adv.procd.ans.&.aff.def.jas.10

8/8/2019 Adv.procd.ans.&.Aff.def.JAS.10

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UNITED STATES BANKRUPTCY COURTSOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISIONwww.flsb.uscourts.gov

In Re:

TOUSA, Inc., et. al.

Debtor.

/

Case No. 08-10928-JKO

Chapter 11(Jointly Administered)

TOUSA HOMES, INC.

Plaintiff,

v.

SURFACE CRAFTERS, INC. D/B/ADUROSTONE SURFACES,

Defendant.

/

Adv. Case No. 10-01735-JKO

DEFENDANTS, SURFACE CRAFTERS, INC., ANSWER AND AFFIRMATIVEDEFENSES TO COMPLAINT TO AVOID PREFERENTIAL TRANSFERS PURSUANTTO 11 U.S.C. 547 AND TO RECOVER PROPERTY TRANSFERRED PURSUANT

TO 11 U.S.C. 550

Defendants, SURFACE CRAFTERS, INC. D/B/A DUROSTONE SURFACES

(hereinafter, Surface Craftersor Defendant), by and through undersigned attorneys,

hereby answers the Adversary Complaint (the Complaint), filed by Plaintiff, TOUSA

HOMES, INC., et al. (Plaintiff), and states as follows:

NATURE OF THE CASE

1. Defendant admits that this purports to be an action to avoid and

recover from Defendant all preferential transfers of property, however, Defendant

INFANTE, ZUMPANO HUDSON & MILOCH, LLC500 S. Dixie Highway, Suite 302 / Coral Gables, Florida 33146

Telephone: (305) 503-2990 / Facsimile: (305) 774-5908
http://www.flsb.uscourts.gov/http://www.flsb.uscourts.gov/


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denies that it has any liability to Plaintiff or that Plaintiff is entitled to recover any

damages from Defendant.

JURISDICTION AND VENUE

2. The allegations of paragraph 2 are assertions of law to which no

response is required. To the extent that a response is required, Surface Crafters admits

the allegations of paragraph 2.







BACKGROUND

5. Surface Crafters admits the allegations of paragraph 5.



8. Despite reasonable inquiry, Surface Crafters lacks knowledge or

information sufficient to form a belief as to the truth of the allegations of paragraph 8,

therefore, they are denied.

CLAIMS FOR RELIEF

COUNT 1(Avoidance of Preferential Transfers 11 U.S.C. 547)

9. Surface Crafters restates its responses to paragraphs 1 through 8.

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12. The allegations of paragraph 12 are statements of belief or

intention to which no response is required. Surface Crafters objects to any relation back

to any subsequently learned information obtained by the Plaintiff.



15. Surface Crafters denies the allegations of paragraph 15.











COUNT II

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(Recovery of Avoided Transfers 11 U.S.C. 550)

20. Surface Crafters restates its responses to paragraphs 1 through 8.

21. Surface Crafters denies the allegations of paragraph 21



GENERAL DENIAL

To the extent an answer is required to Plaintiffs prayers for relief, Surface

Crafters denies that Plaintiff is entitled to any of the relief sought.

AFFIRMATIVE DEFENSES

First Affirmative Defense

Plaintiffs Complaint fails to state a claim upon which relief may be granted.

Second Affirmative Defense

Any preferential transfer was in payment of a debt incurred by the debtor in the

ordinary course of business of financial affairs of the debtor and the transferee and was

made in the ordinary course of business or financial affairs o the debtor and the

transferee or according to ordinary business terms.

Third Affirmative Defense

After any preferential transfer, the creditor gave new value to or for the benefit of

the debtor (A) not secured by an otherwise unavoidable security interest and (B) on

account of which new value the debtor did not make an otherwise unavoidable transfer

to or for the benefit is such creditor.

Fourth Affirmative Defense

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Any preferential transfer was (A) intended by the debtor and the creditor to or for

whose benefit such transfer was made to be a contemporaneous exchange for new

value given to the debtor and (B) in fact a substantially contemporaneous exchange.

Fifth Affirmative Defense

Plaintiffs causes of action and alleged damages, if any, are barred in whole or in

part by the doctrine of setoff and/or recoupment.

Sixth Affirmative Defense

Plaintiff may not recover the alleged transfers to Surface Crafters because

Surface Crafters has, in good, given value equal to or exceeding the transfers, and

Surface Crafters received the transfers without knowledge of the voidability of such

transfers.

Seventh Affirmative Defense

Plaintiffs claims are barred under the doctrine of waiver, estoppels, including

judicial estoppels, and/or consent.

Additional Affirmative Defense

Surface Crafters reserves the right to amend this Answer to assert additional

affirmative defenses that become known to Surface Crafters through discovery or

otherwise.

WHEREFORE, Surface Crafters, Inc. prays that this Court enter judgment in its

favor and against Plaintiff (i) denying Plaintiff any relief, (ii) awarding all costs and

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attorneys fees incurred in defending this lawsuit and (iii) granting such other and further

relief as this Court deems just, necessary and proper.

Dated: July 1, 2010 INFANTE, ZUMPANO HUDSON & MILOCH, LLCAttorneys for Defendant, Surface Crafters, Inc.500 S. Dixie Highway, Suite 302Coral Gables, Florida 33146Telephone: (305) 503-2990Facsimile: (305) 774-5908

By: /s/ Luis Salazar Luis SalazarFlorida Bar No. [email protected]

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mailto:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

The undersigned, an attorney at the law firm of Infante, Zumpano Hudson &

Miloch, LLC and duly admitted as an attorney to the United States District Court for

the Southern District of Florida hereby certifies that copies of the foregoing Notice ofAppearance and Request for Notices and Service of Papers, were served this day

on all counsel of record or pro se parties identified on the attached Service List in the

manner specified, either via transmission of Notices of Electronic Filing generated by

CM/ECF or by first class U.S. Mail, postage prepaid, on those counsel or parties

who are not authorized to receive electronically Notices of Electronic Filing.

Dated: July 1, 2010

/s/ Luis SalazarLUIS SALAZAR

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Electronic Mail Notice List

The following is the list of parties who are currently on the list to receive e-mail

notice/service for this case:

Kristopher Aungst, Esq.: [email protected]

[email protected];

[email protected]

Manual Notice List

The following is the list of parties who are not on the list to receive e-mail notice/service

for this case, and are therefore being served by first class U.S. Mail, postage prepaid:

(No manual recipients)

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mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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