KAPLAN ZEENA LLP

2 South Biscayne Boulevard, One Biscayne Tower Suite 3050, Miami, Florida 33131

Telephone: (305) 530-0800; Facsimile: (305) 530-0801

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-CV-81205-RAR

SECURITIES AND EXCHANGE COMMISSION,

Plaintiff,

v.

COMPLETE BUSINESS SOLUTIONS GROUP,

INC. d/b/a PAR FUNDING, et al.,

Defendants.

/

LISA MCELHONE’S RESPONSE IN OPPOSITION TO THE SEC’S MOTION FOR 

AN ORDER TO SHOW CAUSE AND MOTION TO STRIKE THE SEC’S RESPONSE 

TO MS. MCELHONE’S MOTION TO MODIFY THE ASSET FREEZE ORDER

The SEC’s Motion for an Order to Show Cause (the “Motion for Order to Show Cause”) 

asks this Court to hold Ms. McElhone in contempt and threaten her with imprisonment because 

she had the audacity to request that a relatively small sum of money be unfrozen to allow her to

pay her outstanding and overdue attorneys’ fees. The SEC seeks to position itself as the protector 

of victimized investors and Ms. McElhone as an unrepentant wrongdoer by falsely asserting that 

Ms. McElhone has not made any meaningful payments towards the Final Judgment and that she 

is deliberately seeking to avoid her disgorgement obligations. Neither statement is true. Ms. 

McElhone has paid nearly $3 Million towards the Final Judgment, and it is the SEC that has

repeatedly thwarted Ms. McElhone’s attempts to satisfy the Final Judgment using the assets that

were seized from her and placed in the Receivership – even though the purpose of the

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Receivership is to safeguard funds for satisfaction of a disgorgement award.

1

As discussed herein, the Court should not hold Ms. McElhone in contempt for requesting 

that limited funds she has no present ability to access be unfrozen and used to meet her financial 

hardship. Ms. McElhone came to this Court hat-in-hand, and the SEC is asking the Court to put 

her in shackles – but debtors’ prisons were abolished long ago, and for good reason. The SEC’s 

Motion was clearly filed for punitive and retaliatory purposes and should not be countenanced by 

a Court of equity.

BACKGROUND

On October 6, 2023, Ms. McElhone filed a Motion to Modify the Asset Freeze Order (DE 

1721, the “Motion to Modify”) in which she asks this Court to modify the asset freeze that was 

entered against her (the “Asset Freeze Order,” DE 230) and allow her to access approximately

$747,000 held in bank accounts which are not within the Receivership Estate for the purpose of 

paying her outstanding attorneys’ fees in this action and in a related criminal action. The subject 

bank accounts are owned by Ms. McElhone and two non-Receivership entities she controls,

Lacquer Lounge, Inc. and Eagle Union Quest Two, LLC, respectively. In the Motion to Modify, 

Ms. McElhone explained that her resources have been substantially depleted by years of protracted 

litigation and that she is unable to pay her attorneys’ fees without the requested relief from the 

Asset Freeze Order. Ms. McElhone’s decision to file the Motion to Modify actually demonstrates 

her respect for and compliance with this Court’s Asset Freeze Order. She did precisely what she 

was supposed to do – apply to this Court through counsel to access assets that she scrupulously 

preserved even though they were not included in the Receivership Estate.

1 See e.g. ECF No. 436 at 2 (granting expansion of the Receivership on the grounds that “tainted 

funds, which could be the subject of disgorgement, may be found in the entities and properties 

identified herein”).

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After Ms. McElhone filed her Motion to Modify, counsel for the SEC repeatedly demanded 

specific information about the bank accounts at issue (the bank names, account holders, and the 

account numbers) for the ostensible purpose of a meet-and-confer. When undersigned counsel 

declined to provide this information, counsel for the SEC advised that it intended to file a motion 

to hold Ms. McElhone in contempt for failure to pay the Final Judgment against her. The SEC

subsequently filed the Motion for Order to Show Cause – which is based exclusively on the SEC’s 

contention that the Motion to Modify demonstrates that Ms. McElhone is aware of the existence 

of accounts which she purportedly can and should use to pay the Final Judgement.2 

The SEC also filed a Response to the Motion to Modify (DE 1730) on October 21, 2023 –

a day after the Response was due. The SEC’s Response is a disingenuous and factually inaccurate 

attack piece which begins with the assertion that “Lisa McElhone has no shame.” Id. at 1. The 

Response asserts that Ms. McElhone “liv[ed] for free in a mansion paid for by the investors through 

the receivership which paid her mortgage while failing to collect rent from McElhone.” Id. at 2. 

None of that is true. Ms. McElhone owned the Haverford home free and clear since 2016 (she had 

no mortgage) and paid the Receiver over $1 Million in rent for the privilege of living in her own 

home before she was evicted. The Haverford home was subsequently sold and the proceeds of the 

sale (as well as the $1 Million plus in rent Ms. McElhone paid before she was evicted) have 

enriched the Receivership – yet not one penny of this money has been credited to the Judgment

against Ms. McElhone. The SEC also asserts that Ms. McElhone is “currently living in a $9,000-

per-month penthouse in Philadelphia.” Id. As proof, the SEC cites a bail modification motion filed 

2 A plain reading of the Motion for Order to Show Cause reveals that it is based on, and was filed 

in response to, Ms. McElhone’s Motion to Modify. Indeed, the Motion for Order to Show Cause 

was filed on the deadline for the SEC to respond to the Motion to Modify (October 20, 2021). The 

SEC’s actual Response to the Motion to Modify (DE 1730), discussed below, was filed a day late 

and was clearly an afterthought. 

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by Joseph LaForte which provides the address of an apartment he and Ms. McElhone were forced 

to take residence in after they were evicted from the Haverford home. See 1731. The bail 

modification motion does not provide any information about the ownership of the apartment, the 

amount of rent paid, or who is paying that rent. The remainder of the SEC’s Response appears to 

have been copy-pasted from prior filings, as the SEC makes arguments that have no application to 

the Motion to Modify. See, e.g., id. at 3-4 (erroneously asserting that Ms. McElhone is asking the 

Court to release the Haverford home and $3 Million to her, even though the Motion to Modify 

does not make these requests and the Haverford home has already been sold). For all of these 

reasons, the SEC’s untimely and erroneous Response brief should be stricken,3 and should be 

given no weight or consideration by the Court.

STANDARD OF REVIEW

The Court may enter an order to show cause when the conduct alleged in the motion would 

constitute a violation of the Court’s order. See Mercer v. Mitchell, 908 F. 2d 763, 768 (11th Cir. 

1990)). It is not sufficient for the movant to establish the mere possibility of a violation. Riccard

v. Prudential Ins. Co., 307 F.3d 1277, 1297 (11th Cir. 2002)) (noting that ““maybe” is not close 

enough when measured against the “clear and unambiguous” standard” the Court must apply).

3 Pursuant to Local Rule 7.1(c)(1), a memorandum in opposition to a motion must be filed no later 

than 14 days from the date of service. Here, Ms. McElhone filed and e-served the Motion to Modify 

on October 6, 2023, and the SEC filed an e-served its response on October 21, 2023 – 15 days after 

the motion was filed. The motion should be struck on those grounds alone. See Chacon v. El

Milagro Child Care Ctr., No. 07-22835-CIV-AMS, 2009 WL 1920151, at *2 (S.D. Fla. July 2, 

2009) (striking motion for summary judgment because it was not timely filed); see also Umanzor

v. Orlando II Assocs., LP, No. 6:20-CV-1377-WWB-EJK, 2021 WL 3500816, at *2 (M.D. Fla. 

Mar. 25, 2021) (granting motion to strike plaintiff’s response to a motion to dismiss because it was 

not timely filed).

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“Once this prima facie showing of a violation is made, the burden then shifts to the alleged 

contemnor to produce evidence explaining his noncompliance at a ‘show cause’ hearing.” See 

F.T.C. v. Leshin, 618 F.3d 1221, 1232 (11th Cir. 2010) (citing Chairs v. Burgess, 143 F. 3d 1432, 

1436 (11th Cir. 1998)). “Conduct that evinces substantial, but not complete, compliance with the 

court order may be excused if it was made as part of a good faith effort at compliance.” SEC v. 

Solow, 682 F. Supp. 2d 1312, 132 (S.D. Fla. 2010) (citing Newman v. Graddick, 740 F.2d 

1513,1524 (11th Cir. 1984)). “Therefore, under the Eleventh Circuit's case law, the alleged 

contemnor may avoid a contempt finding by showing an inability to comply or a good faith effort 

to comply.” Id. (citing Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir. 

1990)). “A finding of civil contempt must be supported by clear and convincing evidence that the

allegedly violated order was valid and lawful; the order was clear and unambiguous; and the

alleged violator had the ability to comply with the order.” Leshin, 618 F.3d at 1232 (citing Riccard,

307 F.3d at 1297)) (internal citations omitted). 

ARGUMENT

I. Ms. McElhone is Unable to Pay the Final Judgment, Despite Her Reasonable 

Efforts

Ms. McElhone does not dispute that she has not fully paid the disgorgement judgment

entered against her (which is more than $150 Million) in full, but this does not mean that she has 

engaged in contumacious conduct. The SEC knows all-too-well that Ms. McElhone is unable to

satisfy the Final Judgment or make meaningful payments towards it at this time because virtually 

all her assets – including, but not limited to, her homes, vehicles, investment properties, art 

collection, stock accounts, bank accounts and other personalty – have been seized and placed

within the Receivership Estate. Indeed, Ms. McElhone is currently having trouble covering her 

living expenses and is unable to pay her attorneys as a result of the near total asset seizure – which 

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is the exact reason she filed the Motion to Modify. Under these circumstances, the only way Ms. 

McElhone will ever be able to make meaningful payments towards the Final Judgment (other than 

winning the Powerball or founding a new billion-dollar company whilst under the cloud of these 

legal proceedings) will be to apply the assets which were previously seized from her and placed in 

the Receivership Estate to the Final Judgment. 

Recognizing this, Ms. McElhone previously agreed to relinquish her legal and equitable 

rights to approximately $3 Million dollars within the Receivership at the SEC’s request so that 

those funds could be applied towards the Final Judgment. See DE 1524 and 1525. But, for reasons 

that have never been adequately explained, the SEC refuses to credit any of the other assets seized 

from Ms. McElhone to the Final Judgment. In fact, when Ms. McElhone filed a motion seeking to 

have other assets she owned and controlled prior to the Receivership credited to the Final Judgment 

(see DE 1531), the SEC vehemently opposed the motion. See DE 1537 and 1539. Similarly, the 

SEC vehemently opposed a motion Ms. McElhone filed seeking to have a plane and stock account

she had owned or controlled through the LME Trust brought into the Receivership Estate and 

applied to the Final Judgment. See DE 1468 and 1472. Remarkably, the SEC has shown no interest 

in seeking to obtain these assets (which have a combined value of about $18 Million) for the benefit 

of Par’s investors, yet the SEC contends that Ms. McElhone should be held in contempt and 

threatened with imprisonment because she asked the Court to unfreeze bank accounts worth 

$747,000 to allow her to pay her overdue attorneys’ fees instead of asking that those accounts be 

paid over to the SEC in partial satisfaction of the Final Judgment. 

The SEC’s decision to focus on the $747,000 at issue in the Motion to Modify – while 

refusing to credit over $150 Million of assets already in the Receivership which are attributable to 

Ms. McElhone (a very conservative estimate) and turning a blind-eye to Millions of dollars in 

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additional assets which could and should be brought into the Receivership – evidences the SEC’s 

punitive intent. Likewise, the SEC’s assertion that the $747,000 could be used to make “not 

insignificant payments towards the Court’s Judgment” (DE 1729-1 at 6) is unavailing for several

reasons. First, on the very same page of the Contempt Motion, the SEC asserts that Ms. McElhone 

“has not made a significant payment since the Judgment was entered” – despite the fact that she 

paid nearly $3 Million towards the Final Judgment by surrendering her right to certain property at 

the SEC’s request (as discussed above). The SEC’s assertion that a $3 Million payment is 

insignificant, but Ms. McElhone’s failure to pay $747,000 which she does not actually have access 

to is significant enough to warrant a contempt proceeding, speaks volumes. Second, as explained 

above, the SEC has actively resisted Ms. McElhone’s efforts to bring millions of dollars in other 

assets to bear so that they can be applied to the Final Judgement. Finally, the SEC knows that a 

$747,000 payment would not even cover a month of post-judgment interest on the Final Judgment

and, therefore, would not meaningfully reduce the Final Judgment in any way.

II. The SEC’s Argument that Ms. McElhone Should be Held in Contempt for Not 

Using All Reasonable Efforts to Comply with the Final Judgment Fails

The SEC does not allege that Ms. McElhone has the ability to use the $747,000 in frozen 

assets identified in the Motion to Modify to pay the Final Judgment because it knows that she 

cannot. Instead, the SEC cites CFTC v. Wellington Precious Metals, Inc., 950 F. 3d 1525, 1529 

(11th Cir. 1992) as support for its argument that Ms. McElhone failed to discharge her duty to use 

“all reasonable efforts” to satisfy the Final Judgment because she purportedly knows of assets 

which can be used to pay the Final Judgment (i.e., the bank accounts identified in the Motion to 

Modify) but has not disclosed those accounts to the SEC or moved the Court to apply the proceeds 

of these accounts to the Final Judgment. This argument fails for several reasons.

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First, there is no dispute that Ms. McElhone cannot use the accounts at issue to make a 

payment towards the Final Judgment at this time because the accounts are frozen by virtue of the 

Court’s Asset Freeze Order and have also been frozen by the banks themselves (presumably 

because the SEC or the Receiver sent the banks a copy of the Asset Freeze Order4). The SEC has 

not cited case law to support its argument that Ms. McElhone had a duty to identify the bank 

accounts at issue or to move the Court to unfreeze those accounts so they could be applied to the 

Final Judgment, and the SEC’s argument is not factually persuasive for all the reasons stated 

above. 

Second, it strongly appears that – even if Ms. McElhone were to identify the bank accounts 

at issue – the SEC would not treat the account funds as assets which could be used to satisfy the 

Final Judgment. As discussed above, the SEC has repeatedly refused to credit Receivership assets 

which were owned or controlled by Ms. McElhone against the Final Judgement. For example, the 

SEC will not credit Receivership cash attributable to Ms. McElhone’s Trust (the LME Trust) 

and/or her consulting companies (HBC and ESC) to the Final Judgment. Likewise, although the 

Receiver has sold a number of commercial properties Ms. McElhone owned or controlled through 

the LME Trust, the SEC refuses to apply the proceeds from the sale of those properties to the Final 

Judgment. Indeed, the SEC has advised that it is not even willing to credit the proceeds from the 

anticipated sale of Ms. McElhone’s home in Jupiter, Florida – which she owns in her individual 

capacity – to the Final Judgment.5 Accordingly, there was no reason for Ms. McElhone to believe 

that the SEC would treat the frozen bank accounts identified in her Motion to Modify – which are 

owned by Ms. McElhone or entities she controls – as assets that the SEC would agree to apply to 

4 Indeed, at the time Ms. McElhone filed the Motion to Modify, she had presumed that the SEC 

and the Receiver were already aware of these accounts. 

5 That property alone was under contract for approximately $12 Million. See DE 1645.

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the Final Judgment. 

Third, the case law the SEC relies on is not factually analogous and does not support the 

SEC’s position that Ms. McElhone may be held in contempt for failing to use frozen funds she 

cannot access to make a partial payment towards the Final Judgment, or for failing to volunteer 

the location of those funds to SEC. In Wellington, a defendant was held in civil contempt for failing 

to pay a single dollar of a $2.8 Million disgorgement award. See Wellington, 950 F. 3d at 1527-

30. The defendant tried to demonstrate his inability to pay by introducing evidence that he had 

spent or loaned out $1.4 Million, but the court found the defendant’s evidence unconvincing for 

several reasons: first, the court found the loans were not arms-length transactions; second, 

defendant had made no efforts to obtain repayment of the loans; finally, defendant only attempted 

to account for $1.4 Million of a $2.8 Million disgorgement award, so even if his evidence had been 

accepted as true, it would not have accounted for all of the funds at issue. Id.

The facts in Wellington are not at all analogous to the present case. First, Wellington did 

not involve a Receivership, whereas here, the District Court appointed a Receiver who seized 

virtually all of Ms. McElhone’s property and assets (for the express purpose of safeguarding them 

for disgorgement), and the Receiver is currently in possession of more than $120 Million in cash, 

a portfolio of real estate worth tens-of-millions of dollars, and various other assets – the vast 

majority of which were previously owned or controlled by Ms. McElhone. Second, the defendant 

in Wellington had not paid a dollar towards his disgorgement, whereas here, Ms. McElhone 

relinquished right and title to nearly $3 million in assets so they could be applied to the Final 

Judgment, and she has sought to have other Receivership assets applied to the Final Judgment

through legal filings, but has been thwarted by the SEC’s fierce opposition. Finally, and most 

importantly, Wellington involved the concealment and dissipation of funds in the defendant’s 

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control, whereas here, the SEC seeks to hold Ms. McElhone in contempt for failing to pay funds 

which are subject to the Court’s Asset Freeze Order and which have also been frozen by the 

financial institution where the accounts are held.

The SEC also cites case law for the proposition that it would be appropriate for this Court 

to incarcerate Ms. McElhone for not paying the Final Judgment – but the cases cited are completely 

inapposite. In Solow, for example, this Court found that the defendant, Mr. Solow, had engaged in 

“a purposeful campaign of asset dissipation” in which he transferred title to various property to his 

wife, travelled to Switzerland to hide cash and jewelry, and executed a $5.26 million mortgage on 

his home and placed these funds in a Cook Islands asset protection trust. See Solow, 682 F. Supp. 

2d at 1314. The Court found that Mr. Solow’s actions warranted a serious contempt finding 

because he had systematically dissipated his assets while paying only $2,639.24 towards his $3.24 

Million disgorgement obligation and continuing to live a luxury lifestyle – which included taking 

extended trips to a vacation home in Park City, Utah. Id. at 1315-1316. Under these (very different) 

facts, the Court held that incarceration was an appropriate sanction to compel Mr. Solow to cease 

his campaign of dissipation and pay his disgorgement obligation out of funds which were readily 

available to him. See also SEC v. Durante, No. 01 CIV. 9056 DAB, 2013 WL 6800226 (S.D.N.Y. 

Dec. 19, 2013) (defendant held in contempt where he had admitted to liquidating $35 Million in 

assets but paid only $14 Million towards his disgorgement and continued to live a lavish lifestyle 

while lying about having a limited income); Schwarz v. ThinkStrategy Cap. Mgmt. LLC, No. 09 

CIV. 9346 PAE, 2015 WL 4040558, at *7 (S.D.N.Y. July 1, 2015) (defendant held in contempt 

after SEC established he had paid nothing towards disgorgement despite having millions of dollars 

in Swiss bank accounts, as well as other assets).

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In short, the cases the SEC cites for support deal with defendants who completely 

disregarded the judgments against them and engaged in flagrant campaigns to dissipate their assets. 

The SEC cannot point to a case where a defendant who was subject to an asset freeze order and 

had all her assets seized by a Receiver was held in contempt for failing to pay a massive 

disgorgement award she had no ability to pay. Nor can the SEC cite a case where a defendant was 

held in contempt for asking a court to unfreeze funds she had no access to in order to address her 

financial hardship and inability to pay her lawyers. The SEC’s request to hold Ms. McElhone in 

contempt is both legally unsupported and unconscionable. 

III. Ms. McElhone Has Repeatedly Tried to Satisfy the Final Judgment, in Whole or 

in Part, out of Assets that were Seized from Her and Placed in the Receivership, 

but Her Efforts Have Been Opposed and Thwarted by the SEC. Recent Case Law 

Suggests Her Seized Assets Must be Applied to the Judgment

The SEC’s focus on $747,000 in frozen accounts – an amount which is not even sufficient 

to cover the post-judgment interest on the Final Judgment from the date the Motion to Modify was 

filed to the date of this Response – evidences a punitive motive, rather than a genuine desire to see 

the Final Judgment satisfied. 

Were the SEC focused on satisfying the Final Judgment so that the investors can be made 

whole, the funds required to do so can be found in the Receivership Estate – which is comprised, 

almost entirely, of property Ms. McElhone owned or controlled at the inception of this case. Ms. 

McElhone stands ready to relinquish her rights to this Receivership property, on the condition that 

she receive a dollar-for-dollar credit against her disgorgement obligation under the Final Judgment. 

This result is both equitable and legally sound. 

The Second Circuit’s recent decision in SEC v. Govil recognizes that “each payment made 

in satisfaction of disgorgement offsets the overall disgorgement amount... [because] funds 

returned are not unjust gains.” See SEC v. Govil, No. 22-1658, 2023 WL 7137291, at *12 (2d Cir. 

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Oct. 31, 2023) (citing FTC v. Bronson Partners, 654 F. 3d 359, 372 (2d Cir. 2011)). Noting that 

“a wrongdoer returns “value” for purposes of disgorgement whenever he returns property that 

holds value in his own hands,” the Second Circuit held that the defendant’s surrender of stock as 

part of a settlement agreement with the company whose shareholders he had defrauded had to be 

credited against his disgorgement obligation even though the defendant received a release of 

liability from the company in exchange for his surrender of the stock, and the surrender of stock 

did not result in any payment directly to the SEC. Id. at * 13. In so holding, the Court found that 

the relevant question was whether defendant’s surrender of stock “rights the wrongs to the actual 

victim of his misconduct.” Id. 

As in Govil, here, Ms. McElhone has been divested of significant assets which held value 

in her hands, and those assets are now in the Receivership where they will be used to make 

restitution to the investors. Under these circumstances, the assets in the Receivership which were 

seized from Ms. McElhone and are attributable to her must be credited to her disgorgement 

obligation – and the SEC’s continued refusal to apply these assets to the Final Judgment while Ms. 

McElhone continues to incur millions of dollars in post-judgment interest has caused her real and 

sustained injury. 

CONCLUSION

Ms. McElhone should not be held in contempt for failing to pay the Final Judgment because 

she cannot do so. Ms. McElhone does not have access to the frozen bank accounts identified in her 

Motion to Modify, and the fact that she moved the Court to allow her to use these accounts to pay 

her attorneys (as a result of her ongoing financial hardship) rather than moving the Court to apply 

the proceeds of these frozen accounts to the Final Judgment does not demonstrate that she failed 

to use reasonable efforts to satisfy her disgorgement obligation. Furthermore, a finding of contempt 

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would be particularly inappropriate in this case since Ms. McElhone’s inability to pay is the result 

of the SEC’s refusal to recognize the Receivership assets that were seized from Ms. McElhone and 

credit them towards the Final Judgment. For all of these reasons, and as explained further in this 

Response, Ms. McElhone respectfully submits that she has shown good cause why she should not 

be held in contempt. 

Dated: November 16, 2023.

KAPLAN ZEENA LLP

Attorneys for Defendant Lisa McElhone

2 South Biscayne Boulevard, Suite 3050

Miami, Florida 33131

Telephone: (305) 530-0800

Facsimile: (305) 530-0801 

By: /s/ James M. Kaplan

JAMES M. KAPLAN

Florida Bar No.: 921040

james.kaplan@kaplanzeena.com 

elizabeth.salom@kaplanzeena.com

service@kaplanzeena.com 

NOAH E. SNYDER

Florida Bar No.: 107415

noah.snyder@kaplanzeena.com

maria.escobales@kaplanzeena.com

julie.valdes@kaplanzeena.com

LAW OFFICES OF ALAN S. FUTERFAS

565 Fifth Avenue, 7th Floor

New York, New York 10017

Telephone: 212-684-8400

asfuterfas@futerfaslaw.com

Attorneys for Lisa McElhone

By: /s/ Alan S. Futerfas 

 ALAN S. FUTERFAS 

 Admitted Pro Hac Vice

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 16th day of November 2023, I electronically filed the 

foregoing document with the clerk of the Court using CM/ECF. I also certify that the foregoing 

document is being served this day on counsel of record via transmissions of Notices of Electronic 

Filing generated by CM/ECF.

By: /s/ James M. Kaplan

JAMES M. KAPLAN

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