UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

In re: Case No. 19-10957-BKC-MAM

Lecio Lopes Mamedes,

Debtor.

_________________________________/

Chapter 7

Suely Del Franco,

Plaintiff.

Adv. Proc. No. 19-01355-MAM

v.

Lecio Lopes Mamedes,

Defendant.

___________________________________/

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT (ECF NO. 26)

THIS MATTER came before the Court upon Plaintiff Suely Del Franco’s 

Motion for Summary Judgment With Incorporated Memorandum of Law on Count XI 

Declaratory Relief Regarding Prepetition Settlement Agreement (ECF No. 26) (the 

Mindy A. Mora, Judge

United States Bankruptcy Court

_____________________________________________________________________________

ORDERED in the Southern District of Florida on July 27, 2020.

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 1 of 14
2

“Motion”) filed by Suely Del Franco (“Plaintiff”) and the Response (ECF No. 39) filed 

by the defendant/debtor, Lecio Lopes Mamedes (“Defendant”). 

On January 7, 2020, the Court directed the parties to submit briefing on the 

Motion. Defendant filed her Response, Plaintiff filed a Reply (ECF No. 42), and both 

parties submitted a Joint Stipulation of undisputed facts (ECF No. 41). After 

considering all documents filed by both parties, the Court denies Plaintiff’s request 

for summary judgment because material facts remain in dispute.1

PROCEDURAL BACKGROUND AND COMPLAINT ALLEGATIONS 

Plaintiff’s complaint (ECF No. 1) (“Complaint”) shows that the genesis of this 

dispute arose approximately 5-6 years ago. In 2014, Plaintiff invested funds in 

Defendant’s business, BRAZUSA Auto Store, Inc., a now-defunct Florida corporation

(“BRAZUSA”). After the return allegedly promised upon the investment failed to 

materialize, the relationship between Plaintiff and Defendant deteriorated. 

Ultimately, the parties litigated their differences in the Circuit Court of the Fifteenth 

Judicial Circuit in and for Palm Beach County, Florida (the “State Court”), as Case 

No. 50-2016-CA-005556XXXXMB. The State Court granted partial summary 

1 After briefing closed upon the Motion, Plaintiff submitted approximately 1000 pages of exhibits (the 

“Supplemental Exhibits”) to the Court as attachments to a transcript of Defendant’s 2004 Examination 

(the “Transcript”). See ECF No. 47. Neither the Motion nor the Reply refer to any of these exhibits 

using pinpoint citations, nor do they refer to the 2004 Examination (which is itself approximately 200 

pages long) by line or page. The 2004 Examination occurred approximately eight months prior to the 

filing of the Motion. Plaintiff presumably had access to the Transcript well in advance of filing the 

Motion.

Plaintiff has not supplied the Court with an explanation for her failure to provide the court with 

accurate pinpoint references to the Transcript and the Supplemental Exhibits in her request for relief.

Because none of the initial or supplemental briefing submitted to the Court explains the specific 

relevance of literally hundreds of pages filed on the docket for this Adversary Proceeding, these 

documents are of limited value to the Court’s present analysis. 

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 2 of 14
3

judgment in favor of Plaintiff (the “Prior Judgment”) on August 9, 2017. ECF No. 1-

2, pp. 10-11. The parties do not dispute the validity of the Prior Judgment. 

After participating in mediation, Plaintiff and Defendant entered into a 

prepetition settlement agreement (the “Settlement”), a copy of which is attached as 

Exhibit F to the Complaint. The parties do not dispute the validity of the Settlement, 

nor do they dispute that entry into the Settlement was an integral aspect of entry of 

two consensual final judgments in favor of Plaintiff, the first on August 14, 2018 in 

the amount of $120,000 against BRAZUSA (the “BRAZUSA Judgment”), and the 

second on September 11, 2018 in the amount of $120,000 against Defendant (the 

“Final Judgment”). 

The Final Judgment recounts that it is for claims based upon piercing the 

corporate veil, fraudulent inducement, unjust enrichment, conversion, civil theft, and 

breach of fiduciary duty. The Final Judgment also states that the State Court entered 

judgment against Defendant based on his willful and intentional conduct that

resulted in financial injury to Plaintiff.

The Complaint asserts ten causes of action against Defendant. Those counts 

are: 

I Non-dischargeability (§ 523(a)(6))

II Objection to Discharge (§ 727(a)(2)(A) and (B))

III Objection to Discharge (§ 727(a)(3))

IV Objection to Discharge (§ 727(a)(4)(A))

V Objection to Discharge (§ 727(a)(5))

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 3 of 14
4

VI Veil-Piercing and Non-dischargeability (§ 523(a)(2)(A), (a)(4), 

and (a)(6))2

VII Fraudulent Inducement and Non-dischargeability 

(§ 523(a)(2)(A) and (B))

VIII Conversion and Non-dischargeability (§ 523(a)(6))

IX Civil Theft and Non-dischargeability (§ 523(a)(4) and (6))

X Breach of Fiduciary Duty and Non-dischargeability 

(§ 523(a)(2)(A), (a)(4), (a)(6))

XI Declaratory Relief as to Settlement

The Motion seeks entry of judgment in favor of Plaintiff solely as to Count XI

of the Complaint. This request, which is framed as a request for declaratory relief, 

seeks judgment regarding the impact of Defendant’s bankruptcy case on the 

enforceability of the Settlement.3

The Motion seeks findings of fact and conclusions of law that: (i) the Settlement 

is deemed rejected, (ii) the Settlement is no longer enforceable by Defendant, 

(iii) Plaintiff may enforce a claim (the “Additional Claim”) in excess of the amount 

provided for in the Settlement, the Final Judgment, and the BRAZUSA Judgment, 

and (iv) to the extent that the Court enters judgment in favor of Plaintiff as to 

discharge and/or dischargeability, Plaintiff may enforce the Additional Claim. By 

2 Several of the “Counts” in the Complaint are an amalgamation of several causes of action, asserting 

multiple legal theories as a basis for relief. In addition, the Complaint repeats legal theories across 

various Counts. 

3 Count XI refers to the Settlement without reference to or discussion of any particular paragraph or 

governing provision. The Court therefore presumes that Plaintiff does not contest the enforceability of 

any specific provision (by either party) of the Settlement, but instead contests the enforceability of the 

entire Settlement as a result of Defendant’s bankruptcy case. 

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 4 of 14
5

requesting summary judgment as to Count XI, Plaintiff seeks sweeping factual 

findings and legal conclusions pertinent to all Counts. 

The Response acknowledges entry of the Final Judgment and existence of the 

Settlement. Rather than disputing the factual underpinnings of the Final Judgment, 

Defendant focuses upon whether: (i) the Settlement and Final Judgment collectively 

constitute an executory contract (which is a mixed question of fact and law) and 

(ii) Defendant breached the Settlement by failing to remit all required payments to 

Plaintiff (another mixed question of fact and law). In support of the second premise, 

Defendant asserts that Plaintiff refused to accept payments from Defendant for the 

months of September 2019 and December 2019 (the “Settlement Payments”).

In the Reply, Plaintiff counters that she did not “refuse” the Settlement 

Payments, but rather the United States Postal Service (USPS) failed to deliver them.4

Plaintiff further contends that it was Defendant’s burden to rectify USPS’s error. In 

addition, Plaintiff suggests that, although the Motion seeks summary judgment only 

as to Count XI, the Court should nonetheless sua sponte enter judgment as to other 

Counts of the Complaint.5

4 Although the Court does not opine as to the reasonableness of Plaintiff’s arguments at this time, the 

Court observes that the Settlement explicitly required delivery of payments to a post office box. ECF 

No. 1-2, Exhibit F (Settlement), at p. 1. And the exhibits attached to the Response indicate that the 

Settlement Payments were remitted to the correct post office box by the deadline set forth in the 

Settlement.

5 Because it is clear from the Court’s briefing order (ECF No. 31) that the Reply should contain only 

rebuttal to the arguments raised in the Response, the Court declines to entertain Plaintiff’s request to 

broaden the scope of summary judgment. 

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 5 of 14
6

The Joint Stipulation provides that (i) the Settlement and Final Judgment are 

intertwined, (ii) Defendant (improperly) listed the Final Judgment as a claim on his

schedules, and (iii) although post-petition payments have been received, Plaintiff has 

elected not to apply these payments to Defendant’s remaining obligation under the 

Final Judgment and Settlement. Joint Stipulation at ¶¶ 2-3, 6.6

CONCLUSIONS OF LAW

I. Jurisdiction

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) 

and 28 U.S.C. § 157(b). This is a core proceeding under 28 U.S.C. §§ 157(b)(2)(I).

II. Summary Judgment Standard

Pursuant to Federal Rule of Civil Procedure 56(a), made applicable to 

bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7056, the Court 

shall grant summary judgment “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.”

“When deciding summary judgment, the Court may look to materials in the record 

such as depositions, documents, affidavits or declarations, and admissions.” Certain 

Interested Underwriters at Lloyd’s, London v. AXA Equitable Life Ins. Co., 981 

F. Supp. 2d 1302, 1305-06 (S.D. Fla. 2013) (citing Fed. R. Civ. P. 56(c)). 

The Court “must view all the evidence and all factual inferences reasonably 

drawn from the evidence in the light most favorable to the nonmoving party.” Diaz 

v. Amerijet Int’l, Inc., 872 F. Supp. 2d 1365, 1368 (S.D. Fla. 2012) (quoting Stewart v. 

6 The remaining paragraphs of the Joint Stipulation recite statements and allegations otherwise 

disclosed in the Defendant’s bankruptcy case or within this Adversary Proceeding. 

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 6 of 14
7

Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997))

(internal quotation marks omitted); see also Morton v. Kirkwood, 707 F.3d 1276, 1280 

(11th Cir. 2013). Finally, the moving party “always bears the initial responsibility of 

informing the . . . court of the basis for its motion, and identifying those portions of 

‘the pleadings, depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any,’ which it believes demonstrate the absence of a 

genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see 

also Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314-15 (11th 

Cir. 2011).

III. Genuine issues of material fact preclude entry of summary 

judgment 

Is the Settlement an Executory Contract?

Defendant filed his chapter 7 petition on January 23, 2019. Pursuant to 

§ 365(a)(1), the trustee in a chapter 7 case has the sole right to assume or reject an 

executory contract. If the chapter 7 trustee fails to assume the executory contract 

within 60 days after the petition date, then the executory contract is deemed rejected 

under § 365(d)(1). 

The first question is, was the Settlement an executory contract? The Court 

must answer this question as an initial matter to properly assess the materiality of 

the parties’ existing arguments and mutual representation that neither the Trustee 

nor Debtor has assumed the Settlement (or at least, not yet). Joint Stipulation, at 34-

36. The determination of whether the Settlement qualifies as an executory contract 

is therefore crucial to the Court’s analysis of summary judgment. 

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 7 of 14
8

Under the traditional “Countryman” test, a contract is executory if “the 

obligation of both the bankrupt and the other party to the contract are so far 

unperformed that the failure of either to complete the performance would constitute 

a material breach excusing performance of the other.” Vern Countryman, Executory 

Contracts in Bankruptcy, 57 MINN. LAW REV. 439, 460 (1973). The legislative history 

to § 365 indicates that the term “generally includes contracts on which performance 

remains due to some extent on both sides.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 

347 (1978 U.S.C.C.A.N. 5963, 6303); S.Rep. No. 989, 95th Cong., 2d Sess. 58 (1978 

U.S.C.C.A.N. 5787, 5844); see also N.L.R.B. v. Bildisco & Bildisco, 465 U.S. 513, 522 

n.6 (1984) (although Code has no express definition, legislative history indicates the 

scope of “executory contract”). 

Other courts have relied upon a “functional analysis” test for determining 

whether an agreement is an executory contract. See In re Arrow Air, Inc., 60 B.R. 117, 

121-122 (Bankr. S.D. Fla. 1986). This analysis focuses on whether the agreement 

would benefit or burden the estate. Id.; see also Sipes v. Gen. Dev. Corp. (In re Gen.

Dev. Corp.), 177 B.R. 1000, 1011-13 (S.D. Fla. 1995), aff’d per curium, 84 F.3d 1364 

(11th Cir. 1996). If no benefit can be derived for the bankruptcy estate by assuming 

or rejecting the agreement, then the agreement is not executory.

Several courts have applied both of these tests when determining whether a 

settlement agreement is an executory contract. In In re Peralta Food Corp., Case No. 

07-16508-BKC-AJC, 2008 WL 190503 (Bankr. S.D. Fla. Jan. 18, 2008), the 

bankruptcy court considered both the Countryman test and the functional analysis

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 8 of 14
9

test to conclude that a settlement agreement providing for the plaintiff to stay 

execution on a final judgment in exchange for a stream of payments was not an 

executory contract. Id. at *3-7; see also Gencor Indus., Inc. v. CMI Terex Corp. (In re 

Gencor Ind., Inc.), 298 B.R. 902, 913 (Bankr. M.D. Fla. 2003) (mere right to payment, 

alone, is not enough to make a settlement agreement an executory contract).

The Settlement is Not an Executory Contract.

The Settlement provided for Defendant to make a stream of payments to 

Plaintiff monthly from September 1, 2018 through January 1, 2033, by mailing a 

money order, cashiers’ check, or certified bank check to Plaintiff at a designated post 

office box by no later than the 2nd day of each month. The total payments due under 

the Settlement are $64,800. Assuming those payments are made, Plaintiff has an 

obligation to file a satisfaction of the Final Judgment in the amount of $120,000. The 

Settlement, however, also includes a mutual release of the parties, assuming 

Defendant completes performance of all payment obligations under the Settlement.

Based upon a review of the Settlement and applicable caselaw, the Court 

concludes that the Settlement is not an executory contract under either the 

Countryman test or the functional analysis test. 

The Settlement merely provides for a stream of payments to be made by 

Defendant to Plaintiff. This factor in isolation is not enough to deem the contract 

executory under the Countryman standard. Gencor, 298 B.R. at 913. Although the 

Settlement requires Plaintiff to file a satisfaction of the Final Judgment upon receipt

of all payments due under the Settlement, this requirement does not appear to be a 

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 9 of 14
10

material obligation, particularly since the Settlement contains a self-effectuating 

release by Plaintiff. C.f. Enter. Energy Corp. v. United States (In re Columbia Gas 

System Inc.), 50 F.3d 233, 242 (3rd Cir. 1995) (determining releases in settlement 

constituted condition precedent rather than a continuing duty). The Court therefore 

concludes that application of the Countryman test reveals that the Settlement is not 

executory. 

Moreover, the Settlement yields no discernible benefit to the estate. The 

bankruptcy case is a no asset case without a distribution to unsecured creditors. The 

impact of Plaintiff’s claim being in a lesser amount, due to the operative terms (and 

Debtor’s potential reaffirmation) of the Settlement, neither benefits nor burdens the 

estate. As a result, the Settlement is non-executory under the functional analysis 

test. 

Based upon the Court’s determination that the Settlement is not an executory 

contract, the Court denies as moot Plaintiff’s request in Count XI for a finding that 

the Settlement has been rejected. If the Settlement is not an executory contract, the 

concepts of assumption and rejection simply do not apply to the Settlement.

Defendant’s Right to Enforce the Settlement is Unclear.

The Court now turns to the second request made by Plaintiff in Count XI, 

which is for the Court to determine whether the Settlement is enforceable by 

Defendant. 

The manner by which a debtor agrees to perform under a pre-petition 

agreement that the counterparty would otherwise be prohibited from seeking to 

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 10 of 14
11

enforce is through entry into and court approval of a reaffirmation agreement. 11 

U.S.C. §§ 524(c), (d), and (k). Collectively, those subsections require a debtor to agree 

to reaffirm the debt prior to the entry of an order of discharge in the debtor’s chapter 

7 case and to enter into a written agreement with the creditor that contains numerous 

statutorily proscribed disclosures. The debtor then files the reaffirmation agreement

with the Court and seeks approval of it. As part of that process, counsel to a 

represented debtor must analyze and conclude that the debtor’s agreement to perform 

the pre-petition obligation will not constitute an undue hardship on the debtor; that 

is, based upon the projected income and expenses of the debtor, the debtor will have 

sufficient disposable income to be able to pay the reaffirmed obligation.

The Court has not entered a discharge in Defendant’s chapter 7 case because 

the relief sought by Plaintiff includes denial of discharge under 11 U.S.C. § 727. The

time period within which Defendant can propose a reaffirmation agreement to 

Plaintiff and seek to enforce the Settlement therefore has not yet expired. Assuming 

Defendant wishes to reaffirm his obligations under the Settlement, Defendant can 

still enter into a timely reaffirmation agreement with Plaintiff.

This analysis raises the question of whether Defendant has completely 

performed under the Agreement. Under applicable non-bankruptcy law, a material 

breach by one party to a contract excuses performance by the non-breaching party. 

Hamilton v. Suntrust Mortg. Inc., 6 F. Supp. 3d 1300, 1309 (S.D. Fla. 2014). If 

Defendant failed to properly perform his obligations under the Settlement, then 

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 11 of 14
12

Plaintiff would be justified in refusing to perform by accepting additional payments 

under the Settlement, and Defendant could not seek to enforce the Settlement.

The Motion acknowledges that, except for two months in which Plaintiff claims 

not to have received payments, Defendant has continued to remit Settlement 

payments post-petition. The Response asserts that Defendant timely mailed the 

missing Settlement Payments to Plaintiff’s post office box and provides evidentiary 

support for this contention in the form of an affidavit and Certified Mail Receipts 

from the United States Post Office. Defendant failed, however, to clarify whether the 

payment contained in the transmittals for the months of September 2019 and 

November 2019 were in the requisite form of payment required by the Settlement, 

i.e. cashier’s check, money order, or certified bank check. Without this clarification, 

the Court is unable to conclusively determine that Defendant has properly performed 

under the Settlement which, along with a reaffirmation agreement, would enable 

Defendant to enforce the Settlement against Plaintiff. The absence of these and other 

material facts prevent the Court from granting summary judgment on Count XI at 

this time. 

Accordingly, after reviewing the record to date, the Court finds that genuine 

disputes as to material facts exist. Specifically, the Court finds that the Motion, 

Response, Reply, Joint Stipulation, and the exhibits attached to these filings do not 

clarify whether Defendant is fully compliant with the Settlement and whether 

Plaintiff is justified in refusing to accept payments from Defendant. Moreover, in the 

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 12 of 14
13

absence of a timely reaffirmation agreement, the Court is unable to determine 

whether the Settlement is enforceable.

Defendant’s attempt to remit the missing Settlement Payments post-petition 

indicates a willingness to perform under the Settlement. Defendant has also 

suggested that he did not default under the Settlement because of his timely 

transmittal of an envelope which purportedly contained the missing Settlement 

Payments. However, without advising the Court of the content of those envelopes that 

purportedly contained the missing Settlement Payments, the Court is unable to 

determine whether Defendant has breached the Settlement.

The factual basis and purported justification for Plaintiff’s refusal to perform

under the Settlement is decidedly less certain. Without further specifically delineated 

factual support, the Court cannot determine whether Plaintiff’s refusal to apply the 

post-petition payments under the Settlement resulted in Plaintiff’s own breach or 

anticipatory repudiation of the Settlement, thereby potentially relieving Defendant

of the duty to perform. And, if this is the case, it is even less clear that Plaintiff is or 

may be entitled to assert the Additional Claim.

The existence of these and other mixed questions of disputed fact and law 

therefore require denial of summary judgment. Upon completion of all pending 

discovery, the parties shall proceed to trial.7

7 The Court would be remiss if it did not comment on the troubling nature of this proceeding. Plaintiff 

acknowledged this in her Reply by stating that “what is unusual about this bankruptcy case is the 

Debtor Defendant [sic] wants to enforce rather than discharge his obligations under the prepetition 

Settlement Agreement....” In fact, Defendant has evidenced he wants to perform under the Settlement 

by continually remitting payments post-petition to Plaintiff. Plaintiff seeks a determination that 

Defendant’s obligations under the Settlement persist despite the filing of Defendant’s bankruptcy case. 

It seems as if Defendant is in raging agreement with that result. The Court therefore strongly 

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 13 of 14
14

ORDER

With the Court being fully advised in the premises and for the reasons 

discussed above, the Court hereby ORDERS that the Motion is DENIED. 

###

Copy to:

Tarek Kiem, Esq.

Attorney Kiem is directed to serve this Order upon all parties to this Adversary 

Proceeding and file a conforming certificate of service. 

encourages the parties to participate in mediation or a judicial settlement conference to reach closure 

on the issues raised in this proceeding.

Case 19-01355-MAM Doc 59 Filed 07/27/20 Page 14 of 14