1 

LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

3200 SOUTHEAST FINANCIAL CENTER, 200 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 • TELEPHONE (305) 358-6363

UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

www.flsb.uscourts.gov

In re: Chapter 11 

COSTA HOLLYWOOD PROPERTY OWNER, LLC1

 Case No. 19-22483-AJC 

 

 Debtor. 

 / 

COSTA HOLLYWOOD PROPERTY OWNER, LLC, Adv. No. 

 Plaintiff, 

v. 

GREENBERG TRAURIG, P.A., a Florida professional 

association, & STEWART TITLE GUARANTY 

COMPANY, a Texas corporation, 

 Defendants. 

______________________________________________/ 

COMPLAINT FOR TURNOVER

 Plaintiff, Costa Hollywood Property Owner, LLC (“Plaintiff”), sues Greenberg Traurig, 

P.A. (“GT”) and Stewart Title Guaranty Company (“Stewart” and together with GT, the 

“Defendants”) and states: 

JURISDICTION & VENUE

1. This Court has jurisdiction over the subject matter of this proceeding pursuant to 

28 U.S.C. §§ 157(a) and (b) and 1334(b). 

2. This adversary proceeding is brought pursuant to Fed. R. Bankr. P. 7001. 

3. This is a core proceeding for which the Court is authorized to determine all matters 

in accordance with 28 U.S.C. § 157(b)(2)(A), (E) and (O). 

1

 The Debtor’s current mailing address is 777 North Ocean Drive, Hollywood, FL 33019. The Debtor’s EIN is 47-

4883778. 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 1 of 19
2 

LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

3200 SOUTHEAST FINANCIAL CENTER, 200 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 • TELEPHONE (305) 358-6363

4. All conditions precedent to bringing the causes of action asserted herein have been 

performed, have occurred or have been waived. 

5. Venue is proper in this district pursuant to 28 U.S.C. §§ 1408 and 1409. 

PARTIES

6. Plaintiff is the debtor-in-possession in the above-captioned Chapter 11 bankruptcy 

case. 

7. Defendant GT is a Florida professional association with a principal place of 

business at 333 S.E. 2nd Avenue, 44th Floor, Miami, Florida 33131. 

8. Defendant Stewart is a Texas corporation with a principal place of business at 1980 

Post Oak Boulevard, Suite 800, Houston, Texas 77056 and which is authorized to and is 

conducting business in Broward County, Florida. 

9. In filing this Complaint, Plaintiff does not intend to, and should not be deemed to, 

waive or release any and all other claims that Plaintiff may hold against Defendants. 

FACTUAL BACKGROUND

10. On September 19, 2019 (the “Petition Date”), Plaintiff filed a voluntary petition 

under Chapter 11 of the United States Bankruptcy Code bearing Case No. 19-22483-AJC (the 

“Main Bankruptcy”). 

11. Plaintiff is a Delaware limited liability company authorized to do business in 

Florida. Plaintiff developed a condominium hotel project commonly known as “Costa Hollywood 

Beach Resort” located at 777 North Ocean Drive, in Hollywood, Florida (the “Condo-Hotel”). 

The Condo-Hotel contains 307 residential units, 15 commercial units, and 1 shared facilities unit 

and related improvements. Plaintiff: (i) owns 43 of the residential units, 9 of the commercial units 

and the shared facilities unit; (ii) controls the condominium association and shares common 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 2 of 19
3 

LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

3200 SOUTHEAST FINANCIAL CENTER, 200 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 • TELEPHONE (305) 358-6363

operating expenses with the condominium association; and (iii) has established a rental 

management program pursuant to which Plaintiff acts as the rental agent for “Third Party 

Controlled Units” that are under contract for the “Rental Management Program” from time to time, 

and for the owner controlled units. All units within the Rental Management Program are operated 

as hotel rooms in the Costa Hollywood Beach Resort. 

12. Plaintiff is managing its affairs as a debtor in possession pursuant to 11 U.S.C. §§ 

1107(a) and 1108. 

13. Prior to the Petition Date, Plaintiff and Stewart entered into two indemnity 

agreements (“Indemnity Agreements”) pursuant to which funds were escrowed from sale proceeds 

of unit sales to address so-called “identified risks” to Stewart and the law firm GT. Specifically, 

the Indemnity Agreements relate to 2 lawsuits: one involving Design Engineering Group (the 

“Design Indemnity Agreement”) and the other involving Costa Investors LLC (the “Costa 

Investors Indemnity Agreement”). A copy of the Design Indemnity Agreement is attached as 

Exhibit A, and a copy of the Costa Investors Indemnity Agreement is attached as Exhibit B. 

14. Pursuant to the Indemnity Agreements a total of $1,425,139.55 was escrowed (the 

“Escrowed Funds”) with GT prepetition. GT continues to hold these funds to this day. 

15. Paragraph 4(G) of each Indemnity Agreement provides that the Escrowed Funds 

will be released to Plaintiff upon dismissal with prejudice (or the expiration of any applicable 

appellate period) of Case Nos. CACE-16-005451 (the “Design Engineering Case”) and CACE18-011130 (the “Costa Investors Case”), both filed in the Seventeenth Judicial Circuit in and for 

Broward County, Florida. 

16. The Design Engineering Case is stayed as a result of Plaintiff’s bankruptcy filing 

herein, and no appeals have been taken in that case. As of the Petition Date, Plaintiff had not filed 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 3 of 19
4 

LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

3200 SOUTHEAST FINANCIAL CENTER, 200 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 • TELEPHONE (305) 358-6363

any answer to the complaint, thus the pleadings in the Design Engineering Case remained open 

and the case remains in its infancy. 

17. Design Engineering Group lacks any recourse against Plaintiff to justify 

Defendants’ continued refusal to release the portion of the Escrowed Funds attributable to the 

Design Engineering Case to Plaintiff. Plaintiff listed and disclosed Design Engineering Group as 

both a secured and unsecured creditor with a disputed debt in Plaintiff’s bankruptcy schedules (see

ECF No. 235-1 in the Main Bankruptcy). Design Engineering Group has not filed any proof of 

claim in the bankruptcy case, and upon the sale of Plaintiff’s property pursuant to the Chapter 11 

Plan of Liquidation (the “Plan”) [ECF No. 247 in the Main Bankruptcy], Plaintiff will dissolve 

and cease to further exist. To the extent Design Engineering Group is treated under the Plan, it will 

be paid in accordance therewith and its purported construction lien against the Debtor’s property 

will be extinguished. 

18. Even if Design Engineering had a valid claim (and it does not), in all circumstances 

its interest is subordinate to the senior secured lender, 777 N. Ocean Drive LLC, by virtue of a 

Subordination Agreement, dated July 1, 2016, and recorded in the Official Records of Broward 

County, Florida on July 20, 2016 under Instrument No. 113820795. There are no claims asserted 

in the Design Engineering Case against either Stewart or GT relating to the Escrowed Funds. 

19. Accordingly, there is no legitimate basis for Defendants to refuse to turn over that 

portion of the Escrowed Funds attributable to the Design Engineering Case to Plaintiff. 

20. The claims against Plaintiff raised in the Costa Investors Case have been dismissed 

with prejudice, and the dismissal of those claims was affirmed on appeal. Therefore there are no 

pending claims against Plaintiff in the Costa Investors Case. To be clear, the Costa Investors Case 

is a case filed by Plaintiff against Costa Investors LLC, among others, and the only claims filed 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 4 of 19
5 

LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

3200 SOUTHEAST FINANCIAL CENTER, 200 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 • TELEPHONE (305) 358-6363

against Plaintiff were by way of counterclaims filed by Costa Investors LLC for fraud and 

conspiracy to defraud, negligent misrepresentation, unjust enrichment, equitable lien, and 

indemnity (the “Counterclaim”). On October 17, 2018, an order was entered in the Costa Investors 

Case dismissing all of the counts in the Counterclaim alleged against Plaintiff with prejudice (the 

“Dismissal Order”). On November 11, 2018, Costa Investors appealed the Dismissal Order. On 

July 18, the Fourth District Court of Appeal affirmed the Dismissal Order without written opinion, 

and on August 9, 2019, filed its mandate with the Broward County Clerk of Courts (the “Appeal 

Mandate”). 

21. Accordingly, there are absolutely no claims pending or subject to further appeal 

against Plaintiff in the Costa Investors Case. 

22. In December 2019, Plaintiff demanded that GT and Stewart turnover the Escrowed 

Funds. To date, GT and Stewart have failed and refused to comply with Plaintiff’s turnover 

demand. 

23. While Defendants have been on notice of the Main Bankruptcy for months, neither 

has filed any proof of claim relating to the Indemnity Agreements or the Escrowed Funds. 

COUNT I

Declaratory Judgment – 28 U.S.C. § 2201, Fla. Stat. Ch. 86 

24. Plaintiff adopts and realleges Paragraphs 1 through 23. 

25. There is a bona fide, actual, present, and practical need for a declaratory judgment 

because the facts demonstrate that all conditions precedent to the release of the Escrowed Funds 

have occurred, and that such funds belong and should be released to Plaintiff. Defendants dispute 

that all necessary conditions precedent have occurred and dispute that the Escrowed Funds belong 

and should be released to Plaintiff. 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 5 of 19
6 

LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

3200 SOUTHEAST FINANCIAL CENTER, 200 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 • TELEPHONE (305) 358-6363

26. The request for a declaratory judgment deals with a present, ascertained or 

ascertainable state of facts, or a present controversy as to the facts described herein. 

27. The relief sought herein is not the mere giving of legal advice by the courts or the 

answer to questions propounded from curiosity. As described above, an actual controversy exists 

as to Plaintiff’s right to release of the Escrowed Funds. 

WHEREFORE, Plaintiff respectfully requests that the Court enter judgment (i) declaring 

Plaintiff’s entitlement to the Escrowed Funds; (ii) for damages; (iii) allowable pre-judgment and 

post-judgment interest; (iv) attorneys’ fees and costs; and (v) such further relief as the Court deems 

just and appropriate.

COUNT II 

Turnover – 11 U.S.C. § 542 

28. Plaintiff adopts and realleges Paragraphs 1 through 23. 

29. Plaintiff has an interest in the Escrowed Funds and such interest is property of the 

estate. 

30. Defendants are currently in possession of the Escrowed Funds to which Plaintiff is 

entitled under the Indemnity Agreements. 

31. Plaintiff has a clear right to the turnover of the Escrowed Funds. 

32. Defendants have refused to turnover the Escrowed Funds to Plaintiff, and Plaintiff 

is entitled to possession under Section 542 of the Bankruptcy Code. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 6 of 19
7 

LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

3200 SOUTHEAST FINANCIAL CENTER, 200 SOUTH BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 • TELEPHONE (305) 358-6363

WHEREFORE, Plaintiff demands judgment against Defendants for (i) turnover of the 

Escrowed Funds and (ii) such further relief as the Court deems just and appropriate. 

Dated: April 10, 2020. 

 s/ James C. Moon 

Peter D. Russin, Esquire 

Florida Bar No. 765902 

prussin@melandrussin.com 

James C. Moon, Esquire 

Florida Bar No. 938211 

jmoon@melandrussin.com

Meaghan E. Murphy, Esquire 

Florida Bar No. 102770 

mmurphy@melandrussin.com 

MELAND RUSSIN & BUDWICK, P.A. 

3200 Southeast Financial Center 

200 South Biscayne Boulevard 

Miami, Florida 33131 

Telephone: (305) 358-6363 

Telecopy: (305) 358-1221 

Attorneys for Plaintiff 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 7 of 19
STG Indemnity Agreement: Identified Risk

STG Indemnity Agreement: Identified Risk

File, Commitment, GF, or Policy Number: Master Commitment, Costa Hollywood Project, 777 N. 

Ocean Drive, Unit __, Hollywood, FL 33019

 

 

(referred to herein as the "File")

 

 

This indemnification (hereafter "Indemnification" or "Agreement" or "Indemnity Agreement") is 

made and given by the undersigned, Moses Bensusan, individually, and on behalf of: Costa 

Hollywood Property Owner LLC referred to herein as "Indemnitor" (whether one or more) for the 

benefit of Stewart Title Guaranty Company and Greenberg Traurig, P.A. (individually and 

collectively referred to hereafter as "Title Company").

 

1. A. The Title Company has issued or will issue a commitment, binder or preliminary report with 

respect to the Land described per unit resold by Indemnitor as described in the recorded Declaration 

of Condominium as Instrument No. ___ in the Public Records of Broward County, FL (referred to 

hereafter as "Land"). 

 

An exception has been or will be made to the following matter: [describe]

Partial Release of property under Schedule “A” herein from that certain Amended Claim of Lien in 

favor of Design Engineering Group LLC against Costa Hollywood Property Owner LLC in Official 

Records Instrument 114350276, Of the Public Records of Broward County, Florida.

Partial release of subject property from that certain Notice of Lis Pendens pending in the Circuit Court 

of Broward County, Case No. CACE-16-005451(03), on a complaint filed to foreclose Claim of Lien 

in favor of Design Engineering Group, LLC. Notice of Lis Pendens filed 03/31/2016, recorded in 

Official Records Instrument 113601862, and Notice of Lis Pendens recorded in Official Records 

Instrument 114507872, all of the Public Records of Broward County, Florida. 

 

_________________________________________________________________________

 

 

(hereafter said matter, or any claim of said matter, or any action to enforce said matter, referred to as 

"Identified Risk").

 

B. Indemnitor has requested the issuance by Title Company from time to time before, on, or after the 

effective date of this Agreement, of a policy or policies of title insurance, endorsements, 

commitments, binders, preliminary reports, guarantees and indemnities ("Title Insurance Policy" or 

"Title Insurance Policies") covering all or part of the Land as to transactions, past, present and future, 

and insuring against loss which may be sustained by reason of the Identified Risk, claims due to the 

Identified Risk, or actions to enforce the Identified Risk, without showing (or insuring against) the 

Identified Risk as an exception to title, or insuring against loss by reason of any claim of priority of 

the Identified Risk over insured mortgages, deeds of trust or other insured interests, and/or insuring 

Exhibit A

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 8 of 19
against liens arising from the Identified Risk, by endorsement or otherwise, including but not limited 

to legal fees and expenses (such insurance "Identified Risk Coverage"). Indemnitor understands and 

agrees that the Title Company may make disclosure of said claims, liens and actions to all proposed 

insureds. 

 

2. To induce the Title Company to issue any Title Insurance Policy providing Identified Risk 

Coverage, Indemnitor shall hold harmless, protect, defend and indemnify the Title Company from and 

against any and all claims, costs, liabilities, losses, damages, expenses and charges (whether or not the 

Title Company has suffered actual loss), including, but not limited to, attorney's fees and expenses of 

litigation, and attorney's fees and expenses to enforce this Agreement, for which the Title Company 

may in its sole discretion become liable or sustain, arising out of or any way connected with any Title 

Insurance Policy providing Identified Risk Coverage. Any determination of coverage by the Title 

Company shall be conclusive evidence that the matter is within the Title Policy coverage as to the 

Identified Risk for the purposes of this Agreement.

 

3. Indemnitor understands and agrees that the Title Company's issuance of any Title Insurance Policy 

providing Identified Risk Coverage may make it necessary or appropriate for the Title Company, in 

its sole discretion and without notice to Indemnitor, to issue additional or other Title Insurance 

Policies providing Identified Risk Coverage covering all or part of the Land from time to time. 

Therefore, it is understood and agreed that the obligations of the Indemnitor hereunder shall not be 

limited to the Title Insurance Policy providing Identified Risk Coverage initially issued on the Land, 

but shall also apply to any Title Insurance Policies subsequently issued on the Land, or portions 

thereof. It is specifically understood by the Indemnitor that the Title Company will be relying upon 

this Agreement as a continuing guarantee of the performance of Indemnitor's obligations with respect 

to the Land in issuing any such further Title Insurance Policies providing Identified Risk Coverage. 

Indemnitor understands and agrees that the Indemnitor's obligations to the Title Company shall be 

enforceable in connection with the current or any future policies, whether or not the Title Company 

identifies the existence of the Identified Risk prior to issuance of any Title Insurance Policy providing 

Identified Risk Coverage. 

 

4.A. In the event a hearing is scheduled to obtain a final judgment of foreclosure, indemnitor shall at 

least 10 days prior to the date of hearing:

(i) Cause a release of the Identified Risk to be filed in the appropriate official records office; or

 

(ii) Cause to be recorded with respect to the Identified Risk a bond or bonds conforming to applicable 

state statutes and sufficient to release the Land from the Identified Risk; or

(iii) Take such action as shall be required by the Title Company, in its sole discretion.

 

B. Should Indemnitor fail to comply with subparagraphs (i), (ii) or (iii) as set forth above, the Title 

Company is authorized by Indemnitor, but is not obligated, to advance and pay such amounts as the 

Title Company shall, in its sole discretion, determine to be appropriate to procure release of such 

Identified Risk. Without notice or demand, the Title Company may take any action it deems 

appropriate for its protection or the protection of any of its insureds. Indemnitor agrees upon demand 

to reimburse the Title Company for all amounts advanced or expended, together with the maximum 

rate of interest allowable by law.

 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 9 of 19
C. To the extent that the Title Company shall expend any sum of money on account of this 

Agreement, the Title Company shall also have the right of subrogation against the Indemnitor 

including but not limited to Indemnitor's rights in the Land. As an additional remedy, the Title 

Company shall have the right to a lien on the interest, if any, of Indemnitor in the Land for any sum of 

money paid or expended by the Title Company on account of this Agreement. This lien shall be 

subordinate in priority only to those liens of record in the county or parish where the Land is located 

at the time the Title Company records its statement of lien. The Title Company shall have the right to 

bid on the Land at a foreclosure sale and to acquire, hold, lease, mortgage and convey the same. A suit 

to recover a money judgment on any sums of money paid or expended by the Title Company on 

account of this Agreement shall be maintainable without foreclosing or waiving the lien securing the 

same.

 

D. To the extent permitted by law, Indemnitor hereby subordinates any lien, claim, right or privilege 

that Indemnitor or those claiming by, through, or under Indemnitor, may have in the Land now or in 

the future for labor, equipment, material or services furnished or to be furnished for the benefit of the 

Land, to any mortgage, deed of trust, or other encumbrance of any insured under any title insurance 

policy issued by the Title Company, now or in the future.

 

E. As each unit is closed and a title policy issued to secure the Indemnitor’s obligation with respect to

the Identified Risk, Indemnitor hereby agrees to deposit with the title company the sum of 150% of

___ that units potential liability for the lien based on each units % interest for the shared costs. See 

attached Exhibit 6 as to each unit’s share to be escrowed per Column H.

 

F. Should Indemnitor fail or refuse to pay the Title Company any sums due to the Title Company 

hereunder after receiving demand the Title Company shall be entitled to reimburse itself from the 

Fund in an amount equal to any such sums, plus attorney's fees and expenses incurred in connection 

therewith to enforce this Agreement.

 

G. Upon dismissal of Case No. CACE-16-005451(3) with prejudice any sums held by the Company 

will be release to Costa Hollywood Property Owner LLC.

5. It is specifically understood and agreed by Indemnitor that once such title insurance obligations 

have been undertaken by the Title Company, no cancellation by Indemnitor can be effective.

 

6. Indemnitor understands that, as a continuing guarantee, as well as a direct indemnification, 

Indemnitor authorizes the Title Company without notice or demand, and without affecting the 

Indemnitor's liability hereunder, from time to time: (a) to renew, compromise, extend, accelerate or 

otherwise change the time or terms of payment of any obligation which shall be so guaranteed 

hereunder; (b) to take security for the payment of this Agreement and to exchange, enforce, waive and 

release any such security; (c) to apply such security and direct the order or manner of sale thereof as 

the Title Company may in its discretion determine; and (d) release or substitute any one or more of 

the Indemnitors (if more than one). In addition, Indemnitor waives any right to require the Title 

Company (a) to proceed against any person; (b) to proceed against or exhaust any security held by the 

Title Company or (c) to pursue any other remedy whatsoever. Indemnitor also waives all 

presentments, demands for performance, notices of non-performance, and notice of acceptance of this 

guarantee and indemnity. Indemnitor also waives any and all claims, counterclaims or defenses 

against the Title Company for recovery by the Title Company under this Agreement based upon any 

action or inaction of the Title Company or anyone else under this Agreement, the Title Policies or any 

other agreement between Indemnitor and the Title Company.

 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 10 of 19
7. Indemnitor hereby agrees that the Title Company shall have and is granted the right, at any 

reasonable time, to examine the books, accounts, and records of Indemnitor, pertaining to such works 

or improvements.

 

8. In the event any provision of this Agreement shall be held invalid or unenforceable by any court 

having jurisdiction, such provision shall be deemed severable and shall not affect the validity of any 

other provisions or the balance hereof. 

 

9. The failure of the Title Company from time to time to demand the performance of any act which it 

might require of Indemnitor hereunder or any other indemnitor shall not be construed as a waiver of 

the right to enforce such performance at a later time upon appropriate demand.

 

10. In the event of suit regarding any of the terms of this Agreement or performance or nonperformance thereof, the parties agree that venue shall be in the appropriate courts in the county, 

parish, or state where the Land is located. The laws of the State of the site of the Land shall govern 

any suit. By signature hereto Indemnitor appoints the Clerk of said Court as the Indemnitor's agent to 

receive service of process and, further consents to jurisdiction of said Court over the Indemnitor.

 

11. Indemnitor understands and agrees that the Title Company is not obligated to issue any title 

insurance at any time, although requested to do so by Indemnitor, and may exercise its own discretion 

as to the issuance of any title insurance now or in the future. However, once the Title Company has 

issued title insurance, Indemnitor agrees that the issuance of title insurance will be in specific reliance 

upon this indemnification and guarantee given by the Indemnitor, and Indemnitor shall be obligated 

whether or not Indemnitor has specifically requested the issuance of title insurance.

 

12. All written notices permitted or required to be given under this Agreement may be delivered (by 

UPS, Federal Express or other similar means) to each of the parties thereto, or mailed to each party by 

Registered United States Mail or Certified United States Mail, and shall be considered duly made 

when addressed as follows:

 

 

To Title Company:

 

 

Stewart Title Guaranty Company

P.O. Box 2029

Houston, Texas 77252

Attention: Stewart Legal Services

 

 

with copy to:

 

 

Stewart Title Guaranty Company

 

 

1980 Post Oak Boulevard, Suite 710

Houston, Texas 77056

Attention: Stewart Legal Services

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 11 of 19
 

 

To Indemnitor(s):

 

 

_______________________________________________________

 

 

_______________________________________________________

 

 

_______________________________________________________

 

 

_______________________________________________________

 

 

 

 

Either party may, by written notice to the other, as aforesaid, change the address to which notices are 

to be sent.

 

13. A. The parties acknowledge that the Title Company may be asked to provide title insurance 

pursuant to this Agreement wherein legal title to the Land and improvements may be vested in a 

corporation, partnership, joint venture or other form of ownership other than individuals. It is the 

intention of the parties hereof that any person signing this Agreement individually and not in a 

representative capacity shall be unconditionally and personally bound by the terms hereof with full 

personal recourse against such individual.

 

B. Where any one or more of Indemnitors are corporations, partnerships, limited liability companies 

or joint ventures, the officer signing on behalf of such entity personally represents and warrants that 

he/she has been duly authorized by such entity to execute this Agreement on behalf of such entity.

 

C. The obligations hereunder are joint and several and unconditional and shall continue whether or 

not the undersigned has any interest in the entity which presently owns the Land or in the Land itself 

at the time a claim hereunder may be made by the Title Company. 

 

14. Indemnitor represents and warrants that the following disclosures provided to the Title Company 

are complete and accurate:

 

A. Financial Statements.

 

Indemnitor acknowledges that Title Company is relying on the disclosures and shall hold harmless, 

protect, defend and indemnify the Title Company as to the accuracy thereof.

 

 

15. This Agreement shall benefit and bind the parties hereto and their respective successors, assigns 

and, in the case of individual Indemnitors, their heirs and personal representatives. This Agreement 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 12 of 19
may not be amended or modified without the written Endorsement thereof by Title Company and 

Indemnitor.

 

 

IN WITNESS WHEREOF, the undersigned has / have executed this Indemnity Agreement: Identified 

Risk effective this _____ day of _________, 20___.

 

 

Individual Signature Block:

 

 

Indemnitor (in individual capacity):

 

 

__________________________________________

 

 

Print Name: ____Moses Bensusan_______________

 

 

Entity Signature Block:

 

 

Name of Entity:

 

 

_____Costa Hollywood Property Owner, LLC______

 

 

 

Print Name: ____Moses Bensusan_______________

 

 

Print Title: _____President_____________________

 

 

 

 

Individual and Entity Signature Block to be used when Indemnitor is executing in both individual and 

entity capacity.

 

 

 

 

 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 13 of 19
STG Indemnity Agreement: Identified Risk

STG Indemnity Agreement: Identified Risk

File, Commitment, GF, or Policy Number: Master Commitment, Costa Hollywood Project, 777 N. 

Ocean Drive, Unit __, Hollywood, FL 33019

 

 

(referred to herein as the "File")

 

 

This indemnification (hereafter "Indemnification" or "Agreement" or "Indemnity Agreement") is 

made and given by the undersigned, Moses Bensusan, individually, and on behalf of: Costa 

Hollywood Property Owner LLC referred to herein as "Indemnitor" (whether one or more) for the 

benefit of Stewart Title Guaranty Company and Greenberg Traurig, P.A. (individually and 

collectively referred to hereafter as "Title Company").

 

1. A. The Title Company has issued or will issue a commitment, binder or preliminary report with 

respect to the Land described per unit resold by Indemnitor as described in the recorded Declaration 

of Condominium as Instrument No. 114737550 and any amendments thereto in the Public Records of 

Broward County, FL (referred to hereafter as "Land"). 

 

An exception has been or will be made to the following matter: 

Release of property under Schedule “A” herein from that certain Affidavit of Alexey Burya and the 

attached Security Agreement in Official Records Instrument 114388924, of the Public Records of 

Broward County, Florida.

(hereafter said matter, or any claim of said matter, or any action to enforce said matter, referred to as 

"Identified Risk").

 

B. Indemnitor has requested the issuance by Title Company from time to time before, on, or after the 

effective date of this Agreement, of a policy or policies of title insurance, endorsements, 

commitments, binders, preliminary reports, guarantees and indemnities ("Title Insurance Policy" or 

"Title Insurance Policies") covering all or part of the Land as to transactions, past, present and future, 

and insuring against loss which may be sustained by reason of the Identified Risk, claims due to the 

Identified Risk, or actions to enforce the Identified Risk, without showing (or insuring against) the 

Identified Risk as an exception to title, or insuring against loss by reason of any claim of priority of 

the Identified Risk over insured mortgages, deeds of trust or other insured interests, and/or insuring 

against liens arising from the Identified Risk, by endorsement or otherwise, including but not limited 

to legal fees and expenses (such insurance "Identified Risk Coverage"). Indemnitor understands and 

agrees that the Title Company may make disclosure of said claims, liens and actions to all proposed 

insureds. 

 

2. To induce the Title Company to issue any Title Insurance Policy providing Identified Risk 

Coverage, Indemnitor shall hold harmless, protect, defend and indemnify the Title Company from and 

against any and all claims, costs, liabilities, losses, damages, expenses and charges (whether or not the 

Title Company has suffered actual loss), including, but not limited to, attorney's fees and expenses of 

Exhibit B

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 14 of 19
litigation, and attorney's fees and expenses to enforce this Agreement, for which the Title Company 

may in its sole discretion become liable or sustain, arising out of or any way connected with any Title 

Insurance Policy providing Identified Risk Coverage. Any determination of coverage by the Title 

Company shall be conclusive evidence that the matter is within the Title Policy coverage as to the 

Identified Risk for the purposes of this Agreement.

 

3. Indemnitor understands and agrees that the Title Company's issuance of any Title Insurance Policy 

providing Identified Risk Coverage may make it necessary or appropriate for the Title Company, in 

its sole discretion and without notice to Indemnitor, to issue additional or other Title Insurance 

Policies providing Identified Risk Coverage covering all or part of the Land from time to time. 

Therefore, it is understood and agreed that the obligations of the Indemnitor hereunder shall not be 

limited to the Title Insurance Policy providing Identified Risk Coverage initially issued on the Land, 

but shall also apply to any Title Insurance Policies subsequently issued on the Land, or portions 

thereof. It is specifically understood by the Indemnitor that the Title Company will be relying upon 

this Agreement as a continuing guarantee of the performance of Indemnitor's obligations with respect 

to the Land in issuing any such further Title Insurance Policies providing Identified Risk Coverage. 

Indemnitor understands and agrees that the Indemnitor's obligations to the Title Company shall be 

enforceable in connection with the current or any future policies, whether or not the Title Company 

identifies the existence of the Identified Risk prior to issuance of any Title Insurance Policy providing 

Identified Risk Coverage. 

 

4.A. In the event a Motion for Rehearing or Notice of Appeal is filed Case No. CACE-18-011130, 

Indemnitor shall immediately cease all closings and 

(i) Cause a full release of the Identified Risk to be filed in the appropriate official records office; or

 

(ii) Cause to be recorded with respect to the Identified Risk a voluntary dismissal with prejudice; or

(iii) Take such action as shall be required by the Title Company, in its sole discretion.

 

B. Should Indemnitor fail to comply with subparagraphs (i), (ii) or (iii) as set forth above, the Title 

Company is authorized by Indemnitor, but is not obligated, to advance and pay such amounts as the 

Title Company shall, in its sole discretion, determine to be appropriate to procure release of such 

Identified Risk. Without notice or demand, the Title Company may take any action it deems 

appropriate for its protection or the protection of any of its insureds. Indemnitor agrees upon demand 

to reimburse the Title Company for all amounts advanced or expended, together with the maximum 

rate of interest allowable by law.

 

C. To the extent that the Title Company shall expend any sum of money on account of this 

Agreement, the Title Company shall also have the right of subrogation against the Indemnitor 

including but not limited to Indemnitor's rights in the Land. As an additional remedy, the Title 

Company shall have the right to a lien on the interest, if any, of Indemnitor in the Land for any sum of 

money paid or expended by the Title Company on account of this Agreement. This lien shall be 

subordinate in priority only to those liens of record in the county or parish where the Land is located 

at the time the Title Company records its statement of lien. The Title Company shall have the right to 

bid on the Land at a foreclosure sale and to acquire, hold, lease, mortgage and convey the same. A suit 

to recover a money judgment on any sums of money paid or expended by the Title Company on 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 15 of 19
account of this Agreement shall be maintainable without foreclosing or waiving the lien securing the 

same.

 

D. To the extent permitted by law, Indemnitor hereby subordinates any lien, claim, right or privilege 

that Indemnitor or those claiming by, through, or under Indemnitor, may have in the Land now or in 

the future for labor, equipment, material or services furnished or to be furnished for the benefit of the 

Land, to any mortgage, deed of trust, or other encumbrance of any insured under any title insurance 

policy issued by the Title Company, now or in the future.

 

E. The Indemnitor shall place the initial sum of $10,000 (ten thousand dollars and 00/100) in escrow 

with the Title Company and as each unit is closed and a title policy issued to secure the Indemnitor’s 

obligation with respect to the Identified Risk, Indemnitor hereby agrees to deposit with the title 

company the sum of $1500.00 in escrow per unit. 

 

F. Should Indemnitor fail or refuse to pay the Title Company any sums due to the Title Company 

hereunder after receiving demand the Title Company shall be entitled to reimburse itself from the 

Fund in an amount equal to any such sums, plus attorney's fees and expenses incurred in connection 

therewith to enforce this Agreement.

 

G. Upon dismissal of Case No. CACE-18-011130 with prejudice or the expiration of any applicable

appellate period any sums held by the Company will be release to Costa Hollywood Property Owner 

LLC.

5. It is specifically understood and agreed by Indemnitor that once such title insurance obligations 

have been undertaken by the Title Company, no cancellation by Indemnitor can be effective.

 

6. Indemnitor understands that, as a continuing guarantee, as well as a direct indemnification, 

Indemnitor authorizes the Title Company without notice or demand, and without affecting the 

Indemnitor's liability hereunder, from time to time: (a) to renew, compromise, extend, accelerate or 

otherwise change the time or terms of payment of any obligation which shall be so guaranteed 

hereunder; (b) to take security for the payment of this Agreement and to exchange, enforce, waive and 

release any such security; (c) to apply such security and direct the order or manner of sale thereof as 

the Title Company may in its discretion determine; and (d) release or substitute any one or more of 

the Indemnitors (if more than one). In addition, Indemnitor waives any right to require the Title 

Company (a) to proceed against any person; (b) to proceed against or exhaust any security held by the 

Title Company or (c) to pursue any other remedy whatsoever. Indemnitor also waives all 

presentments, demands for performance, notices of non-performance, and notice of acceptance of this 

guarantee and indemnity. Indemnitor also waives any and all claims, counterclaims or defenses 

against the Title Company for recovery by the Title Company under this Agreement based upon any 

action or inaction of the Title Company or anyone else under this Agreement, the Title Policies or any 

other agreement between Indemnitor and the Title Company.

 

7. Indemnitor hereby agrees that the Title Company shall have and is granted the right, at any 

reasonable time, to examine the books, accounts, and records of Indemnitor, pertaining to such works 

or improvements.

 

8. In the event any provision of this Agreement shall be held invalid or unenforceable by any court 

having jurisdiction, such provision shall be deemed severable and shall not affect the validity of any 

other provisions or the balance hereof. 

 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 16 of 19
9. The failure of the Title Company from time to time to demand the performance of any act which it 

might require of Indemnitor hereunder or any other indemnitor shall not be construed as a waiver of 

the right to enforce such performance at a later time upon appropriate demand.

 

10. In the event of suit regarding any of the terms of this Agreement or performance or nonperformance thereof, the parties agree that venue shall be in the appropriate courts in the county, 

parish, or state where the Land is located. The laws of the State of the site of the Land shall govern 

any suit. By signature hereto Indemnitor appoints the Clerk of said Court as the Indemnitor's agent to 

receive service of process and, further consents to jurisdiction of said Court over the Indemnitor.

 

11. Indemnitor understands and agrees that the Title Company is not obligated to issue any title 

insurance at any time, although requested to do so by Indemnitor, and may exercise its own discretion 

as to the issuance of any title insurance now or in the future. However, once the Title Company has 

issued title insurance, Indemnitor agrees that the issuance of title insurance will be in specific reliance 

upon this indemnification and guarantee given by the Indemnitor, and Indemnitor shall be obligated 

whether or not Indemnitor has specifically requested the issuance of title insurance.

 

12. All written notices permitted or required to be given under this Agreement may be delivered (by 

UPS, Federal Express or other similar means) to each of the parties thereto, or mailed to each party by 

Registered United States Mail or Certified United States Mail, and shall be considered duly made 

when addressed as follows:

 

 

To Title Company:

 

 

Stewart Title Guaranty Company

P.O. Box 2029

Houston, Texas 77252

Attention: Stewart Legal Services

 

 

with copy to:

 

 

Stewart Title Guaranty Company

 

 

1980 Post Oak Boulevard, Suite 710

Houston, Texas 77056

Attention: Stewart Legal Services

 

 

To Indemnitor(s):

 

 

_______________________________________________________

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 17 of 19
 

 

_______________________________________________________

 

 

_______________________________________________________

 

 

_______________________________________________________

 

 

 

 

Either party may, by written notice to the other, as aforesaid, change the address to which notices are 

to be sent.

 

13. A. The parties acknowledge that the Title Company may be asked to provide title insurance 

pursuant to this Agreement wherein legal title to the Land and improvements may be vested in a 

corporation, partnership, joint venture or other form of ownership other than individuals. It is the 

intention of the parties hereof that any person signing this Agreement individually and not in a 

representative capacity shall be unconditionally and personally bound by the terms hereof with full 

personal recourse against such individual.

 

B. Where any one or more of Indemnitors are corporations, partnerships, limited liability companies 

or joint ventures, the officer signing on behalf of such entity personally represents and warrants that 

he/she has been duly authorized by such entity to execute this Agreement on behalf of such entity.

 

C. The obligations hereunder are joint and several and unconditional and shall continue whether or 

not the undersigned has any interest in the entity which presently owns the Land or in the Land itself 

at the time a claim hereunder may be made by the Title Company. 

 

14. Indemnitor represents and warrants that the following disclosures provided to the Title Company 

are complete and accurate:

 

A. Financial Statements.

 

Indemnitor acknowledges that Title Company is relying on the disclosures and shall hold harmless, 

protect, defend and indemnify the Title Company as to the accuracy thereof.

 

 

15. This Agreement shall benefit and bind the parties hereto and their respective successors, assigns 

and, in the case of individual Indemnitors, their heirs and personal representatives. This Agreement 

may not be amended or modified without the written Endorsement thereof by Title Company and 

Indemnitor.

 

 

IN WITNESS WHEREOF, the undersigned has / have executed this Indemnity Agreement: Identified 

Risk effective this _____ day of _________, 20___.

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 18 of 19
 

 

Individual Signature Block:

 

 

Indemnitor (in individual capacity):

 

 

__________________________________________

 

 

Print Name: Moses Bensusan

 

 

Entity Signature Block:

 

 

Name of Entity:

 

Costa Hollywood Property Owner LLC 

__________________________________________

Print Name: Moses Bensusan

 

Print Title: President/Manager 

 

 

 

Individual and Entity Signature Block to be used when Indemnitor is executing in both individual and 

entity capacity.

 

 

 

 

 

Case 20-01129-AJC Doc 1 Filed 04/10/20 Page 19 of 19