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Filing # 11373062 Electronically Filed 03/14/2014 04:40:48 PM
IN THE CIRCUIT COURT OF THE 17™
JUDICIAL DISTRICT IN AND FOR
BROWARD COUNTY, FL
WASHINGTONGREEN FINE ART
PUBLISHING COMPANY LTD,
CASE NO.: 10-037999 (18)
Plaintiff,
Vv.
WEST END HOLDINGS LLC; WEST END
PUBLISHING LLC; and THE FINE ART OF
CRUISING LLC;
Defendants.
EMERGENCY MOTION FOR IMPLEADER OF THIRD PARTIES AND ORDER TO
SHOW CAUSE
Plaintiff in Execution, WASHINGTONGREEN FINE ART PUBLISHING COMPANY,
LTD, by and through undersigned counsel, and pursuant to §56.29, Fla. Stat., moves this Court
to implead third parties, Bax Global, Inc., and stakeholder Miami-Dade County Sheriff's Office,
and states as follows:
1. On April 15, 2013, Plaintiff in Execution, WashingtonGreen, obtained a Final
Judgment in a in the case styled: WashingtonGreen Fine Art Publishing Company, Ltd, v. West
End Holdings, LLC, West End Publishing, LLC, and the Fine Art of Cruising, LLC, Case No. 10-
037999(1) against Defendants West End Holdings, LLC, West End Publishing, LLC., and the
Fine Art of Cruising, LLC in the Broward County, Florida in the principal sum of $889,454.57.
2. Plaintiff in Execution immediately sought to identify property of the judgment
debtor and obtained an order in this Court allowing it to commence proceedings supplementary
pursuant to Florida Statute, §56.29, on or about July 13, 2013. See order attached hereto as
Exhibit “A.”. Significantly, the July 13, 2013 order provided the Plaintiff in Execution an
equitable lien on the proceeds of any recovery in the lawsuit pending between Fine Art of
STOK FOLK + KON
18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail:
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 3/14/2014 4:40:49 PM.****CASE NO.: 10-037999 (18)
Motion to Implead Third Parties and for Order to Show Cause
Page 2 of 7
Cruising, LLC v. NCL (Bahamas) Ltd, No. 08-27528 CA 01 (30) (Fla. 11" Cir. Ct.) (the “NCL
Lawsuit”).
4. Notably, prior to Plaintiff obtaining a judgment lien against the Fine Art of
Cruising, LLC, another entity, Bax Global, Inc., obtained a judgment against Fine Art of
Cruising, LLC, appearing in the State Division of Corporation’s Judgment Lien records as
entered as of January 6, 2012. However, despite its judgment lien, Bax Global, Inc., has done
nothing to effectuate the sale of the NCL Lawsuit.
5. On the other hand, in accordance with its equitable lien, Plaintiff in Execution
diligently sought to subject the NCL lawsuit to execution and effectuate the Miami Dade
County’s Sheriff's Office’s levying on the NCL Lawsuit and selling it at a public sale by:
a) Filing the Plaintiff's Further Motion for Execution of the Final Judgment Upon
the NCL Lawsuit, the FAOC’s Only Asset, and Selling it at a Sheriffs Sale to the
Highest Bidder (See Exhibit “B” hereto) and obtaining an order from this Court
granting the Further Motion (See Exhibit “C” hereto).
b) Filing the Plaintiffs Ex Parte Motion for the Entry of An Order Providing
Direction the Miami-Dade County Sheriff (the “Sheriff’) (See Exhibit “D”
hereto) and obtaining an order from this Court granting said motion (See Exhibit
“E” hereto).
c) Obtaining a Writ of Execution commanding the Sheriff to levy the NCL Lawsuit
and providing the Sheriff with Instructions for Levy upon the NCL Lawsuit (See
Composite Exhibit “F” hereto).
d) Paying $210.00 for the Sheriff to serve the Writ of Execution upon Fine Art of
Cruising. (See Exhibit “G” hereto).
STOK FOLK + KON
18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail:CASE NO.: 10-037999 (18)
Motion to Implead Third Parties and for Order to Show Cause
Page 3 of 7
e) Effectuating the Sheriffs publication of the Notice of Sheriff's Levy concerning
the NCL Lawsuit. (See Exhibit “H’” hereto),
f) Effectuating the Sheriffs publication of the Notice of Sheriff's Sale concerning
the NCL Lawsuit. (See Exhibit “I” hereto).
6. Ultimately, on March 12, 2014, Plaintiff in Execution was the successful bidder at
the Sheriffs sale of the NCL Lawsuit as a result of its bid of $100,000.00 to purchase the NCL
Lawsuit. (See Sheriff's Bill of Sale and Official Miami-Dade County Receipt attached hereto as
Composite Exhibit “J’’).
7. However, at the sale, Plaintiff in Execution was not allowed to credit bid against
the value of its judgment by the Sheriff’s office because another judgment creditor, Bax Global,
Inc., secured a judgment against lien against Defendant Fine Art of Cruising prior to Plaintiff in
Execution obtaining its judgment lien and its equitable lien. Thus, according the Sheriff, only
Bax Global, Inc., as the first judgment lien holder, was able to credit bid at the sale and all other
bidders, including Plaintiff, were required to cash bid. Thus, Plaintiff was compelled to make a
disposition of funds to the Sheriff to satisfy its winning bid in the sum of $100,000.00.
8. The Sheriff informed the Plaintiff that it would not disburse the $100,000.00 to
Bax Global, Inc. for ten (10) days following the sale, to allow Plaintiff an opportunity to
establish that its lien was superior in right and dignity to that of Bax Global, Inc., and obtain an
order that the Sheriff should return to Plaintiff its cash bid of $100,000.00.
9. This Court must deem Plaintiff in Execution’s lien to have priority over Bax
Global, Inc.’s lien for two equally compelling reasons.
10. First, by virtue of this Court awarding Plaintiff in Execution an equitable lien on
the NCL Lawsuit, by its very nature such equitable lien has priority over an unsecured
STOK FOLK + KON
18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail:CASE NO.: 10-037999 (18)
Motion to Implead Third Parties and for Order to Show Cause
Page 4 of 7
judgment lien because it attaches to a specific property. “An equitable lien is a right, not
recognized at law to have a fund or specific property, or its proceeds, applied in whole or in part
to the payment of a particular debt.” Westbourne Supply, Inc. v. Community Villas Partners, Ltd.,
508 So.2d 431 (Fla 1 DCA 1987)(quoting Hudlum v. Bre-Lew Corporation, 93 So2d 727 (Fla.
1957). An equitable lien encumbers property “so that the very thing itself may be proceeded
against in an equitable action, and either sold or sequestered under a judicial decree, and its
proceeds in the one case...applied upon the demand of the creditor in who favor the lien exists.”
Id.
lL. Second, Plaintiff in Execution is inarguably the diligent creditor in effectuating
the Sheriff's sale of Defendant in Execution’s personal property, the NCL Lawsuit, vis-a-vis Bax
Global, Inc., mandating that that the Plaintiff's lien be given priority in the satisfaction of its
judgment over Bax Global, Inc. See Salina Mfg. Co. v. Diner's Club, Inc., 382 So. 2d 1309, 1311
(Fla. 3d DCA 1980) (“[t]he diligent creditor who discovers and brings into equity the assets of a
debtor is ordinarily entitled to priority over all other creditors, including the full claim for costs
and expenses of the suit.”); see also, Whigham v. Muehl, 511 So.2d 717 (Fla. 1 DCA 1987);
Lamchick, Glucksman & Johnson v. City National Bank of Florida, 659 So.2d 1118, 1119-20
(Fla. 3d DCA 1995). In Salinas, the court held that a judgment creditor which, through
supplementary proceedings, is responsible for subjecting property of a common debtor to
execution has priority in satisfaction of its judgment from that levy, even over another judgment
creditor which had first delivered its writ of execution to the sheriff. Salinas, 382 So.2d at 1310.
The lone exception to the diligent creditor rule applies only in the context of liens on real
property where liens are still given temporal priority because of Florida Statute, §695.11. See
Lamchick, Glucksman & Johnson, 659 So.2d at 1120. As such, Plaintiff is the diligent creditor
STOK FOLK + KON
18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail:CASE NO.: 10-037999 (18)
Motion to Implead Third Parties and for Order to Show Cause
Page 5 of 7
since it effectuated the Sheriff’s sale, as opposed to Bax Global, Inc.
12. Accordingly, since the Plaintiff in Execution’s equitable lien is superior to Bax
Global, Inc.‘s judgment lien and since Plaintiff is the diligent creditor who effectuated the sale of
the NCL Lawsuit, its lien must be deemed superior in dignity and right to the lien of Bax Global,
Inc. Consequently, the Sheriff, as an innocent stakeholder, should be ordered to return to Plaintiff
in Execution the $100,000.00 sum of its winning bid for the NCL Lawsuit, as opposed to
distributing the sum to Bax Global, Inc. See Zeuda Corp. v. Grancolombiana Corp. Financiera,
S.A. 610 So. 2d 509, 510 (Fla. 3d DCA 1992) (“Where there is competent evidence before the
court in proceedings supplementary pursuant to section 56.29...which shows that property in the
hands of another person may belong to or is due to the judgment creditor, and that the property
may be disposed of to hinder the judgment creditor, it is within the trial court's broad discretion
to postpone disbursement of the property pending a speedy resolution of the ownership
question.”) Alternatively, the Sheriff should be ordered to place the money in the registry of the
Broward County Circuit Court pending the resolution of this motion.
13. As such, Plaintiff in Execution, WashingtonGreen, requests that this Court enter
an Order to Show Cause providing for Bax Global, Inc. and the Miami Dade County Sheriff's
Office, to show cause why they should not be impled as Defendants to the proceedings
supplementary previously instituted by this Court, and why Plaintiff's $100,000.00 winning bid
should not be returned to it by the Sheriff or placed in the registry of this Court. A copy of the
Plaintiff's proposed Order to Show Cause is attached hereto as Exhibit “K”.
14. Plaintiff in Execution, WashingtonGreen, requests that the Show Cause Order
provide that the Third Party Bax Global, Inc., is prohibited from seeking payment of the
$100,000.00 winning bid or deal with it in any way before the order to show cause is resolved;
STOK FOLK + KON
18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail:CASE NO.: 10-037999 (18)
Motion to Implead Third Parties and for Order to Show Cause
Page 6 of 7
and further requests the Show Cause Order provide that the Third Party Miami-Dade County
Sheriff's Office is prohibited from disbursing Plaintiff's winning bid price for the NCL Lawsuit
to Bax Global, Inc., or anyone else, before the motion for order to show cause is resolved, with
the exception that the Court may order the Sheriff to place the money in the registry of the Court.
15. In light of the fact that the sale was held on March 12, 2014 and that ten (10) days
from the sale date would be March 22, 2014, and thus the Sheriff will disburse the funds by this
date without further order of the Court, the Plaintiff requests the Court to enter the order to show
cause prohibiting the disbursement of the funds until further order of the Court because the funds
are subject to dissipation by Bax Global, Inc. should it receive them.
16. Plaintiff in Execution has incurred and is obligated to pay the undersigned counsel
a reasonable attorney’s fee for which the Defendants FAOC, WEH, and WEP are liable in
accordance with the Florida Statutes §56.29(11) and §57.115.
17. Plaintiff is filing the affidavit of its counsel, Robert A. Stok. Esq. in support of
this instant motion as Exhibit ““L” hereto.
WHEREFORE, Plaintiff in Execution respectfully request that the Court:
1. Implead Bax Global, Inc. as a party to the Proceedings Supplementary to Execution;
2. Implead the Miami-Dade County Sheriff's Office as a party to the Proceedings
Supplementary to Execution;
3. Prohibit the Miami-Dade Sheriff's Office from disbursing the Plaintiff's winning bid
sum of $100,000.00 to Bax Global, Inc., or anyone else, and ordering the Miami-
Dade Sheriffs Office to retain possession of the $100,000 winning bid sum until the
order to show cause is resolved; or alternatively, ordering the Sheriff to place the
money in the registry of this Court.
STOK FOLK + KON
18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail:CASE NO.: 10-037999 (18)
Motion to Implead Third Parties and for Order to Show Cause
Page 7 of 7
4. Such other and further relief as the Court deems just and proper.
Dated: This 14th day of March, 2014.
STOK FOLK + KON
Harbour Centre, Suite 1005
18851 NE 29" Avenue
Aventura, Florida 33180
Tel: (305) 935-4440
Fax: (305) 935-4470
E-Mail: service@stoklaw.com
jdell@stoklaw.com
BY: Josh R. Dell, Esq.
ROBERT A. STOK, ESQ.
Florida Bar No. 857051
rstok@stoklaw.com
JOSH R. DELL, ESQ.
Florida Bar No. 092341
jdell@stoklaw.com
STOK FOLK + KON
18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail:EXHIBIT AHee
TN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.: CACE10037999
WASHINGTON GREEN FINE ART
PUBLISHING COMPANY LITD.,
Plaintiff,
v.
WEST END HOLDINGS, LLC; WEST
END PUBLISHING, LLC; and THE FINE
ART OF CRUISING, LLC,
Defendants.
ORDER ON PLAINTIFF’S MOTION FOR PROCEEDING
SUPPLEMENTARY TO EXECUTION. AND IMPLEADER OF THIRD PARTIES
BREEAM ARYL BARCUDON AND IMPLEADER OF THIRD PARTIES
THIS MATTER came before the Court on July 10, 2013, on the Court’s Order to Show
Cause dated June 21, 2013. Having reviewed the defenses submitted by the Fine Ait of Cruising
(no defenses were submitted by NCL) arid the submissions of the Plaintiff, and being otherwise
daly advised in the premises, it is hereby
ORDERED AND ADJUDGED that Plaintiff's Ex Parte Motion for Proceeding
Supplementary to Execution and Impleader of Third Parties is GRANTED IN PART AND
DENIED IN PART. NCL is hereby impled in these proceedings supplementary. The Court
imposes.an equitable lien on the proceeds-of any recovery in the lawsuit peading between FAOC
and NCL, styled Fine Art of Crusing, LLC v. NCL (Bahamas) Ltd., No. 08-27528 CA 01 (30)
(Fla. Lith Cir. Ct.) (the “NCL Lawsuit”). In the event of a recovery by any party in the NCL
Lawsuit by settlement, judgment or otherwise, none of the proceeds of any such recovery are toCASE NO.: CACE10037999
be disbursed by any party until further order of this Court. The Court denies without prejudice at
this time Plaintiff's request fora sheriffs sale of the NCL Lawsuit.
DONS AND ORDERED in chambers, in Fort Lauderdale, Broward County, Florida this
tt
JUDGE Thee TURP AY we
JUL 13 208
___ day of July, 2013.
CIRCUIT COURT JUDGE
Copies to: Counsel of record
-2-EXHIBIT BIN THE CIRCUIT COURT OF THE 174
JUDICIAL DISTRICT IN AND FOR
BROWARD COUNTY, FL
WASHINGTONGREEN FINE ART
PUBLISHING COMPANY LTD,
CASE NO.: 10-037999 (18)
Plaintiff,
v.
WEST END HOLDINGS LLC; WEST END
PUBLISHING LLC; and THE FINE ART OF
CRUISING LLC;
Defendants.
EEE EE EEE Eee EEE ee EEE eee EEE EEE
EMERGENCY FURTHER MOTION FOR EXECUTION OF THE FINAL JUDGMENT
UPON THE NCL LAWSUIT, THE FAOC’S ONLY ASSET, AND SELLING IT AT A
SHERIFF’S SALE TO THE HIGHEST BIDDER
Plaintiff in Execution, WASHINGTONGREEN FINE ART PUBLISHING COMPANY,
LTD (“WashingtonGreen”), by and through undersigned counsel, files this Emergency Further
Motion against Defendants WEST END HOLDINGS, LLC (“WEH”), WEST END
PUBLISHING, LLC (“WEP”), and the FINE ART OF CRUISING, LLC (“FAOC”) for
execution of the Final Judgment Upon The NCL Lawsuit, FAOC’s only asset, at a sheriff's sale
to the highest bidder, for the following reasons:
I. FACTUAL BACKGROUND
1. After more than a year of litigation, on May 14, 2010, WashingtonGreen obtained
a final judgment against WEH, WEP, and FAOC in the High Court of Justice Queen’s Bench
Division in London England and a Default Cost Certificate on May 17, 2010 (“the English
Judgments”).
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id Then, upon WashingtonGreen’s attempt to domesticate the English Judgments,
pursuant to Uniform Foreign Money Judgment Recognition Act (UFMJRA), Fla. Stat. §55.601-
55.607, Defendants-in-Execution vigorously objected to same on frivolous grounds in an attempt
to delay the domestication of the English Judgments.
3. After three years of frivolous litigation in an attempt to re-litigate the merits of the
English Judgments, the English Judgments were finally domesticated by this Court on April 15,
2013, pursuant to Fla, Stat. §55.601-55.607, totaling Nine Hundred Twenty Three Thousand One
Hundred Sixty Six Dollars ($923,166.17) and 17/100, in addition to attorney’s fees and costs
which have yet to be taxed against FAOC, (“the Final Judgment”). A copy of the Final
Judgment is attached hereto as Exhibit A.
4, To date, WashingtonGreen’s Final Judgment remains unsatisfied. FAOC is a
company that has otherwise been defunct for years, conceding that its only asset is the NCL
Lawsuit. The claim is being contested by NCL, is unliquidated, and has a counterclaim against
the FAOC, WEH and WEP are defunct companies with no assets. The principal of Defendants-
in-Execution, Hossam Antar is in personal bankruptcy in the Southern District of Florida, case
styled: Jn re Hossam Antar, 12-13288-AJC,
5. Accordingly, WashingtonGreen initiated proceedings supplementary in an effort
to collect on its domesticated Final Judgment, and to levy on the only asset owned by
Defendants-in-Execution, NCL Lawsuit.
6. On July 13, 2013, this Court entered an Order denying without prejudice
WashingtonGreen’s request to satisfy its Final Judgment by levying on the NCL Lawsuit and
selling it at the sheriff's sale to the highest bidder, and instead awarded WashingtonGreen an
equitable lien, despite the fact that WashingtonGreen already had a more desirable judgment
STOK FOLK + KON
18851 N.E. 29th Avenue + Suite 1005 + Aventura « Florida + 33180 + Tel.: 305.935.4440 + Fax: 305.935.4470Page 3 of 19
lien, thus, staying the execution of the Final Judgment, and without requiring the Defendants-in-
Execution to file a good and sufficient bond. A copy of the July 13, 2013 Order is attached
hereto as Exhibit B.
7. During the hearing upon which the July 13, 2013 Order was entered, the
Defendants argued and the Court was concerned with interfering with the trial of the NCL
Lawsuit which was set for August, 2013.
8. However, subsequent to the July 13, 2013 Order, the trial of the NCL Lawsuit has
been continued to January, 2014, and WashingtonGreen has been permitted leave to intervene
into these proceedings, thus, allowing for the levy of the NCL Lawsuit to take place without
affecting the trial deadlines and the trial. A copy of the order continuing the trial of the NCL
Lawsuit and permitting WashingtonGreen to intervene into the NCL Lawsuit as a party is
attached hereto as Exhibit C.
9. Denial of a sheriff's sale puts WashingtonGreen at risk of losing the only asset in
FAOC’s possession, while FAOC has nothing to lose since it is a defunct company, the principal,
Hossam Antar is in personal bankruptcy, and has covertly assigned what FAOC has revealed to
be 80%, but which WashingtonGreen has learned is more likely far in excess of 100% of the
proceeds of the NCL Lawsuit to several of FAOC’s creditors, thus, leaving FAOC with
absolutely no stake in the NCL Lawsuit.
10. Denying the sheriff's sale of the NCL Lawsuit to the highest bidder essentially
indefinitely abates and stays the execution proceedings without a requirement from FAOC to
post a good and sufficient bond, and foisting on WashingtonGreen that its Final Judgment will be
worthless. Compounding this risk, NCL also has a counterclaim against FAOC, which results in
the possibility that a judgment will ultimately be rendered against FAOC. Either of these
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resulting scenarios would leave both FAOC and WashingtonGreen with zero, thus, rendering
WashingtonGreen’s judgment lien worthless.
11. Moreover, the NCL Lawsuit was been pending for over five (S) years, has been
continued and may likely be continued again, delaying WashingtonGreen indefinitely from
pursuit of its legally vested rights.
12, WashingtonGreen has familiarized itself with FAOC’s claims in the NCL Lawsuit
and does not believes them to be anything even close to the values claimed by FAOC and in fact
considers FAOC’s assessment of their value to be delusional.
13. WashingtonGreen has no connection with NCL, has no agreement of any kind
with NCL with respect to the disposition of the lawsuit or otherwise, and is only seeking to
enforce its judgment against FAOC, its legally vested right to which there is no obstacle to
enforcement of.
u. THE ARGUMENT
A. WASHINGTONGREEN HAS AN ABSOLUTE RIGHT TO EXECUTE ON
THE FINAL JUDGMENT AND THIS COURT HAS NO DISCRETION TO
DENY SUCH RIGHT ABSENT OVERRIDING PUBLIC POLICY
CONSIDERATIONS.
WashingtonGreen has an absolute legal right to the execution and levy of the NCL
Lawsuit, by selling it at the sheriffs sale for the proceeds to be applied to satisfying its Final
Judgment. See Logan v. Logan, 22 Fla, 561, 563-64 (1886) (stating that a judgment creditor has
an
undoubted right to have levied his execution at any time . . . [a] judgment creditor
may proceed at law to sell under execution lands or property which his debtor has
fraudulently alienated, which are subject to execution... . The creditor in such
cases may consider the debtor as still the owner of the property, and is entitled to
purchase it in order to obtain satisfaction of the claim the same as if the title were
unincumbered by the fraudulent deed or transfer.
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Logan y. Logan, 22 Fla. 561, 563-64 (1886). In Puzzo y. Ray, this Court stated that the purpose
of proceedings supplementary is
to provide a useful, efficacious, and salutary remedy at law enabling the judgment
creditor not only to discover assets which may be subject to his judgment, but to
subject them thereto by a speedy and direct proceeding in the same court in which
the judgment was recovered. The statute should be given a liberal construction
so as to afford to the judgment creditor the most complete relief possible.
Puzzo v. Ray, 386 So. 2d 49, 50 (Fla. 4th DCA 1980)(emphasis added). Similarly, the Supreme
Court in Ryan's Furniture Exch. v. McNair, 162 So. 483 (Fla. 1935), found that proceedings
supplementary were:
. . intended to give the circuit court broad discretionary powers to carry out the
full intent and purpose of the proceedings supplementary to execution law which
was to confer on circuit courts the right to subject any and all property, or
property rights of any defendant in execution, however fraudulently conveyed,
covered up, or concealed, the same might be, whether in the name or possession
of third parties or not, to the satisfaction of an execution outstanding against him.
Jd. Moreover, under well-settled Florida law, a judgment debtor's choses in action may be
reached by supplementary proceedings, except for those choses in action which involve personal
torts or legal malpractice because of their personal nature. Craft v. Craft, 757 So. 2d 571, 572-73
(Fla. 4th DCA 2000). See Puzzo v. Ray, 386 So.2d at 51; see also Allen v. Hinson, 560 So. 2d
411 (Fla. 1 DCA 1990) (holding that the phrase “any property” has been broadly construed to
encompass all property and. property rights of the defendant); and Puzzo v. Ray, 386 So. 2d 49
(Fla, 4" DCA 1980)(“A chose in action is a ‘property right’ which is subject to adjudication and
disposition in proceedings supplementary to execution.”)
Furthermore, although trial courts generally have broad discretion in supplementary
proceedings, such discretion is not unfettered, and was intended solely to carry out the intent and
purpose of §56.29(5), Fla. Stat. Parrot, Inc. v. Nicestuff Distrib. Intern., Inc., No. 06-61231-CIV,
2010 WL 680948 (S.D. Fla. 2010). Specifically, the only time that trial courts were allowed to
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exercise their discretion to take away the creditor’s property right and to deny the execution of
the debtor’s chose in action, was when allowing such execution would be contrary to the
overriding public policy, such as when the chose in action in execution involves personal torts or
when a relatively small judgment creditor is the defendant of the large chose in action and
attempts to execute on a lawsuit against itself, in order to dismiss it. Donan v. Dolce Vita Sa,
Inc., 992 So, 2d 859, 860 (Fla. 4th DCA 2008).
This Court reasoned in Donan, that it is inequitable and contrary to the overriding public
policy to allow a party to execute on a claim against itself, and thereafter dismiss it. Jd. Thus,
allowing the defendant to execute on the lawsuit against it would put the same entity as both the
plaintiff and the defendant, a result contrary to the public policy as the same party would be in
control of the action, Id Hence, the court in Donan cautiously held that a trial court’s discretion
could be employed to prevent an execution that would create collusive lawsuit with a plaintiff
and a defendant becoming one and the same.
In no other instances, other than the two instances mentioned above, i¢. involving
personal torts and the defendant of the chose in action executing against itself, and thereby
having contro] over the action against it, has the trial court denied the judgment creditor’s right
to execute on the debtor’s assets to satisfy its judgment during proceedings supplementary and
Florida law has never allowed the trial courts to unleash an unfettered discretion to deny a
judgment creditor’s property right under any other circumstances.
In the case at hand, WashingtonGreen is a judgment creditor, and is therefore, entitled to
execute on its Final Judgment. George E. Sebring Co. v. O’Rourke, 134 So. 556, 559 (Fla, 1931).
In O'Rourke, the Florida Supreme Court stated that even where the judgment debtor transferred
the property to another, the judgment creditor has the right to treat the attempted transfer of the
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property as a nullity, and “to sell the property so conveyed under execution”. /d. (Emphasis
added).
Moreover, in the instant case, the NCL Lawsuit is admittedly FAOC’s only asset, and
WEH, WEP and FAOC are all otherwise defunct entities, which have not conducted business for
years. A copy of Plaintiff's Notice of Filing Defendants’ Fact Information Sheets is attached
hereto as Exhibit D. Therefore, the only way to collect on the Final Judgment is for
WashingtonGreen to execute on the one and only asset in FAOC’s possession, and to sell it at a
sheriff's sale, with the proceeds of the sale to be used towards satisfaction of the Final Judgment.
WashingtonGreen, which has intervened into the NCL Lawsuit only has a judgment
creditor, has absolutely no relation to NCL or any other party in the NCL Lawsuit, has no
agreement with NCL regarding any disposition of the NCL Lawsuit and has no evidence was
presented to indicate any conspiracy or collusion, other than the unsworn disingenuous claims of
FAOC’s counsel that he was told by WashingtonGreen’s counsel that WashingtonGreen was
planning to settle with NCL if it purchased the NCL Lawsuit at a sheriff's sale, a claim which
was hotly denied by among other things, a verified affidavit of WashingtonGreen’s attorney, but
even if it were true, it is not any reason to deny execution to WashingtonGreen as if and when
WashingtonGreen were to become the owner of the NCL Lawsuit it could become
WashingtonGreen’s property and WashingtonGreen would be free to transit with it as it pleases.
Moreover, there was no such finding made by this Court of any collusion nor could any such
finding have been made because there simply is none. A copy of Robert Stok’s affidavit is
attached hereto as Exhibit E. In fact, NCL and WashingtonGreen have conflicting interests,
given that WashingtonGreen’s interest is to obtain as much money as possible to satisfy its Final
Judgment and NCL’s interest is to not pay anything to FAOC. Accordingly, the only recognized
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exception to the execution on the chose in action based on equitable grounds is not applicable
here,
FAOC is a defunct entity, has not paid its attorney’s fees nor costs to prosecute the NCL
Lawsuit, has sold all of its interest in the NCL Lawsuit to third parties, and whose principal,
Hossam Antar is in personal bankruptcy. As such, FAOC has absolutely nothing to lose by
making reckless litigation decisions and rolling the dice with WashingtonGreen’s judgment lien,
and the only way WashingtonGreen can satisfy the Final Judgment. Therefore,
WashingtonGreen who is now forced to incur more attorney’s fees and costs, to wait an
indefinite amount of time, and who will potentially collect no proceeds whatsoever from the
NCL Lawsuit is suffering the deprivation of its property rights in its Final Judgment without any
corresponding benefit or security.
To illustrate, if instead of the NCL Lawsuit, FAOC owned stock certificates or real
property, which it does not, there is no authority for the notion that a judgment debtor can be
forced to delay the execution upon such assets because, possibly, in the future, the asset may
become worth more. To demonstrate the point in the instant case, 5 years ago when FAOC
became indebted to WashintonGreen in mid 2008 the British Pound Sterling was worth
approximately 2 pounds to the US dollar.' When the WashingtonGreen judgment was finally
domesticated in this Court, the British Pound was worth 1.5311 to the dollar so that FAOC
already obtained a windfall of $208,121.54 because of its successful delay tactics. To permit
even further delay will likely result in the total confiscation of WashingtonGreen’s judgment all
together.
See table of U.S./U.K. foreign exchange rates published by the Board of Governors of the U.S. Federal Reserve
System showing that on March 1, 2008 the British Pound was worth 2.0015 U.S. Dollars. The Final Judgment in
this action was based upon the then foreign exchange rate of 1.5311 British Pounds to the U.S. Dollar for
$208,121.54 less than FAOC’s original principal debt in dollar terms. The exchange rate tables are attached as
Exhibit F.
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To permit the frustration of a creditor’s rights would lead to a bar of that judgment
creditor’s right to obtain an expeditious and complete satisfaction of its judgment, which is
contrary to public policy and the intent of proceedings supplementary. Sure, a company’s stock
may also be worth more in a few months too — or, it may be worth less or even become
worthless, Real property may rise in value — or, the real estate market might drop. Likewise,
while it is possible that the NCL Lawsuit may be worth more after trial, it is also possible that it
will be adjudged worthless after that trial if NCL gets a defense verdict. In addition, FAOC can
and will likely receive a judgment against it as well due to a pending counterclaim by NCL.
Then, the only thing that will have changed is that WashingtonGreen’s Final Judgment will
become worthless after more delay and the expenditure of more attorneys to pursue its claims, to
no avail. FAOC has already received a windfall of $208,121.54 due to market forces. To force
WashingtonGreen to roll the dice on the outcome of the NCL Lawsuit if and when it actually
goes forward would be a truly inequitable disposition of WashingtonGreen’s “equitable lien” and
against public policy because it would deprive WashingtonGreen of its property rights in its
Judgment without due process of law. If at all, it should be WashingtonGreen’s decision whether
or not to take the chance with its Final Judgment to see if FAOC wins (and collects from) the
NCL Lawsuit, or to get whatever the case is worth now. As a judgment debtor adjudged to owe
WashingtonGreen a substantial sum of money, FAOC no longer can make these decisions.
B. STAYING THE EXECUTION OF THE FINAL JUDGMENT REQUIRES A
POSTING OF A SUPERSEDEAS BOND BY DEFENDANTS-IN-
EXECUTION.
Denying WashingtonGreen’s right to sell the NCL Lawsuit at the sheriff's sale to the
highest bidder, constitutes an indefinite stay of execution without requiring FAOC to post a good
and sufficient bond. The trial courts have no authority to withhold execution of a money
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judgment unless a good and sufficient bond is posted. See Caruso v. Caruso, 932 So. 2d 457,
458 (Fla. 4th DCA 2006)(citing Mellon United Nat'l Bank v. Cochran, 776 So.2d 964 (Fla. 3d
DCA 2000)). In Cochran, the trial court granted a money judgment against the defendant, but
upon a simple request, without posting of a supersedeas bond, the court interlineated in its final
judgment “no execution until further order of court” and stated that it was suspending execution
on “equitable grounds”. See Cochran, 776 So. 2d at 964, The Cochran court reversed on a
plethora of authority and stated that if a defendant seeks to stay execution of judgment pending
the appeal, “he may obtain a stay ‘only by the posting of the bond in the amount set forth in Rule
9.310(b).’” Jd. (citations omitted); see also Palm Beach Heights Dev. & Sales Corp. v. Decillis,
385 So, 2d 1170, 1171 (Fla. 3d DCA 1980), where the court stated that the judgment debtor is
entitled to a stay of the final money judgment only by the posting of the bond in the amount set
forth in Rule 9.310(b).
A trial court is simply not empowered to deprive a judgment creditor of its right to
execute on a money judgment by ordering any lesser bond then required by the rules of appellate
procedure or otherwise setting less onerous conditions. If the trial court could simply abate or
stay the execution of a money judgment indefinitely without posting of a bond, it would
eviscerate the purpose of Rule 9.310, Fla. R. App. P. The purpose of conditioning a stay pending
review on posting a bond is to ensure the payment to the judgment creditor of the full amount of
the order on appeal, including interest, in the event the appeal is unsuccessful, or in this case, if
the outcome of the NCL Lawsuit is not favorable to the FAOC. Pabian v. Pabian, 469 So. 2d
189, 191 (Fla. 4th DCA 1985). If indefinite stays could be readily obtained in the manner a stay
was bestowed on FAOC in this case, there would be no reason to ever post a bond under Rule
9.310.
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Moreover, failure to require the FAOC to post a good and sufficient bond is tantamount
to a depravation of property, WashingtonGreen’s judgment lien, without giving it the functional
equivalent, and without due process of law. In Maplewood Phase One Homeowner's Ass'n, Inc.
v. Cecil, 585 So, 2d 370, 371 (Fla. 4th DCA 1991), court reasoned that ordering a release of the
claim of lien and allowing the sale of the real property without the requirement of posting of
good and sufficient bond would deprive the lien holder of “its property, its lien, without giving it
the functional equivalent, and without due process for law.” Jd. Further, the Cecil court
reasoned that “because the real property might be sold after release to a bona fide purchase for
value who relied on the order releasing the collateral, later review at the end of the case would
appear to be ineffective to vindicate the rights accruing under the lien.” Jd.
The instant case is similar to Cochran, in that here, WashingtonGreen received a money
judgment, and without FAOC posting a supersedeas bond, was indefinitely denied its rightful
execution on the Final Judgment. See Exhibit B. In particular, it is undisputed that FAOC is a
defunct entity, with its principal Hossam Antar in personal bankruptey?, and with NCL Lawsuit
as FAOC’s only asset. Accordingly, indefinitely denying execution on the NCL Lawsuit serves
to abate the execution proceedings. Moreover, it is even more important in this case that a bond
be posted by FAOC because unlike the majority of cases cited above requiring the posting of a
good and sufficient bond in order to stay the execution pending appeal, where the appellate
deadlines are ascertainable, the instant Order involves an indefinite stay without the posting of a
bond. As admitted by FAOC, the NCL Litigation has been pending for over five (5) years.
Currently, the NCL Lawsuit has been continued one more time to January 2014. See Exhibit C.
As such, for all WashingtonGreen knows, the NCL Lawsuit could continue for another five years
or longer and FAOC may collect zero in the end. No Florida rule requires or allows a delay and
? Southern District of Florida, case styled: f re Hossam Antar, 12-13288-AJC.
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gamble on execution of assets to satisfy a final judgment without at least the posting of a good
and sufficient bond. Furthermore, the “equitable lien” awarded to WashingtonGreen provides no
more protection than the Final Judgment itself.
C. FAOC’S DEFENSES TO PROCEEDINGS SUPPLEMENTARY LACK MERIT
AND DID NOT PRESENT ANY REASON TO DENY WASHINGTONGREEN’S
RIGHT TO EXECUTE ON ITS JUDGMENT BY SELLING THE NCL LAWSUIT
AT A JUDICIAL SALE.
i. Plaintiff Does Not Have Unclean Hands
First, FAOC argues that NCL and WashingtonGreen have unclean hands because NCL
and WashingtonGreen colluded and conspired to take the NCL lawsuit away from FAOC.
However. the FAOC did not present any evidence of collusion except the unsworn, improbable
and disingenuous claims of the FAOC’s counsel, which, even if true, does not amount to
collusion. See Exhibit E. In fact, NCL and WashingtonGreen have conflicting interests; NCL
seeks to not have to pay anything as a result of the NCL Lawsuit, while WashingtonGreen
wished to obtain proceeds to satisfy its Judgment along with the attorney’s fees and costs.
Moreover, WashingtonGreen cannot sell a lawsuit that it simply does not own.
FAOC farther argues that pursuant to Donan v. Dolee Vita SA, Inc., 992 So. 2d, 860-61,
it is inequitable and contrary to the public policy to use proceedings supplementary to allow a
party to purchase a breach of contract action against itself simply to dismiss it. However, Donan
is distinguishable from the case at bar. Donan relied on Paglia v. Breskovich, 11 Wash.App. 142,
522 P.2d 511 (1974), which reasoned that it is inequitable to allow a party to execute on a claim
against itself and thereafter dismiss the same. Specifically, Paglia admitted in open court that
his intention was to take away the other side’s ability to prosecute its case against him and to
simply dismiss it. As in Paglia and Donan, in Heritage Corp, of S. Fla., Inc. vy. Nat'l Union Fire
Ins. Co. of Pittsburgh, Pa., N. 01-003519-CIV, 2008 WL 4858244, at *3-4(S. D. Fla. Nov. 10,
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2008), the plaintiff-in execution assigned its judgment to the defendant of the chose in action,
Thus, allowing the defendant to execute on the lawsuit against it would put the same party both
the plaintiff and the defendant, a result contrary to the public policy as the same party would be
in contro] of the action,
Here, unlike in Paglia, WashingtonGreen is not a defendant in the NCL Lawsuit. Thus,
WashingtonGreen would not be controlling both sides in the NCL Lawsuit after execution even
if it were to be the highest bidder at the execution sale, Moreover, WashingtonGreen never made
any statements that it will simply dismiss the NCL Lawsuit, nor has any intention of doing so
without satisfaction of its Final Judgment. See Exhibit E; see also Affidavit of Aaron Young
attached hereto as Exhibit G. In fact, WashingtonGreen has no relation to the NCL and it would
be irrational for WashingtonGreen to forfeit a perceived monetary benefit to enrich NCL,
Accordingly, the Donan case is inapplicable to the case at bar.
ii. It Is Inequitable To Deny the Execution of the NCL Lawsuit And Allow
FAOC To Compromise The Only Asset In Its Possession.
In the next three defenses, FAOC argued that it is not equitable for this Court to order the
sale of the NCL Lawsuit because: (1) WashingtonGreen could be protected by an equitable lien
on any proceeds, (2) WashingtonGreen would have excessive leverage because
WashingtonGreen’s claim is only for $1 million dollars and the claim asserted against NCL is for
over $15 million dollars*, and (3) it would hinder FAOC’s rights and the rights of its other
creditors because FAOC would have no prospect of recovering any assets for itself against NCL.
However, to the first argument, WashingtonGreen is not protected by the equitable lien
on any proceeds whatsoever. First, upon thorough review of the NCL Lawsuit, if the NCL
> If FAOC’s claim was really worth $15,000,000.00, it should have no difficulty bonding off a $1,000,000.00
judgment by obtaining secured credit from a third party collateralized by the lawsuit even if it has no credit of its
own
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Lawsuit is taken to trial, FAOC has a high probability of losing, and in fact, obtaining a
judgment against it through the counter-claim against it. See Robert Stok’s affidavit attached
hereto as Exhibit E. Moreover, even prior to the trial, WashingtonGreen is at risk of losing the
value of the NCL Lawsuit as the FAOC could settle for an unreasonably low price, such that
would not satisfy the Final Judgment, could dismiss the NCL Lawsuit outright, realizing that it
will not obtain any proceeds from it, could settle with NCL and secrete the assets, and could
continue making reckless litigation decisions, thus, raising the attorney’s fees and costs expanded
by NCL as well as WashingtonGreen, thus, lowering the chances of a reasonable settlement. The
only way to alleviate this risk is by requiring FAOC to post a supersedeas bond to secure the
satisfaction of the Final Judgment.
As to the second argument, there is no notion that a judgment debtor cannot foreclose on
the asset higher than the value of the judgment in order to satisfy the judgment. Specifically, any
person, including FAOC or its alleged other creditors, could purchase the NCL Lawsuit at the
sheriff's sale, if it believes its claim is worth so much more than the Final Judgment amount.
Furthermore, despite FAOC’s argument that the claim is worth over $15 million, based on
WashingtonGreen’s extensive evaluation of the NCL Lawsuit, the Plaintiff believes the value of
the NCL Lawsuit to be dramatically lower than the amount claimed. See Robert Stok’s affidavit
as Exhibit E.
Finally, Defendants-in-Execution cannot champion the rights of their alleged potential
creditors because WashingtonGreen is superior to the right of FAOC, who is a judgment-debtor,
failing to make any payment to WashingtonGreen whatsoever, and to any other FAOC creditors,
under the diligent creditor rule. Salina Mfg. Co. v. Diner's Club, Inc., 382 So. 2d 1309, 1310
(Fla. 3d DCA 1980) (“[t]be diligent creditor who discovers and brings into equity the assets of a
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debtor is ordinarily entitled to priority over all other creditors, including the full claim for costs
and expenses of the suit.”)
iii. Shook, Hardy and Bacon’s Charging Lien Is Inferior To The Judgment
Lien Obtained By the Appellant WashingtonGreen And FAOC Has No
Standing To Assert Same On The Third Party’s Behalf,
Finally, FAOC argued that its counsel, Shook, Hardy and Bacon, LLP has a substantial
and superior charging lien, which takes priority to the Final Judgment obtained by
WashingtonGreen and which opposes any action which interferences with the NCL Lawsuit’s
trial, although same was filed one day before the hearing on the Order to Show Cause, on July
13, 2013.
However, those arguments are once again frivolous and disingenuous. — First, Shook
Hardy and Bacon, LLP is not a party to the proceeding, have not moved to intervene in the
instant lawsuit, and therefore, have no standing to contest such proceedings. Similarly, FAOC
has no standing to assert a claim on behalf of Shook Hardy and Bacon, LLP. “[A] litigant must
assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights
or interests of third parties.” Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936, 941
(Fla. 2002). FAOC continues to insist that its claims and the claims of Shook, Hardy and Bacon,
LLP claims against NCL are substantial, but a party does not become a real party in interest due
to “a contingent interest or mere expectancy.” United States v. 936.71 Acres of Land, More or
Less, in Brevard County, State of Florida, 418 F.2d 551, 556 (5th Cir. 1969); (citing Morgan v.
King, 312 Ky. 792 (1950)); see also Penn Central Commercial Paper Litigation y. Goldman,
Sachs & Co., 62 F.R.D. 341 (S.D.N.Y. 1974).
Second, Shook, Hardy and Bacon, LLP’s lien cannot be perfected and enforced as the
NCL Lawsuit is not yet complete. An essential prerequisite to imposition of a charging lien is
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that the underlying litigation produces a positive judgment or settlement - in other words, some
“tangible fruits of the attorney's service” for the benefit of the client. Robert C. Malt & Co. v.
Carpet World Distribs., Inc., 861 So.2d 1285, 1288 (Fla. 4th DCA 2004); Correa v. Christensen,
780 So.2d 220 (Fla. 5th DCA 2001). If the litigation produces no judgment of monetary value for
the client, the court may not impose a charging lien for the attorney's benefit. Pasin v. Kroo, 412
So.2d 43, 44 (Fla. 3d DCA 1982). If the action does not reach a final judgment, imposition of a
charging lien is premature. Walia v. Hodgson Russ LLP, 28 So, 3d 987, 989 (Fla. 4th DCA
2010); See Franklin & Marbin, P.A, v. Mascola, 23 Fla. L. Weekly D744, D746, 711 So.2d 46
(Fla. 4th DCA March 18, 1998) (stating that charging lien could not attach where no money or
identifiable property was recovered in the subject litigation); Litman v. Fine, Jacobson,
Schwartz, Nash, Block & England, P.A., 517 So.2d 88, 92 (Fla. 3d DCA 1987) (“[T]he services
must, in addition, produce a positive judgment or settlement for the client, since the lien will
attach only to the tangible fruits of the services.”)
Here, WashingtonGreen has a Final Judgment against FAOC, and has a lien against the
NCL Lawsuit. Unlike WashingtonGreen, Shook, Hardy, and Bacon, LLP could only assert a
charging lien against its client, FAOC, and any potential proceeds of the client in the hands of
their client FAOC. Under Rule 4-1,2 of the Florida Rules Regulating the Florida Bar, the client
controls the litigation, rather than the attorney. In New England Mutual Life Insurance vy.
Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin, & Perwin, P.A., 690 So, 2d 1354, 1356
(Fla. 3d DCA 1997), the court clarified a very important distinction between a charging lien
asserted by the attorney against its client and against the third party. There, the law firm
attempted to assert a claim against the lender, a third party, in a summary proceeding, by filing a
motion in the underlying claim. The Podhurst court stated, that to establish a charging lien
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against its own client is permitted and preferred to be done in a summary proceeding: however,
to impress a charging lien on the third party’s interest in the proceeds, or to obtain a
determination that the law firm’s charging lien was entitled to priority over the third party’s
proceeds, the law firm had to file a separate suit against that third party.
The present case is analogous to Podhurst, in that after allegedly five years of litigation,
Shook, Hardy and Bacon filed a notice of charging lien in the NCL Lawsuit one day before the
hearing on the Order to Show Cause and argued, through its client, that it somehow has a
superior lien to WashingtonGreen and tries to assert the same in summary proceedings, without
filing an appropriate action or attempting to implead into the case.
Shook, Hardy and Bacon filed a notice of its charging lien only on July 13, 2013, while
WashingtonGreen obtained a Judgment in the High Court Queen’s Branch on May 14, 2010,
more than three years prior to Shook Hardy and Bacon, LLP’s lien. “The general rule of priority
is first in time, first in right. ‘The general rule that a security interest that is prior in time is
superior to a late
Preview
Filing # 11373062 Electronically Filed 03/14/2014 04:40:48 PM IN THE CIRCUIT COURT OF THE 17™ JUDICIAL DISTRICT IN AND FOR BROWARD COUNTY, FL WASHINGTONGREEN FINE ART PUBLISHING COMPANY LTD, CASE NO.: 10-037999 (18) Plaintiff, Vv. WEST END HOLDINGS LLC; WEST END PUBLISHING LLC; and THE FINE ART OF CRUISING LLC; Defendants. EMERGENCY MOTION FOR IMPLEADER OF THIRD PARTIES AND ORDER TO SHOW CAUSE Plaintiff in Execution, WASHINGTONGREEN FINE ART PUBLISHING COMPANY, LTD, by and through undersigned counsel, and pursuant to §56.29, Fla. Stat., moves this Court to implead third parties, Bax Global, Inc., and stakeholder Miami-Dade County Sheriff's Office, and states as follows: 1. On April 15, 2013, Plaintiff in Execution, WashingtonGreen, obtained a Final Judgment in a in the case styled: WashingtonGreen Fine Art Publishing Company, Ltd, v. West End Holdings, LLC, West End Publishing, LLC, and the Fine Art of Cruising, LLC, Case No. 10- 037999(1) against Defendants West End Holdings, LLC, West End Publishing, LLC., and the Fine Art of Cruising, LLC in the Broward County, Florida in the principal sum of $889,454.57. 2. Plaintiff in Execution immediately sought to identify property of the judgment debtor and obtained an order in this Court allowing it to commence proceedings supplementary pursuant to Florida Statute, §56.29, on or about July 13, 2013. See order attached hereto as Exhibit “A.”. Significantly, the July 13, 2013 order provided the Plaintiff in Execution an equitable lien on the proceeds of any recovery in the lawsuit pending between Fine Art of STOK FOLK + KON 18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail: *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 3/14/2014 4:40:49 PM.****CASE NO.: 10-037999 (18) Motion to Implead Third Parties and for Order to Show Cause Page 2 of 7 Cruising, LLC v. NCL (Bahamas) Ltd, No. 08-27528 CA 01 (30) (Fla. 11" Cir. Ct.) (the “NCL Lawsuit”). 4. Notably, prior to Plaintiff obtaining a judgment lien against the Fine Art of Cruising, LLC, another entity, Bax Global, Inc., obtained a judgment against Fine Art of Cruising, LLC, appearing in the State Division of Corporation’s Judgment Lien records as entered as of January 6, 2012. However, despite its judgment lien, Bax Global, Inc., has done nothing to effectuate the sale of the NCL Lawsuit. 5. On the other hand, in accordance with its equitable lien, Plaintiff in Execution diligently sought to subject the NCL lawsuit to execution and effectuate the Miami Dade County’s Sheriff's Office’s levying on the NCL Lawsuit and selling it at a public sale by: a) Filing the Plaintiff's Further Motion for Execution of the Final Judgment Upon the NCL Lawsuit, the FAOC’s Only Asset, and Selling it at a Sheriffs Sale to the Highest Bidder (See Exhibit “B” hereto) and obtaining an order from this Court granting the Further Motion (See Exhibit “C” hereto). b) Filing the Plaintiffs Ex Parte Motion for the Entry of An Order Providing Direction the Miami-Dade County Sheriff (the “Sheriff’) (See Exhibit “D” hereto) and obtaining an order from this Court granting said motion (See Exhibit “E” hereto). c) Obtaining a Writ of Execution commanding the Sheriff to levy the NCL Lawsuit and providing the Sheriff with Instructions for Levy upon the NCL Lawsuit (See Composite Exhibit “F” hereto). d) Paying $210.00 for the Sheriff to serve the Writ of Execution upon Fine Art of Cruising. (See Exhibit “G” hereto). STOK FOLK + KON 18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail:CASE NO.: 10-037999 (18) Motion to Implead Third Parties and for Order to Show Cause Page 3 of 7 e) Effectuating the Sheriffs publication of the Notice of Sheriff's Levy concerning the NCL Lawsuit. (See Exhibit “H’” hereto), f) Effectuating the Sheriffs publication of the Notice of Sheriff's Sale concerning the NCL Lawsuit. (See Exhibit “I” hereto). 6. Ultimately, on March 12, 2014, Plaintiff in Execution was the successful bidder at the Sheriffs sale of the NCL Lawsuit as a result of its bid of $100,000.00 to purchase the NCL Lawsuit. (See Sheriff's Bill of Sale and Official Miami-Dade County Receipt attached hereto as Composite Exhibit “J’’). 7. However, at the sale, Plaintiff in Execution was not allowed to credit bid against the value of its judgment by the Sheriff’s office because another judgment creditor, Bax Global, Inc., secured a judgment against lien against Defendant Fine Art of Cruising prior to Plaintiff in Execution obtaining its judgment lien and its equitable lien. Thus, according the Sheriff, only Bax Global, Inc., as the first judgment lien holder, was able to credit bid at the sale and all other bidders, including Plaintiff, were required to cash bid. Thus, Plaintiff was compelled to make a disposition of funds to the Sheriff to satisfy its winning bid in the sum of $100,000.00. 8. The Sheriff informed the Plaintiff that it would not disburse the $100,000.00 to Bax Global, Inc. for ten (10) days following the sale, to allow Plaintiff an opportunity to establish that its lien was superior in right and dignity to that of Bax Global, Inc., and obtain an order that the Sheriff should return to Plaintiff its cash bid of $100,000.00. 9. This Court must deem Plaintiff in Execution’s lien to have priority over Bax Global, Inc.’s lien for two equally compelling reasons. 10. First, by virtue of this Court awarding Plaintiff in Execution an equitable lien on the NCL Lawsuit, by its very nature such equitable lien has priority over an unsecured STOK FOLK + KON 18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail:CASE NO.: 10-037999 (18) Motion to Implead Third Parties and for Order to Show Cause Page 4 of 7 judgment lien because it attaches to a specific property. “An equitable lien is a right, not recognized at law to have a fund or specific property, or its proceeds, applied in whole or in part to the payment of a particular debt.” Westbourne Supply, Inc. v. Community Villas Partners, Ltd., 508 So.2d 431 (Fla 1 DCA 1987)(quoting Hudlum v. Bre-Lew Corporation, 93 So2d 727 (Fla. 1957). An equitable lien encumbers property “so that the very thing itself may be proceeded against in an equitable action, and either sold or sequestered under a judicial decree, and its proceeds in the one case...applied upon the demand of the creditor in who favor the lien exists.” Id. lL. Second, Plaintiff in Execution is inarguably the diligent creditor in effectuating the Sheriff's sale of Defendant in Execution’s personal property, the NCL Lawsuit, vis-a-vis Bax Global, Inc., mandating that that the Plaintiff's lien be given priority in the satisfaction of its judgment over Bax Global, Inc. See Salina Mfg. Co. v. Diner's Club, Inc., 382 So. 2d 1309, 1311 (Fla. 3d DCA 1980) (“[t]he diligent creditor who discovers and brings into equity the assets of a debtor is ordinarily entitled to priority over all other creditors, including the full claim for costs and expenses of the suit.”); see also, Whigham v. Muehl, 511 So.2d 717 (Fla. 1 DCA 1987); Lamchick, Glucksman & Johnson v. City National Bank of Florida, 659 So.2d 1118, 1119-20 (Fla. 3d DCA 1995). In Salinas, the court held that a judgment creditor which, through supplementary proceedings, is responsible for subjecting property of a common debtor to execution has priority in satisfaction of its judgment from that levy, even over another judgment creditor which had first delivered its writ of execution to the sheriff. Salinas, 382 So.2d at 1310. The lone exception to the diligent creditor rule applies only in the context of liens on real property where liens are still given temporal priority because of Florida Statute, §695.11. See Lamchick, Glucksman & Johnson, 659 So.2d at 1120. As such, Plaintiff is the diligent creditor STOK FOLK + KON 18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail:CASE NO.: 10-037999 (18) Motion to Implead Third Parties and for Order to Show Cause Page 5 of 7 since it effectuated the Sheriff’s sale, as opposed to Bax Global, Inc. 12. Accordingly, since the Plaintiff in Execution’s equitable lien is superior to Bax Global, Inc.‘s judgment lien and since Plaintiff is the diligent creditor who effectuated the sale of the NCL Lawsuit, its lien must be deemed superior in dignity and right to the lien of Bax Global, Inc. Consequently, the Sheriff, as an innocent stakeholder, should be ordered to return to Plaintiff in Execution the $100,000.00 sum of its winning bid for the NCL Lawsuit, as opposed to distributing the sum to Bax Global, Inc. See Zeuda Corp. v. Grancolombiana Corp. Financiera, S.A. 610 So. 2d 509, 510 (Fla. 3d DCA 1992) (“Where there is competent evidence before the court in proceedings supplementary pursuant to section 56.29...which shows that property in the hands of another person may belong to or is due to the judgment creditor, and that the property may be disposed of to hinder the judgment creditor, it is within the trial court's broad discretion to postpone disbursement of the property pending a speedy resolution of the ownership question.”) Alternatively, the Sheriff should be ordered to place the money in the registry of the Broward County Circuit Court pending the resolution of this motion. 13. As such, Plaintiff in Execution, WashingtonGreen, requests that this Court enter an Order to Show Cause providing for Bax Global, Inc. and the Miami Dade County Sheriff's Office, to show cause why they should not be impled as Defendants to the proceedings supplementary previously instituted by this Court, and why Plaintiff's $100,000.00 winning bid should not be returned to it by the Sheriff or placed in the registry of this Court. A copy of the Plaintiff's proposed Order to Show Cause is attached hereto as Exhibit “K”. 14. Plaintiff in Execution, WashingtonGreen, requests that the Show Cause Order provide that the Third Party Bax Global, Inc., is prohibited from seeking payment of the $100,000.00 winning bid or deal with it in any way before the order to show cause is resolved; STOK FOLK + KON 18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail:CASE NO.: 10-037999 (18) Motion to Implead Third Parties and for Order to Show Cause Page 6 of 7 and further requests the Show Cause Order provide that the Third Party Miami-Dade County Sheriff's Office is prohibited from disbursing Plaintiff's winning bid price for the NCL Lawsuit to Bax Global, Inc., or anyone else, before the motion for order to show cause is resolved, with the exception that the Court may order the Sheriff to place the money in the registry of the Court. 15. In light of the fact that the sale was held on March 12, 2014 and that ten (10) days from the sale date would be March 22, 2014, and thus the Sheriff will disburse the funds by this date without further order of the Court, the Plaintiff requests the Court to enter the order to show cause prohibiting the disbursement of the funds until further order of the Court because the funds are subject to dissipation by Bax Global, Inc. should it receive them. 16. Plaintiff in Execution has incurred and is obligated to pay the undersigned counsel a reasonable attorney’s fee for which the Defendants FAOC, WEH, and WEP are liable in accordance with the Florida Statutes §56.29(11) and §57.115. 17. Plaintiff is filing the affidavit of its counsel, Robert A. Stok. Esq. in support of this instant motion as Exhibit ““L” hereto. WHEREFORE, Plaintiff in Execution respectfully request that the Court: 1. Implead Bax Global, Inc. as a party to the Proceedings Supplementary to Execution; 2. Implead the Miami-Dade County Sheriff's Office as a party to the Proceedings Supplementary to Execution; 3. Prohibit the Miami-Dade Sheriff's Office from disbursing the Plaintiff's winning bid sum of $100,000.00 to Bax Global, Inc., or anyone else, and ordering the Miami- Dade Sheriffs Office to retain possession of the $100,000 winning bid sum until the order to show cause is resolved; or alternatively, ordering the Sheriff to place the money in the registry of this Court. STOK FOLK + KON 18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail:CASE NO.: 10-037999 (18) Motion to Implead Third Parties and for Order to Show Cause Page 7 of 7 4. Such other and further relief as the Court deems just and proper. Dated: This 14th day of March, 2014. STOK FOLK + KON Harbour Centre, Suite 1005 18851 NE 29" Avenue Aventura, Florida 33180 Tel: (305) 935-4440 Fax: (305) 935-4470 E-Mail: service@stoklaw.com jdell@stoklaw.com BY: Josh R. Dell, Esq. ROBERT A. STOK, ESQ. Florida Bar No. 857051 rstok@stoklaw.com JOSH R. DELL, ESQ. Florida Bar No. 092341 jdell@stoklaw.com STOK FOLK + KON 18851 NE 29" Avenue + Suite 1005 + Aventura, Florida 33180 + (305) 935-4440 + FAX: (305) 935-4470 + e-mail:EXHIBIT AHee TN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE10037999 WASHINGTON GREEN FINE ART PUBLISHING COMPANY LITD., Plaintiff, v. WEST END HOLDINGS, LLC; WEST END PUBLISHING, LLC; and THE FINE ART OF CRUISING, LLC, Defendants. ORDER ON PLAINTIFF’S MOTION FOR PROCEEDING SUPPLEMENTARY TO EXECUTION. AND IMPLEADER OF THIRD PARTIES BREEAM ARYL BARCUDON AND IMPLEADER OF THIRD PARTIES THIS MATTER came before the Court on July 10, 2013, on the Court’s Order to Show Cause dated June 21, 2013. Having reviewed the defenses submitted by the Fine Ait of Cruising (no defenses were submitted by NCL) arid the submissions of the Plaintiff, and being otherwise daly advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiff's Ex Parte Motion for Proceeding Supplementary to Execution and Impleader of Third Parties is GRANTED IN PART AND DENIED IN PART. NCL is hereby impled in these proceedings supplementary. The Court imposes.an equitable lien on the proceeds-of any recovery in the lawsuit peading between FAOC and NCL, styled Fine Art of Crusing, LLC v. NCL (Bahamas) Ltd., No. 08-27528 CA 01 (30) (Fla. Lith Cir. Ct.) (the “NCL Lawsuit”). In the event of a recovery by any party in the NCL Lawsuit by settlement, judgment or otherwise, none of the proceeds of any such recovery are toCASE NO.: CACE10037999 be disbursed by any party until further order of this Court. The Court denies without prejudice at this time Plaintiff's request fora sheriffs sale of the NCL Lawsuit. DONS AND ORDERED in chambers, in Fort Lauderdale, Broward County, Florida this tt JUDGE Thee TURP AY we JUL 13 208 ___ day of July, 2013. CIRCUIT COURT JUDGE Copies to: Counsel of record -2-EXHIBIT BIN THE CIRCUIT COURT OF THE 174 JUDICIAL DISTRICT IN AND FOR BROWARD COUNTY, FL WASHINGTONGREEN FINE ART PUBLISHING COMPANY LTD, CASE NO.: 10-037999 (18) Plaintiff, v. WEST END HOLDINGS LLC; WEST END PUBLISHING LLC; and THE FINE ART OF CRUISING LLC; Defendants. EEE EE EEE Eee EEE ee EEE eee EEE EEE EMERGENCY FURTHER MOTION FOR EXECUTION OF THE FINAL JUDGMENT UPON THE NCL LAWSUIT, THE FAOC’S ONLY ASSET, AND SELLING IT AT A SHERIFF’S SALE TO THE HIGHEST BIDDER Plaintiff in Execution, WASHINGTONGREEN FINE ART PUBLISHING COMPANY, LTD (“WashingtonGreen”), by and through undersigned counsel, files this Emergency Further Motion against Defendants WEST END HOLDINGS, LLC (“WEH”), WEST END PUBLISHING, LLC (“WEP”), and the FINE ART OF CRUISING, LLC (“FAOC”) for execution of the Final Judgment Upon The NCL Lawsuit, FAOC’s only asset, at a sheriff's sale to the highest bidder, for the following reasons: I. FACTUAL BACKGROUND 1. After more than a year of litigation, on May 14, 2010, WashingtonGreen obtained a final judgment against WEH, WEP, and FAOC in the High Court of Justice Queen’s Bench Division in London England and a Default Cost Certificate on May 17, 2010 (“the English Judgments”). STOK FOLK + KON 18851 N.E. 29th Avenue » Suite 1095 + Aventura » Florida - 33180 + Tel.: 305.935.4440 + Fax: 305.935.4470Page 2 of 19 id Then, upon WashingtonGreen’s attempt to domesticate the English Judgments, pursuant to Uniform Foreign Money Judgment Recognition Act (UFMJRA), Fla. Stat. §55.601- 55.607, Defendants-in-Execution vigorously objected to same on frivolous grounds in an attempt to delay the domestication of the English Judgments. 3. After three years of frivolous litigation in an attempt to re-litigate the merits of the English Judgments, the English Judgments were finally domesticated by this Court on April 15, 2013, pursuant to Fla, Stat. §55.601-55.607, totaling Nine Hundred Twenty Three Thousand One Hundred Sixty Six Dollars ($923,166.17) and 17/100, in addition to attorney’s fees and costs which have yet to be taxed against FAOC, (“the Final Judgment”). A copy of the Final Judgment is attached hereto as Exhibit A. 4, To date, WashingtonGreen’s Final Judgment remains unsatisfied. FAOC is a company that has otherwise been defunct for years, conceding that its only asset is the NCL Lawsuit. The claim is being contested by NCL, is unliquidated, and has a counterclaim against the FAOC, WEH and WEP are defunct companies with no assets. The principal of Defendants- in-Execution, Hossam Antar is in personal bankruptcy in the Southern District of Florida, case styled: Jn re Hossam Antar, 12-13288-AJC, 5. Accordingly, WashingtonGreen initiated proceedings supplementary in an effort to collect on its domesticated Final Judgment, and to levy on the only asset owned by Defendants-in-Execution, NCL Lawsuit. 6. On July 13, 2013, this Court entered an Order denying without prejudice WashingtonGreen’s request to satisfy its Final Judgment by levying on the NCL Lawsuit and selling it at the sheriff's sale to the highest bidder, and instead awarded WashingtonGreen an equitable lien, despite the fact that WashingtonGreen already had a more desirable judgment STOK FOLK + KON 18851 N.E. 29th Avenue + Suite 1005 + Aventura « Florida + 33180 + Tel.: 305.935.4440 + Fax: 305.935.4470Page 3 of 19 lien, thus, staying the execution of the Final Judgment, and without requiring the Defendants-in- Execution to file a good and sufficient bond. A copy of the July 13, 2013 Order is attached hereto as Exhibit B. 7. During the hearing upon which the July 13, 2013 Order was entered, the Defendants argued and the Court was concerned with interfering with the trial of the NCL Lawsuit which was set for August, 2013. 8. However, subsequent to the July 13, 2013 Order, the trial of the NCL Lawsuit has been continued to January, 2014, and WashingtonGreen has been permitted leave to intervene into these proceedings, thus, allowing for the levy of the NCL Lawsuit to take place without affecting the trial deadlines and the trial. A copy of the order continuing the trial of the NCL Lawsuit and permitting WashingtonGreen to intervene into the NCL Lawsuit as a party is attached hereto as Exhibit C. 9. Denial of a sheriff's sale puts WashingtonGreen at risk of losing the only asset in FAOC’s possession, while FAOC has nothing to lose since it is a defunct company, the principal, Hossam Antar is in personal bankruptcy, and has covertly assigned what FAOC has revealed to be 80%, but which WashingtonGreen has learned is more likely far in excess of 100% of the proceeds of the NCL Lawsuit to several of FAOC’s creditors, thus, leaving FAOC with absolutely no stake in the NCL Lawsuit. 10. Denying the sheriff's sale of the NCL Lawsuit to the highest bidder essentially indefinitely abates and stays the execution proceedings without a requirement from FAOC to post a good and sufficient bond, and foisting on WashingtonGreen that its Final Judgment will be worthless. Compounding this risk, NCL also has a counterclaim against FAOC, which results in the possibility that a judgment will ultimately be rendered against FAOC. Either of these STOK FOLK + KON 18851 N.E. 29th Avenue + Suite 1005 » Aventura + Florida « 33180 + Tel,: 305.935.4440 + Fax: 305.935.4470Page 4 of 19 resulting scenarios would leave both FAOC and WashingtonGreen with zero, thus, rendering WashingtonGreen’s judgment lien worthless. 11. Moreover, the NCL Lawsuit was been pending for over five (S) years, has been continued and may likely be continued again, delaying WashingtonGreen indefinitely from pursuit of its legally vested rights. 12, WashingtonGreen has familiarized itself with FAOC’s claims in the NCL Lawsuit and does not believes them to be anything even close to the values claimed by FAOC and in fact considers FAOC’s assessment of their value to be delusional. 13. WashingtonGreen has no connection with NCL, has no agreement of any kind with NCL with respect to the disposition of the lawsuit or otherwise, and is only seeking to enforce its judgment against FAOC, its legally vested right to which there is no obstacle to enforcement of. u. THE ARGUMENT A. WASHINGTONGREEN HAS AN ABSOLUTE RIGHT TO EXECUTE ON THE FINAL JUDGMENT AND THIS COURT HAS NO DISCRETION TO DENY SUCH RIGHT ABSENT OVERRIDING PUBLIC POLICY CONSIDERATIONS. WashingtonGreen has an absolute legal right to the execution and levy of the NCL Lawsuit, by selling it at the sheriffs sale for the proceeds to be applied to satisfying its Final Judgment. See Logan v. Logan, 22 Fla, 561, 563-64 (1886) (stating that a judgment creditor has an undoubted right to have levied his execution at any time . . . [a] judgment creditor may proceed at law to sell under execution lands or property which his debtor has fraudulently alienated, which are subject to execution... . The creditor in such cases may consider the debtor as still the owner of the property, and is entitled to purchase it in order to obtain satisfaction of the claim the same as if the title were unincumbered by the fraudulent deed or transfer. STOK FOLK + KON 18851 N.E. 29th Avenue * Suite 1005 + Aventura + Florida + 33180 + Tel. 305.935.4440 « Fax: 305.936.4470Page § of 19 Logan y. Logan, 22 Fla. 561, 563-64 (1886). In Puzzo y. Ray, this Court stated that the purpose of proceedings supplementary is to provide a useful, efficacious, and salutary remedy at law enabling the judgment creditor not only to discover assets which may be subject to his judgment, but to subject them thereto by a speedy and direct proceeding in the same court in which the judgment was recovered. The statute should be given a liberal construction so as to afford to the judgment creditor the most complete relief possible. Puzzo v. Ray, 386 So. 2d 49, 50 (Fla. 4th DCA 1980)(emphasis added). Similarly, the Supreme Court in Ryan's Furniture Exch. v. McNair, 162 So. 483 (Fla. 1935), found that proceedings supplementary were: . . intended to give the circuit court broad discretionary powers to carry out the full intent and purpose of the proceedings supplementary to execution law which was to confer on circuit courts the right to subject any and all property, or property rights of any defendant in execution, however fraudulently conveyed, covered up, or concealed, the same might be, whether in the name or possession of third parties or not, to the satisfaction of an execution outstanding against him. Jd. Moreover, under well-settled Florida law, a judgment debtor's choses in action may be reached by supplementary proceedings, except for those choses in action which involve personal torts or legal malpractice because of their personal nature. Craft v. Craft, 757 So. 2d 571, 572-73 (Fla. 4th DCA 2000). See Puzzo v. Ray, 386 So.2d at 51; see also Allen v. Hinson, 560 So. 2d 411 (Fla. 1 DCA 1990) (holding that the phrase “any property” has been broadly construed to encompass all property and. property rights of the defendant); and Puzzo v. Ray, 386 So. 2d 49 (Fla, 4" DCA 1980)(“A chose in action is a ‘property right’ which is subject to adjudication and disposition in proceedings supplementary to execution.”) Furthermore, although trial courts generally have broad discretion in supplementary proceedings, such discretion is not unfettered, and was intended solely to carry out the intent and purpose of §56.29(5), Fla. Stat. Parrot, Inc. v. Nicestuff Distrib. Intern., Inc., No. 06-61231-CIV, 2010 WL 680948 (S.D. Fla. 2010). Specifically, the only time that trial courts were allowed to STOK FOLK + KON 18851 N.E. 28th Avenue + Suite 1005 » Aventura » Florida + 33180 + Tel.; 305.935.4440 + Fax: 305.935.4470Page 6 of 19 exercise their discretion to take away the creditor’s property right and to deny the execution of the debtor’s chose in action, was when allowing such execution would be contrary to the overriding public policy, such as when the chose in action in execution involves personal torts or when a relatively small judgment creditor is the defendant of the large chose in action and attempts to execute on a lawsuit against itself, in order to dismiss it. Donan v. Dolce Vita Sa, Inc., 992 So, 2d 859, 860 (Fla. 4th DCA 2008). This Court reasoned in Donan, that it is inequitable and contrary to the overriding public policy to allow a party to execute on a claim against itself, and thereafter dismiss it. Jd. Thus, allowing the defendant to execute on the lawsuit against it would put the same entity as both the plaintiff and the defendant, a result contrary to the public policy as the same party would be in control of the action, Id Hence, the court in Donan cautiously held that a trial court’s discretion could be employed to prevent an execution that would create collusive lawsuit with a plaintiff and a defendant becoming one and the same. In no other instances, other than the two instances mentioned above, i¢. involving personal torts and the defendant of the chose in action executing against itself, and thereby having contro] over the action against it, has the trial court denied the judgment creditor’s right to execute on the debtor’s assets to satisfy its judgment during proceedings supplementary and Florida law has never allowed the trial courts to unleash an unfettered discretion to deny a judgment creditor’s property right under any other circumstances. In the case at hand, WashingtonGreen is a judgment creditor, and is therefore, entitled to execute on its Final Judgment. George E. Sebring Co. v. O’Rourke, 134 So. 556, 559 (Fla, 1931). In O'Rourke, the Florida Supreme Court stated that even where the judgment debtor transferred the property to another, the judgment creditor has the right to treat the attempted transfer of the STOK FOLK + KON 18851 N.E. 29th Avenue + Suite 1005 » Aventura + Florida + 33180 + Tel.: 305.935.4440 « Fax: 305.935.4470Page 7 of 19 property as a nullity, and “to sell the property so conveyed under execution”. /d. (Emphasis added). Moreover, in the instant case, the NCL Lawsuit is admittedly FAOC’s only asset, and WEH, WEP and FAOC are all otherwise defunct entities, which have not conducted business for years. A copy of Plaintiff's Notice of Filing Defendants’ Fact Information Sheets is attached hereto as Exhibit D. Therefore, the only way to collect on the Final Judgment is for WashingtonGreen to execute on the one and only asset in FAOC’s possession, and to sell it at a sheriff's sale, with the proceeds of the sale to be used towards satisfaction of the Final Judgment. WashingtonGreen, which has intervened into the NCL Lawsuit only has a judgment creditor, has absolutely no relation to NCL or any other party in the NCL Lawsuit, has no agreement with NCL regarding any disposition of the NCL Lawsuit and has no evidence was presented to indicate any conspiracy or collusion, other than the unsworn disingenuous claims of FAOC’s counsel that he was told by WashingtonGreen’s counsel that WashingtonGreen was planning to settle with NCL if it purchased the NCL Lawsuit at a sheriff's sale, a claim which was hotly denied by among other things, a verified affidavit of WashingtonGreen’s attorney, but even if it were true, it is not any reason to deny execution to WashingtonGreen as if and when WashingtonGreen were to become the owner of the NCL Lawsuit it could become WashingtonGreen’s property and WashingtonGreen would be free to transit with it as it pleases. Moreover, there was no such finding made by this Court of any collusion nor could any such finding have been made because there simply is none. A copy of Robert Stok’s affidavit is attached hereto as Exhibit E. In fact, NCL and WashingtonGreen have conflicting interests, given that WashingtonGreen’s interest is to obtain as much money as possible to satisfy its Final Judgment and NCL’s interest is to not pay anything to FAOC. Accordingly, the only recognized STOK FOLK + KON 18851 N.E. 29th Avenue * Suite 1005 + Aventura + Florida + 33180 + Tel.: 305.935.4440 + Fax: 305.935.4470Page 8 of 19 exception to the execution on the chose in action based on equitable grounds is not applicable here, FAOC is a defunct entity, has not paid its attorney’s fees nor costs to prosecute the NCL Lawsuit, has sold all of its interest in the NCL Lawsuit to third parties, and whose principal, Hossam Antar is in personal bankruptcy. As such, FAOC has absolutely nothing to lose by making reckless litigation decisions and rolling the dice with WashingtonGreen’s judgment lien, and the only way WashingtonGreen can satisfy the Final Judgment. Therefore, WashingtonGreen who is now forced to incur more attorney’s fees and costs, to wait an indefinite amount of time, and who will potentially collect no proceeds whatsoever from the NCL Lawsuit is suffering the deprivation of its property rights in its Final Judgment without any corresponding benefit or security. To illustrate, if instead of the NCL Lawsuit, FAOC owned stock certificates or real property, which it does not, there is no authority for the notion that a judgment debtor can be forced to delay the execution upon such assets because, possibly, in the future, the asset may become worth more. To demonstrate the point in the instant case, 5 years ago when FAOC became indebted to WashintonGreen in mid 2008 the British Pound Sterling was worth approximately 2 pounds to the US dollar.' When the WashingtonGreen judgment was finally domesticated in this Court, the British Pound was worth 1.5311 to the dollar so that FAOC already obtained a windfall of $208,121.54 because of its successful delay tactics. To permit even further delay will likely result in the total confiscation of WashingtonGreen’s judgment all together. See table of U.S./U.K. foreign exchange rates published by the Board of Governors of the U.S. Federal Reserve System showing that on March 1, 2008 the British Pound was worth 2.0015 U.S. Dollars. The Final Judgment in this action was based upon the then foreign exchange rate of 1.5311 British Pounds to the U.S. Dollar for $208,121.54 less than FAOC’s original principal debt in dollar terms. The exchange rate tables are attached as Exhibit F. STOK FOLK + KON 18851 N.E. 29th Avenue + Suite 1005 + Aventura « Florida + 33180 + Tel.: 305.935.4440 + Fax: 305.935.4470Page 9 of 19 To permit the frustration of a creditor’s rights would lead to a bar of that judgment creditor’s right to obtain an expeditious and complete satisfaction of its judgment, which is contrary to public policy and the intent of proceedings supplementary. Sure, a company’s stock may also be worth more in a few months too — or, it may be worth less or even become worthless, Real property may rise in value — or, the real estate market might drop. Likewise, while it is possible that the NCL Lawsuit may be worth more after trial, it is also possible that it will be adjudged worthless after that trial if NCL gets a defense verdict. In addition, FAOC can and will likely receive a judgment against it as well due to a pending counterclaim by NCL. Then, the only thing that will have changed is that WashingtonGreen’s Final Judgment will become worthless after more delay and the expenditure of more attorneys to pursue its claims, to no avail. FAOC has already received a windfall of $208,121.54 due to market forces. To force WashingtonGreen to roll the dice on the outcome of the NCL Lawsuit if and when it actually goes forward would be a truly inequitable disposition of WashingtonGreen’s “equitable lien” and against public policy because it would deprive WashingtonGreen of its property rights in its Judgment without due process of law. If at all, it should be WashingtonGreen’s decision whether or not to take the chance with its Final Judgment to see if FAOC wins (and collects from) the NCL Lawsuit, or to get whatever the case is worth now. As a judgment debtor adjudged to owe WashingtonGreen a substantial sum of money, FAOC no longer can make these decisions. B. STAYING THE EXECUTION OF THE FINAL JUDGMENT REQUIRES A POSTING OF A SUPERSEDEAS BOND BY DEFENDANTS-IN- EXECUTION. Denying WashingtonGreen’s right to sell the NCL Lawsuit at the sheriff's sale to the highest bidder, constitutes an indefinite stay of execution without requiring FAOC to post a good and sufficient bond. The trial courts have no authority to withhold execution of a money STOK FOLK + KON 18851 N.E. 29th Avenue + Suite 1005 » Aventura + Florida * 33180 « Tel.: 305.935.4440 + Fax: 305.935.4470Page 10 of 19 judgment unless a good and sufficient bond is posted. See Caruso v. Caruso, 932 So. 2d 457, 458 (Fla. 4th DCA 2006)(citing Mellon United Nat'l Bank v. Cochran, 776 So.2d 964 (Fla. 3d DCA 2000)). In Cochran, the trial court granted a money judgment against the defendant, but upon a simple request, without posting of a supersedeas bond, the court interlineated in its final judgment “no execution until further order of court” and stated that it was suspending execution on “equitable grounds”. See Cochran, 776 So. 2d at 964, The Cochran court reversed on a plethora of authority and stated that if a defendant seeks to stay execution of judgment pending the appeal, “he may obtain a stay ‘only by the posting of the bond in the amount set forth in Rule 9.310(b).’” Jd. (citations omitted); see also Palm Beach Heights Dev. & Sales Corp. v. Decillis, 385 So, 2d 1170, 1171 (Fla. 3d DCA 1980), where the court stated that the judgment debtor is entitled to a stay of the final money judgment only by the posting of the bond in the amount set forth in Rule 9.310(b). A trial court is simply not empowered to deprive a judgment creditor of its right to execute on a money judgment by ordering any lesser bond then required by the rules of appellate procedure or otherwise setting less onerous conditions. If the trial court could simply abate or stay the execution of a money judgment indefinitely without posting of a bond, it would eviscerate the purpose of Rule 9.310, Fla. R. App. P. The purpose of conditioning a stay pending review on posting a bond is to ensure the payment to the judgment creditor of the full amount of the order on appeal, including interest, in the event the appeal is unsuccessful, or in this case, if the outcome of the NCL Lawsuit is not favorable to the FAOC. Pabian v. Pabian, 469 So. 2d 189, 191 (Fla. 4th DCA 1985). If indefinite stays could be readily obtained in the manner a stay was bestowed on FAOC in this case, there would be no reason to ever post a bond under Rule 9.310. STOK FOLK + KON 18851 N.E. 29th Avenue ¢ Suite 1005 + Aventura « Florida * 33180 « Tel.: 305.935.4440 * Fax: 305.935.4470Page 11 of 19 Moreover, failure to require the FAOC to post a good and sufficient bond is tantamount to a depravation of property, WashingtonGreen’s judgment lien, without giving it the functional equivalent, and without due process of law. In Maplewood Phase One Homeowner's Ass'n, Inc. v. Cecil, 585 So, 2d 370, 371 (Fla. 4th DCA 1991), court reasoned that ordering a release of the claim of lien and allowing the sale of the real property without the requirement of posting of good and sufficient bond would deprive the lien holder of “its property, its lien, without giving it the functional equivalent, and without due process for law.” Jd. Further, the Cecil court reasoned that “because the real property might be sold after release to a bona fide purchase for value who relied on the order releasing the collateral, later review at the end of the case would appear to be ineffective to vindicate the rights accruing under the lien.” Jd. The instant case is similar to Cochran, in that here, WashingtonGreen received a money judgment, and without FAOC posting a supersedeas bond, was indefinitely denied its rightful execution on the Final Judgment. See Exhibit B. In particular, it is undisputed that FAOC is a defunct entity, with its principal Hossam Antar in personal bankruptey?, and with NCL Lawsuit as FAOC’s only asset. Accordingly, indefinitely denying execution on the NCL Lawsuit serves to abate the execution proceedings. Moreover, it is even more important in this case that a bond be posted by FAOC because unlike the majority of cases cited above requiring the posting of a good and sufficient bond in order to stay the execution pending appeal, where the appellate deadlines are ascertainable, the instant Order involves an indefinite stay without the posting of a bond. As admitted by FAOC, the NCL Litigation has been pending for over five (5) years. Currently, the NCL Lawsuit has been continued one more time to January 2014. See Exhibit C. As such, for all WashingtonGreen knows, the NCL Lawsuit could continue for another five years or longer and FAOC may collect zero in the end. No Florida rule requires or allows a delay and ? Southern District of Florida, case styled: f re Hossam Antar, 12-13288-AJC. STOK FOLK + KON 18851 N.E. 29h Avenue + Suite 1005 + Aventura + Florida * 33180 + Tel.: 305.935.4440 « Fax: 305.935.4470Page 12 of 19 gamble on execution of assets to satisfy a final judgment without at least the posting of a good and sufficient bond. Furthermore, the “equitable lien” awarded to WashingtonGreen provides no more protection than the Final Judgment itself. C. FAOC’S DEFENSES TO PROCEEDINGS SUPPLEMENTARY LACK MERIT AND DID NOT PRESENT ANY REASON TO DENY WASHINGTONGREEN’S RIGHT TO EXECUTE ON ITS JUDGMENT BY SELLING THE NCL LAWSUIT AT A JUDICIAL SALE. i. Plaintiff Does Not Have Unclean Hands First, FAOC argues that NCL and WashingtonGreen have unclean hands because NCL and WashingtonGreen colluded and conspired to take the NCL lawsuit away from FAOC. However. the FAOC did not present any evidence of collusion except the unsworn, improbable and disingenuous claims of the FAOC’s counsel, which, even if true, does not amount to collusion. See Exhibit E. In fact, NCL and WashingtonGreen have conflicting interests; NCL seeks to not have to pay anything as a result of the NCL Lawsuit, while WashingtonGreen wished to obtain proceeds to satisfy its Judgment along with the attorney’s fees and costs. Moreover, WashingtonGreen cannot sell a lawsuit that it simply does not own. FAOC farther argues that pursuant to Donan v. Dolee Vita SA, Inc., 992 So. 2d, 860-61, it is inequitable and contrary to the public policy to use proceedings supplementary to allow a party to purchase a breach of contract action against itself simply to dismiss it. However, Donan is distinguishable from the case at bar. Donan relied on Paglia v. Breskovich, 11 Wash.App. 142, 522 P.2d 511 (1974), which reasoned that it is inequitable to allow a party to execute on a claim against itself and thereafter dismiss the same. Specifically, Paglia admitted in open court that his intention was to take away the other side’s ability to prosecute its case against him and to simply dismiss it. As in Paglia and Donan, in Heritage Corp, of S. Fla., Inc. vy. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., N. 01-003519-CIV, 2008 WL 4858244, at *3-4(S. D. Fla. Nov. 10, STOK FOLK + KON 18851 N.E. 28th Avenue + Suite 1005 + Aventura + Fiorida + 33180 + Tel.: 305.935.4440 + Fax: 305.935.4470Page 13 of 19 2008), the plaintiff-in execution assigned its judgment to the defendant of the chose in action, Thus, allowing the defendant to execute on the lawsuit against it would put the same party both the plaintiff and the defendant, a result contrary to the public policy as the same party would be in contro] of the action, Here, unlike in Paglia, WashingtonGreen is not a defendant in the NCL Lawsuit. Thus, WashingtonGreen would not be controlling both sides in the NCL Lawsuit after execution even if it were to be the highest bidder at the execution sale, Moreover, WashingtonGreen never made any statements that it will simply dismiss the NCL Lawsuit, nor has any intention of doing so without satisfaction of its Final Judgment. See Exhibit E; see also Affidavit of Aaron Young attached hereto as Exhibit G. In fact, WashingtonGreen has no relation to the NCL and it would be irrational for WashingtonGreen to forfeit a perceived monetary benefit to enrich NCL, Accordingly, the Donan case is inapplicable to the case at bar. ii. It Is Inequitable To Deny the Execution of the NCL Lawsuit And Allow FAOC To Compromise The Only Asset In Its Possession. In the next three defenses, FAOC argued that it is not equitable for this Court to order the sale of the NCL Lawsuit because: (1) WashingtonGreen could be protected by an equitable lien on any proceeds, (2) WashingtonGreen would have excessive leverage because WashingtonGreen’s claim is only for $1 million dollars and the claim asserted against NCL is for over $15 million dollars*, and (3) it would hinder FAOC’s rights and the rights of its other creditors because FAOC would have no prospect of recovering any assets for itself against NCL. However, to the first argument, WashingtonGreen is not protected by the equitable lien on any proceeds whatsoever. First, upon thorough review of the NCL Lawsuit, if the NCL > If FAOC’s claim was really worth $15,000,000.00, it should have no difficulty bonding off a $1,000,000.00 judgment by obtaining secured credit from a third party collateralized by the lawsuit even if it has no credit of its own STOK FOLK + KON 18851 N.E. 29th Avenue + Suite 1005 + Aventura + Florida « 33180 + Tel.: 305.935.4440 + Fax: 305.935.4470Page 14 of 19 Lawsuit is taken to trial, FAOC has a high probability of losing, and in fact, obtaining a judgment against it through the counter-claim against it. See Robert Stok’s affidavit attached hereto as Exhibit E. Moreover, even prior to the trial, WashingtonGreen is at risk of losing the value of the NCL Lawsuit as the FAOC could settle for an unreasonably low price, such that would not satisfy the Final Judgment, could dismiss the NCL Lawsuit outright, realizing that it will not obtain any proceeds from it, could settle with NCL and secrete the assets, and could continue making reckless litigation decisions, thus, raising the attorney’s fees and costs expanded by NCL as well as WashingtonGreen, thus, lowering the chances of a reasonable settlement. The only way to alleviate this risk is by requiring FAOC to post a supersedeas bond to secure the satisfaction of the Final Judgment. As to the second argument, there is no notion that a judgment debtor cannot foreclose on the asset higher than the value of the judgment in order to satisfy the judgment. Specifically, any person, including FAOC or its alleged other creditors, could purchase the NCL Lawsuit at the sheriff's sale, if it believes its claim is worth so much more than the Final Judgment amount. Furthermore, despite FAOC’s argument that the claim is worth over $15 million, based on WashingtonGreen’s extensive evaluation of the NCL Lawsuit, the Plaintiff believes the value of the NCL Lawsuit to be dramatically lower than the amount claimed. See Robert Stok’s affidavit as Exhibit E. Finally, Defendants-in-Execution cannot champion the rights of their alleged potential creditors because WashingtonGreen is superior to the right of FAOC, who is a judgment-debtor, failing to make any payment to WashingtonGreen whatsoever, and to any other FAOC creditors, under the diligent creditor rule. Salina Mfg. Co. v. Diner's Club, Inc., 382 So. 2d 1309, 1310 (Fla. 3d DCA 1980) (“[t]be diligent creditor who discovers and brings into equity the assets of a STOK FOLK + KON 18851 N.E. 29th Avenue » Suite 1005 + Aventura ¢ Florida « 33180 « Tel.: 305.935.4440 « Fax: 305.935.4470Page 15 of 19 debtor is ordinarily entitled to priority over all other creditors, including the full claim for costs and expenses of the suit.”) iii. Shook, Hardy and Bacon’s Charging Lien Is Inferior To The Judgment Lien Obtained By the Appellant WashingtonGreen And FAOC Has No Standing To Assert Same On The Third Party’s Behalf, Finally, FAOC argued that its counsel, Shook, Hardy and Bacon, LLP has a substantial and superior charging lien, which takes priority to the Final Judgment obtained by WashingtonGreen and which opposes any action which interferences with the NCL Lawsuit’s trial, although same was filed one day before the hearing on the Order to Show Cause, on July 13, 2013. However, those arguments are once again frivolous and disingenuous. — First, Shook Hardy and Bacon, LLP is not a party to the proceeding, have not moved to intervene in the instant lawsuit, and therefore, have no standing to contest such proceedings. Similarly, FAOC has no standing to assert a claim on behalf of Shook Hardy and Bacon, LLP. “[A] litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Alterra Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936, 941 (Fla. 2002). FAOC continues to insist that its claims and the claims of Shook, Hardy and Bacon, LLP claims against NCL are substantial, but a party does not become a real party in interest due to “a contingent interest or mere expectancy.” United States v. 936.71 Acres of Land, More or Less, in Brevard County, State of Florida, 418 F.2d 551, 556 (5th Cir. 1969); (citing Morgan v. King, 312 Ky. 792 (1950)); see also Penn Central Commercial Paper Litigation y. Goldman, Sachs & Co., 62 F.R.D. 341 (S.D.N.Y. 1974). Second, Shook, Hardy and Bacon, LLP’s lien cannot be perfected and enforced as the NCL Lawsuit is not yet complete. An essential prerequisite to imposition of a charging lien is STOK FOLK + KON 18851 N.E. 29th Avenue + Suite 1005 + Aventura + Florida + 33180 + Tel: 305.935.4440 + Fax: 305.935.4470Page 16 of 19 that the underlying litigation produces a positive judgment or settlement - in other words, some “tangible fruits of the attorney's service” for the benefit of the client. Robert C. Malt & Co. v. Carpet World Distribs., Inc., 861 So.2d 1285, 1288 (Fla. 4th DCA 2004); Correa v. Christensen, 780 So.2d 220 (Fla. 5th DCA 2001). If the litigation produces no judgment of monetary value for the client, the court may not impose a charging lien for the attorney's benefit. Pasin v. Kroo, 412 So.2d 43, 44 (Fla. 3d DCA 1982). If the action does not reach a final judgment, imposition of a charging lien is premature. Walia v. Hodgson Russ LLP, 28 So, 3d 987, 989 (Fla. 4th DCA 2010); See Franklin & Marbin, P.A, v. Mascola, 23 Fla. L. Weekly D744, D746, 711 So.2d 46 (Fla. 4th DCA March 18, 1998) (stating that charging lien could not attach where no money or identifiable property was recovered in the subject litigation); Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So.2d 88, 92 (Fla. 3d DCA 1987) (“[T]he services must, in addition, produce a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services.”) Here, WashingtonGreen has a Final Judgment against FAOC, and has a lien against the NCL Lawsuit. Unlike WashingtonGreen, Shook, Hardy, and Bacon, LLP could only assert a charging lien against its client, FAOC, and any potential proceeds of the client in the hands of their client FAOC. Under Rule 4-1,2 of the Florida Rules Regulating the Florida Bar, the client controls the litigation, rather than the attorney. In New England Mutual Life Insurance vy. Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin, & Perwin, P.A., 690 So, 2d 1354, 1356 (Fla. 3d DCA 1997), the court clarified a very important distinction between a charging lien asserted by the attorney against its client and against the third party. There, the law firm attempted to assert a claim against the lender, a third party, in a summary proceeding, by filing a motion in the underlying claim. The Podhurst court stated, that to establish a charging lien STOK FOLK + KON 18851 N.E. 29th Avenue + Suite 1095 + Aventura « Florida * 33180 * Tel.: 305.935.4440 + Fax: 305.935.4470Page 17 of 19 against its own client is permitted and preferred to be done in a summary proceeding: however, to impress a charging lien on the third party’s interest in the proceeds, or to obtain a determination that the law firm’s charging lien was entitled to priority over the third party’s proceeds, the law firm had to file a separate suit against that third party. The present case is analogous to Podhurst, in that after allegedly five years of litigation, Shook, Hardy and Bacon filed a notice of charging lien in the NCL Lawsuit one day before the hearing on the Order to Show Cause and argued, through its client, that it somehow has a superior lien to WashingtonGreen and tries to assert the same in summary proceedings, without filing an appropriate action or attempting to implead into the case. Shook, Hardy and Bacon filed a notice of its charging lien only on July 13, 2013, while WashingtonGreen obtained a Judgment in the High Court Queen’s Branch on May 14, 2010, more than three years prior to Shook Hardy and Bacon, LLP’s lien. “The general rule of priority is first in time, first in right. ‘The general rule that a security interest that is prior in time is superior to a late