On July 10, 148 a
Motion,Ex Parte
was filed
involving a dispute between
Biberstein, Harry,
and
All Others Whom It May Concern,
Deville, Carol,
Frazer, Christine,
Golden Key Properties Llc,
Kirchberger, Andreas,
Kirchberger, Gabriel,
Kirchberger, Niclas X,
Moonstone Holdings, Llc, A Nevada Limited Liability Company,
Southern Shores Enterprises, Llc, A Florida Limited Liability Company,
for Other - Matters not falling within the Other Civil Subcategories
in the District Court of Charlotte County.
Preview
Filing # 78281027 E-Filed 09/23/2018 11:10:33 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDI
CIAL CIRCUIT IN AND FOR
CHARLOTTE watCOUNTSit
Y,
HARRY BIEBERSTEIN,
Plaintiff,
Case No. 17-917-CA
v.
GABRIEL KIRCHBERGER, CAROL
DEVILLE, SOUTHERN SHORES
ENTERPRISES, LLC, a Florida limited
liability company, and MOONSTONE
HOLDINGS, LLC, a Nevada limited
liability company,
Defendants.
~ von
DEFENDANT SOUTHERN SHORES ENTERPRISE S, LLC's MOTION
FIRST AMENDED COMPLAINT PURSUANT TO DISMISS
TO FL ORIDA STATUTE §726.110 AND
MOTI TO ON
STRIKE PRA YER FOR ATTOFEES
RN AND
EYCOSTS
COMES NOW SOUTHERN SHORES ENTERPRISES, LLC,
Defendant, by and
through its undersigned attorney and files this Mation
to Dismiss Plaintiff's First Amended
Complaint filed on September 4, 2019 pursuant to Florid
a Statute §726.110 and to Strike
Prayer for Attorney Fees and Costs and for reaso
ns states as follows:
1) That the Complaint in this cause seeks in Count Ill
as to Defendant SOUTHERN
SHORES ENTERPRISES, LLC to declare July 29,
2011 transfers of real property from
Defendant Kirchberger to Defendant Southern Shore
s Enterprises, LLC due toa fraudulent
transfer pursuant to Florida Statute §726.105(1)}{a).
2) That Florida Statute §726.110 provides that a cause
of action with respect toa
fraudulent transfer or obligation under ss 726.101-
726.112 is extinguished unless the
action is brought within 4 years after the transfer
was made or the obligation was incurred
or, iflater, within 1 year after the transfer or obligation
was or could reasonably have been
oot
discovered by claimant
3) That the alleged transfers were made by quit claim deeds dated
July 29, 2011
which were recorded on various dates in August 20714,
4) That Plaintiff herein filed a foreign judgment on November
18, 2016 in Sarasota
Circuit Court, Case No. 16-5872CA and a Compiaint alleging fraudu
lent conveyances on
January 26, 2017. Defendant SOUTHERN SHORES ENTERPRISES, LLC and co-
defendants filed a Motion for Change of Venue and this cause
was transferred to Charlotte
County.
5) That more than four (4) years had elapsed from the record
ing of the alleged
fraudulent transfers and the filing of the predecessor
action in Sarasota County (16-
5872CA) on November 18, 2016 and is thereby extinguish
ed as a matter of law pursuant
to Florida Statute §726.110.
6) Defendant further moves to strike the prayer for attorn
ey fees and costs as a
creditor that impleads third parties (such as Defendant SOUTHERN SHORES
ENTERPRISES, LLC), in fraudulent transfer proceedings cannot recover attor
ney's fees
and costs incurred in the proceedings from the impleaded
individuals as the statute
governing provides only for recovery of costs and
fees from the debtor. Kin igsion
ston ¢Corp.
Group of Florida, Inc. v, Richard Kieiber Walter Kleiber Partnership,
127 So3d 802 (Fla.
2d DCA 2013); VP Gables, LLC v. Cobait Group, Ing., 709 F.Supp. 2d 1357 (8.0. Fla.
2010). Gaedeke Holdings. Ltd. v. Mortgage Consultant
s, Ine., 877 So2d 824 (Fla. Dist. Ct.
App. 4" Dist. 2004).
7) That the prayer for fees and costs should be stric
ken as there is no statutory or
contractual basis for same.
cnet
WHEREFORE, Defendant moves to dismiss the First Amended Complaint and to
strike any prayer in the Complaint for an award of attorney fees and court costs together
with such other and further relief as the Court deems necessary and proper
| HEREBY CERTIFY that a true and correct copy af the foregoing has been
furnished by email to MARK A. SLACK, ESQ, mslack@wwmrglaw.com 9045 Strada
Stell Court, Suite 400, Naples, Fi. 34109 and to ROBERT W. SEGUR, ESQ
Legal@segu
net,
rlaw
1460 S. McCall Road, Suite 2E, Englewood. Fl. 34223 this __day of
September, 2018
ibyaad
DA’
(
K. OAKS: Esa
CYChe
DAVI K. OAKS, P.A.
407 East Marion Avenue, Suite 101
Punta Gorda, FL 33950
(941) 639-7627
Fax: (941) 575-0242
Florida Bar No. 0301817
Email: doaksesg@comcast.net
Attorney for Defendant DEVILLE
Preview
Filing # 78281027 E-Filed 09/23/2018 11:10:33 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDI CIAL CIRCUIT IN AND FOR CHARLOTTE watCOUNTSit Y, HARRY BIEBERSTEIN, Plaintiff, Case No. 17-917-CA v. GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORES ENTERPRISES, LLC, a Florida limited liability company, and MOONSTONE HOLDINGS, LLC, a Nevada limited liability company, Defendants. ~ von DEFENDANT SOUTHERN SHORES ENTERPRISE S, LLC's MOTION FIRST AMENDED COMPLAINT PURSUANT TO DISMISS TO FL ORIDA STATUTE §726.110 AND MOTI TO ON STRIKE PRA YER FOR ATTOFEES RN AND EYCOSTS COMES NOW SOUTHERN SHORES ENTERPRISES, LLC, Defendant, by and through its undersigned attorney and files this Mation to Dismiss Plaintiff's First Amended Complaint filed on September 4, 2019 pursuant to Florid a Statute §726.110 and to Strike Prayer for Attorney Fees and Costs and for reaso ns states as follows: 1) That the Complaint in this cause seeks in Count Ill as to Defendant SOUTHERN SHORES ENTERPRISES, LLC to declare July 29, 2011 transfers of real property from Defendant Kirchberger to Defendant Southern Shore s Enterprises, LLC due toa fraudulent transfer pursuant to Florida Statute §726.105(1)}{a). 2) That Florida Statute §726.110 provides that a cause of action with respect toa fraudulent transfer or obligation under ss 726.101- 726.112 is extinguished unless the action is brought within 4 years after the transfer was made or the obligation was incurred or, iflater, within 1 year after the transfer or obligation was or could reasonably have been oot discovered by claimant 3) That the alleged transfers were made by quit claim deeds dated July 29, 2011 which were recorded on various dates in August 20714, 4) That Plaintiff herein filed a foreign judgment on November 18, 2016 in Sarasota Circuit Court, Case No. 16-5872CA and a Compiaint alleging fraudu lent conveyances on January 26, 2017. Defendant SOUTHERN SHORES ENTERPRISES, LLC and co- defendants filed a Motion for Change of Venue and this cause was transferred to Charlotte County. 5) That more than four (4) years had elapsed from the record ing of the alleged fraudulent transfers and the filing of the predecessor action in Sarasota County (16- 5872CA) on November 18, 2016 and is thereby extinguish ed as a matter of law pursuant to Florida Statute §726.110. 6) Defendant further moves to strike the prayer for attorn ey fees and costs as a creditor that impleads third parties (such as Defendant SOUTHERN SHORES ENTERPRISES, LLC), in fraudulent transfer proceedings cannot recover attor ney's fees and costs incurred in the proceedings from the impleaded individuals as the statute governing provides only for recovery of costs and fees from the debtor. Kin igsion ston ¢Corp. Group of Florida, Inc. v, Richard Kieiber Walter Kleiber Partnership, 127 So3d 802 (Fla. 2d DCA 2013); VP Gables, LLC v. Cobait Group, Ing., 709 F.Supp. 2d 1357 (8.0. Fla. 2010). Gaedeke Holdings. Ltd. v. Mortgage Consultant s, Ine., 877 So2d 824 (Fla. Dist. Ct. App. 4" Dist. 2004). 7) That the prayer for fees and costs should be stric ken as there is no statutory or contractual basis for same. cnet WHEREFORE, Defendant moves to dismiss the First Amended Complaint and to strike any prayer in the Complaint for an award of attorney fees and court costs together with such other and further relief as the Court deems necessary and proper | HEREBY CERTIFY that a true and correct copy af the foregoing has been furnished by email to MARK A. SLACK, ESQ, mslack@wwmrglaw.com 9045 Strada Stell Court, Suite 400, Naples, Fi. 34109 and to ROBERT W. SEGUR, ESQ Legal@segu net, rlaw 1460 S. McCall Road, Suite 2E, Englewood. Fl. 34223 this __day of September, 2018 ibyaad DA’ ( K. OAKS: Esa CYChe DAVI K. OAKS, P.A. 407 East Marion Avenue, Suite 101 Punta Gorda, FL 33950 (941) 639-7627 Fax: (941) 575-0242 Florida Bar No. 0301817 Email: doaksesg@comcast.net Attorney for Defendant DEVILLE