UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

WEST PALM BEACH DIVISION 

www.flsb.uscourts.gov 

In re: 

 Case No. 18-16248-BKC-MAM 

CHANCE & ANTHEM, LLC, Chapter 7 

 

 Debtor. 

 / 

ROBERT C. FURR, not individually but ADV. NO. 19-01299-MAM 

as Chapter 7 Trustee of the estate of the 

Debtor, Chance & Anthem, LLC, 

 Plaintiff, 

v. 

AIR CENTER, INC., 

 Defendant. 

 / 

SUPPLEMENTAL RESPONSE AND OPPOSITION BY PLAINTIFF, ROBERT C. 

FURR, AS CHAPTER 7 TRUSTEE, TO JEFFREY M. SISKIND’S 

MOTION TO STRIKE 

 

Plaintiff, Robert C. Furr (“Plaintiff”), as Chapter 7 Trustee of the Debtor, Chance & 

Anthem, LLC (the “Debtor”), by and through counsel, and pursuant to Rule 12(f), Federal Rule 

of Civil Procedure, as incorporated by Federal Rule of Bankruptcy Procedure 7012, files this 

Supplemental Response And Opposition By Plaintiff, Robert C. Furr, As Chapter 7 Trustee (the 

“Supplemental Response”) to Movant, Jeffrey M. Siskind’s (“Siskind”) Motion to Strike 

Chapter 7 Trustee’s Scandalous, Impertinent Allegations and for Clarification [Adv. D.E. 12] 

(the “Motion to Strike”) and in support of this Supplemental Response states, as follows: 

I. PROCEDURAL BACKGROUND 

1. On August 6, 2019, the Plaintiff commenced this action by filing the Adversary 

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Complaint To Avoid And To Recover Fraudulent Transfers And For Other Relief (the 

“Adversary Complaint”) [Adv. D.E. 1] against the Defendant, Air Center, Inc. (“Defendant” or 

“Air Center”), in the above adversary proceeding (the “Adversary Case”). 

2. In the Adversary Complaint, the Trustee seeks to avoid and recover certain 

alleged fraudulent transfers totaling $17,000.00 pursuant to § 726.105(1)(b), Florida Statutes, 

and 11 U.S.C. § 544(b)(1) and § 550 of the Bankruptcy Code (Count I) and for Unjust 

Enrichment (Count II) (collectively, the “Transfer Claims”). 

3. On September 7, 2019, Siskind filed his Motion to Strike [Adv. D.E. 12]1

generally arguing, but without specifying or clarifying for the Court, that the Adversary 

Complaint contained unspecified “scandalous and impertinent language” that should be stricken. 

4. On September 30, 2019, Plaintiff filed his Response and Opposition to the Motion 

to Strike noting that: (i) Siskind lacked standing to file the Motion to Strike; and (ii) the Motion 

to Strike was meritless because the allegations contained in Plaintiff’s Adversary Complaint are 

neither impertinent nor scandalous [Adv. D.E. 17]. 

5. On October 2, 2019, the Court held preliminary hearings (the “Hearings”) on the 

Motions to Strike, among other matters, including the Motions to Intervene filed in the 

Adversary Cases [Adv. D.E. 11, 13]. 

6. On October 3, 2019, the Court issued its Order Directing Submission of 

Document (the “Order”) which, among other things, directed Siskind to submit a copy of the 

Adversary Complaint and identify “the language to which he objects marked in a manner that the 

Court and Plaintiff can use to identify precisely which language Mr. Siskind finds 

objectionable.” [Adv. D.E. 18]. 

 

1 Similarly, nearly identical Motions to Strike were filed in the following adversary proceedings styled: (i) Robert C. 

Furr v. Ocean Reef Club, Inc.; Adv. Case No. 19-01302-MAM and (ii) Robert C. Furr v. New Country Motor Cars 

of Palm Beach, LLC; Adv. Case No. 19-01300-MAM for which the Plaintiff filed Responses [Adv. D.E. 10 & 13]. 

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7. Although Siskind subsequently complied with the Order, he failed to advise the 

Court or Plaintiff, as to the reasons why such language purportedly rises to the level of 

impertinent or scandalous material such that it should be stricken from the record. 

8. For the reasons set forth in this Supplemental Response, the Motion to Strike 

lacks merit and should be denied. 

II. LEGAL ARGUMENT 

A. The Allegations in the Adversary Complaint Are Relevant and Necessary to 

Prove Actual and Constructive Fraudulent Intent. 

Rule 12(f) of the Federal Rules of Civil Procedure, as made applicable to this Adversary 

Proceeding by Rule 7012 of the Federal Rules of Bankruptcy Procedure, provides in part: 

(f) Motion to Strike. The court may strike from a pleading an insufficient defense 

or any redundant, immaterial, impertinent, or scandalous matter. 

Fed. R. Civ. P. 12(f) (emphasis added). 

To prevail on a motion to strike impertinent material under Rule 12(f), a party must 

demonstrate the allegations “do not pertain, and are not necessary, to the issues in question.” 

Blake v. Batmasian, 318 F.R.D. 698, n.1 (S.D. Fla. 2017); St. Johns County School Dist., No. 

3:09-cv-250-J-20TEM, 2009 WL 1941482 at *1 (M.D. Fla. July 7, 2009). Stated differently, 

material will not be stricken as impertinent “[i]f part of the challenged material is...so connected 

with the subject matter of the suit that it might be deemed to present a question of law or fact that 

the district court is obligated to hear and determine[.]” Wright & Miller, Federal Practice and 

Procedure: Civil § 1382 (3d ed. 2004). 

In this case, Siskind moves to strike as impertinent the allegations that the Debtor, acting 

through Siskind as the Debtor’s sole manager, lawyer, and alter ego, made fraudulent transfers to 

defraud its creditors. [Adv. D.E. 12]. In the Adversary Complaint, Plaintiff specifically alleges 

claims against Air Center to avoid and recover constructively fraudulent transfers pursuant to 

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Sections 544 and 550 of Title 11 of the United States Code and Chapter 726, Florida Statutes 

(Count I) and for Unjust Enrichment (Count II) [Adv. D.E. 1]. Furthermore, Plaintiff alleges the 

Debtor did not receive the reasonably equivalent value for each transfer identified in the 

Adversary Complaint. Florida district courts make clear that such allegations are impertinent 

only if they have no possible relation to the case at bar. See Blake, 318 F.R.D. at n.1. 

Here, the allegations are both related to and necessary for Plaintiff to meet its burden of 

proof for constructive fraud. To demonstrate constructive fraud, the trustee must prove that the 

debtor was insolvent at the time the transfer was made and received less than reasonably 

equivalent value in exchange for the transfer. In re World Vision Entertainment, Inc., 275 B.R. 

641, 655 (M.D. Fla. 2002). The underlying basis of the Transfer Claims also encapsulate several 

badges of fraud found in actual intent transfer cases. “Given the difficulties in establishing a 

debtor’s actual intent, courts generally look at the totality of the circumstances and the badges of 

fraud surrounding the transfers.” Id. (citing Model Imperial, Inc., 250 B.R. 776, 790-791 (Bankr. 

S.D. Fla. 2009) (Hyman, Jr., J.) (emphasis added)). Indeed, “[b]ecause a debtor is not likely to 

testify that he had the requisite intent to defraud creditors, the intent to hinder, delay, or defraud 

can be inferred from extrinsic evidence and the presence of badges of fraud.” Menotte v. Leonard 

(In re Leonard), 418 B.R. 477, 487 (Bankr. S.D. Fla. 2009) (quoting Bakst v. Clarkston (In re 

Clarkston), 387 B.R. 882, 887 (Bankr. S.D. Fla. 2008)). Thus, “[t]o determine whether 

circumstantial evidence supports an inference of an intent,” in most cases, courts look to the 

“badges of fraud.” In re Toy King Distributors, Inc., 256 B.R. 1, 126–27 (Bankr. M.D. Fla. 2000) 

(treating § 726.105 as state law equivalent of 11 U.S.C. § 548(a)(1)(A) and treating § 726.106 as 

state law equivalent of § 548(a)(1)(B)). 

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Notably, the Eleventh Circuit has adopted the badges of fraud contained in the Florida 

fraudulent transfer statute. In re Levine, 134 F.3d 1046, 1053 (11th Cir. 1998). In this case, the 

allegations at issue evince the presence of several badges of fraud, including whether: (1) the 

transfers were to an insider; (2) the transfers were disclosed or concealed; (3) the Debtor 

removed or concealed assets; (4) the value of the consideration received by the Debtor was not 

reasonably equivalent to the value of the asset transferred; (5) the Debtor was insolvent or 

became insolvent shortly after the transfers were made; and (6) the debtor was insolvent or 

became insolvent shortly after the transfer was made;. Dionne v. Keating (In re XYZ Options, 

Inc.), 154 F.3d 1262, 1271 (11th Cir. 1998) (circumstantial evidence known as the badges of 

fraud may be used to prove fraudulent intent) [Adv. D.E. 1]. Moreover, the issue of insolvency, 

and whether the Debtor received reasonably equivalent value in exchange for the transfers or was 

left with “unreasonably small capital,” within the meaning of the constructive fraudulent transfer 

statutes, may also involve the pleading requirement under the “totality of the circumstances test”. 

In re BMT-NW Acquisitions, LLC, 582 B.R. 846 (D. Del. 2018). 

However, in connection with the Motion to Strike and Order, the submission by Suskind 

is completely devoid of any authority or factual evidence that would negate the presence of these 

badges of fraud or suggest, at a minimum, that the allegations are somehow unrelated to the 

Adversary Case. Accordingly, the allegations contained in the Adversary Complaint are not only 

directly related to the instant action, but they are also necessary for Plaintiff to prove its case. As 

such, the Motion to Strike must be denied. 

B. The Allegations are Relevant and Potentially True and, Thus, Are Not 

 Scandalous Under Federal Rule of Civil Procedure 12(f). 

Siskind further asserts the same allegations are “scandalous” within the meaning of Rule 

12(f) and should likewise be stricken. To strike scandalous material from a pleading, a court 

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must determine such material is “obviously false and unrelated to the subject matter of the 

action.” See St. Johns County, 2009 WL 1941482 at *4 (emphasis added). Notably, “it is not 

enough that the matter offends the sensibilities of the objecting party if the challenged allegations 

describe acts that are relevant to the action.” Id. Instead, the language must “unnecessarily reflect 

on the moral character of an individual or state[] anything in repulsive language that detracts 

from the dignity of the court.” Id. 

Here, as noted above, the allegations regarding Siskind’s involvement in the fraudulent 

transfers are not only related, but also necessary to the Adversary Case and allegations 

supporting the Transfer Claims as set forth in the Adversary Complaint. And, while Siskind may 

find the allegations unpleasant, Plaintiff is still entitled to plead those facts as relevant to its 

causes of action. See id. Moreover, the allegations are neither “obviously untrue” nor are they 

alleged in “repulsive language”, nor has Siskind asserted as much. In fact, it is clear on the face 

of the Adversary Complaint that the allegations were neither phrased in offensive language nor 

plead to harass or disparage Siskind. See [Adv. D.E. 1]. Instead, Plaintiff included the relevant 

allegations and information following its detailed investigations that showed its claims are likely 

true. Accordingly, because the allegations against Siskind are relevant, carry the potential to be 

true, and do not offend the dignity of the Court, they do not rise to the level of “scandalous” 

material under Rule 12(f), and the Motion to Strike must be denied. 

WHEREFORE, Plaintiff, Robert C. Furr, as Chapter 7 Trustee, respectfully requests 

that the Court enter an Order (i) sustaining and granting the Supplemental Response; (ii) denying 

the Motion to Strike; and (iii) for such further relief as the Court deems just and appropriate. 

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Respectfully submitted this 21st day of October, 2019. 

GENOVESE JOBLOVE & BATTISTA, P.A. 

 Counsel to the Chapter 7 Trustee 

100 S.E. 2nd Street, Suite 4400 

Miami, FL 33131 

Tel.: (305) 349-2300 

Fax.: (305) 349-2310 

 By:/s/ Barry P. Gruher, Esq. 

 John H. Genovese, Esq. 

 Florida Bar No. 280852 

 jgenovese@gjb-law.com 

 Jesus M. Suarez, Esq. 

 Fla. Bar No. 60086 

 jsuarez@gjb-law.com 

 Barry P. Gruher, Esq. 

 Fla. Bar No. 960993 

 bgruher@gjb-law.com

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a true and correct copy of the foregoing was served via 

CM/ECF Notification upon all interested parties registered to receive electronic notification in 

this matter and/or via U.S. Mail as indicated on the Service List below on this 21st day of 

October, 2019. 

By:/s/ Barry P. Gruher 

 Barry P. Gruher, Esq. 

Case 19-01299-MAM Doc 29 Filed 10/21/19 Page 7 of 8
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SERVICE LIST 

Served Via CM/ECF Notification 

Jeffrey M Siskind on behalf of Interested Party Jeffrey M Siskind jeffsiskind@msn.com, 

jmsesq500@gmail.com

Jesus M Suarez on behalf of Plaintiff Robert C. Furr jsuarez@gjb-law.com, gjbecf@gjblaw.com; chopkins@gjb-law.com; jzamora@gjb-law.com; ecastellanos@gjb-law.com; 

gjbecf@ecf.courtdrive.com

Served Via U.S. Mail 

Daniel D. Barks, Esq. 

Counsel to Defendant 

Speiser Krause 

1750 Tysons Boulevard 

Suite 1500 PMB #41 

McLean, VA 22102 

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