UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

IN RE: CASE NO. 19-16856-RAM

ALEJANDRO FABIAN SCOLNIK, CHAPTER 7

Debtor.

___________________________/

NINTER GROUP JB LLC 

AND DIOS MANDA LLC ADV CASE NO.19-

Plaintiffs,

v.

ALEJANDRO FABIAN SCOLNIK,

Defendant.

___________________________/

ADVERSARY COMPLAINT TO DETERMINE DISCHARGEABILITY

OF DEBT PURSUANT TO 11 U.S.C. § 523(a)(2)

NINTER GROUP JB LLC AND DIOS MANDA LLC, pursuant to 11 U.S.C §

523(a)(2) of Title 11 of the United States Code, (“Bankruptcy Code”), and Rules 4007

and 7001 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”), jointly 

and severally sue ALEJANDRO FABIAN SCOLNIK (“Defendant”) to obtain a 

judgment and determination that the debt owed by the Defendant to Plaintiffs is not 

dischargeable.

Case 19-16856-RAM Doc 168 Filed 12/30/19 Page 1 of 11
I. INTRODUCTION

Defendant filed this case as a chapter 11 on 5/23/19; the case was converted to 

chapter 7 on 8/13/19.

The deadline for objecting to discharge is 12/30/2019. Deadline for filing claims is 

01/02/2020.

II. NATURE OF ACTION, PARTIES, JURISDICTION AND VENUE

A. Nature of Action - Plaintiffs sue the Defendant seeking a judgment and 

determination that the debt owed to them by the Defendant is not

dischargeable pursuant to § 523(a) (2) and Bankruptcy Rules 4007 and 

7001.

B. Parties - Plaintiffs are Florida Limited Liability Companies, and are sui 

juris. Defendant is an individual, debtor in this case, and sui juris.

C. Jurisdiction - This court has jurisdiction of this Adversary Proceeding

pursuant to 28 U.S.C. § 1334(b) and 523(a)(2) which 

excepts from discharge debts specified. This is a

core proceeding for which the Court is authorized to determine all

matters regarding this Adversary Proceeding in accordance with 28 U.S.C. 

§ 157(b)(2)(I). This Court has authority to issue final orders and

judgments in this Adversary Proceeding.

 D. Venue - Venue is proper in this district pursuant to 28 U.S.C. § 1409.

Case 19-16856-RAM Doc 168 Filed 12/30/19 Page 2 of 11
III. Facts

1. Plaintiff Dios Manda LLC had filed suit 7/30/18 in the Circuit Court 

of the 11th Judicial Circuit for Miami-Dade County, Florida, case number:2018-025731-

CA-01, against Debtor. A copy of the filed complaint and exhibits is attached hereto 

and made a part hereof as exhibit “A”. The state court complaint sets forth the facts 

underlying this adversary complaint in detail. Exhibit B is an official English translation 

of the 1/3/18 mandatory letter of intent which is exhibited to the complaint, which 

alleges:

1- Defendant ALEJANDRO SCOLNIK hereinafter 

SCOLNIK individually and in his capacity as 

shareholder and/or managing Member of the 

corporate Defendant entered into a written 

Mandatory Letter of lntent dated January 3rd, 

2018, whereby he obligated himself individually 

and as corporate representative of the various 

corporate Defendants, to sell an interest in each 

of the corporate Defendants, as set forth in said 

Agreement attached hereto as Plaintifrs Exhibit '

1".

2- Pursuant to the Agreement, Plaintiff DIOS MANDA, LLC., 

agreed to pay $1,200,000.00 in eight (8) payments, and did 

pay $606,000.00 in timely performance, pursuant to the terms 

of the Agreement stated above.

3- Pursuant to the Agreement, SCOLNIK agreed to 

sell 50% interest in Defendant BRICKELL 

RESTAURANTE, hereinafter (BR), 50% interest in 

Defendant PIACERE NEWSY CAFE CORP., 

hereinafter (PA), and GODIVA AMERICA, CORP., 

hereinafter (GA). Defendant SCOLNIK further 

agreed to sell 25% in corporate Defendant THE 

GRAND, hereinafter (TG) and 25% in Defendant 

LATTE, S.I. for a total of 25% interest in the 

cafeteria restaurant located in Sunny Isles Beach, 

Florida

4- Plaintiff paid to Defendant

SCOLNIK the following sums: 

Case 19-16856-RAM Doc 168 Filed 12/30/19 Page 3 of 11
a) $156,000 on February 5th,

2018;

b) $140,000.00 on February 5th, 2018;

c) $160,000.00 on March 5th, 2018;

d) $150,000.00 on April 5th, 2018;

e) For a total of $606,000.00 through and including April 5th, 

2018.

5- In performing its due diligence in anticipation on 

closing on the purchase of the foregoing interest in 

the various restaurants, Plaintiff DM investigated 

the ownership and tenancy status of the restaurant 

located in Sunny Isles Beach, Florida, which the 

Defendant SCOLNIK represented he held 25% 

ownership, and learned Defendant SCOLNIK had 

previously sold his total 100% interest in corporate 

Defendant LATTES.I. CORPORATION, to an 

individual by the name of Marcos Peralta and at 

the time of executing the Mandatory Letter of Intent, 

he had no interest in the restaurant owned by 

LATTE S.I., tosell.

6- Defendant SCOLNIK also offered to sell 50% 

interest in corporate Defendant GODIVA 

AMERICAN, CORP., which operated the restaurant 

known as Santa Fe Bal Harbor.

7- At the time he executed the Mandatory Letter of 

Intent, Defendant SCOLNIK did not own 100% of 

said corporate Defendant, and in fact had no 

authority to unilaterally sell 50% of its shares.

8- Defendant SCOLNIK agreed to utilize the monies

paid to it by Plaintiff DM to bring all rents current

and to maintain the rents current at all times

relevant hereto.

9- Instead, Defendant SCOLNIK diverted funds paid to 

him by the Plaintiff DM and failed to make rent 

payments for some locations, payments for the 

restaurant operated by corporate Defendant BR, 

known as Santa Fe located at Brickell City Center, 

and failed to pay the rent at the restaurant operated 

by corporate Defendant GA, the restaurant in the 

Bal Harbor shops.

10- As a result of failure to pay the foregoing rents, 

both corporate Defendants BR and GA were served 

with complaints for possession and eviction.

11- Contrary to the terms of the Mandatory Letter of 

Case 19-16856-RAM Doc 168 Filed 12/30/19 Page 4 of 11
Intent, Defendant SCOLNIK has failed to transfer in 

proportion to the payments received, any interest in 

any of the restaurants, despite the fact he has 

received more than one half of the monies agreed 

to be paid by the Plaintiff DM.

12- The Plaintiff DM has made demand upon 

Defendant SCOLNIK for transfer of the interests in

the various corporate Defendants, in proportion to 

the payments made, but Defendant SCOLNIK 

refuses to do so.

13- The Plaintiff DM has also made demand for

return of the $606,000.00 as a result of the 

Defendant's breach, but Defendant SCOLNIK 

refuses to doso.

14-Defendant SCOLNIK assured the Plaintiff, he had 

the right as owner, operator and shareholder of 

Defendant LATTE SJ., and THE GRAND, to convey 

50% of his interest in each corporate Defendant, for 

a total of25% interest in the two corporate 

Defendants which operated the cafeteria restaurant 

at Sunny Isles Beach, Florida.

15- The Defendant SCOLNIK's statement as to his 

ownership in said corporate Defendants was false

at the time he made the statement, in that he had

previously sold all of his interest in said two

corporate Defendants to another individual by the 

name of Marcos Peralta.

16-Defendant SCOLNIK knew the statement he made 

to the Plaintiff DM was false at the time of making it 

and he made it with intentions to induce the Plaintiff 

DM rely upon his statement.

17- The Plaintiffs' did rely upon the false

representation made by Defendant SCOLNIK and 

made payments of $606,000.00 to the Defendant 

based in part, on said false representations as 

stated above.

18-It was reasonable under the circumstances for the 

Plaintiff DM to rely on Defendant SCOLNIK's 

representation and the Plaintiff did so to its detriment 

and loss.

19-The Plaintiff DM has been damaged as a result 

of the fraudulent and false representation made to

it by Defendant SCOLNIK as stated herein.

20- Defendant SCOLNIK represented to the Plaintiff 

he had authority and ownership of 100% of the 

shares of Defendant GA.

Case 19-16856-RAM Doc 168 Filed 12/30/19 Page 5 of 11
21- Defendant SCOLNIK did not have 100% 

ownership of the shares and in fact could not 

transfer any ownership interest in Defendant GA, 

without the consent and approval of the co-owner, 

Gladys Ulloa Scolnik.

22- Defendant SCOLNIK knew the statement he 

made to the Plaintiff DM was false at the time he 

made it, in that he did not have the ability to convey 

50% interest in Defendant GA. Defendant SCOLNIK 

made the false statement with the intent to induce 

DM to pay him money.

23- The Plaintiff DM reasonably relied on the 

statements made to it by Defendant SCOLNIK to its 

detriment and suffered damages.

24- Plaintiff DM has suffered damage as a result of 

the fraudulent mispresentations made to it by the 

DefendantSCOLNIK.

2. On May 20, 2019 Dios Manda and Scolnik individually and as corporate president 

or managing member, entered into a stipulation for dismissal of the state litigation, exhibit 

“C” hereto.

3. The dismissal was based on a Confidential Management and Operating 

Agreement for plaintiff Ninter Group JB LLC to operate Santa Fe News and Expresso 

Café’ at the Bal Harbour Shops, exhibit “D” hereto. Defendant both as President of 

Godiva American Corp, and Individually agreed to dismissal of the pending state court 

litigation with the new agreement to be the essential element to be fulfilled as 

consideration of dismissal. The agreement provided:

a. Six Hundred Six Thousand Dollars ($606,000) 

principal for loans previously paid by ASSIGNEE to

ASSIGNOR;

b. Interest at the rate of 6.5% from April 5, 2018 

through May 15, 2019, Forty Three Thousand Seven 

Hundred and Ten Dollars ($43,710.00);

c. Resort tax paid by Assignee to the City of Bal Harbour;

d. Twenty Seven Thousand Five Hundred Sixteen 

Dollars ($27,516.00); Attorneys fees incurred by 

Case 19-16856-RAM Doc 168 Filed 12/30/19 Page 6 of 11
Assignee including litigation in Case No. 2018-

025731;

e. Seventeen Thousand Seven Hundred Two Dollars 

($17,702.00) interest on principal through November 15, 

2019, Nineteen Thousand Four Hundred Forty Dollars 

($19,449) for a total of $714,368.

3. Defendant in paragraph 12 of the agreement represented and 

affirmed he was the sole shareholder of Godiva American Corporation and 

authorized to bind the company and himself.

4. Three days after entering to those agreements, on May 23, 2019, 

Defendant filed chapter 11. and listed Plaintiff Dios Manda as one of the 20 largest 

creditors with a contingent claim of $606,000. 

5. On June 17, 2019 Scolnik moved to voluntarily dismiss the chapter 

11. On July 15, 2019, Creditor FiveTower LLC objected to dismissal (Doc 36)

alleging the Debtor prepetition, had conveyed and/or transferred to other parties the 

Debtor’s ownership interests in various restaurants that the Debtor previously 

pledged to FiveTower and in which FiveTower was granted a duly perfected 

security interest, complaining that it had not been paid, and complaining about the 

Dios Manda LLC agreement and payments among other things. 

Subsequently Defendant moved to convert and this case was converted to 

chapter 7 on 8/13/19 (Doc 60).

6. Plaintiffs now learned that Defendant had committed a whole 

additional layer of fraud. The Dios Manda agreement required Scolnik to become 

Case 19-16856-RAM Doc 168 Filed 12/30/19 Page 7 of 11
current and pay his obligations to FiveTower. Scolnik had caused a sale of future 

accounts receivable to FiveTower beginning in July 2016, had recorded UCC 1 

financing statements 9/22/16, and on 2/18/17 had granted to FiveTower stock and 

membership pledge agreements, including Godiva, which prohibited Defendant 

from any transfers.

Additionally, it now become clear that certain representations in the 

1/3/18 mandatory letter of intent concerning FiveTower were also false. In 

paragraph 2 Defendant represents he will use the $1,200,000 to pay 

FiveTower. In paragraph 10 Defendant also represents the proceeds will be 

applied to FiveTower. Scolnik knew those representations were false and 

made the representations to induce Plaintiff Dios Manda, which reasonably 

relied on the representations to its detriment and was damaged.

7. Defendant had defrauded Defendants twice. First defrauding Plaintiff 

Dios Manda LLC and then defrauding Plaintiff Ninter Group JB LLC.

COUNT I—11 U.S.C. § 523(a)(2)(A) Fraud

 8. Plaintiffs re-allege the allegations set forth in paragraphs 1 through 7 

above. 

9. Section 523(a)(2)(A) provides that a discharge under § 727 does not 

discharge an individual debtor from any debt for money to the extent obtained by actual 

fraud. 

Case 19-16856-RAM Doc 168 Filed 12/30/19 Page 8 of 11
The debt the Debtor owes to Plaintiffs is not dischargeable under 523(a)(2)(A)

and (B), because of the fraudulent conduct of the Debtor in committing (A) false 

representations and fraud and (B) use of the false written agreements respecting 

Defendant’s financial condition:

(2) for money, property, services, or an extension, renewal, or refinancing 

of credit, to the extent obtained by—

(A) false pretenses, a false representation, or actual fraud, other 

than a statement respecting the debtor’s or an insider’s financial 

condition;

(B)use of a statement in writing—

(i)that is materially false;

(ii)respecting the debtor’s or an insider’s financial condition;

(iii) on which the creditor to whom the debtor is liable for such 

money, property, services, or credit reasonably relied; and

(iv) that the debtor caused to be made or published with intent to 

deceive; 

10. In Husky, the Supreme Court clarified that § 523(a)(2)(A)

encompasses forms of fraud, like fraudulent conveyance schemes, that can be effectuated

without a false representation. Husky, 136 S. Ct. at 1585-86.

11. The facts in this case evidence that Defendant procured and 

increased Plaintiffs’ investments by false pretenses, false representations, conspiracy to 

commit fraud, and committed actual fraud by, including, but not limited to the allegations in 

paragraphs 1-7 above, that the Defendant made and conspired to make representations; 

the Defendant knew at the time the representations were false; the Defendant made the 

representations with the intention and purpose of deceiving the Plaintiffs, the Plaintiffs relied 

on the representations; and the Plaintiffs sustained damages as the proximate result of the 

representations. 

Case 19-16856-RAM Doc 168 Filed 12/30/19 Page 9 of 11
12. The above alleged facts touch each element of 523(a)(2)(A) : (A) 

false pretenses, a false representation, or actual fraud, other than a statement respecting 

the debtor’s or an insider’s financial condition; (B) use of a statement in writing— (i)that is 

materially false; (ii)respecting the debtor’s or an insider’s financial condition; (iii) on which the 

creditor to whom the debtor is liable for such money, property, services, or credit reasonably 

relied; and (iv) that the debtor caused to be made or published with intent to deceive. 13.

Consequently, the Defendant’s debt to Plaintiffs is one for money,

property, or services obtained by false pretenses, false representations, or actual fraud, and 

is excepted from discharge pursuant to 11 U.S.C. § 523(a)(2)(A).

Wherefore Plaintiffs jointly and severally demand judgment against Defendant for their 

damages, plus pre-judgment interest, costs and attorneys’ fees in the state and 

bankruptcy cases, and that the judgment be declared non-dischargeable pursuant to 11 

U.S.C. § 523(a)(2)(A); that the Court enter judgment against the Defendant in the 

amount of the damages, and order execution on the judgment, and grant Plaintiffs such

other and further relief as this case may require and the Court deems just and proper.

Case 19-16856-RAM Doc 168 Filed 12/30/19 Page 10 of 11
We hereby certify that a true copy of the foregoing was served on all parties 

by CMECF 

Respectfully submitted 

JOEL M. ARESTY, P.A.

Counsel for Plaintiffs

Board Certified Business

Bankruptcy Law

309 1st Ave S

Tierra Verde FL 33715

Phone: 305-904-1903

Fax: 1-800-559-1870

E-mail: Aresty@Mac.com

By:/s/ Joel M. Aresty, Esq.

Fla. Bar No. 197483

Case 19-16856-RAM Doc 168 Filed 12/30/19 Page 11 of 11