their assets are available to satisfy the debt represented by the debt acknowledgments.
18. Defendants attempt to distinguish LB Judgment Holdings, LLC v. Boschetti from
the instant case by pointing out that LB Judgment Holdings, LLC already had a judgment against
Boschetti when it brought its declaratory judgment action. No authority supports the argument that
this distinction makes a difference. Just as creditors are allowed to pursue fraudulent transfer
actions against transferees before judgment is entered, Bieberstein can pursue the declaratory
judgment action. In other words, if the fraudulent transfer action is ripe, the declaratory judgment
action is also ripe.
Bieberstein Can Show Good Faith, Viable Claims
19. At the hearing, Bieberstein will establish good-faith, viable claims against Niclas,
Moonstone, and Southern by (a) proffering documents and (b) presenting testimony regarding the
absence of documents.
60738697-1
The Bond Amount
20. The amount of a lis pendens bond is in the discretion of this Court. Med. Facilities
Dey., Inc. y. Little Arch Creek Props, Inc., 675 So. 2d 915, 918 (Fla. 1996). “It should bear a
reasonable relationship to the amount of damages which the property-holder defendant
demonstrates will likely result if it is later determined that the notice of lis pendens was
unjustified.” Jd.
21. The Court is required to hold an evidentiary hearing before setting a bond. Licea v.
Anllo, 691 So. 2d 29 (Fla. 3d DCA 1997). At the hearing, the property-holder defendant bears the
burden of demonstrating that an unjustified lis pendens will likely result in loss or damage and the
amount of such damages which will likely result. /d. After the property holder has presented
evidence, the proponent of the lis pendens is entitled to present evidence to the contrary. /d. If the
property-holder defendant presents no evidence of potential damages, it is appropriate for the
Court to deny the motion to require a bond without prejudice. Santa Catalina Townhomes, Inc. v.
Mirza, 925 So. 2d 1147, 1147-48 (Fla. 4th DCA 2006).
22. Accordingly, Defendants bear the initial evidentiary burden to show a likelihood
that damages will result in the event that the lis pendens is ultimately determined to be unjustified.
Mitchell v. Metropolitan at Lake Eola, LLC, 947 So. 2d 1263, 1264 (Fla. Sth DCA 2007).
23. Like the plaintiff in LB Judgment Holdings, LLC vy. Boshetti, Bieberstein has
previously agreed to release the lis pendens as to any property that is sold to a bona-fide, third-
party purchaser as part of an arms-length transaction at market value, provided that the net
proceeds from the sale are escrowed pending the outcome of the litigation. Bieberstein has also
agreed to subordinate the lis pendens to allow any mortgage to be refinanced, so long as the
principal amount of the mortgage does not increase as a result of the refinance. The reason for
60738697-1
agreeing to do so is that said agreement mitigates damages related to a lost opportunity to sell or
refinance and that cash in an escrow account is easier to execute upon than real property. See LB
Judgment Holdings, LLC, 271 So. 3d at 123.
24. Although other potential damages might be demonstrated under the peculiar facts
of a case, generally damages are established by the methodology adopted by the Fourth District in
Haisfield v. ACP Florida Holdings, Inc., 629 So. 2d 963 (Fla. 4th DCA 1993). Mitchell, 947 So.
2d at 1264. In Haisfield, the trial court determined that a lis pendens had been wrongfully filed. It
then awarded the defendant amounts in excess of the plaintiff's lis pendens bond based upon a lost
profits theory. The Fourth District rejected the trial court’s theory and directed that it calculate the
damages based upon the difference between the property’s fair market value at the time of filing
of the lis pendens and the fair market value at the time of its termination, plus any consequential
damages, including the award of operating expenses if the property declined in value, prejudgment
interest from the date of termination of the lis pendens, and attorney’s fees.
25. LB Judgment Holdings, LLC, 271 So. 3d at 124 is an example of peculiar
circumstances. Therein, the trial court based potential damages upon the investment losses the
property-owner defendants would suffer in the event that a lender foreclosed upon the property. It
used evidence that the defendants presented regarding equity contributions and shareholder loans
to the single-asset entities that held the properties subject to the lis pendens. Bieberstein does not
expect the Defendants herein to present similar evidence. Given that most of the properties (31 of
45°) are not subject to mortgages, Bieberstein’s agreement to release properties to accommodate
arms-length sales, as well as Bieberstein’s agreement to subordinate to refinancing, this
methodology is inappropriate.
321 of 31 for Moonstone, | of 1 for Niclas, and 9 of 13 for Southern.
60738697-1 10
26. The parties have also agreed that for purposes of the hearing on the Motions to
Dissolve the Notice of Lis Pendens, the property appraiser’s January 1, 2019 tax assessed value is
the fair market value of each of the properties subject to the lis pendens.
27. Bieberstein submits that the Court should follow the methodology used by the trial
court in Haisfield, 629 So. 2d at 963. Using that methodology, the amount of the bond should be
based upon lost interest on the potential proceeds from any sale. Said amount is shown on the
spreadsheet summary that Bieberstein is providing to the Court contemporaneous with the
provision of this Memorandum.
28. Finally, in order to be factored into the amount of the bond, attorneys’ fees must be
established by competent, substantial evidence supporting the amount. LB Judgment Holdings,
LLC, 271 So. 3d at 122. Additionally, defendants are not entitled to include all attorneys’ fees
which may be incurred during the entire litigation in the trial court. /d. In the event that Defendants
fail to present competent, substantial evidence as to attorneys’ fees, the request that such amounts
be included in the bond should be denied without prejudice. See Santa Catalina Townhomes, Inc.,
925 So. 2d at 1147-48.
WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, respectfully requests that this Court
enter an Order Denying Defendants’ Motions to Dissolve the Lis Pendens, Extending the Lis
Pendens, Establishing a Lis Pendens Bond, and for such other relief as this Court deems just and
proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing document on June 17, 2020
with the Clerk of Court using the Florida Courts E-Filing Portal, which will send a notice of
electronic filing to: Glenn N. Siegel, Esquire, Glenn N. Siegel, P.A., 17825 Murdock Circle, Suite
60738697-1 11
A, Port Charlotte, Florida 33948, at kim@glennsiegellaw.com, Counsel for Gabriel Kirchberger;
David K. Oaks, Esquire, David K. Oaks, P.A., 407 East Marion Avenue, Suite 101, Punta Gorda,
Florida 33950, at doaksesq/@comeast.net, Counsel for Carol DeVille and Southern Shore
Enterprises, LLC, Robert W. Segur, Esquire, Robert W. Segur P.A., 2828 S. McCall Road PMB
56, Englewood, Florida 34224, at legal@segurlaw.net, Counsel for Moonstone Holdings, LLC,
Niclas Kirchberger, and Christine Frazer; Christopher J. Klein, Esquire, Baur & Klein, P.A.,
New World Tower, Suite 2100, 100 North Biscayne Boulevard, Miami, Florida 33132, at
Cklein@worldwidelaw.com and Ocardonne@worldwidelaw.com, Counsel for Defendants
Andreas Kirchberger and Golden Key Properties, LLC; and Kristina Hager Snyderman,
Esquire, Barnes Walker, Goethe, Perron & Shea, PLLC, 3119 Manatee Avenue West, Bradenton,
Florida 34205, at ksnyderman@barneswalker.com and mfuller@barneswalker.com, Counsel for
Intervenors, Robles and Monrroys.
ADAMS AND REESE LLP
1515 Ringling Boulevard, Suite 700
Sarasota, Florida 34236
Primary: ryan.owen@arlaw.com
Primary: drew, chesanek @arlaw.com
Secondary: deborah.woodson@arlaw.com
Telephone: (941) 316-7600
Counsel for Plaintiff
By:_/s/ Ryan W. Owen
Ryan W. Owen
Florida Bar No.: 0029355
Drew F. Chesanek
Florida Bar No.: 0115933
60738697-1 12
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Filing # 108968679 E-Filed 06/17/2020 09:08:05 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION HARRY BIEBERSTEIN, Plaintiff, Vv. Case No. 17-CA-917 GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORES ENTERPRISES, LLC, a Florida limited liability company, and MOONSTONE HOLDINGS, LLC, a Nevada limited liability company, Defendants. / MEMORANDUM IN OPPOSITION TO DEFEDANTS’ MOTIONS TO DISSOLVE NOTICE OF LIS PENDENS Plaintiff, Harry Bieberstein (“Bieberstein”), files this Memorandum in Opposition to (1) Niclas X. Kirchberger’s Motion to Discharge Lis Pendens (filed 07/09/2019); and (2) Carol DeVille and Southern Shores Enterprises, LLC’s Motion to Discharge Lis Pendens (filed (07/01/2019)! and in support thereof states: Introduction 1 This is an action whereby a creditor, Bieberstein, seeks (a) to collect amounts that are owed, (b) to set aside classic-fraudulent transfers made by the debtor, Gabriel Kirchberger (“Gabriel”) in order to collect those amounts, (c) to have the entities which were established in order to hide Gabriel’s assets from Bieberstein declared Gabriel’s alter ego so that their assets will ' Although Golden Key Properties, LLC and Andreas Kirchberger also filed a Motion to Discharge Lis Pendens or, alternatively, to Require a Bond on August 5, 2019, said Motion was mooted when Plaintiff filed an Amended Notice of Lis Pendens on June 11, 2020 which did not include any of the properties owned by Golden Key Properties, LLC that were previously subject to the Notice of Lis Pendens. Bieberstein has never subjected any property owned by Andreas Kirchberger 60738697-1 1 be immediately available for satisfaction of Gabriel’s debt to Bieberstein, and, with the filing of the Third Amended Complaint, (d) set aside a further fraudulent transfer made by the initial transferee. The relevant facts are remarkably similar to those in LB Judgment Holdings, LLC v. Boschetti, 271 So. 2d 115 (Fla. 3d DCA 2019) and Bieberstein’s claims are modeled after the plaintiff's claims therein. 2 Defendant, Niclas Kirchberger (“Niclas”), owns one (1) property that is subject to the lis pendens. Defendant, Southern Shores Enterprises, LLC (“Southern”) owns twelve (12) properties that are subject to the lis pendens. Defendant Moonstone Holdings, LLC (“Moonstone”) owns 29 properties that are subject to the lis pendens”. On June 15, 2020, the Intervenors, who own two (2) properties conveyed by Moonstone, filed a notice of joinder in the motions. 3 In advance of the hearing on June 17", Bieberstein’s counsel has conferred with counsel for Southern and Moonstone/Niclas regarding the procedure for the hearing. Counsel are in substantial agreement regarding the procedure and burdens for the hearing. The main points of contention are (a) whether Bieberstein can meet the requirements to sustain his lis pendens and, if so, (b) the amount of the lis pendens bond. There is no dispute that Bieberstein’s claim is not founded upon a duly recorded instrument or that Niclas and Southern are entitled to a bond posted by Bieberstein in order to protect them in the event that the court ultimately decides that the lis pendens was wrongfully filed. ? Moonstone has not moved to dissolve the lis pendens against its properties or requested that this Court set a bond. Pursuant to Rule 1.100(b) of the Florida Rules of Civil Procedure, “application to the court for an order must be by motion which must be made in writing unless made during a hearing or trial, must state with particularity the grounds for it, and must set forth the relief or order sought.” Despite the lack of a motion having been filed on behalf of Moonstone, Bieberstein is prepared to argue the propriety of the lis pendens against Moonstone’s properties. 60738697-1 2 Requirements to Sustain a Lis Penden: 4 Section 48.23, Fla. Stat. authorizes the recording of a notice of lis pendens when a suit is filed that could affect title in property. The notice of lis pendens serves two purposes: (1) it protects purchasers or encumbrancers from becoming embroiled in the suit; and (2) it protects the plaintiff from intervening liens that could impair property rights claimed or extinguish the plaintiffs unrecorded interest. /.B.J. Inv. of So. Fla., Inc. v. Maslanka, 163 So. 3d 726, 728 (Fla 5th DCA 2015) (citing Chiusolo v. Kennedy, 614 So. 2d 491, 492 (Fla. 1993)). 5 In order to sustain a lis pendens, a plaintiff must demonstrate a “fair nexus” between the apparent legal or equitable interest in the property and the dispute embodied in the lawsuit. /d. “Tf alienation of the property or the imposition of intervening liens conceivably could disserve the purposes for which lis pendens exists, a fair nexus must be found.” /d. 6. Establishing a fair nexus requires the showing of a “good faith, viable claim.” Nu- Vision, LLC y. Corporate Convenience, Inc., 965 So. 2d 232, 234 (Fla. 3d DCA 2007) (“Establishing a ‘fair nexus’ between a claim in litigation and the property’s title requires a little more than simply pleading a theoretical nexus.”) 7 Because it is impracticable to require a proponent of a lis pendens to fully prove each element of its claim in an evidentiary hearing where the parties have not completed discovery, the proponent is only required to make “a minimal showing that there is at least some basis for the underlying claim and show that he or she has a good faith basis to allege facts supporting a claim and that the facts alleged would at least state a viable claim.” Regents Park Inv., LLC v. Bankers Lending Sves., Inc., 197 So. 3d 617, 621 (Fla. 3d DCA 2016) (quoting Nu-Vision, LLC v. Corporate Convenience, Inc., 965 So. 2d 232, 236 (Fla. 5th DCA 2007)). “Importantly, at the preliminary procedural point of a motion to dismiss the lis pendens before trial, the evaluation of 60738697-1 ‘fair nexus’ is not a trial or mini-trial on the merits of all elements of the lis pendens proponent’s claims. Rather, ‘the relevant question is whether alienation of the property or the imposition of intervening liens conceivably could disserve the purposes for which the lis pendens exists. Where the answer is yes, fair nexus must be found.’”” LB Judgment Holdings, LLC, 271 So. 3d at 119. 8 In LB Judgment Holdings, LLC, the District Court reversed a trial court’s dissolution of a lis pendens where the creditor ascertained that some of the debtor’s assets had been transferred to his wife, his brother, and his brother’s wife and daughter, through single- purpose entitles controlled by them. In support of its claims, the proponent filed over 1,000 pages of corporate and property records, a spreadsheet of “ties to Luis Boschetti” for the impleaded single-purpose entities, as well as website screenshots of advertisements for a Boschetti company and its portfolio of properties owned by the impleaded defendants. 271 So. 2d at 120-21. 9. In Regents Park Investments, LLC, the proponent of the lis pendens filed in connection with an action for specific performance of a contract to sell real property was able to meet its burden by showing that its claims arose out of a written contract, its interrogatory answers swearing that it was ready, willing and able to close on the closing date, and evidence that the seller was not able to close due to outstanding liens. 197 So. 3d at 621. 10. In Porter Homes, Inc. v. Soda, the Second District affirmed a trial court’s holding that a lis pendens should not be dissolved where the plaintiff alleged that the judgment debtor was the president and owner of the defendant whose property was subject to the lis pendens despite the property owner’s claim that there was no connection between it and the subject property or the judgment debtor and the subject property. 540 So. 2d 195, 195-96 (Fla. 2d DCA 1989). 60738697-1 11. Bieberstein contends that a proffer of evidence is sufficient to meet his burden. Defendants may contend that evidence is required. In any event, Bieberstein is prepared to present evidence supporting the existence of good-faith, viable claims. Plaintiff's Complaint and Showing of a Fair Nexu: A “Fair Nexus” is Established by the Complaint 12. The underlying facts are substantially similar and the claims are identical to those in LB Judgment Holdings, LLC v. Boschetti. A “fair nexus” was found to exist therein. Therefore, a “fair nexus” exists herein. Like Gabriel, Boschetti engaged in fraudulent transfers to his family members while a collections action was pending against him. Like Bieberstein, LB Judgment holdings was forced to chase down multiple fraudulent transfers to multiple family members and filed a lis pendens in order to prevent additional fraudulent transfers while the litigation to set aside Boshetti’s transfers was pending. 13. Moreover, alienation of the property or the imposition of intervening liens would absolutely disserve the purposes for which lis pendens exists. In fact, the need for a lis pendens has already been demonstrated by Moonstone. Bieberstein’s Lis Pendens was filed on May 31, 2019. In June 2019, Moonstone acquired a new property at 18320 Paulson Drive for $1,355,000. In December 2019, Moonstone fraudulently transferred the property to Blue Breeze, LLC, a newly formed entity with the same address as Moonstone and which purports to have two of Niclas’ friends from Brantford, Ontario as its managers for $25,000. As a result of the fraudulent transfer, Bieberstein has had to amend his complaint and add Blue Breeze, LLC as a defendant to set aside the fraudulent transfer. The Plaintiff's Third Amended Complaint States Causes of Action Related to the Propertie: 14. The Third Amended Complaint alleges claims for: 60738697-1 Count I- A money judgment against Gabriel Kirchberger (“Gabriel”) based upon his failure to pay indebtedness in the principal amount of €7,314,892.25 plus interest since December 2009; Counts II and II] — A money judgment against Southern Shores Enterprises, LLC (“Southern”) based upon fraudulent transfer; Counts IV and V — To void the fraudulent transfer of Gabriel’s 100% membership interest in Moonstone Holdings, LLC (“Moonstone”) to Niclas X. Kirchberger (“Niclas”), attachment against said membership interest, an injunction against further disposition of said membership interest, appointment of a receiver, and execution on said membership interest; Count VI — Declaration that Southern is Gabriel’s alter ego and that its assets are available for execution; Count VII -— Declaration that Moonstone is Gabriel’s alter ego and that its assets are available for execution; Count VIII — To void the fraudulent transfer of Gabriel’s business opportunities and funds to Andreas Kirchberger (“Andreas”) and Golden Key Properties, LLC (“Golden Key”), attachment against Andreas’ membership interest in Golden Key, an injunction against further disposition of said membership interest, appointment of a receiver, and execution on said membership interest; Counts IX and X — To void the fraudulent transfer of 15213 Leipzig Circle from Gabriel to Niclas; Counts XI — To void the fraudulent transfer of Gabriel’s 47% membership interest in Southern to Carol DeVille (“DeVille”) or, in the alternative, for 60738697-1 damages based upon the difference in the value of the membership interest and the consideration actually paid; Counts XII and XIII — To void the fraudulent transfer of 18320 Paulson Drive from Moonstone to Blue Breeze; 15. Counts I-X of the Third Amended Complaint are substantially similar to Counts I- V and VII of the Second Amended Complaint. Defendants initially responded to Second Amended Complaint by moving to dismiss it. Their motions were all denied by the Court. Based upon the case law provided by Defendants in anticipation of the June 17" hearing, Plaintiff expects the Defendants to renew their arguments that Bieberstein’s Complaint fails to state a cause of action. However, these arguments were properly rejected when the Court denied their Motions to Dismiss and should be rejected again. 16. Defendants argue that Bieberstein’s claims are not yet ripe. However, it is well established that a creditor can pursue claims against the transferees under fraudulent transfers even before a judgment has been obtained against the debtor. Friedman v. Heart Institute of Port St. Lucie, Inc., 863 So. 2d 189 (Fla. 2003). The case law relied upon by Defendants in support of their arguments is inapposite: a. Martinez v. Scanlan, 582 So. 2d 1167 (Fla. 1991) and Williams v. Howard, 329 So, 2d 277 (Fla. 1976) both involved the constitutionality of then-recently enacted statutes. In each case, the Florida Supreme Court held that the plaintiffs lacked standing because the plaintiffs did not know how their rights would be adversely affected and the nature or type of injury that would be sustained. Santa Rosa County v. Administration Commission Division of Administrative Hearings, 661 So. 2d 1190 (Fla. 1995) involved a party that continued litigating 60738697-1 a dispute after a settlement mooted the pending controversy, claiming that it needed guidance in the event that the same dispute arose in the future. 17. In contrast, this action involves a suit on seven (7) debt acknowledgements which a Canadian Court has already found are valid and has enforced in Ontario, Canada as well as multiple fraudulent transfers from the debtor under said debt acknowledgments, Gabriel, to his fiancée, DeVille, and his sons, Niclas and Andreas. Like the plaintiff/ereditor in LB Judgment Holdings, LLC v. Boschetti, in conjunction with the fraudulent transfer action, Bieberstein also seeks a declaration that limited liability companies that were formed after Bieberstein’s litigation against Gabriel began and which received fraudulent transfers from Gabriel are Gabriel’s alter ego and their assets are available to satisfy the debt represented by the debt acknowledgments. 18. Defendants attempt to distinguish LB Judgment Holdings, LLC v. Boschetti from the instant case by pointing out that LB Judgment Holdings, LLC already had a judgment against Boschetti when it brought its declaratory judgment action. No authority supports the argument that this distinction makes a difference. Just as creditors are allowed to pursue fraudulent transfer actions against transferees before judgment is entered, Bieberstein can pursue the declaratory judgment action. In other words, if the fraudulent transfer action is ripe, the declaratory judgment action is also ripe. Bieberstein Can Show Good Faith, Viable Claims 19. At the hearing, Bieberstein will establish good-faith, viable claims against Niclas, Moonstone, and Southern by (a) proffering documents and (b) presenting testimony regarding the absence of documents. 60738697-1 The Bond Amount 20. The amount of a lis pendens bond is in the discretion of this Court. Med. Facilities Dey., Inc. y. Little Arch Creek Props, Inc., 675 So. 2d 915, 918 (Fla. 1996). “It should bear a reasonable relationship to the amount of damages which the property-holder defendant demonstrates will likely result if it is later determined that the notice of lis pendens was unjustified.” Jd. 21. The Court is required to hold an evidentiary hearing before setting a bond. Licea v. Anllo, 691 So. 2d 29 (Fla. 3d DCA 1997). At the hearing, the property-holder defendant bears the burden of demonstrating that an unjustified lis pendens will likely result in loss or damage and the amount of such damages which will likely result. /d. After the property holder has presented evidence, the proponent of the lis pendens is entitled to present evidence to the contrary. /d. If the property-holder defendant presents no evidence of potential damages, it is appropriate for the Court to deny the motion to require a bond without prejudice. Santa Catalina Townhomes, Inc. v. Mirza, 925 So. 2d 1147, 1147-48 (Fla. 4th DCA 2006). 22. Accordingly, Defendants bear the initial evidentiary burden to show a likelihood that damages will result in the event that the lis pendens is ultimately determined to be unjustified. Mitchell v. Metropolitan at Lake Eola, LLC, 947 So. 2d 1263, 1264 (Fla. Sth DCA 2007). 23. Like the plaintiff in LB Judgment Holdings, LLC vy. Boshetti, Bieberstein has previously agreed to release the lis pendens as to any property that is sold to a bona-fide, third- party purchaser as part of an arms-length transaction at market value, provided that the net proceeds from the sale are escrowed pending the outcome of the litigation. Bieberstein has also agreed to subordinate the lis pendens to allow any mortgage to be refinanced, so long as the principal amount of the mortgage does not increase as a result of the refinance. The reason for 60738697-1 agreeing to do so is that said agreement mitigates damages related to a lost opportunity to sell or refinance and that cash in an escrow account is easier to execute upon than real property. See LB Judgment Holdings, LLC, 271 So. 3d at 123. 24. Although other potential damages might be demonstrated under the peculiar facts of a case, generally damages are established by the methodology adopted by the Fourth District in Haisfield v. ACP Florida Holdings, Inc., 629 So. 2d 963 (Fla. 4th DCA 1993). Mitchell, 947 So. 2d at 1264. In Haisfield, the trial court determined that a lis pendens had been wrongfully filed. It then awarded the defendant amounts in excess of the plaintiff's lis pendens bond based upon a lost profits theory. The Fourth District rejected the trial court’s theory and directed that it calculate the damages based upon the difference between the property’s fair market value at the time of filing of the lis pendens and the fair market value at the time of its termination, plus any consequential damages, including the award of operating expenses if the property declined in value, prejudgment interest from the date of termination of the lis pendens, and attorney’s fees. 25. LB Judgment Holdings, LLC, 271 So. 3d at 124 is an example of peculiar circumstances. Therein, the trial court based potential damages upon the investment losses the property-owner defendants would suffer in the event that a lender foreclosed upon the property. It used evidence that the defendants presented regarding equity contributions and shareholder loans to the single-asset entities that held the properties subject to the lis pendens. Bieberstein does not expect the Defendants herein to present similar evidence. Given that most of the properties (31 of 45°) are not subject to mortgages, Bieberstein’s agreement to release properties to accommodate arms-length sales, as well as Bieberstein’s agreement to subordinate to refinancing, this methodology is inappropriate. 321 of 31 for Moonstone, | of 1 for Niclas, and 9 of 13 for Southern. 60738697-1 10 26. The parties have also agreed that for purposes of the hearing on the Motions to Dissolve the Notice of Lis Pendens, the property appraiser’s January 1, 2019 tax assessed value is the fair market value of each of the properties subject to the lis pendens. 27. Bieberstein submits that the Court should follow the methodology used by the trial court in Haisfield, 629 So. 2d at 963. Using that methodology, the amount of the bond should be based upon lost interest on the potential proceeds from any sale. Said amount is shown on the spreadsheet summary that Bieberstein is providing to the Court contemporaneous with the provision of this Memorandum. 28. Finally, in order to be factored into the amount of the bond, attorneys’ fees must be established by competent, substantial evidence supporting the amount. LB Judgment Holdings, LLC, 271 So. 3d at 122. Additionally, defendants are not entitled to include all attorneys’ fees which may be incurred during the entire litigation in the trial court. /d. In the event that Defendants fail to present competent, substantial evidence as to attorneys’ fees, the request that such amounts be included in the bond should be denied without prejudice. See Santa Catalina Townhomes, Inc., 925 So. 2d at 1147-48. WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, respectfully requests that this Court enter an Order Denying Defendants’ Motions to Dissolve the Lis Pendens, Extending the Lis Pendens, Establishing a Lis Pendens Bond, and for such other relief as this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing document on June 17, 2020 with the Clerk of Court using the Florida Courts E-Filing Portal, which will send a notice of electronic filing to: Glenn N. Siegel, Esquire, Glenn N. Siegel, P.A., 17825 Murdock Circle, Suite 60738697-1 11 A, Port Charlotte, Florida 33948, at kim@glennsiegellaw.com, Counsel for Gabriel Kirchberger; David K. Oaks, Esquire, David K. Oaks, P.A., 407 East Marion Avenue, Suite 101, Punta Gorda, Florida 33950, at doaksesq/@comeast.net, Counsel for Carol DeVille and Southern Shore Enterprises, LLC, Robert W. Segur, Esquire, Robert W. Segur P.A., 2828 S. McCall Road PMB 56, Englewood, Florida 34224, at legal@segurlaw.net, Counsel for Moonstone Holdings, LLC, Niclas Kirchberger, and Christine Frazer; Christopher J. Klein, Esquire, Baur & Klein, P.A., New World Tower, Suite 2100, 100 North Biscayne Boulevard, Miami, Florida 33132, at Cklein@worldwidelaw.com and Ocardonne@worldwidelaw.com, Counsel for Defendants Andreas Kirchberger and Golden Key Properties, LLC; and Kristina Hager Snyderman, Esquire, Barnes Walker, Goethe, Perron & Shea, PLLC, 3119 Manatee Avenue West, Bradenton, Florida 34205, at ksnyderman@barneswalker.com and mfuller@barneswalker.com, Counsel for Intervenors, Robles and Monrroys. ADAMS AND REESE LLP 1515 Ringling Boulevard, Suite 700 Sarasota, Florida 34236 Primary: ryan.owen@arlaw.com Primary: drew, chesanek @arlaw.com Secondary: deborah.woodson@arlaw.com Telephone: (941) 316-7600 Counsel for Plaintiff By:_/s/ Ryan W. Owen Ryan W. Owen Florida Bar No.: 0029355 Drew F. Chesanek Florida Bar No.: 0115933 60738697-1 12