UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

www.flsb.uscourts.gov

In re:

Luna Developments Group, LLC, Case No. 19-11169-SMG

 Debtor. Chapter 11

 /

Alan Barbee, as Liquidating Trustee,

Plaintiff, 

v. Adv. No. 19-1742-SMG

Amerant Bank, National Association,

Defendant.

/

ORDER GRANTING MOTION TO DISMISS 

AND DENYING MOTION TO AMEND COMPLAINT

Scott M. Grossman, Judge

_____________________________________________________________________________ United States Bankruptcy Court

ORDERED in the Southern District of Florida on July 14, 2020.

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Under Florida’s Uniform Fraudulent Transfer Act (“FUFTA”),1 property 

encumbered by a valid lien is not an “asset” that can be fraudulently transferred. Yet 

in this adversary proceeding, the plaintiff seeks to avoid the creation of a pledged 

bank account established to receive and hold $5 million in proceeds already 

encumbered by a valid lien, as well as the later transfer of those proceeds to pay down 

a cross-collateralized loan. Because the transfers were of assets encumbered by a 

valid lien, no “assets” were transferred under FUFTA, and therefore there are no 

transfers to avoid. The plaintiff also seeks to hold the defendant bank liable for aiding 

and abetting an alleged breach of fiduciary duty by the debtor’s principal. But the 

plaintiff fails to plausibly allege any breaches of fiduciary duty, let alone that the 

bank had actual knowledge or rendered substantial assistance in the commission of 

this alleged tort. In fact, the allegations show only that the bank acted in its own 

financial interest and in accordance with its own legal and contractual rights. 

Accordingly, for the reasons discussed in detail below, the complaint will be 

dismissed.

Finally, although specifically given the opportunity to amend its complaint to 

address the defendant’s arguments in its motion to dismiss, the plaintiff elected to 

amend only to bolster allegations of standing and to add a request for attorneys’ fees. 

The plaintiff failed to add any additional allegations regarding the legal or factual 

bases for the fraudulent transfer or aiding and abetting claims, but purported to 

reserve the right to amend further in response to this Court’s ruling. As discussed in 

 1 Fla. Stat. §§ 726.101, et seq.

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more detail below, however, because the complaint fails to state a claim regardless of 

the plaintiff’s standing, the Court need not adjudicate the standing argument. And, 

because legal issues are dispositive here, any further amendment of the complaint 

would prove futile. Accordingly, the motion to amend will also be denied. And because 

the motion to amend will be denied, dismissal of the complaint will be with prejudice.

I. Overview.

Plaintiff Alan Barbee, as Liquidating Trustee for Luna Developments Group, 

LLC,2 has sued Amerant Bank, N.A.3 to avoid and recover as alleged fraudulent 

transfers the creation of a pledged bank account to receive and hold crosscollateralized sale proceeds, and then the subsequent transfer of funds from that 

account to pay down the cross-collateralized obligations of an affiliated entity.4 Luna

also asserted a claim against Amerant for alleged aiding and abetting breach of 

fiduciary duty by Luna’s principal, Juan Arcila.

 2 At the time the Complaint was filed, Mr. Barbee was serving as a state-court appointed receiver, 

excused from turnover in this bankruptcy case under 11 U.S.C. § 543. Although Amerant has 

challenged Mr. Barbee’s standing, as discussed in section IV.A., infra, the Court need not adjudicate 

the standing issue and will assume, without deciding, that the Complaint was brought by Luna as 

debtor-in-possession operated by Mr. Barbee. Since the filing of the Complaint, the Court has 

confirmed a chapter 11 plan of liquidation for Luna, which vested in a liquidating trust all claims and 

causes of action of Luna or its estate, with Mr. Barbee as Liquidating Trustee. (ECF No. 36).

Accordingly, on July 9, 2020, the Court entered an order substituting Alan Barbee as Liquidating 

Trustee, as the plaintiff. (ECF No. 37). For ease of reference, the Court will refer to the plaintiff as 

“Luna” throughout this Order.

3 During most times relevant to this adversary proceeding, Amerant Bank, N.A. was known as 

Mercantil Commercebank, N.A., But for ease of reference, the Court will refer to the defendant as 

“Amerant” throughout this Order.

4 Complaint to Avoid and Recover Fraudulent Transfers and for Aiding and Abetting a Breach of 

Fiduciary Duty (ECF No. 1) (the “Complaint”).

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Amerant moved to dismiss the Complaint for failure to state a claim upon 

which relief may be granted,5 asserting five principal arguments. First, Amerant 

argues that there were no avoidable transfers because the alleged transfers were not 

of “assets” (as that term is defined in FUFTA), as the assets allegedly transferred

were at all times encumbered by valid liens. Second, Amerant argues that Luna’s 

action is really a veiled attempt to seek avoidance of the cross-collateral lien created 

in 2007, but that a claim to avoid that transfer is barred by the statute of repose 

because it was created well more than four years before Luna’s petition date. Third, 

Amerant argues that a receiver excused from turnover lacks standing to assert these

claims, and any claim the receiver could otherwise assert is barred by the statute of 

repose. Fourth, Amerant argues that Luna provided reasonably equivalent value in 

exchange for the transfers. And lastly, Amerant argues the Complaint fails to 

plausibly allege a claim for aiding and abetting breach of fiduciary duty.

In response, Luna contends that Amerant released its original cross-collateral 

lien and that the creation of the new pledged account therefore was a transfer subject 

to avoidance. Luna then argues that Mr. Barbee, as a receiver excused from turnover,

has standing (and therefore his claims are not time-barred) because he has been 

granted the rights, powers, and duties of a debtor-in-possession and is bringing these 

claims in that capacity. Next, Luna asserts that the issue of reasonably equivalent 

value is a question of fact that cannot be resolved on a motion to dismiss. And finally, 

 5 Motion to Dismiss Adversary Proceeding (ECF No. 9) (the “Motion to Dismiss”).

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Luna argues that it adequately pleaded knowledge and substantial assistance with 

respect to its aiding and abetting breach of fiduciary claims.

Although Luna contends its Complaint plausibly stated claims for relief as 

pleaded, Luna also moved for leave to amend the Complaint to bolster allegations 

that the claims are being asserted on behalf of Luna, as a debtor-in-possession. The 

proposed amended complaint also adds a request for attorneys’ fees and costs 

pursuant to Florida Statute § 56.29(9). Other than to bolster allegations of standing 

and to add a request for attorneys’ fees and costs, the proposed amended complaint

contains no new material allegations.

Upon consideration of the Complaint, the Motion to Dismiss, the Response in 

Opposition6 (the “Response”), the Motion for Leave to File First Amended Complaint7

(the “Motion to Amend”), the proposed First Amended Complaint attached thereto

(the “Amended Complaint”), the Memorandum in Opposition to Plaintiff’s Motion to 

Amend,8 and the Reply Memorandum in Support of the Motion to Dismiss,9 the Court 

will grant Amerant’s Motion to Dismiss, dismiss the Complaint with prejudice, and 

deny the Motion to Amend for the reasons discussed below.

 6 ECF No. 21.

7 ECF No. 22.

8 ECF No. 30.

9 ECF No. 31.

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II. A Complaint Must Plausibly State a Claim for Relief.

To avoid dismissal, a complaint must state a claim for relief that is “plausible 

on its face.”10 The plaintiff must plead sufficient facts – which the court must accept 

as true at this stage11 – to allow the court “to draw the reasonable inference”12 of a 

defendant’s liability. But allegations containing only “‘labels and conclusions’ or ‘a 

formalistic recitation of the elements of a cause of action,”13 and “conclusory 

allegations, unwarranted deductions of fact or legal conclusions masquerading as 

facts,”14 will not suffice. If the “well-pleaded facts do not permit the court to infer 

more than the mere possibility” of liability, the complaint must be dismissed.15

In determining whether the well-pleaded facts state a claim for relief, the court 

generally may only consider the complaint and documents attached thereto.16 The 

court must then determine, based on “judicial experience and common sense,” 

whether the well-pleaded facts in the complaint present a plausible claim for relief.17

But if the complaint’s allegations fail to “nudge” the claims “across the line from 

conceivable to plausible,” the court must dismiss the complaint.18

 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).

11 Iqbal, 556 U.S. at 678.

12 Id. (citing Twombly, 550 U.S. at 555-56).

13 Id. (quoting Twombly, 550 U.S. at 555).

14 Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

15 Id.

16 Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1368 (11th Cir. 1997).

17 Iqbal, 556 U.S. at 679.

18 Twombly, 550 U.S. at 570.

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III. Facts.19

A. The Luna Loan.

Juan Arcila and Carlos Mahecha, through various entities, solicited 

investments to purchase and develop real property in South Florida.20 They formed 

Luna in September 2006,21 to purchase four rental apartment buildings in Hollywood, 

Florida (the “Luna Property”) that Luna intended to convert to condominium units.22

To finance this purchase, Luna borrowed $17.64 million (the “Luna Loan”) from 

Amerant on November 29, 2006,23 and gave Amerant a promissory note, along with 

a mortgage and security agreement encumbering the Luna Property (the “Luna 

Mortgage”), to secure the debt.24 By November 1, 2007, Luna had converted a portion 

of the Luna Property into condominium units and made loan payments to Amerant, 

resulting in a partial release of the Luna Mortgage.25 As of November 2007, Luna had 

repaid approximately $7 million of the Luna Loan.26

B. Luna’s Assets are Cross Collateralized to Secure BHQ’s Financing.

About a year after forming Luna, Mr. Arcila and Mr. Mahecha formed another 

real estate development company – Bal Harbour Quarzo, LLC (“BHQ”) – to buy and 

 19 For purposes of considering the Motion to Dismiss, the Court accepts the foregoing facts alleged by 

Luna in its Complaint as true.

20 Compl. ¶ 11.

21 Id. ¶ 12.

22 Id. ¶ 14.

23 Id. ¶ 13.

24 Id. ¶ 13 & Ex. 1.

25 Id. ¶ 15 & Ex. 2.

26 Id. ¶ 16.

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develop three properties in Bal Harbour, Florida (the “BHQ Properties”). As with the 

Luna Property, they also sought and obtained financing from Amerant for this 

project. As a condition of that financing, Amerant required the Luna Loan and the

new BHQ loan to be cross-collateralized and cross-defaulted.27

On or about December 12, 2007, Amerant loaned BHQ $15.5 million (the “BHQ 

Loan”)28 to finance a portion of BHQ’s acquisition of the BHQ Properties.29 In 

connection with the BHQ Loan, Luna, BHQ, and Amerant executed a CrossCollateral and Cross-Default Agreement (the “2007 Cross Collateral Agreement”).30

The 2007 Cross Collateral Agreement provided for the Luna security documents and 

collateral securing the Luna Loan to also secure the BHQ Loan, and for the BHQ 

security documents and collateral securing the BHQ Loan to also secure the Luna 

Loan.31 Luna also executed a Collateral Assignment of Sales Contracts and Sales 

Proceeds (“Sales Proceeds Assignment”)32 in connection with the new BHQ Loan,

which provided that Amerant would grant partial releases of its liens on the Luna 

Property to permit the sale of individual units, on the terms set forth in the Sales 

Proceeds Assignment.33 Luna received no consideration in exchange for the liens it 

 27 Id. ¶¶ 18-20 & Ex. 4.

28 A partial copy of the Loan Agreement evidencing the BHQ Loan is attached to the Complaint as 

Exhibit 3, however that copy appears to be missing pages 2-5, 7-9, and 14 of the agreement. But, the 

fact that certain pages of the Loan Agreement appear missing is not material to the Court’s analysis.

29 Compl. ¶ 21.

30 Id. ¶ 21 & Ex. 4.

31 Id. ¶ 22; 2007 Cross Collateral Agreement, at 2.

32 Compl. ¶ 23 & Ex. 5.

33 Id.

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granted to Amerant under the 2007 Cross Collateral Agreement and the Sales 

Proceeds Assignment.34

C. The 2013 Loan Modifications.

Sometime during 2013, both Luna and BHQ became wholly-owned 

subsidiaries of Synergy Capital Group Holdings, LLC (“Synergy”), an entity owned 

and controlled by Mr. Arcila and Mr. Mahecha.35 On July 30, 2013, Luna, BHQ, and 

Amerant entered into a series of agreements modifying, amending, and extending the 

maturity of Luna’s obligations under the Luna Loan.36 Luna executed and delivered 

to Amerant a Consolidated, Amended and Restated Promissory Note in the amount 

of $7.5 million;37 Luna and Amerant executed a Notice of Future Advance, 

Modification of Mortgage and Rents Assignment and Extension Agreement;38 and 

Luna, BHQ, and Amerant executed an Amendment and Reaffirmation of Amended 

and Restated Cross-Collateral and Cross Default Agreement (“Final Cross Collateral 

Agreement”).39

D. Luna Sells the Luna Property and Funds the Pledged Account.

A little less than two years later, Luna found a buyer for the Luna Property –

Eagle Management RE, LLC (“Eagle”) – and entered into a purchase and sale 

 34 Id. ¶ 24.

35 Id. ¶ 25.

36 Id. ¶ 26.

37 Id.

38 Id. ¶ 26 & Ex. 7.

39 Id. ¶ 26 & Ex. 8.

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agreement effective as of April 17, 2015.40 Four days later, Luna informed Amerant

about the potential sale of the Luna Property and inquired about treatment of the 

sale proceeds.41 In response, Amerant requested various financial statements from 

Luna, Amerant, and Mr. Arcila.42 Understandably, Eagle also requested confirmation 

that the Luna Property would be released from Amerant’s liens upon the closing.43

But because the Luna Property (along with its contracts, rents, and other collateral) 

secured both the Luna debt and the BHQ debt, Luna could not sell its property free 

and clear of these liens without either paying the entire debt of both entities in full 

or obtaining Amerant’s consent. 

Luna therefore had to discuss terms on which Amerant would release its liens

on the real property being sold to Eagle. Specifically, Amerant and David Fernandez, 

the Chief Operating Officer of Synergy (which owned both Luna and BHQ at that 

time),44 began discussing45 the sale of the Luna Property, how to handle the crosscollateral lien that secured the BHQ debt, and whether that lien could be released.46

Ultimately, Amerant and Luna agreed that the Luna Property could be sold and 

 40 Id. ¶ 29.

41 Id. ¶ 30.

42 Id. ¶¶ 30-31 & Ex. 11.

43 Id. ¶ 32 & Ex. 12.

44 Id. ¶ 25.

45 Mr. Fernandez asked if it was possible for Amerant to not reference in a letter to Eagle the crosscollateral lien securing the BHQ debt, and instead just state that the mortgage lien will be removed. 

If Amerant had to mention the cross-collateral lien, Mr. Fernandez requested that Amerant at least 

not disclose to Eagle the amount of the BHQ Loan. Compl. Ex. 12.

46 Compl. ¶¶ 33-35.

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released from Amerant’s liens if Luna placed $5 million of the net sale proceeds (over 

and above the amount of the Luna debt) in a newly-created pledged account (the 

“Pledged Account”) in Luna’s name that would continue to secure the BHQ debt under 

the Final Cross Collateral Agreement. To effectuate this resolution, Amerant

required Luna to execute new agreements to release the Luna Property from the 

Final Cross Collateral Agreement and the liens granted thereby, and to establish the 

Pledged Account.47

Thus, in connection with the impending sale of the Luna Property to Eagle, on 

June 29, 2015,48 Amerant and Luna executed two agreements: an Agreement 

Regarding Collateral49 and a Deposit Assignment Agreement.50 Amerant also gave 

Luna a letter dated June 29, 2015 referencing the Luna Loan (the “June 29 Letter”), 

which stated:

This will confirm that the Bank will satisfy or terminate (as 

appropriate) its mortgage, assignment of rents, and financing 

statement(s) securing the aforementioned loan if and after it receives, 

in immediately available funds, no later than July 15, 2015, all of the 

net closing proceeds in an amount not less than $12.3 million from the 

sale to Eagle Management RE, LLC (or its assignee) of the property 

described in Exhibit A hereto encumbered by those instruments.51

 47 Compl. ¶ 36.

48 Luna alleges that it was insolvent as of this date, because its December 31, 2014 balance sheet 

showed its liabilities exceeded the value of its assets, and its only material asset was the Luna 

Property. Id. ¶ 42. Luna also alleges that the granting of the lien on the Pledged Account rendered 

Luna insolvent, leaving it without available unencumbered funds to satisfy its obligations to other 

creditors, which Luna alleges were not less than $3.275 million. Id. ¶ 41.

49 Compl. ¶ 37 & Ex. 14.

50 Id. ¶ 37 & Ex. 15.

51 Id. Ex. 16 (emphasis added).

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The Agreement Regarding Collateral similarly provided that:

[Amerant] and Luna have agreed that [Amerant] will satisfy the 

Mortgage if, but only if, prior to July 15, 2015 Luna repays the Luna 

Debt in full, funds Luna’s deposit account no. [xxxxxx]5506 with 

[Amerant] (the “[Pledged] Account”) with a minimum balance of $5 

million, grants to [Amerant] a continuing, first-priority security interest 

in the [Pledged] Account to secure the BHQ Debt and otherwise complies 

with this Agreement.52

The Agreement Regarding Collateral also required Luna to contemporaneously 

execute and deliver to Amerant the Deposit Assignment Agreement to establish the 

new Pledged Account, “which grants to [Amerant] a continuing, first-priority security 

interest in the [Pledged] Account to secure the BHQ Debt.”53 The Agreement 

Regarding Collateral further required Luna to “instruct the Buyer and the closing 

agent” to remit all of the net sale closing proceeds to Amerant54 and stated that:

Luna hereby irrevocably authorizes [Amerant] to use the Net Closing 

Proceeds received by it to repay in full the Luna Debt (together with 

whatever reasonable attorneys’ fees [Amerant] incurs in connection with 

the transactions contemplated by this Agreement), to fund the [Pledged] 

Account with $5 million and to deposit any remainder in Luna’s 

operating account with [Amerant]. Upon [Amerant]’s demand, Luna 

shall execute and deliver to [Amerant] whatever account opening 

documentation [Amerant] requires in connection with establishing the 

[Pledged] Account.55

Consistent with the Agreement Regarding Collateral, the Deposit Assignment 

Agreement provided that Luna “will establish with [Amerant] a time deposit or 

money market account into which will be directly deposited $5 million of the proceeds 

 52 Id. Ex. 14 (emphasis added).

53 Id.

54 Id.

55 Id. (emphasis added).

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of the sale of certain real estate owned by [Luna] and mortgaged to [Amerant] to 

secure both debt of [Luna] to [Amerant] and debt of [BHQ] to [Amerant].”56 The 

Deposit Assignment Agreement also included the following provisions:

1. Assignment of Collateral. As security for any and all 

Indebtedness (as defined below),57 [Luna] hereby pledges and assigns to 

[Amerant] and grants to [Amerant] a security interest in the following 

(the “Collateral”): (i) the [Pledged] Account; (ii) all certificates and 

instruments, if any, from time to time constituting, representing or 

evidencing the [Pledged] Account; (iii) all interest dividends, cash, 

instruments and other property from time to time received, receivable 

or otherwise distributed in respect of or in exchange for any or all of the 

then existing Collateral; and (iv) to the extent not covered by clauses (i) 

through (iii), all proceeds of any or all of the foregoing Collateral. . . . 

* * *

5. Representations and Warranties. [Luna] represents, warrants 

and agrees that . . . this Agreement creates a valid and perfected, first 

priority security interest in all of the Collateral securing all of the 

Indebtedness . . . and the transaction of which this Agreement is a part 

is of direct business benefit to [Luna] and [Luna] has received adequate 

consideration and equivalent value for executing, delivering and 

performing this Agreement; and [Luna] is not insolvent and will not 

become so as a result of the assignment and security interest 

contemplated by this Agreement; and [Luna] is not entering into this 

Agreement with any intent to hinder, delay or defraud any past or future 

creditor.58

 56 Id. Ex. 15 (emphasis added).

57 “Indebtedness” is defined as “all obligations and liabilities of [BHQ] to [Amerant] now or hereafter 

evidenced by or existing under the Notes, whether for interest, principal, fees, expenses or otherwise, 

and all obligations and liabilities of [Luna] to [Amerant] arising hereunder.” Compl. Ex. 15, § 1. “Notes” 

is defined as an Amended and Restated Promissory Note, dated March 5, 2013, in the original principal 

amount of $15,141,293.25, made by [BHQ] to [Amerant]’s order and a Promissory Note, dated March 

5, 2013, made by [BHQ] to [Amerant]’s order in the original principal amount of $5,500,000.00 

(together with any and all renewals or modifications thereof and substitutions therefor . . .)” Id. Ex. 

15, § A. 

58 Compl. Ex. 15, at 1-3. 

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On July 9, 2015 – ten days after execution of the Agreement Regarding 

Collateral, the Deposit Assignment Agreement, and the June 29 Letter – Luna’s sale 

of the Luna Property to Eagle closed,59 with Eagle wiring $12,305,562.64 to 

Amerant.60 Pursuant to the wiring instructions and receipt, the funds were applied 

first to pay off the Luna Loan; then $5 million was credited to the Pledged Account;

$2750.00 went to pay attorneys’ fees; and the remaining balance of $144,712.6061 was

deposited into Luna’s operating account #8406.62

Referencing a copy of the publicly recorded “Satisfaction of Mortgage” attached 

to its Complaint as Exhibit 18, Luna alleges that “[u]pon [Amerant]’s receipt of the 

sale proceeds from the Luna Property, [Amerant] released and terminated the Final 

Cross Collateral Agreement and the liens allegedly granted thereby.”63 The 

Satisfaction of Mortgage attached as Exhibit 18, however, is dated August 12, 2015 

(over a month after the closing) and was recorded on September 17, 2005 (more than 

two months after the closing).64

 59 Id. ¶ 43 & Ex. 17.

60 Id. Ex. 17.

61 Id. ¶ 56 & Ex. 28.

62 Id. Ex. 28.

63 Id. ¶ 44.

64 Id. Ex. 28.

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E. Mr. Arcila is Concerned about Creditors Garnishing the Pledged 

Account.

Before the closing, Mr. Fernandez conveyed to Amerant Mr. Arcila’s concerns 

about whether the sale proceeds could be garnished by Luna’s other creditors.65

Mr. Arcila himself also emailed concerns about where and how the $5 million in 

pledged funds would be held, and whether an entity named Hemphill Financial might 

“have the power to block any Luna account” and delay BHQ’s construction project.66

The day before the closing, Mr. Fernandez asked Amerant if the closing proceeds 

could be transferred “immediately to a Synergy account to avoid any potential 

garnishment.”67 Amerant replied that after payment in full of the Luna Loan and 

depositing $5 million into the Pledged Account, any remaining funds could be 

deposited into a Synergy account.68 Later that evening, Mr. Fernandez sent another 

email to Amerant, asking specifically if the $5 million in pledged funds could be 

moved to a Synergy account, rather than an account in Luna’s name.69 Amerant

replied, however, that “based on the Agreement Regarding Collateral and Deposit 

Assignment Agreement signed by Juan [Arcila], the monies will need to be deposited 

into Luna’s account.”70

 65 Id. ¶¶ 46-47 & Ex. 20.

66 Id. ¶ 48.

67 Id. ¶ 49 & Ex. 22.

68 Id. ¶ 50 & Ex. 22.

69 Id. ¶ 51 & Ex. 23.

70 Id. Ex. 23.

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As late as the morning of the closing, Mr. Arcila continued to express concern 

about Luna’s other creditors potentially being able to access the $5 million Pledged 

Account, and again asked if the agreements with Amerant could “be signed including

Synergy as well.”71 Notwithstanding these requests, the closing proceeded later that 

day in accordance with the Agreement Regarding Collateral and Deposit Assignment 

Agreement, as detailed above.72 After payoff of the Luna Loan and funding of the 

$5 million Pledged Account, the remaining $144,712.60 in sale proceeds were credited 

to Luna’s operating account #0806, which, when added to the existing balance in that

account, resulted in a total balance of $232,935.33.73 The day after the closing, Luna 

transferred $232,935.32 from its operating account #0806 to a Synergy account 

(#6006) at Amerant (the “Synergy Transfer”). After the Synergy Transfer, the 

remaining balance in Luna’s operating account #0806 was $0.01.

Even after the closing Mr. Arcila remained concerned about the $5 million in 

the Pledged Account being in Luna’s name.74 On July 22, 2015 – about two weeks 

after the closing – Mr. Arcila emailed attorneys Juan Martinez, Esq. (counsel for both 

Luna and BHQ) and William Smith, Esq. (counsel for Amerant), stating: “I spoke 

with Christina at the Bank and she suggested to have a call among all of us, to find 

 71 Id. ¶¶ 52-54 & Exs. 24-26.

72 Id. ¶ 56.

73 Id. Ex. 28.

74 Id. ¶¶ 57-58 & Ex. 29.

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the best way to allocate and secure the $5MM.”75 Mr. Martinez responded by 

proposing a call for the next day.76

F. Luna Transfers the $5 Million in Pledged Funds to Amerant.

Meanwhile, BHQ’s construction loan from Amerant was due to mature on 

September 5, 2015.77 With Luna continuing to hold $5 million in the Pledged Account 

as collateral for BHQ’s obligations to Amerant, Luna, BHQ, and Amerant began 

discussing how to apply Amerant’s collateral being held in the Pledged Account to 

reduce BHQ’s debt to Amerant.78 Ultimately, the parties decided to prepare a “TriParty Agreement,” to give “some context to the whole matter.”79

The Tri-Party Agreement acknowledged the sale of the Luna Property and that 

Luna was holding $5 million in proceeds as collateral for BHQ’s obligations.80 The 

Tri-Party Agreement further acknowledged that BHQ owed Amerant more than $17 

million in respect of both a term loan and a construction loan, and that the 

construction loan was due to mature on September 5, 2015.81 Luna, BHQ, and 

Amerant also acknowledged a $10.1 million intercompany debt from Luna to BHQ 

(the “Intercompany Debt”), and contemplated that in partial repayment of the 

 75 Id. ¶ 60 & Ex. 30.

76 Id. Ex. 30.

77 Id. ¶ 79 & Ex. 34.

78 Id. Exs. 29, 30.

79 Id. ¶ 67 & Ex. 32.

80 Id. Ex. 34. 

81 Id. The Tri-Party Agreement also recited that BHQ’s construction loan and term loan were crossdefaulted.

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Intercompany Debt, Luna would transfer the $5 million in the Pledged Account to 

Amerant, to reduce BHQ’s obligations to Amerant.82

At the time of these discussions, however, the Intercompany Debt had not been 

evidenced by a promissory note or any other writing.83 So Mr. Martinez, as counsel 

to Luna and BHQ, prepared a draft undated $10,096,789.94 promissory note, with 

Luna as the “Borrower” and BHQ as the “Lender” (the “Promissory Note”).84 The draft 

Promissory Note would obligate Luna to pay BHQ $5 million on or before August 31, 

2015, with the remaining balance due January 1, 2020.85

Luna, BHQ, and Amerant executed the Tri-Party Agreement on August 10, 

2015,86 which served to irrevocably authorize and direct Amerant to apply the $5 

million in the Pledged Account “to make a principal prepayment of the BHQ Term 

Loan in the amount of $5 million.”87 The day after Luna, BHQ, and Amerant executed 

the Tri-Party Agreement, Mr. Smith requested a copy of the Promissory Note,88 which 

apparently had not yet been signed.89 At Mr. Martinez’s request, Mr. Arcila then 

executed the note90 signing as “Managing Partner” of “Luna Developments, LLC” as 

 82 Id. ¶ 70 & Ex. 34.

83 Id. ¶ 63.

84 Id. ¶ 65 & Ex. 31.

85 Compl. ¶ 66 & Ex. 31.

86 Id. ¶ 69.

87 Id. ¶ 72 & Ex. 34.

88 Id. ¶ 73 & Ex. 35.

89 Id. ¶ 74 & Ex. 36.

90 Id. ¶¶ 74, 75 & Exs. 36, 37.

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“Borrower.”91 The following day – August 12, 2015 – in accordance with the authority 

and direction provided to it under the Tri-Party Agreement, Amerant debited Luna’s 

Pledged Account in the amount of $5 million, and credited BHQ’s Loan no. xxxxx6263

in the amount of $5 million (the “Pledged Funds Transfer”).92

G. Luna Ends Up in Receivership and then Bankruptcy.

On October 24, 2017, the Circuit Court for the Eleventh Judicial Circuit in and 

for Miami-Dade County, Florida appointed Mr. Barbee as receiver for Luna,93 and on 

January 28, 2019, Mr. Barbee, as receiver, filed a chapter 11 bankruptcy petition for

Luna.94

IV. Analysis.

The Complaint contains five counts. Count I alleges that Luna’s grant of a 

security interest in the Pledged Account was an actual fraudulent transfer avoidable 

under 11 U.S.C. § 544 and Florida Statute § 726.105(1)(a). Count II alleges that the 

grant of a security interest in the Pledged Account was a constructive fraudulent 

transfer avoidable under 11 U.S.C. § 544 and Florida Statute § 726.106(1). Count III 

alleges that the Pledged Funds Transfer was an actual fraudulent transfer avoidable 

under 11 U.S.C. § 544 and Florida Statute § 726.105(1)(a). Count IV seeks recovery 

of the Pledged Funds Transfer pursuant to 11 U.S.C. § 550. And Count V alleges that 

Amerant aided and abetted Mr. Arcila’s alleged breach of fiduciary duty to Luna.

 91 Id. ¶ 75 & Ex. 37. Luna’s name, however, is “Luna Developments Group, LLC,” not “Luna 

Developments, LLC.”

92 Compl. ¶ 77 & Exs. 39, 40.

93 Id. ¶ 2.

94 Id. ¶ 4.

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A. The Plaintiff’s Standing.

Under the Bankruptcy Code, Congress vested bankruptcy trustees with 

authority to bring fraudulent transfer claims both under substantive provisions of 

the Bankruptcy Code (§ 548) as well as applicable state law (like FUFTA). In a 

chapter 11 case, a debtor-in-possession exercises the powers of a trustee and therefore 

can bring such claims in its own name.95 In this case, no trustee was appointed under 

11 U.S.C. § 1104. In the absence of a trustee, Luna was technically a debtor-inpossession when the Complaint was filed, although rather than being managed by its 

managers or members, it was being administered by a previously-appointed state 

court receiver who had been excused from turning over the debtor’s property to a 

trustee.96 Thus, while the Complaint was nominally filed by Mr. Barbee in his 

capacity as receiver excused from turnover, it appears to be the debtor-in-possession 

(as administered by Mr. Barbee) that was really asserting these claims. But, because 

the Court will be dismissing the Complaint on the merits of the substantive legal 

issues, the Court need not adjudicate the plaintiff’s standing. Rather, for purposes of 

the Motion to Dismiss, the Court will assume without deciding that the claims were

asserted by Luna, as chapter 11 debtor-in-possession being operated by Mr. Barbee, 

 95 11 U.S.C. § 1107.

96 See 11 U.S.C. § 543.

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a receiver excused from turnover pursuant to Bankruptcy Code § 543 with authority 

to operate and direct the debtor-in-possession.

B. Avoidance and Recovery of Fraudulent Transfers.

Bankruptcy Code § 544(b) allows a trustee (or a debtor-in-possession exercising 

the rights, powers and duties of a trustee)97 to “avoid any transfer of an interest of 

the debtor in property . . . that is voidable under applicable [state] law by a creditor 

holding an [allowable] unsecured claim.”98 Luna seeks to avoid the grant of a firstpriority security interest in the Pledged Account as an actual fraudulent transfer 

under Florida Statute § 726.105(1)(a) and as a constructive fraudulent transfer under 

Florida Statute § 726.106(1), and to avoid the Pledged Funds Transfer as an actual 

fraudulent transfer under Florida Statute § 726.105(1)(a). If successful in avoiding 

the Pledged Funds Transfer, then Luna also seeks to recover the Pledged Funds 

Transfer from Amerant, as an initial or subsequent transferee or the entity for whose 

benefit the transfer was made, under 11 U.S.C. § 550.

Florida Statute § 726.105(1)(a) provides that a transfer made or obligation 

incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose 

before or after the transfer was made or the obligation was incurred, if the debtor 

made the transfer or incurred the obligation “[w]ith actual intent to hinder, delay, or 

defraud any creditor of the debtor.”99 Florida Statute § 726.106(1) provides that a 

transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose 

 97 11 U.S.C. § 1107(a).

98 11 U.S.C. § 544(b).

99 Fla. Stat. § 726.105(1)(a).

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claim arose before the transfer was made or the obligation was incurred if the debtor 

made the transfer or incurred the obligation “without receiving a reasonably 

equivalent value in exchange for the transfer or obligation and the debtor was 

insolvent at that time or the debtor became insolvent as a result of the transfer or 

obligation.”100 Bankruptcy Code § 550 allows a trustee to recover any transfers 

avoided under § 544 from “the initial transferee, the entity for whose benefit the 

transfer was made, or a subsequent transferee of the initial transferee.”101

1. The Grant of a Security Interest in the Pledged Account Was Not 

an Avoidable Transfer.

To avoid and recover alleged fraudulent transfers, Luna must first allege that 

the grant of a first-priority security interest in the Pledged Account was a “transfer.” 

The Bankruptcy Code defines “transfer,” in relevant part, as “(A) the creation of a 

lien; (B) the retention of title as a security interest; . . . or (D) each mode, direct or 

indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting 

with (i) property; or (ii) an interest in property.”102 FUFTA similarly defines 

“transfer” as meaning “every mode, direct or indirect, absolute or conditional, 

voluntary or involuntary, of disposing of or parting with an asset or an interest in an 

asset, and includes payment of money, release, lease, and creation of a lien or other 

 100 Fla. Stat. § 726.106(1).

101 11 U.S.C. § 550; In re Chase & Sanborn Corp., 848 F.2d 1196, 1198 (11th Cir. 1988) (citing 11 U.S.C. 

§ 544(a)).

102 11 U.S.C. § 101(54).

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encumbrance.”103 FUFTA then defines “asset” to mean “property of a debtor” but 

specifically excludes “[p]roperty to the extent it is encumbered by a valid lien.”104

Amerant argues the granting of a security interest in the Pledged Account is 

not a transfer that can be avoided because Amerant already had a lien on the $5 

million in Luna sale proceeds that were deposited into that account. Thus, the 

transfer of those proceeds into the Pledged Account and the use – several weeks later

– of those proceeds to pay down the BHQ Loan, were not transfers subject to 

avoidance under FUFTA.105 The Court agrees. 

a. Amerant Did Not Release Its Liens Before Creation and 

Funding of the Pledged Account.

Luna’s November 29, 2006 Mortgage Deed and Security Agreement106 gave 

Amerant a security interest in Luna’s land and buildings and property located 

thereon,107 as well as, without limitation, “all present and future contracts”108 and all 

“proceeds of the conversion, voluntary or involuntary, of the Mortgaged Property, or 

any part thereof, into cash or liquidated claims.”109 Likewise, the Sales Proceeds 

Assignment110 given to Amerant in connection with the 2007 Cross Collateral 

 103 Fla. Stat. § 726.102(14).

104 Fla. Stat. § 726.102(2). FUFTA also provides that a transfer is not voidable under § 726.105(1)(b) 

or § 726.106 if the transfer results from “[e]nforcement of a security interest in compliance with Article 

9 of the Uniform Commercial Code.” Fla. Stat. § 726.109(5)(b).

105 Mot. to Dismiss 14.

106 Compl. Ex. 1.

107 Id. ¶ (a).

108 Id. ¶ (g).

109 Id. ¶ (d).

110 Compl. Ex. 5.

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Agreement encumbered all of Luna’s “right, title and interest in, to and under the 

Contracts [defined to include any sale contracts], including without limitation (a) all 

rights of Assignor [Luna] to receive monies due or to become due under each and any 

of the Contracts . . . .”111 Paragraph 2 of the 2007 Cross Collateral Agreement further 

provided that the “Luna Security Documents112 and all collateral securing the Luna 

Loan shall serve as additional security for the [BHQ] Loan and the full and faithful 

performance by [BHQ] of its obligations under” its loan documents with Amerant.113

The entire theory of Luna’s case is really premised on the allegation that 

Amerant released and terminated its Final Cross Collateral Agreement and liens 

granted thereby before Luna granted Amerant a security interest in the Pledged 

Account.114 If that was true, then Luna might be correct that “[t]he grant of a firstpriority security interest in the Pledged Account . . . following the Defendant’s receipt 

of not less than $12,300,000 pursuant to the Deposit Agreements and Release Letter 

was a transfer of an interest of the Debtor in property.”115 But, the Court need not 

accept as true “conclusory allegations, unwarranted deductions of facts or legal 

conclusions masquerading as facts”116 when considering a motion to dismiss. Here, 

 111 Id. ¶¶ 1, 2.

112 The 2007 Cross Collateral Agreement defined “Luna Security Documents” to include the mortgage, 

assignment of leases and rents, UCC-1 financing statements, and “all other documents now or 

hereafter securing the Luna Loan.” Compl. Ex. 4, ¶ A.

113 Compl. Ex. 4, ¶ 2.

114 Compl. ¶¶ 44, 45.

115 Id. ¶¶ 84, 89.

116 Oxford Asset Mgmt., 297 F.3d at 1188.

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these conclusory allegations are contradicted by other allegations and exhibits to the 

Complaint, which plainly show that Amerant’s liens had not yet been released at the 

time the Pledged Account was established and Luna granted Amerant a lien thereon.

Indeed, the publicly recorded “Satisfaction of Mortgage” referenced by Luna in 

support of its allegations was signed on August 12, 2015 and recorded on September 

17, 2015117 – well after both the creation and the funding of Pledged Account.

Likewise, Luna fails to include any allegations that any satisfaction of mortgage or 

release of liens was ever given or recorded before the creation of the Pledged Account. 

The best Luna can do is to point to the June 29 Letter and label it a “Release 

Letter.”118 But a careful reading of the June 29 Letter shows it does nothing more 

than confirm what Amerant intends or promises to do in the future:

the Bank will satisfy or terminate (as appropriate) its mortgage, 

assignment of rents, and financing statement(s) securing the 

aforementioned loan if and after it receives, in immediately available 

funds, no later than July 15, 2015, all of the net closing proceeds in an 

amount not less than $12.3 million from the sale to [Eagle].119

Indeed, the sequence of events is telling:

June 29, 2015:

• Luna and Amerant execute the Agreement Regarding Collateral 

and the Deposit Assignment Agreement;120

 117 Compl. Ex. 18. Compare with Compl. Ex. 2 (the partial releases of the Luna Mortgage publicly 

recorded after Luna had converted certain rental apartment units to condominiums). Luna has not 

alleged any such release or partial release of Amerant’s cross-collateral security interests at or before 

the creation or funding of the Pledged Account.

118 Compl. ¶ 38.

119 Id. (emphasis added) & Ex. 16.

120 Id. ¶ 37 & Exs. 14, 15.

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• Amerant gives Luna the June 29 Letter;121

July 9, 2015:

• Luna closes on the Eagle sale;122

• $12,305,562.64 is wired to Amerant and used to satisfy the Luna 

Loan,123 fund $5 million into the Pledged Account,124 and pay 

$2750.00 in attorneys’ fees,125 with the balance of $144,712.60 

being deposited into Luna’s operating account at Amerant;126

August 12, 2015:

• Amerant executes a Satisfaction of Mortgage;127 and

September 27, 2015:

• The Satisfaction of Mortgage is recorded.128

Before Luna sold the Luna Property to Eagle, the equity in the Luna Property 

above the mortgage balance on the Luna Loan – along with the contracts and other 

collateral – clearly secured the cross-collateralized BHQ Loan.129 The Deposit 

Assignment Agreement simply created a new account established specifically to 

receive and hold the already-encumbered proceeds of the sale. While the Deposit 

Assignment Agreement did state that it creates a valid and perfected first priority 

security interest in the account, the account was not funded at the time it was created. 

 121 Id. Ex. 16.

122 Id. ¶ 43 & Ex. 17.

123 Id.

124 Id. Ex. 19.

125 Id. Ex. 17.

126 Id. Ex. 28.

127 Id. Ex. 18.

128 Id.

129 See footnotes 106-113, supra.

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Thus, any lien granted on the Pledged Account as of June 29, 2015 necessarily had 

no value as of that date. 

In establishing the Pledged Account, Amerant took lawful, reasonable, and 

appropriate actions to protect its collateral and maintain its lien. Amerant had a lien 

on the sale contract and its proceeds. Amerant and Luna then established the Pledged 

Account – at the time unfunded – and granted a lien in favor of Amerant in the 

account, so that when the sale closed and the collateral (real estate and contractual 

rights) was converted into cash (to which that lien attached), Amerant had an 

appropriate repository for the funds that would enable them to retain their perfected 

secured status.

b. The Transactions Were Properly Contemplated, 

Structured, and Executed under Article 9 of the UCC.

Indeed, the transactions at issue were properly contemplated, structured, and 

executed in accordance with Article 9 of the Uniform Commercial Code. Under UCC 

§ 9-315(a)(2), a security interest attaches to any identifiable proceeds of collateral 

following disposition of the original collateral.130 If the original security interest was 

perfected (there has been no allegation that it was not),131 then under UCC § 9-315(c), 

 130 Fla. Stat. § 679.3151(1)(b).

131 See Compl. Ex. 1 (Mortgage Deed and Security Agreement), Ex. 4 (Cross-Collateral and CrossDefault Agreement), Ex. 5 (Collateral Assignment of Sales Contracts and Sales Proceeds); see also Mot. 

to Dismiss Ex. B (Assignment of Leases and Rents) & Exhibit C (UCC-1 Financing Statement). In 

deciding Rule 12(b)(6) motions, courts may consider exhibits attached to the complaint that are central 

to the claim and the authenticity of which is not disputed. See Speaker v. U.S. Dep’t of Health & Human 

Servs., 623 F.3d 1371, 1379 (11th Cir. 2010); Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citing 

Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). Courts may also consider other documents 

central to a claim if the authenticity and contents of the documents are not in dispute. Harris v. Ivax 

Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999) (citing Brooks v. Blue Cross & Blue Shield of Fla., Inc., 

116 F.3d 1364, 1369 (11th Cir. 1997)). The Assignment of Leases and Rents and the UCC-1 Financing 

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the security interest in the proceeds is automatically perfected as well.132 Under UCC 

§ 9-315(d), however, a perfected security interest in proceeds may then become 

unperfected on the twenty-first day after the security interest attaches to the 

proceeds, if certain conditions are not met.133

But here, Amerant’s collateral was converted to “identifiable cash proceeds”134

on August 9, 2015 (the date of the closing),135 which resulted in the continuation of 

perfection of Amerant’s security interest in the cash proceeds under UCC § 9-

315(d)(2).136 The identifiable cash proceeds of $5 million in which Amerant 

unquestionably had a perfected security interest were then deposited into the Pledged 

Account that same day.137 Amerant was also perfected by control138 of the collateral

at that point.139 Thus, based on the well-pleaded allegations in the Complaint, there 

was no point in time before the funding of the Pledged Account when Amerant’s 

security interest had been released, lapsed or was unperfected. 

At bottom, Amerant took entirely appropriate action to preserve and protect 

its existing liens, and to ensure that it retained those liens when its collateral was 

 

Statement were not attached to the Complaint, but were attached by Amerant to its Motion to Dismiss. 

These documents are central to Luna’s claims, and Luna has not challenged their authenticity or 

contents.

132 Fla Stat. § 679.3151(3).

133 Fla Stat. § 679.3151(4).

134 Fla. Stat. § 679.3151(4)(b).

135 Compl. ¶ 43 & Ex. 17.

136 Fla. Stat. § 679.3151(4)(b).

137 Compl. Ex. 19.

138 See UCC §§ 9-314(a) (perfection by control) and 9-104(a)(1) (control of deposit account); Fla. Stat. 

§§ 679.3141(a) and 679.1041(1)(a).

139 Id. Ex. 15, ¶ 2 (“Bank shall have complete control over the Collateral.”).

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converted to cash. Accordingly, because the $5 million in sale proceeds that was

deposited into the Pledged Account was already encumbered by a valid lien, under 

Florida Statute § 726.102(2), this $5 million was not an “asset” and therefore the 

transfer of the $5 million into the Pledged Account was not a transfer that can be 

avoided under FUFTA. Likewise, because the Pledged Account was unfunded and 

had no value when it was created – and when it was funded it was funded with 

already encumbered funds – creation of the Pledged Account and the granting of a 

lien therein is not a transfer subject to avoidance under FUFTA, either. Accordingly, 

Counts I and II – both of which challenge the creation of the Pledged Account – must 

be dismissed.140

2. The Pledged Funds Transfer Was Not an Avoidable Transfer.

Because the Pledged Account was already encumbered by a valid, perfected

lien in favor of Amerant, the application of the $5 million in that account to reduce 

BHQ’s debt to Amerant was also not an avoidable transfer.141 It is not fraudulent to 

pay some but not all creditors, “even though the effect might be to injure or prejudice 

an existing creditor who was not chosen to receive the debtor’s largesse.”142 Moreover, 

to recover a payment made on a pre-existing mortgage as a fraudulent transfer, the 

plaintiff must establish that the pre-existing mortgage or other lien was not effective 

 140 Because the Court finds there was no transfer subject to avoidance, the Court need not address 

Amerant’s reasonably equivalent value argument with respect to Count II.

141 See Sunshine Res., Inc. v. Simpson, 763 So. 2d 1078, 1081 (Fla. 4th DCA 1999) (a payment made on 

a pre-existing mortgage is not a fraudulent transfer, even if the effect of the payment is to prefer one 

creditor over another).

142 Id. (quoting Jacksonville Bulls Football Ltd. v. Blatt, 535 So.2d 626, 629 (Fla. 3d DCA 1988)).

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to secure the debt.143 For the reasons discussed above, Amerant’s perfected lien on 

the Pledged Account was effective to secure BHQ’s debt to it. Therefore, Luna’s 

transfer of $5 million from the Pledged Account to Amerant was not an avoidable 

transfer, and Count III fails as a matter of law as well.144 And because Count III fails, 

Count IV – which seeks to recover the Pledged Funds Transfer – also fails to state a 

claim because there is no avoidable transfer to recover.

C. Aiding and Abetting Breach of Fiduciary Duty.

Finally, Luna alleges that Mr. Arcila breached his fiduciary duties to Luna by 

“shielding the net proceeds of the sale of the Luna Property from the Debtor’s 

legitimate creditors,”145 and that Amerant aided and abetted this alleged breach.146

In support of its generalized allegations, Luna alleges the following specific actions 

by Mr. Arcila constituted breaches of his fiduciary duties to Luna:

• executing the Deposit Assignment Agreement resulting in net 

proceeds in excess of the amount of the Luna debt being delivered 

to Amerant; 

• granting to Amerant a lien on the Pledged Account; 

• directing, or attempting to direct, the transfer of the net proceeds 

to avoid garnishment and other collection efforts; and 

• permitting Amerant to apply the amounts on deposit in the 

Pledged Account to reduce the amount outstanding under the 

BHQ Loan.147

 143 Wiand v. Wells Fargo Bank, N.A., 86 F. Supp. 3d 1316, 1326-27 (M.D. Fla. 2015).

144 Because the Court has determined that the transactions at issue were not transfers under FUFTA, 

the Court need not address or resolve Amerant’s argument that Luna really seeks to avoid the 2007 

cross-collateral lien, which claim is time-barred. In any event, Luna admits in its Response that it does 

not seek to avoid the 2007 Cross Collateral Agreement. Resp. 3 n.2.

145 Compl. ¶ 106.

146 Id. ¶¶ 107-18.

147 Id.

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1. Luna Has Failed to Plausibly Allege any Breach of Fiduciary 

Duty.

To state a claim for breach of fiduciary duty under Florida law, a plaintiff must 

plausibly allege: (1) the existence of a fiduciary duty, (2) breach of a fiduciary duty, 

and (3) that the breach proximately caused the plaintiff’s damages.148 While the 

Complaint’s specific allegations as to the existence of a fiduciary duty are sparse, the 

Court will assume for purposes of ruling on the Motion to Dismiss that as a 

manager,149 “de facto manager,”150 or one who “exercised managerial control of” 

Luna,151 Mr. Arcila owed fiduciary duties to Luna.152 But – as discussed above –

executing the Deposit Assignment Agreement, granting a lien on the Pledged 

Account, and permitting Amerant to apply the funds in the Pledged Account to reduce 

BHQ’s loan obligations were not avoidable transfers and were not otherwise 

improper. Indeed, the transactions were contemplated, documented, and executed in 

a manner consistent with Article 9 of the Uniform Commercial Code.153 By causing 

Luna to execute the Deposit Assignment Agreement, grant a lien on the Pledged 

Account, and permit Amerant to apply the Pledged Funds to reduce BHQ’s liability, 

 148 Silver Crown Investments, LLC v. Team Real Estate Mgmt., LLC, 349 F. Supp. 3d 1316, 1331 (S.D. 

Fla. 2018) (citing Gracey v. Eaker, 837 So.2d 348, 353 (Fla. 2002); Doshi v. Cagle Road Land, LLC, 

Case No. 3:17–cv–308–J–34JRK, 2018 WL 1796224, at *8 (M.D. Fla. Jan. 23, 2018)).

149 Compl. ¶ 103.

150 Id. ¶ 104.

151 Id.

152 See generally McCoy v. Durden, 155 So. 3d 399, 402-05 (Fla. 1st DCA 2014) (discussing fiduciary 

duties of LLC managers under the Florida Limited Liability Company Act (Fla. Stat. § 608.4225 

(2011)), which has since been repealed and replaced by the Florida Revised Limited Liability Company 

Act, effective as of January 1, 2015).

153 Infra, Part IV.B.1.b.

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Mr. Arcila did nothing more than cause Luna to properly honor its obligations to 

Amerant under the Final Cross Collateral Agreement and related security 

documents. Nothing about those actions plausibly suggest any breach of a fiduciary 

duty by Mr. Arcila to Luna.

The only allegation that even suggests a breach of fiduciary duty by Mr. Arcila 

is that he directed or – more accurately – “attempt[ed] to direct the transfer of the net 

proceeds to avoid garnishment and other collection efforts.”154 But even as to this 

allegation, any attempt by Mr. Arcila to move the Pledged Account from Luna to 

another entity cannot be a breach of fiduciary duty because, as discussed above, this 

account and its contents were Amerant’s collateral.

2. Luna Has Failed to Plausibly Allege Knowledge or Substantial 

Assistance.

Even if Luna had adequately alleged a breach of fiduciary duty, however, it 

still has failed to state a claim against Amerant for aiding and abetting breach of 

fiduciary duty. An aiding and abetting claim under Florida law requires a plaintiff to 

allege: (1) an underlying violation by a primary wrongdoer; (2) knowledge of the 

underlying violation by the alleged aider and abettor; and (3) rendering of substantial 

assistance in committing the wrongdoing by the alleged aider and abettor.155 When 

an aiding and abetting breach of fiduciary duty claim is asserted against a lender, 

however, the plaintiff must allege specific facts showing that the lender knew that its 

 154 Compl. ¶ 106.

155 In re Rollaguard Sec., LLC, 591 B.R. 895, 922 (Bankr. S.D. Fla. 2018) (quoting Lawrence v. Bank 

of Am., N.A., 455 F. App’x 904, 907 (11th Cir. 2012)).

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customer was engaging in wrongful or illegal activity.156 This “knowledge” element 

“will only be satisfied if the plaintiff pleads facts demonstrating that the bank had 

‘actual knowledge’ of the wrongdoings.”157 “Importantly, in the context of aiding and 

abetting claims against banks, Florida law does not require banks to investigate their 

customers’ transactions.”158 “Substantial assistance occurs when a defendant 

affirmatively assists, helps conceal or fails to act when required to do so, thereby 

enabling the breach to occur.”159 But “mere inaction” will constitute substantial 

assistance “only if the defendant owes a fiduciary duty directly to the plaintiff.”160

Here, the allegations in the Complaint, if proven, would not raise a plausible 

inference that Amerant actually knew Mr. Arcila was engaged in a breach of his 

fiduciary duty to Luna. For example, Luna alleges that Mr. Arcila requested Amerant 

to produce a release letter without reference to the cross-collateral agreement,161 and 

that in fact the June 29 Letter failed to disclose the existence of the cross-collateral

agreement.162 Both the 2007 Cross Collateral Agreement and the Final Cross 

 156 Platinum Estates, Inc. v. TD Bank, N.A., No. 11–60670–CIV, 2012 WL 760791, at *3 (S.D. Fla. Mar. 

8, 2012); Groom v. Bank of Am., No. 8:08–cv–2567–JDW–EAJ, 2012 WL 50250, at *2-3 (M.D. Fla. Jan. 

9, 2012); Lawrence v. Bank of Am., N.A., No. 8:09–cv–2162–T–33TGW, 2010 WL 3467501, at *3 (M.D. 

Fla. Aug. 30, 2010); Hines v. FiServe, Inc., No. 8:08–cv–2569–T–30AEP, 2010 WL 1249838, at *4 (M.D. 

Fla. Mar. 25, 2010).

157 Perlman v. Wells Fargo Bank, N.A., 559 F. App’x 988, 993 (11th Cir. 2014) (citing Lawrence, 455 F. 

App’x at 907).

158 Rollaguard, 591 B.R. at 922-23 (“‘Red flags’ and mere suspicions are insufficient to trigger any 

obligation by [a bank] to investigate.”) (internal citation omitted).

159 Chang v. JPMorgan Chase Bank, N.A., 845 F.3d 1087, 1098 (11th Cir. 2017).

160 Id. (internal quotation marks and citation omitted).

161 Compl. ¶ 34 & Ex. 12; see footnote 45, supra.

162 Id. Ex. 16.

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Collateral Agreement, however, were recorded in the public records.163 Amerant’s 

knowledge that Mr. Arcila requested Amerant not mention the Cross Collateral 

Agreement in the June 29 Letter is simply not probative of any plausible allegations 

that Mr. Arcila breached his fiduciary duty, or that Amerant had knowledge and 

substantially assisted such alleged breach of fiduciary duty. 

Likewise, Amerant’s knowledge that Mr. Arcila was concerned about creditors 

garnishing Luna’s accounts – and even its knowledge that Mr. Arcila requested the 

Pledged Account be held in another entity’s name (which request Amerant refused) –

does not support actual knowledge that Mr. Arcila was breaching his fiduciary duty 

to Luna because, as discussed above, it has not been plausibly alleged that he was

breaching his fiduciary duty. That Mr. Arcila wanted to move the $5 million in 

pledged funds to the name of another entity – purportedly over concerns about claims 

of other Luna creditors – does not show intent to breach fiduciary duty because those 

funds were not available to other creditors anyway; they were already encumbered

and therefore not an “asset” subject to “transfer” under FUFTA.164 As to the Synergy 

Transfer, while that transfer may have been a fraudulent transfer by Luna to 

Synergy, any fraudulent transfer claim Luna may have against Synergy is not a claim 

against Amerant, who simply honored its customer’s lawful directions to transfer the 

money.165

 163 Id. Exs. 4, 8.

164 Fla. Stat. § 726.102(2)(a).

165 O’Halloran v. First Union Nat. Bank of Fla., 350 F.3d 1197, 1205 (11th Cir. 2003) (a bank “has the 

right to assume that individuals who have the legal authority to handle the entity’s accounts do not 

misuse the entity’s funds.”)

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Similarly, the Complaint does not contain sufficient allegations to plausibly 

support the inference that Amerant rendered substantial assistance to Mr. Arcila’s 

alleged breach of fiduciary duties. Luna alleges only that Amerant provided 

substantial assistance to Mr. Arcila in breaching his fiduciary duty by “compelling 

the grant of the lien on the Debtor’s funds from the sale of the Luna Property” and 

“the subsequent transfer of the Debtor’s money to reduce BHQ’s liability to [Amerant] 

thereby improving [Amerant’s] position.”166 But again, as discussed above, these 

actions did not even result in avoidable transfers, and certainly did not breach any 

fiduciary duties. Thus, there are no plausible allegations of substantial assistance

with respect to the establishment of the Pledged Account or the Pledged Funds 

Transfer. Even as to the Synergy Transfer, there are no plausible allegations that 

Amerant did anything other than act on lawful instructions of its banking 

customer.167 In facilitating the creation of the Pledged Account and the later Pledged 

Funds Transfer, Amerant was doing nothing more than acting in its own financial 

interest and in accordance with its own legal and contractual rights.168 Acts that are 

“consistent with normal, lawful [banking] business practices” will not support an 

aiding and abetting breach of fiduciary duty claim.169

 166 Compl. ¶ 108.

167 O'Halloran, 350 F.3d at 1205.

168 See Sharp Intern. Corp. v. State Street Bank and Trust Co. (In re Sharp Intern. Corp.), 403 F.3d 43, 

51 (2d Cir. 2005) (where lender requested repayment and encouraged borrower to obtain new 

financing, and lender had right to foreclose, lender did not aid or abet borrower in breaching fiduciary 

duty even though borrower was defrauding its own investors).

169 Krys v. Pigott, 749 F.3d 117, 132 (2d Cir. 2014).

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Luna’s allegations pertaining to the Tri-Party Agreement and the Promissory 

Note lend no support to the aiding and abetting breach of fiduciary claim, either.170

BHQ owed a valid debt to Amerant, which debt was properly secured by Luna’s assets 

(first the Luna Property, contracts and proceeds, and other collateral, and later the 

$5 million in the Pledged Account). That Luna, BHQ, and Amerant prepared the TriParty Agreement to give “some context to the whole matter”171 – even if done to allay 

Mr. Arcila’s unfounded concerns about Luna creditors garnishing the Pledged 

Account – does not support a claim against Amerant for aiding and abetting breach 

of fiduciary duty.

Nor is preparation of the Promissory Note to document the Intercompany Debt 

probative of the aiding and abetting claim. A promissory note “evidence[s] a debt and 

specif[ies] terms under which one party will pay money to another.”172 But a 

promissory note is not required to create a debt, and a later-executed promissory note 

merely provides “documentary evidence of the amount of the antecedent debt” and “a 

timetable for the payment of that debt.”173 Luna attempts to cast doubt – without any 

plausible allegations – about its (own) $10.1 million debt to BHQ, relying principally 

on an inference that because the note was prepared shortly before the $5 million 

 170 These allegations are also irrelevant to the fraudulent transfer claims because, as noted above, the 

transactions at issue were not transfers subject to avoidance.

171 Compl. ¶ 67

172 Baggett v. Law Offices of Daniel C. Consuegra, P.L., No. 3:14-CV-1014-J-32PDB, 2015 WL 1707479, 

at *4 (M.D. Fla. Apr. 15, 2015) (quoting Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 

1211, 1217 (11th Cir. 2012)); see also Fla. Stat. § 679.1021(1)(mmm) (2011) (“‘Promissory note’ means 

an instrument that evidences a promise to pay a monetary obligation . . . .”).

173 Matter of Red Way Cartage Co., Inc., 84 B.R. 459, 461 (Bankr. E.D. Mich. 1988).

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paydown was made, somehow the underlying debt was invalid.174 But “[h]ints and 

innuendo are not sufficient to support any necessary component of a claim.”175

In sum, Luna has failed to plausibly allege that Amerant did anything other 

than protect its rights as a secured creditor and ensure that it received payments to 

which it was entitled.176 That Amerant knew Mr. Arcila was concerned about the 

claims of other creditors and that Amerant collaborated with Luna and BHQ to 

document the transactions that resulted in Amerant realizing on its collateral and 

being repaid does not support allegations of aiding and abetting any alleged breach 

of fiduciary duty by Mr. Arcila. Accordingly, Luna’s claim for aiding and abetting Mr. 

Arcila’s breach of fiduciary duty fails to state a claim upon which relief may be 

granted, and will be dismissed along with the other four counts.

D. Motion for Leave to Amend

After Amerant filed its Motion to Dismiss, the Court entered a briefing order 

inviting a response by Luna and a reply by Amerant.177 The Briefing Order further 

provided that:

If Plaintiff wishes to request leave to amend the complaint, Plaintiff 

must accompany the response with a motion for leave to amend under 

 174 While the incorrect name on the note – “Luna Developments, LLC” – might have some legal 

significance in other contexts, it is irrelevant to the allegations that Amerant aided and abetted a 

breach of Mr. Arcila’s fiduciary duty to Luna.

175 In re D.I.T., Inc., 561 B.R. 793, 804 (Bankr. S.D. Fla. 2016) (citing Sharp Intern. Corp., 403 F.3d at 

56-57; B.E.L.T., Inc. v. Wachovia Corp., 403 F.3d 474 (7th Cir. 2005)).

176 See generally Ethyl Corp. v. Balter, 386 So. 2d 1220, 1225 (Fla. 3d DCA 1980) (so long as improper 

means are not employed, activities taken to safeguard or promote one’s own financial and contractual 

interests are entirely non-actionable); cf. Sharp Intern. Corp., 403 F.3d at 52 (bank’s discovery of its 

borrower’s fraud was an asset of the bank, which had a fiduciary duty to its shareholders to use that 

information – if it legally could – to maximize recovery on its loan).

177 Order Setting Briefing Schedule on Mot. to Dismiss (ECF No. 10) (the “Briefing Order”).

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Fed. R. Civ. P. 15(a), made applicable to this adversary proceeding by 

Fed. R. Bankr. P. 7015. Such motion for leave to amend must include a 

copy of the proposed amended complaint with redlined comparison to 

indicate changes. The failure to file a motion for leave to amend 

along with any response to the Motion [to Dismiss] constitutes a 

waiver of the right to request leave to amend and, if the Motion 

[to Dismiss] is granted, may result in dismissal of the action with 

prejudice.178

Luna timely filed its Response, along with a Motion to Amend.179 But its Motion to 

Amend sought leave to amend the Complaint only “to add allegations regarding the 

standing of the Receiver to prosecute the claims asserted in the Complaint.”180 While 

not specifically mentioned in the Motion to Amend, the proposed Amended Complaint

also proposed to add to each count a request for attorneys’ fees and costs.181 The 

Motion to Amend then stated that “to the extent the Court grants the Motion to 

Dismiss for other reasons, the Receiver seeks leave of Court to further amend the 

Complaint to respond to or address the Court’s ruling.”182

Under Federal Rule of Civil Procedure 15(a)(2),183 “a party may amend its 

pleading only with the opposing party’s written consent or the court’s leave. The court 

should freely give leave when justice so requires.”184 Although the rule requires that 

leave to amend be freely given, a court may deny leave to amend on several grounds, 

 178 Id. (emphasis in original).

179 ECF No. 22.

180 Id. ¶ 3. 

181 Id. at 24-27, 30.

182 Id. ¶ 3.

183 Made applicable here by Federal Rule of Bankruptcy Procedure 7015.

184 Fed. R. Civ. P. 15(a)(2).

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including the futility of the amendment.185 Futility justifies denial of leave to amend 

where the complaint, as amended, would still be subject to dismissal.186 Luna’s 

proposed Amended Complaint here is futile, and therefore its Motion to Amend will 

be denied.

The proposed Amended Complaint is futile because, as noted above, the Court 

determined that it did not need to adjudicate the standing issue that Luna seeks to 

address therein. Rather, the Court assumed without deciding that Luna, as debtorin-possession directed and operated by Mr. Barbee as receiver excused from turnover, 

had standing. With standing assumed, the Court nevertheless determined that each 

count of the Complaint failed to state a claim upon which relief may be granted, and 

that the entire Complaint should therefore be dismissed on the legal merits. And

because Luna’s claims fail on the merits, the Court of course need not address its 

requests for attorneys’ fees. As such, the Motion to Amend will be denied as futile.

V. Dismissal with Prejudice.

Finally – notwithstanding the purported reservation of rights by Luna to seek 

leave to further amend to respond to or address the Court’s ruling – dismissal will be 

with prejudice and Luna will not be given the opportunity to “further amend” its 

complaint. The Eleventh Circuit has held that a court “is not required to grant a 

plaintiff leave to amend his complaint sua sponte when the plaintiff, who is 

 185 Patel v. Ga. Dep’t BHDD, 485 F. App’x 982, 982 (11th Cir. 2012) (citing Maynard v. Bd. of Regents 

of Div. of Univs. of Fla. Dept. of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1287 (11th Cir. 2003)).

186 See Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999).

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represented by counsel, never filed a motion to amend nor requested leave to amend 

before the district court.”187 Here, the Court specifically advised Luna in the Briefing 

Order that if it wished to request leave to amend, Luna must file a motion for leave 

to amend with its Response. That it did. But rather than propose an amended 

complaint directed to all of Amerant’s arguments in its Motion to Dismiss, Luna 

cherry-picked issues and only proposed an amended complaint to bolster allegations 

of standing and to add a new request for attorneys’ fees and costs. The proposed 

Amended Complaint did not in any way address or seek to remedy any of the other 

deficiencies raised by Amerant in its Motion to Dismiss.

Neither the Briefing Order nor Eleventh Circuit case law suggest that a 

plaintiff can keep coming back to the well with serial amendments. In fact, very 

recently the Eleventh Circuit affirmed the dismissal of a complaint with prejudice 

under circumstances similar to those presented here. In Isaiah v. JPMorgan Chase 

Bank,188 the Eleventh Circuit affirmed the dismissal with prejudice of a complaint 

where the plaintiff “maintained throughout that his complaint is sufficient as it 

presently stands.”189 Only after the Eleventh Circuit ordered supplemental briefing 

– coincidentally, on the issue of a receiver’s standing – did the plaintiff suggest that 

he should be permitted to amend his complaint to assert additional facts to avoid 

 187 Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc) (overruling 

precedent requiring that a plaintiff be given at least one chance to amend his complaint before the 

court dismisses the action with prejudice).

188 960 F.3d 1296, 1308 n.9 (11th Cir. June 1, 2020).

189 Id.

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dismissal.190 The Eleventh Circuit rejected this argument, and affirmed the District 

Court’s dismissal with prejudice of the plaintiff’s complaint.191 Similarly, in Perlman 

v. Bank of America, N.A.,192 the Eleventh Circuit affirmed a district court’s denial of 

leave to amend where the plaintiff sought leave to amend in a footnote contained in 

his response to a motion to dismiss, which did not indicate what additional facts the 

plaintiff intended to allege in a proposed amended complaint. 

Here, Luna’s “reservation of rights” in its Motion to Amend is the functional 

equivalent of the footnote in Perlman. Luna was given notice of Amerant’s grounds 

for dismissal and provided with an opportunity to seek leave to amend to cure any 

deficiencies. By initially seeking leave to amend to only address standing (and to seek 

attorneys’ fees and costs), Luna was implicitly maintaining that the rest of its 

Complaint was sufficient as pleaded. Now that the Court has determined the 

Complaint failed to state claims upon which relief may be granted as a matter of law 

– and Luna having failed to propose an amended complaint that supplements any 

allegations other than as to standing – Luna should not be given a further 

opportunity to amend its Complaint. The Complaint will therefore be dismissed with 

prejudice.

VI. Conclusion.

The creation and funding of the Pledged Account and the subsequent Pledged 

Funds Transfer were not transfers subject to avoidance under FUFTA. In 

 190 Id.

191 Id.

192 561 F. App’x 810, 814 (11th Cir. 2014).

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contemplating, documenting, and executing these transactions, Mr. Arcila did not 

breach any fiduciary duty to Luna, and Luna has failed to plausibly allege that 

Amerant had knowledge of any breach of fiduciary duty or that it substantially 

assisted Mr. Arcila in breaching his fiduciary duty. These conclusions are evident 

from the facts alleged and accepted by the Court as true. And although given an 

opportunity to amend its Complaint, the proposed Amended Complaint failed to 

address these fatal deficiencies. As such, the Complaint fails to state a claim upon 

which relief may be granted and will be dismissed with prejudice, and the Motion to 

Amend will likewise be denied.

ORDER

For the foregoing reasons, it is therefore ORDERED that:

1. The Motion to Dismiss is GRANTED.

2. The Motion to Amend is DENIED.

3. The Complaint is DISMISSED WITH PREJUDICE.

# # #

Copies to all parties of record by the Clerk of Court.

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