adv.procd.ans.&.aff.def.jas.10
Post on 10-Apr-2018
215 Views
Preview:
TRANSCRIPT
-
8/8/2019 Adv.procd.ans.&.Aff.def.JAS.10
1/8
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/ -
8/8/2019 Adv.procd.ans.&.Aff.def.JAS.10
2/8
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.
3. The allegations of paragraph 3 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 3.
4. The allegations of paragraph 4 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 4.
BACKGROUND
5. Surface Crafters admits the allegations of paragraph 5.
6. Surface Crafters admits the allegations of paragraph 6.
7. Surface Crafters admits the allegations of paragraph 7.
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.
2
INFANTE, ZUMPANO HUDSON & MILOCH, LLC500 S. Dixie Highway, Suite 302 / Coral Gables, Florida 33146
Telephone: (305) 503-2990 / Facsimile: (305) 774-5908
-
8/8/2019 Adv.procd.ans.&.Aff.def.JAS.10
3/8
10. Despite reasonable inquiry, Surface Crafters lacks knowledge or
information sufficient to form a belief as to the truth of the allegations of paragraph 10,
therefore, they are denied.
11. Despite reasonable inquiry, Surface Crafters lacks knowledge or
information sufficient to form a belief as to the truth of the allegations of paragraph 11,
therefore, they are denied.
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.
13. Surface Crafters admits the allegations of paragraph 13.
14. Surface Crafters admits the allegations of paragraph 14.
15. Surface Crafters denies the allegations of paragraph 15.
16. Despite reasonable inquiry, Surface Crafters lacks knowledge or
information sufficient to form a belief as to the truth of the allegations of paragraph 16,
therefore, they are denied.
17. Despite reasonable inquiry, Surface Crafters lacks knowledge or
information sufficient to form a belief as to the truth of the allegations of paragraph 17,
therefore, they are denied.
18. Despite reasonable inquiry, Surface Crafters lacks knowledge or
information sufficient to form a belief as to the truth of the allegations of paragraph 18,
therefore, they are denied.
19. Surface Crafters denies the allegations of paragraph 19.
COUNT II
3
INFANTE, ZUMPANO HUDSON & MILOCH, LLC500 S. Dixie Highway, Suite 302 / Coral Gables, Florida 33146
Telephone: (305) 503-2990 / Facsimile: (305) 774-5908
-
8/8/2019 Adv.procd.ans.&.Aff.def.JAS.10
4/8
(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
22. Surface Crafters denies the allegations of paragraph 22.
23. Surface Crafters denies the allegations of paragraph 23.
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
4
INFANTE, ZUMPANO HUDSON & MILOCH, LLC500 S. Dixie Highway, Suite 302 / Coral Gables, Florida 33146
Telephone: (305) 503-2990 / Facsimile: (305) 774-5908
-
8/8/2019 Adv.procd.ans.&.Aff.def.JAS.10
5/8
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
5
INFANTE, ZUMPANO HUDSON & MILOCH, LLC500 S. Dixie Highway, Suite 302 / Coral Gables, Florida 33146
Telephone: (305) 503-2990 / Facsimile: (305) 774-5908
-
8/8/2019 Adv.procd.ans.&.Aff.def.JAS.10
6/8
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. 147788Luis.Salazar@izhmlaw.com
6
INFANTE, ZUMPANO HUDSON & MILOCH, LLC500 S. Dixie Highway, Suite 302 / Coral Gables, Florida 33146
Telephone: (305) 503-2990 / Facsimile: (305) 774-5908
mailto:Luis.Salazar@izhmlaw.commailto:Luis.Salazar@izhmlaw.com -
8/8/2019 Adv.procd.ans.&.Aff.def.JAS.10
7/8
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
7
INFANTE, ZUMPANO HUDSON & MILOCH, LLC500 S. Dixie Highway, Suite 302 / Coral Gables, Florida 33146
Telephone: (305) 503-2990 / Facsimile: (305) 774-5908
-
8/8/2019 Adv.procd.ans.&.Aff.def.JAS.10
8/8
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.: kaungst@bergersingerman.com
efile@bergersingerman.com;
jalvarez@bergersingerman.com
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)
8
INFANTE, ZUMPANO HUDSON & MILOCH, LLC500 S. Dixie Highway, Suite 302 / Coral Gables, Florida 33146
Telephone: (305) 503-2990 / Facsimile: (305) 774-5908
mailto:kaungst@bergersingerman.commailto:efile@bergersingerman.commailto:jalvarez@bergersingerman.commailto:kaungst@bergersingerman.commailto:efile@bergersingerman.commailto:jalvarez@bergersingerman.com
top related