Preview
Filing # 117286335 E-Filed 11/25/2020 02:26:12 PM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
U.S. BANK NATIONAL ASSOCIATION, CASE NO. 2018-01348 CA 22
Plaintiff,
vs.
MAURY ROSENBERG,
Defendant,
and
SARA ROSENBERG, AS TRUSTEE OF
THE DOUGLAS ROSENBERG 2004
TRUST,
Impleader Defendant.
________________________________________/
PLAINTIFF’S MOTION TO RESOLVE DISAGREEMENT OVER
FORM OF ORDER GRANTING PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT ON VALUE ISSUE
Plaintiff, U.S. Bank National Association (“Plaintiff” or “U.S. Bank”), hereby moves
this Court for entry an Order granting U.S. Bank’s Motion for Partial Summary Judgment on the
issue of the value of the transferred asset in dispute (the “MSJ”), and states as follows:
1. At the November 5, 2020 hearing on U.S. Bank’s MSJ, this Court granted U.S.
Bank’s motion and instructed U.S. Bank’s undersigned counsel to prepare an order reflecting
same.
2. Following receipt of the transcript of the November 5th hearing, U.S. Bank’s
undersigned counsel prepared a proposed order granting U.S. Bank’s MSJ (“U.S. Bank’s
Proposed Order”) and forwarded same to Defendants’ counsel for review and approval of its
language.
CASE NO. 2018-01348 CA 22
Motion to Resolve Disagreement Over Form of Order
3. Defendants’ counsel objected to some of the language of U.S. Bank’s Proposed
Order, and requested certain redlined changes to same (“Defendants’ Proposed Order”).
4. Counsel for the parties have been unable to resolve their disagreement over the
language of U.S. Bank’s Proposed Order (though U.S. Bank’s undersigned counsel did accept
one requested change).
5. U.S. Bank’s undersigned counsel has been advised by the Court’s office that the
parties are not to submit competing orders but to instead notice the dispute for hearing.
6. Attached hereto as Exhibits “A” and “B” are copies of U.S. Bank’s Proposed
Order and Defendants’ Proposed Order, respectively. U.S. Bank is also contemporaneously filing
herewith a copy of the transcript of the November 5, 2020 for the Court’s reference. U.S. Bank
respectfully submits that its Proposed Order accurately reflects the Court’s prior ruling.
WHEREFORE, Plaintiff U.S. Bank respectfully requests that the Court enter U.S.
Bank’s Proposed Order and grant such other and further relief as appears just and proper.
SHUTTS & BOWEN LLP
Attorneys for Plaintiff
200 South Biscayne Boulevard
Suite 4100
Miami, FL 33131
Telephone: (305) 358-6300
Facsimile: (305) 381-9982
/s/ John W. Bustard
Jack C. McElroy
Florida Bar No. 818150
jmcelroy@shutts.com
John W. Bustard
Florida Bar No. 0641871
jbustard@shutts.com
Patrick G. Brugger
Florida Bar No. 035418
pbrugger@shutts.com
-2-
CASE NO. 2018-01348 CA 22
Motion to Resolve Disagreement Over Form of Order
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 25th day of November, 2020, a true and correct copy
of the foregoing was served via electronic mail upon:
Michael A. Friedman, Esq.
mfriedman@gjb-law.com
Paul J. Battista, Esq.
pbattista@gjb-law.com
William B. Blum, Esq.
bblum@gjb-law.com
Gregory Stewart Grossman, Esq.
ggrossman@sequorlaw.com
/s/ John W. Bustard __
Of Counsel
-3-
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
U.S. BANK NATIONAL ASSOCIATION, CASE NO. 2018-01348 CA 01 (43)
Plaintiff,
vs.
MAURY ROSENBERG,
Defendant,
and
SARA ROSENBERG, AS TRUSTEE OF
THE DOUGLAS ROSENBERG 2004
TRUST,
Impleader Defendant.
________________________________________/
ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on November 5, 2020 on Plaintiff’s Motion
for Partial Summary Judgment (the “Motion”), and the Court having heard argument of counsel,
reviewed the file, including Plaintiff’s Motion and Defendants’ Response1, and being otherwise
fully advised in the premises, it is hereby ORDERED and ADJUDGED as follows:
1. U.S. Bank’s Motion for Partial Summary Judgment is hereby GRANTED IN
PART.
2. Pursuant to Fla. Stat. § 56.29 and applicable principles of equity, the Court will
instruct the jury at trial that, if the jury finds that the Assignment of Judgment from Rosenberg to
the Trust dated March 15, 2013 was, in fact, fraudulent and done with an intent to hinder, delay
or defraud Rosenberg’s creditors, the value of the transferred asset for purposes of determining
the amount of damages to which U.S. Bank is entitled to recover from the Trust is that amount of
1
As used herein, the term “Defendants” referscollectively to Defendant Maury Rosenberg (“Rosenberg”) and
Impleader Defendant Sara Rosenberg, As Trustee of the Douglas Rosenberg 2004 Trust (the “Trust”).
EXHIBIT
A
money that was collected from U.S. Bank on the March 14, 2013 Judgment (the “2013
Judgment”) in 2018. In so holding, the Court finds that itwould be inequitable to permit the
Trust to keep the proceeds of a fraudulent transfer based upon an argument that a judgment
actually paid was somehow worth substantially less on the date of transfer. To allow Defendants
to do so would be plainly inequitable and the Court will not permit Defendants, if found by a
jury to have been involved in a fraudulent transfer, to retain a windfall by getting to keep the
difference between what was actually collected by the Trust on the transferred 2013 Judgment
and what an expert or fact witness may speculate what the 2013 Judgment was worth on the date
of the transfer.
3. In addition, summary judgment is hereby entered in favor of U.S. Bank and
against Defendants on the following affirmative defenses asserted by Defendants: Affirmative
Defenses Nos. 7, 9, 11, 23, 24 and 25.
DONE and ORDERED in Miami-Dade County, Florida, this ____ day of November,
2020.
Circuit Judge
Copies furnished to:
Jack McElroy, Esq.
John W. Bustard, Esq.
W. Barry Blum, Esq.
2
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT, IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
U.S. BANK NATIONAL ASSOCIATION, CASE NO. 2018-01348 CA 01 (43)
Plaintiff,
vs.
MAURY ROSENBERG,
Defendant,
and
SARA ROSENBERG, AS TRUSTEE OF
THE DOUGLAS ROSENBERG 2004
TRUST,
Impleader Defendant.
________________________________________/
ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on November 5, 2020 on Plaintiff’s Motion
for Partial Summary Judgment (the “Motion”), and the Court having heard argument of counsel,
reviewed the file, including Plaintiff’s Motion and Defendants’ Response1, and being otherwise
fully advised in the premises, it is hereby ORDERED and ADJUDGED as follows:
1. U.S. Bank’s Motion for Partial Summary Judgment is hereby GRANTED IN
PART.
2. Pursuant to Fla. Stat. § 56.29 and applicable principles of equity, the Court will
instruct the jury at trial that, if the jury finds that the Assignment of Judgment from Rosenberg to
the Trust dated March 15, 2013 was, in fact, fraudulent and done with an intent to hinder, delay or
defraud Rosenberg’s creditors, the value of the transferred asset for purposes of determining the
amount of damages to which U.S. Bank is entitled to recover from the Trust is that amount of
1
As used herein, the term “Defendants” referscollectively to Defendant Maury Rosenberg (“Rosenberg”) and
Impleader Defendant Sara Rosenberg, As Trustee of the Douglas Rosenberg 2004 Trust (the “Trust”).
EXHIBIT
B
money that was received by the Trust in 2018 from the payment by U.S. Bank of the March 14,
2013 Judgment (the “2013 Judgment”), without reduction for any litigation risk, cost of upholding
or collecting the 2013 Judgment, or any discount to present value. In so holding, the Court finds
that it would be inequitable to permit the Trust to keep the proceeds of a fraudulent transfer based
upon an argument, or expert or fact witness testimony, that the value of the 2013 judgment actually
paid in July 2018 was less on the date of transfer in 2013 than on the date of payment in 2018.
3. In addition, summary judgment is hereby entered in favor of U.S. Bank and against
Defendants on the following affirmative defenses asserted by Defendants: Affirmative Defenses
Nos. 7, 9, 11, 23, 24 and 25.
DONE and ORDERED in Miami-Dade County, Florida, this ____ day of October, 2020.
Circuit Judge
Copies furnished to:
Jack McElroy, Esq.
John W. Bustard, Esq.
W. Barry Blum, Esq.
2
Preview
Filing # 117286335 E-Filed 11/25/2020 02:26:12 PM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA U.S. BANK NATIONAL ASSOCIATION, CASE NO. 2018-01348 CA 22 Plaintiff, vs. MAURY ROSENBERG, Defendant, and SARA ROSENBERG, AS TRUSTEE OF THE DOUGLAS ROSENBERG 2004 TRUST, Impleader Defendant. ________________________________________/ PLAINTIFF’S MOTION TO RESOLVE DISAGREEMENT OVER FORM OF ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON VALUE ISSUE Plaintiff, U.S. Bank National Association (“Plaintiff” or “U.S. Bank”), hereby moves this Court for entry an Order granting U.S. Bank’s Motion for Partial Summary Judgment on the issue of the value of the transferred asset in dispute (the “MSJ”), and states as follows: 1. At the November 5, 2020 hearing on U.S. Bank’s MSJ, this Court granted U.S. Bank’s motion and instructed U.S. Bank’s undersigned counsel to prepare an order reflecting same. 2. Following receipt of the transcript of the November 5th hearing, U.S. Bank’s undersigned counsel prepared a proposed order granting U.S. Bank’s MSJ (“U.S. Bank’s Proposed Order”) and forwarded same to Defendants’ counsel for review and approval of its language. CASE NO. 2018-01348 CA 22 Motion to Resolve Disagreement Over Form of Order 3. Defendants’ counsel objected to some of the language of U.S. Bank’s Proposed Order, and requested certain redlined changes to same (“Defendants’ Proposed Order”). 4. Counsel for the parties have been unable to resolve their disagreement over the language of U.S. Bank’s Proposed Order (though U.S. Bank’s undersigned counsel did accept one requested change). 5. U.S. Bank’s undersigned counsel has been advised by the Court’s office that the parties are not to submit competing orders but to instead notice the dispute for hearing. 6. Attached hereto as Exhibits “A” and “B” are copies of U.S. Bank’s Proposed Order and Defendants’ Proposed Order, respectively. U.S. Bank is also contemporaneously filing herewith a copy of the transcript of the November 5, 2020 for the Court’s reference. U.S. Bank respectfully submits that its Proposed Order accurately reflects the Court’s prior ruling. WHEREFORE, Plaintiff U.S. Bank respectfully requests that the Court enter U.S. Bank’s Proposed Order and grant such other and further relief as appears just and proper. SHUTTS & BOWEN LLP Attorneys for Plaintiff 200 South Biscayne Boulevard Suite 4100 Miami, FL 33131 Telephone: (305) 358-6300 Facsimile: (305) 381-9982 /s/ John W. Bustard Jack C. McElroy Florida Bar No. 818150 jmcelroy@shutts.com John W. Bustard Florida Bar No. 0641871 jbustard@shutts.com Patrick G. Brugger Florida Bar No. 035418 pbrugger@shutts.com -2- CASE NO. 2018-01348 CA 22 Motion to Resolve Disagreement Over Form of Order CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 25th day of November, 2020, a true and correct copy of the foregoing was served via electronic mail upon: Michael A. Friedman, Esq. mfriedman@gjb-law.com Paul J. Battista, Esq. pbattista@gjb-law.com William B. Blum, Esq. bblum@gjb-law.com Gregory Stewart Grossman, Esq. ggrossman@sequorlaw.com /s/ John W. Bustard __ Of Counsel -3- IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA U.S. BANK NATIONAL ASSOCIATION, CASE NO. 2018-01348 CA 01 (43) Plaintiff, vs. MAURY ROSENBERG, Defendant, and SARA ROSENBERG, AS TRUSTEE OF THE DOUGLAS ROSENBERG 2004 TRUST, Impleader Defendant. ________________________________________/ ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT THIS CAUSE having come before the Court on November 5, 2020 on Plaintiff’s Motion for Partial Summary Judgment (the “Motion”), and the Court having heard argument of counsel, reviewed the file, including Plaintiff’s Motion and Defendants’ Response1, and being otherwise fully advised in the premises, it is hereby ORDERED and ADJUDGED as follows: 1. U.S. Bank’s Motion for Partial Summary Judgment is hereby GRANTED IN PART. 2. Pursuant to Fla. Stat. § 56.29 and applicable principles of equity, the Court will instruct the jury at trial that, if the jury finds that the Assignment of Judgment from Rosenberg to the Trust dated March 15, 2013 was, in fact, fraudulent and done with an intent to hinder, delay or defraud Rosenberg’s creditors, the value of the transferred asset for purposes of determining the amount of damages to which U.S. Bank is entitled to recover from the Trust is that amount of 1 As used herein, the term “Defendants” referscollectively to Defendant Maury Rosenberg (“Rosenberg”) and Impleader Defendant Sara Rosenberg, As Trustee of the Douglas Rosenberg 2004 Trust (the “Trust”). EXHIBIT A money that was collected from U.S. Bank on the March 14, 2013 Judgment (the “2013 Judgment”) in 2018. In so holding, the Court finds that itwould be inequitable to permit the Trust to keep the proceeds of a fraudulent transfer based upon an argument that a judgment actually paid was somehow worth substantially less on the date of transfer. To allow Defendants to do so would be plainly inequitable and the Court will not permit Defendants, if found by a jury to have been involved in a fraudulent transfer, to retain a windfall by getting to keep the difference between what was actually collected by the Trust on the transferred 2013 Judgment and what an expert or fact witness may speculate what the 2013 Judgment was worth on the date of the transfer. 3. In addition, summary judgment is hereby entered in favor of U.S. Bank and against Defendants on the following affirmative defenses asserted by Defendants: Affirmative Defenses Nos. 7, 9, 11, 23, 24 and 25. DONE and ORDERED in Miami-Dade County, Florida, this ____ day of November, 2020. Circuit Judge Copies furnished to: Jack McElroy, Esq. John W. Bustard, Esq. W. Barry Blum, Esq. 2 IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA U.S. BANK NATIONAL ASSOCIATION, CASE NO. 2018-01348 CA 01 (43) Plaintiff, vs. MAURY ROSENBERG, Defendant, and SARA ROSENBERG, AS TRUSTEE OF THE DOUGLAS ROSENBERG 2004 TRUST, Impleader Defendant. ________________________________________/ ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT THIS CAUSE having come before the Court on November 5, 2020 on Plaintiff’s Motion for Partial Summary Judgment (the “Motion”), and the Court having heard argument of counsel, reviewed the file, including Plaintiff’s Motion and Defendants’ Response1, and being otherwise fully advised in the premises, it is hereby ORDERED and ADJUDGED as follows: 1. U.S. Bank’s Motion for Partial Summary Judgment is hereby GRANTED IN PART. 2. Pursuant to Fla. Stat. § 56.29 and applicable principles of equity, the Court will instruct the jury at trial that, if the jury finds that the Assignment of Judgment from Rosenberg to the Trust dated March 15, 2013 was, in fact, fraudulent and done with an intent to hinder, delay or defraud Rosenberg’s creditors, the value of the transferred asset for purposes of determining the amount of damages to which U.S. Bank is entitled to recover from the Trust is that amount of 1 As used herein, the term “Defendants” referscollectively to Defendant Maury Rosenberg (“Rosenberg”) and Impleader Defendant Sara Rosenberg, As Trustee of the Douglas Rosenberg 2004 Trust (the “Trust”). EXHIBIT B money that was received by the Trust in 2018 from the payment by U.S. Bank of the March 14, 2013 Judgment (the “2013 Judgment”), without reduction for any litigation risk, cost of upholding or collecting the 2013 Judgment, or any discount to present value. In so holding, the Court finds that it would be inequitable to permit the Trust to keep the proceeds of a fraudulent transfer based upon an argument, or expert or fact witness testimony, that the value of the 2013 judgment actually paid in July 2018 was less on the date of transfer in 2013 than on the date of payment in 2018. 3. In addition, summary judgment is hereby entered in favor of U.S. Bank and against Defendants on the following affirmative defenses asserted by Defendants: Affirmative Defenses Nos. 7, 9, 11, 23, 24 and 25. DONE and ORDERED in Miami-Dade County, Florida, this ____ day of October, 2020. Circuit Judge Copies furnished to: Jack McElroy, Esq. John W. Bustard, Esq. W. Barry Blum, Esq. 2