1 | Response in Opposition to Strik

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

 Case No: 9:20-CV-81205

SECURITIES AND EXCHANGE 

COMMISSION

Plaintiff,

vs.

COMPLETE BUSINESS SOLUTIONS 

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

al.

Defendants

L.M.E. 2017 FAMILY TRUST,

Relief Defendant.

 

RESPONSE IN OPPOSITION TO RECIEVER’S MOTION TO STRIKE

COMES NOW, JOSEPH COLE BARLETA (“Cole”), by and through his 

undersigned counsel, and pursuant to this Court’s inherent authority, responds in 

opposition to Receiver’s Motion to Strike:

RECIEVER’S PROCEDURAL DEFICIENCIES

1. As a threshold matter, Cole does not know what the Receiver hopes to 

accomplish with his Motion to Strike. The Receiver’s motion is a Motion to 

Strike, yet he seeks more than merely striking a Notice of Compliance, but 

sanctions in the form of a coercive fine, as well as attorney’s fees. 

2. The standard for a Motion to Strike are clear:

Under Fed. R. Civ. P. 12(f), a court may, on its own motion or by motion 

of a party, strike from a pleading an insufficient defense or any redundant, 

immaterial, impertinent, or scandalous matter. A motion to strike should be 

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2 | Response in Opposition to Strik

granted only if the matter sought to be omitted has no possible relationship 

to the controversy, may confuse the issues, or otherwise prejudice a party. 

Because that standard is rarely met, motions to strike are generally 

disfavored by the court and are often considered time wasters. See generally 

United States ex rel. Chabot v. MLU Servs., Inc., 544 F. Supp. 2d 1326 (M.D. Fla. 2008)

3. The Receiver does not even pretend that it has met that standard, and instead 

cites to the standard for a Motion for Sanctions. However, the Receiver, is 

seeking more than just sanctions, but a Motion to Strike. 

4. The Recever has failed to demonstrate how Striking a Notice of Compliance is 

warranted nder the standard set forth under Fed. R. Civ. P. 12(f).

FACTS PERTINENT TO RECIEVER’S MOTION TO STRIKE

5. Next, most of what the Receiver has requested Cole does not have possession

of. 

6. Specifically, on July 31, 2023, Undersigned sent Mr. Alfano the following email:

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7. The above-mentioned e-mail was never responded to by Gaetan or any of the 

other Receivership counsel. As such, Cole has not mislead the Court, and he 

does not have documents that the Receiver is requesting, that he claims are 

missing.

8. However, what Cole had produced is an entire summary of assets, all 

Statements from Cole’s Fidelity Account that he could obtain, all Capital 

Source 2000 Statements that he could obtain, all Statements from Fl Memory 

Lane, LLC. that Cole could obtain, all Statements from Helliz Abbwal, LLC. 

that Cole could obtain, all Statements from Winsome grounds, LLC. that Cole 

could obtain.

9. Although there was confusion about the scope of the request, Cole sent the 

Receiver no less than 223 items, or 54.7 megabytes of documents. 

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10. With that in mind, the Receiver has made various contentions that are simply 

not true. The following are reasons why Cole has not produced other 

documents:

a. Helliz Abbwal accounts only go back to June 2022 when they were 

opened, the statement clearly shows a starting balance of $0.00 for this 

account then.

b. All statements for FL Memory Lane Bank of America account (3299); 

(ii) FL Memory Lane Bank of America account (3286); (iii) Winsome 

Grounds PNC account; (iv) Fulton Bank account; and (v) Hezwal 

Abbwal WSFS Bank account have been produced.

c. Cole does not have possession of closing documents, or property 

documents related to (i) 609 S. Delhi Street, Philadelphia, PA; (ii) 1745 

Walnut Green Road, Wilmington, DE; (iii) 1751 Walnut Green Road, 

Wilmington DE; and (iv) 108 Louisiana Drive, Pensacola, FL.

d. Cole does not have, nor does he maintain corporate formation 

documents for FL Memory Lane LLC and Hezwal Abbwal LLC. These 

are closely held entities that do not typically maintain corporate 

formalities outside of keeping separate accounts and filing annual 

reports. 

e. Cole does not have “All documents reflecting the depletion of funds in 

Cole’s Fidelity accounts from the time of the Asset Freeze in August 

2020 (totaling roughly $100,000) through May 2023 (under $100).”

Moreover, even, assuming that Cole had such documents, the original 

request made by the Reciever never contemplated this category

production.

f. Likewise, the original request sought assets, but not liabilities, which 

are different. For discovery and accounting purposes, assets and 

liabilities are different. Specifically, this Court has required Cole to do 

the following:

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that the Receiver’s

Motion [ECF No. 1188] is GRANTED. Within seven (7) days of the date of this Order, 

Cole shall respond to the Receiver’s requests—producing copies of all documents within 

Cole's possession, custody, or control containing information from 2016 through the 

present about the following 10 categories of assets in which Cole may have a personal or 

business interest:

• Real Estate

• Stocks, Bonds, and Securities

• Bank Accounts

• Safe Deposit Boxes

• Automobiles

• Indebtedness Owed to Cole

• Partnerships and Other Business Interests

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• Trusts

• Other Property

• Disposed of Property

11. As can be seen above, the Court did not order the disclosure of liabilities, but 

merely assets. Regardless of the interpretation of the Order, Cole has provided 

the Receiver with everything that Cole found.

12. Moreover, if there is something that the SEC needs in aid of execution, they can 

issue interrogatories, or choose to take the Deposition. Likewise, should the 

Receiver wish, he has the power of subpoena. 

13. Not withstanding the above, the SEC, the sole entity entitled to collect, has 

scheduled the deposition of Capital Source 2000, Inc. on September 20, 2023 

on Webex. 

14. As such, Cole is, literally, hiding nothing. 

ARGUMENT

A. Sanctions are Improper

Sanctions are only proper under Rule 37(b)(2) when a party “fails to obey an order to 

provide or permit discovery.” Fed. R. Civ. P. 37(b)(2)(A). Under the Federal Rules of 

Civil Procedure, it remains the case that parties are only obligated to preserve and 

produce those records that are in their possession, custody or control. Parties are not 

obligated to recreate records that were destroyed in the ordinary course of business or that 

are in the possession of third parties, as in Phillips v. Netblue, 2007 No. C-05-4401 SC. 

(N.D. Cal. Jan. 22, 2007) (The fundamental factor is that the document, or other potential 

objects of evidence, must be in the party’s possession, custody, or control for any duty to 

preserve to attach ... One cannot keep what one does not have.)

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The Phillips case is bolstered by In Microsoft Corp. v. United States (In re Warrant

to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp.), 855

F.3d 53, 60 (2d Cir. 2017), the US Court of Appeals for the Second Circuit decided that 

a warrant issued pursuant to the Stored Communications Act (SCA) of 1986 did not 

require Microsoft to turn over material from a data center located outside of the United 

States. The government had sought all information associated with a free Microsoft email 

account, regardless of where the emails were stored. Microsoft provided the government 

with data stored in the United States, but refused to produce emails outside the United 

States stored in its Ireland data center, asserting that the data center is outside the 

jurisdictional limit of US search warrants. Microsoft’s objections were ultimately 

upheld. 

As such, because Cole has provided everything he had in his possession, the Reciever 

should not be able to force Cole to testify or create business records where non exist. 

WHEREFORE, the Motion to Strike Should be DENIED.

Date: August 15, 2023

Respectfully submitted, 

Law Offices of Andre G. Raikhelson, LLC.

Counsel for Defendant

7000 W Palmetto Park Road, Suite 210 

Boca Raton, FL 33431

Telephone: (954) 895-5566

Primary: arlaw@raikhelsonlaw.com

/s/ Andre G. Raikhelson

Andre G. Raikhelson Esq.

Bar Number: 123657

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on August 15, 2023, I electronically filed the foregoing with 

the Clerk of the Court by using the CM/ECF system which will send a notice of 

electronic filing to all counsel of record.

/s/ Andre G. Raikhelson

Andre G. Raikhelson Esq.

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