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Filing # 44247284 E-Filed 07/21/2016 11:22:43 AM
17TH JUDICIAL CIRCUIT COURT
BROWARD COUNTY, FLORIDA
Case No. CACE 16 011606 (Div. 13)
Yariv Alima
Plaintiff
vs.
Atmos Technology LLC; Atmos Investments LLC,
Cesy Group LLC; ELH Products LLC;
Atmos Nation LLC; SMJ Marketing, Inc.;
Import Nation LLC; Charly Benassayag PA;
Eli Eroch; Shlomi Biton; and Charly Benassayag
Defendants /
DEFENDANTS ATMOS NATION LLC AND IMPORT NATION LLC’S
MOTION TO DISSOLVE GARNISHMENT WRITS
DIRECTED TO TD BANK N.A.
Defendants Atmos Nation LLC and Import Nation LLC (the “Companies”),
pursuant to §77.07, Fla. Stat., challenge the grounds upon which the prejudgment
writs of garnishment entered on July 19, 2016 as to TD Bank, N.A. (“Granishee”)
were issued, and move for their immediate dissolution. In support and for good
cause, the Companies state:
FACTUAL BACKGROUND
Plaintiff Yariv Alima, a 25% owner of the Companies, was a former manager
of the Companies until the owners of the remaining 75% - SMJ, Benassayag, Eroch,
and Benassayag PA (the “Majority Members”) - jointly agreed to terminate him on
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 7/21/2016 11:22:42 AM.****Case No. CACE 16 011606 (Div. 13)
March 31, 2016. This termination extended to all of Plaintiff's positions, including
as a manager, employee, consultant and an officer of the Companies and their
affiliates. Plaintiff was terminated after the 75% Majority Members discovered that
Plaintiff misappropriated one million dollars ($1,000,000.00) from one of the
Companies’ bank accounts without authorization, and was utilizing corporate
resources for purely personal business ventures and expenses.
Recognizing the serious harm that Plaintiff could inflict on the Companies by
continuing to improperly misappropriate funds from corporate accounts, following
Plaintiffs termination the Majority Members jointly agreed by way of a lawful
written consent to transfer the funds from corporate accounts at Bank of America
and BB&T Bank into new corporate accounts at TD Bank. Notwithstanding
Plaintiff's conclusory allegations, there is zero evidence to support any contention
that the transferred corporate funds have been either converted to the Majority
Members’ individual use or benefit, that said funds are at risk of being dissipated or
transferred beyond the jurisdiction of the Court, or that Plaintiff had no notice of the
transfers.
In fact, on April 27, 2016 - the first time that any funds were transferred -
counsel for the Majority Members advised Plaintiff of the transfers and attached a
copy of the written consent authorizing the transfer and explaining the purpose of
preventing Plaintiff from making additional unauthorized withdrawals. A true and
correct copy of Leonard Samuels April 27, 2016 E-mail to Plaintiffs former counsel,
John Mullin, is attached hereto as Exhibit “A”.
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Waterway @atacnCase No. CACE 16 011606 (Div. 13)
Subsequently, on July 11, 2016, Plaintiff filed a Request for Emergency Relief
along with a Verified Emergency Ex Parte Motion for Issuance of Prejudgment Writs of
Garnishment (the “Emergency Motion”). The Emergency Motion sought “to secure
and recover $502,000 (which represents [Plaintiff's] twenty-five (25%) share of
the defendant corporate funds in the accounts) that has been wrongfully
converted by the remaining defendant shareholders.” Emergency Motion at J 2
(emphasis added). On July 18, 2016, the Court granted Plaintiff's ex parte Emergency
Motion and ordered the Clerk of the Court to issue prejudgment writs of
garnishment against Atmos Nation and Import Nation and directed to Garnishee, TD
Bank, N.A. (the “Writs of Garnishment”).
ARGUMENT AND MEMORANDUM OF LAW
“Garnishment statutes are strictly construed.” Pineiro v. Am. Exp. Card Servs.
Co., 105 So. 3d 614, 616 (Fla. 4th DCA 2013) (quoting Gigliotti Contracting N., Inc. v.
Traffic Control Prods. of N. Fla., Inc. 788 So. 2d 1013, 1016 (Fla. 2d DCA 2001); see
also Corbin v. St. Lucie River Co., 78 So. 2d 396, 397 (Fla. 1955) (stating that the
statutory requirements of garnishment “must be strictly complied with”). Florida
law requires that in order to obtain the issuance of a prejudgment writ of
garnishment, Plaintiff must:
Flile in the court where the action is pending a verified
motion or affidavit alleging by specific facts the nature
of the cause of action; the amount of the debt and that
the debt for which the plaintiff sues is just, due, and
unpaid; that the garnishment is not sued out to injure
either the defendant or the garnishee; and that the
plaintiff believes that the defendant will not have in
his or her possession, after execution is issued,
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Waterway @atacnCase No. CACE 16 011606 (Div. 13)
tangible or intangible property in this state and in
the county in which the action is pending on which a
levy can be made sufficient to satisfy the plaintiff's
claim.
§ 77.031(2), Fla. Stat. (emphasis added).
However, Florida garnishment law further provides that a defendant may
obtain dissolution of a writ of garnishment by filing a motion stating “that any
allegation in plaintiffs motion for writ is untrue...and if the allegation in plaintiff's
motion which is denied is not proved to be true, the garnishment shall be dissolved.”
§77.07(2), Fla. Stat. The party opposing a motion to dissolve must prove the
grounds on which the writ issued and a reasonable probability of obtaining a final
judgment in his or her favor. §77.07(1), Fla. Stat.; see also Marshall-Shaw v. Ford,
755 So. 2d 162, 164 (Fla. 4th DCA 2000).
As set forth in greater detail below, the Writs of Garnishment must be
dissolved because: (a) the garnished corporate funds do not constitute a “just, due,
and unpaid” debt for purposes of obtaining relief under § 77.031(2), Fla. Stat.; and
(b) Plaintiff was not justified in believing that the Companies would not have any
tangible or intangible property within the Court’s jurisdiction to levy if Plaintiff
were to succeed on his claims against them.
L That Garnished Corporate Funds Do Not Constitute a “Just, Due, and
Unpaid” Debt Under § 77.031, Fla. Stat.
In his verified Emergency Motion, Plaintiff expressly concedes that the
$502,000 he was seeking to garnish constitutes his “twenty-five (25%) share of the
defendant corporate funds in the accounts) that has been wrongfully converted.”
Page 4 of 7
Waterway @atacnCase No. CACE 16 011606 (Div. 13)
Emergency Motion at J 2. The garnished corporate funds in no way evidence the
existence of a just, due, and unpaid debt. The Companies are not being liquidated,
and have not declared any dividend distributions that would call for payment of
$502,000, or any other amount, being paid to Plaintiff. In essence, Plaintiff is
seeking an Order from this Court declaring a dividend distribution that has not been
authorized by the Companies.
Simply put, Plaintiff has failed to allege any valid legal right or personal claim
to the garnished corporate funds sufficient to demonstrate a debt under §77.031,
Fla. Stat. Plaintiff does not allege the existence of any promissory note or any other
loan instrument that would otherwise create a valid debt. Rather, Plaintiff
improperly seeks to enjoin the Companies from rightfully managing and spending
its corporate funds via a writ of garnishment, thereby circumventing the strict
requirements to establish entitlement to injunctive relief. The Court should not
countenance such gamesmanship.
Accordingly, because Plaintiff is unable to prove that the $401,250 that was
garnished constitutes a debt of the Companies under §77.031, Fla. Stat., the Writs of
Garnishment must be dissolved.
IL Plaintiffs Belief that the Companies Will Not Have Tangible or
Intangible Property Sufficient to Satisfy Plaintiffs Claims is Not
Justified
Plaintiff alleges in his Emergency Motion that “Defendants will not maintain
or hold other available tangible or intangible property in Broward County, Florida,
or anywhere else within the jurisdiction of this Court on which a levy can be made
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Waterway @atacnCase No. CACE 16 011606 (Div. 13)
sufficient to satisfy Mr. Alima’s claim.” Emergency Motion at | 26. However, as the
former manager in charge of the Companies’ financials, Plaintiff knows (or should
have known), that in addition to approximately $2,000,000 in corporate funds a
corporate savings account at TD Bank, the Companies also own a number of
valuable patents and approximately $1,000,000 worth of inventory free and clear.
Any contention by Plaintiff that he believes that the Companies will not have
in their possession tangible or intangible property in this state and in Broward
County on which a levy can be made sufficient to satisfy his claims is unjustified
under the facts and wholly without merit.
CONCLUSION
WHEREFORE, Defendants Atmos Nation LLC and Import Nation LLC
respectfully request that the Court enter an Order dissolving the Prejudgment Writs
of Garnishment entered against them on July 18, 206 and served upon TD Bank,
N.A, and granting such other and further relief as this Court deems just and
appropriate.
Respectfully submitted,
WATERWAY BLACK pa. 1401 E Broward Blvd. Suite 204
Attorneys for Defendant entities Fort Lauderdale FL 33301
Atmos, Cesy, ELH, and Import ph-954.320.6220 fx-954.320.6005
By: _s/ Ken Waterway
Kenneth W. Waterway - kww@waterwayblack.com
Florida Bar No. 0994235
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Waterway @atacnCase No. CACE 16 011606 (Div. 13)
Certificate of Service
I certify service of a true copy of this submission by e-service through the
Florida Courts E-Filing Portal on July 21, 2016 to plaintiffs counsel as follows:
Counsel
Service Email and Fax
Office Address
Harold E. Patricoff, Esq.
Aleksey Shtivelman, Esq.
Shutts & Bowen LLP
Attorneys for Plaintiff
hpatricoff@shutts.com
ashtivelman@shutts.com
£-305.381.9982
Shutts & Bowen
200 S. Biscayne
Blvd., Suite 4100
Miami FL 33131
Leonard K. Samuels, Esq.
Jordan B. Isrow, Esq.
Berger Singerman LLP
Attorneys for Defendants
Benassayag, Benassayag
PA, Biton, Eroch, and SMJ
Marketing
drt@bergersingerman.com
lsamuels@bergersingerman.com
jisrow@bergersingerman.com
vbarthelemy@bergersingerman.
com
£-954.523.2872
Berger Singerman
350 E. Las Olas
Blvd., Suite 1400
Fort Lauderdale FL
33301
By: s/ Ken Waterway
WATERWAY BLACK pa
Attorneys for Defendant entities
Atmos, Cesy, ELH, and Import
Page 7 of 7
Waterway @atacn
Preview
Filing # 44247284 E-Filed 07/21/2016 11:22:43 AM 17TH JUDICIAL CIRCUIT COURT BROWARD COUNTY, FLORIDA Case No. CACE 16 011606 (Div. 13) Yariv Alima Plaintiff vs. Atmos Technology LLC; Atmos Investments LLC, Cesy Group LLC; ELH Products LLC; Atmos Nation LLC; SMJ Marketing, Inc.; Import Nation LLC; Charly Benassayag PA; Eli Eroch; Shlomi Biton; and Charly Benassayag Defendants / DEFENDANTS ATMOS NATION LLC AND IMPORT NATION LLC’S MOTION TO DISSOLVE GARNISHMENT WRITS DIRECTED TO TD BANK N.A. Defendants Atmos Nation LLC and Import Nation LLC (the “Companies”), pursuant to §77.07, Fla. Stat., challenge the grounds upon which the prejudgment writs of garnishment entered on July 19, 2016 as to TD Bank, N.A. (“Granishee”) were issued, and move for their immediate dissolution. In support and for good cause, the Companies state: FACTUAL BACKGROUND Plaintiff Yariv Alima, a 25% owner of the Companies, was a former manager of the Companies until the owners of the remaining 75% - SMJ, Benassayag, Eroch, and Benassayag PA (the “Majority Members”) - jointly agreed to terminate him on *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 7/21/2016 11:22:42 AM.****Case No. CACE 16 011606 (Div. 13) March 31, 2016. This termination extended to all of Plaintiff's positions, including as a manager, employee, consultant and an officer of the Companies and their affiliates. Plaintiff was terminated after the 75% Majority Members discovered that Plaintiff misappropriated one million dollars ($1,000,000.00) from one of the Companies’ bank accounts without authorization, and was utilizing corporate resources for purely personal business ventures and expenses. Recognizing the serious harm that Plaintiff could inflict on the Companies by continuing to improperly misappropriate funds from corporate accounts, following Plaintiffs termination the Majority Members jointly agreed by way of a lawful written consent to transfer the funds from corporate accounts at Bank of America and BB&T Bank into new corporate accounts at TD Bank. Notwithstanding Plaintiff's conclusory allegations, there is zero evidence to support any contention that the transferred corporate funds have been either converted to the Majority Members’ individual use or benefit, that said funds are at risk of being dissipated or transferred beyond the jurisdiction of the Court, or that Plaintiff had no notice of the transfers. In fact, on April 27, 2016 - the first time that any funds were transferred - counsel for the Majority Members advised Plaintiff of the transfers and attached a copy of the written consent authorizing the transfer and explaining the purpose of preventing Plaintiff from making additional unauthorized withdrawals. A true and correct copy of Leonard Samuels April 27, 2016 E-mail to Plaintiffs former counsel, John Mullin, is attached hereto as Exhibit “A”. Page 2 of 7 Waterway @atacnCase No. CACE 16 011606 (Div. 13) Subsequently, on July 11, 2016, Plaintiff filed a Request for Emergency Relief along with a Verified Emergency Ex Parte Motion for Issuance of Prejudgment Writs of Garnishment (the “Emergency Motion”). The Emergency Motion sought “to secure and recover $502,000 (which represents [Plaintiff's] twenty-five (25%) share of the defendant corporate funds in the accounts) that has been wrongfully converted by the remaining defendant shareholders.” Emergency Motion at J 2 (emphasis added). On July 18, 2016, the Court granted Plaintiff's ex parte Emergency Motion and ordered the Clerk of the Court to issue prejudgment writs of garnishment against Atmos Nation and Import Nation and directed to Garnishee, TD Bank, N.A. (the “Writs of Garnishment”). ARGUMENT AND MEMORANDUM OF LAW “Garnishment statutes are strictly construed.” Pineiro v. Am. Exp. Card Servs. Co., 105 So. 3d 614, 616 (Fla. 4th DCA 2013) (quoting Gigliotti Contracting N., Inc. v. Traffic Control Prods. of N. Fla., Inc. 788 So. 2d 1013, 1016 (Fla. 2d DCA 2001); see also Corbin v. St. Lucie River Co., 78 So. 2d 396, 397 (Fla. 1955) (stating that the statutory requirements of garnishment “must be strictly complied with”). Florida law requires that in order to obtain the issuance of a prejudgment writ of garnishment, Plaintiff must: Flile in the court where the action is pending a verified motion or affidavit alleging by specific facts the nature of the cause of action; the amount of the debt and that the debt for which the plaintiff sues is just, due, and unpaid; that the garnishment is not sued out to injure either the defendant or the garnishee; and that the plaintiff believes that the defendant will not have in his or her possession, after execution is issued, Page 3 of 7 Waterway @atacnCase No. CACE 16 011606 (Div. 13) tangible or intangible property in this state and in the county in which the action is pending on which a levy can be made sufficient to satisfy the plaintiff's claim. § 77.031(2), Fla. Stat. (emphasis added). However, Florida garnishment law further provides that a defendant may obtain dissolution of a writ of garnishment by filing a motion stating “that any allegation in plaintiffs motion for writ is untrue...and if the allegation in plaintiff's motion which is denied is not proved to be true, the garnishment shall be dissolved.” §77.07(2), Fla. Stat. The party opposing a motion to dissolve must prove the grounds on which the writ issued and a reasonable probability of obtaining a final judgment in his or her favor. §77.07(1), Fla. Stat.; see also Marshall-Shaw v. Ford, 755 So. 2d 162, 164 (Fla. 4th DCA 2000). As set forth in greater detail below, the Writs of Garnishment must be dissolved because: (a) the garnished corporate funds do not constitute a “just, due, and unpaid” debt for purposes of obtaining relief under § 77.031(2), Fla. Stat.; and (b) Plaintiff was not justified in believing that the Companies would not have any tangible or intangible property within the Court’s jurisdiction to levy if Plaintiff were to succeed on his claims against them. L That Garnished Corporate Funds Do Not Constitute a “Just, Due, and Unpaid” Debt Under § 77.031, Fla. Stat. In his verified Emergency Motion, Plaintiff expressly concedes that the $502,000 he was seeking to garnish constitutes his “twenty-five (25%) share of the defendant corporate funds in the accounts) that has been wrongfully converted.” Page 4 of 7 Waterway @atacnCase No. CACE 16 011606 (Div. 13) Emergency Motion at J 2. The garnished corporate funds in no way evidence the existence of a just, due, and unpaid debt. The Companies are not being liquidated, and have not declared any dividend distributions that would call for payment of $502,000, or any other amount, being paid to Plaintiff. In essence, Plaintiff is seeking an Order from this Court declaring a dividend distribution that has not been authorized by the Companies. Simply put, Plaintiff has failed to allege any valid legal right or personal claim to the garnished corporate funds sufficient to demonstrate a debt under §77.031, Fla. Stat. Plaintiff does not allege the existence of any promissory note or any other loan instrument that would otherwise create a valid debt. Rather, Plaintiff improperly seeks to enjoin the Companies from rightfully managing and spending its corporate funds via a writ of garnishment, thereby circumventing the strict requirements to establish entitlement to injunctive relief. The Court should not countenance such gamesmanship. Accordingly, because Plaintiff is unable to prove that the $401,250 that was garnished constitutes a debt of the Companies under §77.031, Fla. Stat., the Writs of Garnishment must be dissolved. IL Plaintiffs Belief that the Companies Will Not Have Tangible or Intangible Property Sufficient to Satisfy Plaintiffs Claims is Not Justified Plaintiff alleges in his Emergency Motion that “Defendants will not maintain or hold other available tangible or intangible property in Broward County, Florida, or anywhere else within the jurisdiction of this Court on which a levy can be made Page 5 of 7 Waterway @atacnCase No. CACE 16 011606 (Div. 13) sufficient to satisfy Mr. Alima’s claim.” Emergency Motion at | 26. However, as the former manager in charge of the Companies’ financials, Plaintiff knows (or should have known), that in addition to approximately $2,000,000 in corporate funds a corporate savings account at TD Bank, the Companies also own a number of valuable patents and approximately $1,000,000 worth of inventory free and clear. Any contention by Plaintiff that he believes that the Companies will not have in their possession tangible or intangible property in this state and in Broward County on which a levy can be made sufficient to satisfy his claims is unjustified under the facts and wholly without merit. CONCLUSION WHEREFORE, Defendants Atmos Nation LLC and Import Nation LLC respectfully request that the Court enter an Order dissolving the Prejudgment Writs of Garnishment entered against them on July 18, 206 and served upon TD Bank, N.A, and granting such other and further relief as this Court deems just and appropriate. Respectfully submitted, WATERWAY BLACK pa. 1401 E Broward Blvd. Suite 204 Attorneys for Defendant entities Fort Lauderdale FL 33301 Atmos, Cesy, ELH, and Import ph-954.320.6220 fx-954.320.6005 By: _s/ Ken Waterway Kenneth W. Waterway - kww@waterwayblack.com Florida Bar No. 0994235 Page 6 of 7 Waterway @atacnCase No. CACE 16 011606 (Div. 13) Certificate of Service I certify service of a true copy of this submission by e-service through the Florida Courts E-Filing Portal on July 21, 2016 to plaintiffs counsel as follows: Counsel Service Email and Fax Office Address Harold E. Patricoff, Esq. Aleksey Shtivelman, Esq. Shutts & Bowen LLP Attorneys for Plaintiff hpatricoff@shutts.com ashtivelman@shutts.com £-305.381.9982 Shutts & Bowen 200 S. Biscayne Blvd., Suite 4100 Miami FL 33131 Leonard K. Samuels, Esq. Jordan B. Isrow, Esq. Berger Singerman LLP Attorneys for Defendants Benassayag, Benassayag PA, Biton, Eroch, and SMJ Marketing drt@bergersingerman.com lsamuels@bergersingerman.com jisrow@bergersingerman.com vbarthelemy@bergersingerman. com £-954.523.2872 Berger Singerman 350 E. Las Olas Blvd., Suite 1400 Fort Lauderdale FL 33301 By: s/ Ken Waterway WATERWAY BLACK pa Attorneys for Defendant entities Atmos, Cesy, ELH, and Import Page 7 of 7 Waterway @atacn