1

SLATKIN & REYNOLDS, P.A. 

One East Broward Boulevard, Suite 609, Fort Lauderdale, Florida 33301 ● Telephone 954.745.5880 

UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

www.flsb.uscourts.gov 

In re: 

LOUIS TINO FISHER, 

 Debtor. 

CASE NO. 19-19710-RBR 

Chapter 7 

CREDITOR THEODORE ROBERTS’ RENEWED MOTION TO DISMISS CASE OR IN THE 

ALTERNATIVE, FOR RELIEF FROM THE AUTOMATIC STAY 

Creditor, Theodore Roberts (“Roberts”), by and through undersigned counsel, files 

Creditor Theodore Roberts’s Motion to Dismiss Case on in the Alternative, for Relief from the 

Automatic Stay, and as grounds therefore, Roberts states as follows: 

Introduction 

This case was filed for no other purpose but to thwart the closing of the sale of a parcel 

of real property that Debtor, along with his co-owner, Loretta B. Leonard (“Leonard”), agreed to 

sell to Roberts pursuant to a written contract signed on December 18, 2018, calling for a closing 

on or before January 18, 2019. Debtor and Leonard, unjustifiably refusing to close the 

transaction, forced Roberts to bring an action for specific performance in Broward County, 

Florida’s Seventeenth Judicial Circuit Court, obtaining a final summary judgment on July 1, 

2019. Order Granting Plaintiff’s Motion for Final Summary Judgment and Final Judgment for 

Specific Performance, a copy of which is attached hereto as Exhibit “A.” The Final Judgment

called for a closing no later than August 1, 2019. Nevertheless, to further delay and frustrate 

Roberts’s entitlement to the subject property, Debtor filed a petition under Chapter 7 of the 

United States Bankruptcy Code (11 U.S.C. §§ 101 et seq.) on July 22, 2019. Because the 

purpose for filing for bankruptcy was to avoid complying with the Final Judgment and closing the 

sale of the property, this case was clearly filed in bad faith and should therefore be dismissed. 

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SLATKIN & REYNOLDS, P.A. 

One East Broward Boulevard, Suite 609, Fort Lauderdale, Florida 33301 ● Telephone 954.745.5880 

Undisputed Facts 

1. On December 18, 2018, Debtor, Leonard, and Roberts, entered into that certain 

“AS IS” Residential Contract for Sale and Purchase (the “Contract”) in which Debtor and 

Leonard agreed to sell Roberts the real property located at 5440 NW 12th Court, Lauderhill 

Florida, more particularly described as: 

Lot 10, Block 8 of Falcon Subdivision Number One, according to the Plat thereof, 

recorded in Plat Book 54, Page 47 of the Public Records of Broward County, 

Florida. 

(the “Property”). 

2. The Contract called for a closing on or before January 18, 2019. 

3. Debtor and Leonard refused to close by the closing deadline and continued to 

refuse to close anytime thereafter. 

4. As a result, Roberts filed an action for specific performance against Debtor and 

Leonard on March 20, 2019, in the Seventeenth Judicial Circuit in Broward County, Florida. 

Case No. 19-006197 (09) CACE (the “State Court Action”). 

5. Roberts moved for final summary judgment in the State Court Action and was 

granted the same by way of the Final Judgment attached hereto as Exhibit “A.” 

6. The Final Judgment required Debtor and Leonard to close the transaction no 

later than August 1, 2019. Ex. A, ¶ 6, at 3. 

7. Instead, Debtor filed for bankruptcy on July 22, 2019. [ECF 1]. 

8. According to Debtor’s initial schedules, Debtor only has two unsecured creditors. 

American Express, which Debtor states is owed $758.00 and the other being Roberts. Schedule 

E/F: Creditors Who Have Unsecured Claims, [ECF 1, at 19.] 

9. And, according to Debtor’s schedules of income and expenses, Debtor is able to 

meet all of his monthly expenses. Schedule J: Your Expenses. [ECF 1, at 28]. 

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SLATKIN & REYNOLDS, P.A. 

One East Broward Boulevard, Suite 609, Fort Lauderdale, Florida 33301 ● Telephone 954.745.5880 

10. Debtor also claims the Property as his exempt homestead. Schedule C: The 

Property You Claim Exempt. [ECF 1, at 16]. (Simultaneously with the filing of this Motion, 

Roberts is filing an objection to Debtor’s claimed homestead exemption in the Property.) 

11. On September 1, 2019, Debtor filed amended schedules, amending only 

Schedule G: Executory Contracts and Unexpired Leases and Debtor’s Statement of Intention to 

incorrectly state that the contract between Roberts and Debtor was executory, and thus, Debtor 

incorrectly states in that he intends to reject the same. [ECFs 14 and 15]. 

12. Debtor refiled the foregoing amendments on September 6, 2019 inasmuch as the 

amendments filed on September 1st did not include Debtor’s declaration concerning the 

amended schedules, affirming as to their accuracy. [ECF 22]. 

13. Despite filing these amendments twice, neither of which included any additional 

creditors, thus, the only creditors are American Express and Roberts. 

14. Roberts moved to dismiss the case for bad faith, [ECF 10], which was heard on 

September 4, 2019, at the conclusion of which, the Court denied the motion without prejudice. 

[ECF 23]. 

15. A report of no distribution was filed in this case by the Chapter 7 trustee on 

September 2, 2019. [ECF 17]. 

16. In light of the fact that Debtor has only one significant creditor, that being 

Roberts, whose claim is for specific performance, coupled with the fact that there is nothing to 

be administered in this case, Robert’s renews his request for dismissal, or, in the alternative, 

requests relief from the automatic stay so as to be able to enforce in the Florida state court the 

specific performance Final Judgment. 

Memorandum of Law 

I. Dismissal of the Case

A. Bad Faith

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SLATKIN & REYNOLDS, P.A. 

One East Broward Boulevard, Suite 609, Fort Lauderdale, Florida 33301 ● Telephone 954.745.5880 

 Based on the undisputed facts noted above, it is clear that this bankruptcy case was filed 

in bad faith for it was filed for the sole purpose of circumventing the Final Judgment and 

thwarting Roberts’ rightful entitlement to the Property. 

Although there is no precise test for determining bad faith, courts have 

recognized factors which show an "intent to abuse the judicial process and the 

purposes of the reorganization provisions." [In re Natural Land Corp., 825 F.2d 

296 (11th Cir. 1987)]. These factors include the timing of the filing of the petition, 

id.; whether the debtor is "financially distressed," In re Waldron, 785 F.2d 936, 

939 (11th Cir.), cert. dismissed sub nom. Waldron v. Shell Oil Co., 478 U.S. 

1028, 106 S. Ct. 3343, 92 L. Ed. 2d 763 (1986); whether the petition was filed 

strictly to circumvent pending litigation, Holtkamp, 669 F.2d at 508; and whether 

the petition was filed solely to reject an unprofitable contract, Waldron, 785 F.2d 

at 939-41. 

In re Dixie Broadcasting, Inc., 871 F.2d 1023, 1027 (11th Cir. 1989). 

 In Dixie, no different than the Debtor herein, the debtor Dixie was not in financial distress 

and as the court found, “It seems clear that Dixie entered bankruptcy to get out of its bad 

deal...and that the petition was filed as a ‘diversionary tactic.’” Id. at 1027-1028. See also In re 

Star Broad, 336 B.R. 825 (Bankr. ND Fla. 2006). Similar to the court in Dixie, the court in Star

found that the debtor had assets in excess of its liabilities and that it filed bankruptcy for the sole 

purpose of rejecting a contracted it had second thoughts about honoring. Id., at 832. In both 

Dixie and Star, the courts found bad faith entitling the movants to relief from the automatic stay. 

Often discussed as grounds for seeking dismissal or relief from stay, if there are no other 

reasons to keep the case alive, such as to administer additional assets or otherwise 

consummate valid plan objectives, a finding of bad faith in the filing of the petition should result 

in the dismissal of the case. Id.; see also Sabella v. Kassover (In re GCC Realty Co., LLC), No. 

9:16-CV-81277, 2017 U.S. Dist. LEXIS 43221, at *26 (S.D. Fla. Mar. 24, 2017).

 The instant case was filed under Chapter 7, therefore, there is no reorganization being 

contemplated or proposed by Debtor. Second, this case was filed just days prior to a court 

ordered sale of the Property in an attempt to circumvent and thwart the judicial process. And 

apart from Roberts, whose claim is for specific performance, Debtor lists only one other 

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SLATKIN & REYNOLDS, P.A. 

One East Broward Boulevard, Suite 609, Fort Lauderdale, Florida 33301 ● Telephone 954.745.5880 

unsecured creditor, American Express, which is allegedly owed $758.00. Moreover, according 

to Debtor’s schedules of income and expenses, Debtor is able to meet his debts in the ordinary 

course of his affairs. Thus, there is no justified reason for Debtor to have filed for bankruptcy. 

Instead, Debtor filed this case in bad faith in an attempt to get out of the Contract that Debtor 

(and Leonard) had second thoughts about honoring. 

B. Rooker-Feldman Doctrine 

Debtor’s filing for bankruptcy is a collateral attack of a state court judgment. And 

collateral attacks of a state court judgment brought before a federal district court is barred under 

what has been come to be known as the Rooker-Feldman doctrine. 

The Rooker-Feldman doctrine is a limitation on the jurisdiction of the inferior 

federal courts. This limitation is intended to prevent the federal courts from 

hearing what are essentially appeals from state court decisions, which may only 

be heard by the United States Supreme Court. 

... 

The foundation of the Rooker-Feldman doctrine rests on two United States 

Supreme Court cases. In the first one, Rooker v. Fidelity Trust Co., 263 U.S. 413, 

44 S. Ct. 149, 68 L. Ed. 362 (1923), the Supreme Court rejected, as falling 

outside the jurisdiction of the district court, a suit that sought to have an Indiana 

state court's judgment "declared null and void." Id. at 414. 

Target Media Partners v. Specialty Mktg. Corp., 881 F.3d 1279, 1284 (11th Cir. 2018). 

The Feldman decision, rendered decades later, D.C. Court of Appeals v. Feldman, 460 

U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983), further refined the jurisdictional analysis by 

distinguishing those case in which a party is in essence asking a federal district, in this case a 

bankruptcy court, to effectively nullify a state court judgment — claims that the Court in Feldman

declared outside of a federal district court’s jurisdiction, to those cases in which the question is 

whether the state court’s action violated a federal right, such as the right to due process under 

the Fourteenth Amendment to the U.S. Constitution, which fall within the jurisdiction of the 

federal district courts. Id. at 482-483. 

In Target Media, supra. at 285, the Court of Appeals for the Eleventh Circuit noted that 

the Supreme Court has since revisited the Rooker-Feldman doctrine, and in 2005 declared that 

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SLATKIN & REYNOLDS, P.A. 

One East Broward Boulevard, Suite 609, Fort Lauderdale, Florida 33301 ● Telephone 954.745.5880 

the doctrine was being used too broadly. Id.; quoting Exxon Mobil Corp. v. Saudi Basic Indus. 

Corp., 544 U.S. 280, 292, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005). In Exxon Mobil the 

Supreme Court held that: 

Rooker-Feldman bars only that class of cases in which federal litigants seek 

reversal of state court decisions. The doctrine is "confined to cases of the kind 

from which the doctrine acquired its name: cases brought by state-court losers 

complaining of injuries caused by state-court judgments rendered before the 

district court proceedings commenced and inviting district court review and 

rejection of those judgments." Id. at 284. The Supreme Court has also clarified 

that "Rooker-Feldman is not simply preclusion by another name." Lance v. 

Dennis, 546 U.S. 459, 466, 126 S. Ct. 1198, 163 L. Ed. 2d 1059 (2006) (again 

stating that Rooker-Feldman applies "where a party in effect seeks to take an 

appeal of an unfavorable state-court decision," id.). The doctrine neither 

"override[s] or supplant[s] preclusion doctrine" nor "augment[s] the circumscribed 

doctrines that allow federal courts to stay or dismiss proceedings in deference to 

state-court actions." Exxon Mobil, 544 U.S. at 284. 

... 

To determine which claims invite rejection of a state court decision, we continue 

to apply an inquiry similar to the one that preceded Exxon Mobil. We continue to 

consider whether a claim was either (1) one actually adjudicated by a state court 

or (2) one "inextricably intertwined" with a state court judgment. See Casale v. 

Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009) (per curiam). And we have 

continued to describe a claim as being "inextricably intertwined" if it asks to 

"effectively nullify the state court judgment, or it succeeds only to the extent that 

the state court wrongly decided the issues." Id. (internal quotation marks and 

citation omitted). 

Target Media at 1285-1286. 

C. Two-party Dispute 

Moreover, this case is a two-party dispute because, aside from Roberts, Debtor lists only 

American Express as a creditor and for a rather nominal amount; seven hundred and fifty eight 

dollars to be exact. [ECF 1, at 20]. And courts have routinely held that two-party disputes should 

not be resolved in the bankruptcy courts, particularly when the dispute is currently being litigated 

or has been litigated in another forum. “The bankruptcy court may dismiss a case when that 

court is used as ‘an alternative to proceeding with pending State Court litigation to resolve what 

is essentially a two-party dispute.’" Sabella, at *21-22 (S.D. Fla. Mar. 24, 2017) (quoting In re 

Kass, 114 B.R. 308, 309 (Bankr. S.D. Fla. 1990)). Accordingly, Robert asserts that this case 

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SLATKIN & REYNOLDS, P.A. 

One East Broward Boulevard, Suite 609, Fort Lauderdale, Florida 33301 ● Telephone 954.745.5880 

should be dismissed. It was filed for the sole purpose of attempting to thwart the two-party 

dispute between the parties that was successfully litigated by Roberts in the Florida state courts. 

But should this Court decide that dismissal is not warranted, Roberts alternatively requests that 

this Court grant Roberts relief from the automatic stay to enforce Robert’s in rem rights in the 

Property set forth in the Final Judgment. 

II. Relief from the Automatic Stay 

Upon the commencement of this case arose the automatic stay under § 362(a) of the 

Bankruptcy Code, barring creditors, including Roberts from pursuing their claims against Debtor 

or property of the Debtor. But in subsection (d) of § 362, Congress set forth the grounds upon 

which one may be granted relief from the automatic stay. “[The] automatic stay may be 

terminated for ‘cause’ pursuant to section 362(d)(1) of the Bankruptcy Code. The statute 

specifically provides that ‘the lack of adequate protection of an interest in property’ is cause to 

lift a stay. Further, a petition filed in bad faith also justifies relief from a stay.” Dixie Broadcasting, 

at 1027 (citing In re Natural Land Corp., 825 F.2d 296 (11th Cir. 1987)). 

Although, bad faith, as noted above, is grounds to either dismiss a case or grant relief 

from the automatic stay, the latter is often the path chosen by the court when there are 

additional reasons to keep the debtor in bankruptcy, such as to administer additional assets. 

Dixie Broadcasting, at 1029; and Sabella, at *26. Roberts asserts that there are no additional 

reasons for this case to remain in bankruptcy, particularly in light of the Trustee’s filing of a 

report of no distribution, therefore, dismissal is proper, but if the Court holds otherwise, stay 

relief is nevertheless warranted because of Debtor’s bad faith filing of this case. 

This case was filed under Chapter 7, thus, there is no reorganization being sought by 

Debtor. There are no other creditors other than ostensibly American Express, which holds a 

rather modest claim against Debtor. It is therefore apparent that Debtor’s filing of this case was 

done solely for the purpose of frustrating Roberts’ legitimate rights to the Property and to hinder 

the state court litigation in which Roberts pursued and confirmed those rights. Therefore, in the 

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SLATKIN & REYNOLDS, P.A. 

One East Broward Boulevard, Suite 609, Fort Lauderdale, Florida 33301 ● Telephone 954.745.5880 

event Roberts’ request for dismissal is denied, Roberts asks this Court for relief from the 

automatic stay so that Roberts may return to the Florida state court that issued the Final 

Judgment and enforce the same. As the case law cited above makes clear, Debtor’s bad faith is 

cause under § 362(d)(1) that warrants the granting of stay relief. 

 WHEREFORE, Roberts, by and through undersigned counsel, requests that this 

Honorable Court grant this Motion by either dismissing this case or granting Roberts relief from

the automatic stay allowing Roberts the right to enforce the Final Judgment in the court in which 

it was issued, and grant Roberts any further relief this Honorable Court deems just and proper. 

Dated this 26th day of September, 2019. SLATKIN & REYNOLDS, P.A. 

 Attorneys for Theodore Roberts 

 One East Broward Boulevard, Suite 700 

 Fort Lauderdale, Florida 33301 

 Telephone 954.745.5880 

 Facsimile 954.745.5890 

 jslatkin@slatkinreynolds.com 

 By: /s/ Jason E. Slatkin___________ 

 Jason E. Slatkin, Esq. 

 Fla. Bar No: 040370 

Certificate of Service 

 I hereby certify that a true copy of the foregoing has been furnished via CM/ECF to 

Christian J. Olson, Esq., attorney for Debtor, ecf@nowackolson.com, and U. S. Mail, first class, 

postage prepaid, to Louis Tino Fisher, 5440 NW 12th Court, Lauderhill, FL 33313 and American 

Express, Po Box 297871, Fort Lauderdale, FL 33329 26th day of September, 2019. 

 /s/ Jason E. Slatkin___ 

 Jason E. Slatkin, Esq. 

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SLATKIN & REYNOLDS, P.A. 

One East Broward Boulevard, Suite 609, Fort Lauderdale, Florida 33301 ● Telephone 954.745.5880 

EXHIBIT 

“A” 

 

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