UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

www.flsb.uscourts.gov

In re:

ALEJANDRO FABIAN SCOLNIK, Main Case No.: 19-16856-RAM

Chapter 7

Debtor.

________________________________________/

MARCIA T. DUNN, Chapter 7 Trustee Adv. Case No.: 20-01086-RAM

of the Bankruptcy Estate of 

ALEJANDRO FABIAN SCOLNIK,

Plaintiff,

v.

PABLO BARREIRO,

Defendant.

________________________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO DISMISS 

OR, IN THE ALTERNATIVE, MOTION TO AMEND COMPLAINT

Plaintiff, MARCIA T. DUNN, as Chapter 7 Trustee of the bankruptcy estate of 

ALEJANDRO FABIAN SCOLNIK (the “Trustee” or “Plaintiff”), by and through undersigned 

counsel, hereby files this Response in Opposition to Motion to Dismiss, or in the alternative, 

Motion to Amend Complaint and in support thereof states as follows: 

1. On May 23, 2019 (the “Petition Date”), ALEJANDRO FABIAN SCOLNIK (the 

“Debtor”) commenced the instant bankruptcy case with the filing of a voluntary petition for relief 

under Chapter 11, Title 11 of the United States Bankruptcy Code. 

2. On November 25, 2019, the Debtor filed his Amended Schedules and Statement of 

Financial Affairs [D.E. 144]. Item 33 of the Debtor’s Amended Schedules and Statement of 

Financial Affairs [D.E. 144] lists “Loan to Pablo Barreiro” in the amount of $80,000. This loan 

was evidenced by a promissory note dated December 21, 2016 (the “Note”) executed by the Pablo 

Barreiro (the “Defendant”) in favor of the Debtor in the original principal amount of $80,000.00.

Case 20-01086-RAM Doc 32 Filed 05/08/20 Page 1 of 5
Page 2 of 5

3. Further, the Trustee took the Debtor’s Rule 2004 Examination over two (2) days. 

At the examination, the Debtor testified that Mr. Barreiro remained indebted to the Debtor for the 

Note and that no payments were made by the Defendant to the Debtor on the Note. 

4. On January 13, 2020, the Trustee sent a demand letter to the Defendant.

5. The Trustee is in possession of the original Note, which has not been cancelled. 

6. On February 27, 2020, the Trustee commenced this adversary proceeding against 

the Defendant by filing her Complaint [D.E. 1] (the “Complaint”). 

7. On April 17, 2020, the Court entered a Default Final Judgment against Pablo 

Barreiro [D.E. 20] against the Defendant. 

8. On April 24, 2020, the Defendant filed the Motion to Dismiss [D.E. 25] stating, 

inter alia, that:

a. The Debtor paid the Defendant the $80,000 in advance for work performed by 

a business located at Brickell City Centre (i.e., Brickell Restaurante LLC d/b/a 

Santa Fe new and Expresso at Brickell City Center (“Brickell Restaurante”), an 

entity owned by the Debtor).

b. The Defendant was employed by Brickell Restaurante.

c. The Debtor allegedly signed a release.

1

9. There is no dispute that the Note is property of the estate pursuant to 11 U.S.C. § 

541. 

10. First, the Trustee contends that the general release does not release the Defendant 

from the Note. Florida Statutes § 673.6041(1) states as follows:

(1) person entitled to enforce an instrument, with or without consideration, may discharge 

the obligation of a party to pay the instrument:

1 Attached hereto as Exhibit 1 is a copy of the purported release.

Case 20-01086-RAM Doc 32 Filed 05/08/20 Page 2 of 5
Page 3 of 5

(a) By an intentional voluntary act, such as:

1. Surrender of the instrument to the party;

2. Destruction, mutilation, or cancellation of the instrument;

3. Cancellation or striking out of the party's signature; or

4. Addition of words to the instrument indicating discharge; or

(b) By agreeing not to sue or otherwise renouncing rights against the party by a 

signed writing.

11. The cancellation or renunciation of an instrument is ineffective if it is unintentional 

or procured by mistake. Gover v. Home & City Sav. Bank, 574 So. 2d 306, 306 (Fla. 1st DCA 

1991); Equity Inv. Partners, LP v. United States, No. 09-60002-CIV, 2011 WL 2784120, at *12 

(S.D. Fla. July 12, 2011), judgment entered, No. 09-60002-CIV, 2011 WL 13173577 (S.D. Fla. 

Nov. 30, 2011) (citing All Real Estate Title Servs. v. Minqh Quang Vuu, 2010 WL 4630842 (Fla.

DCA 2d 2010) (citing Gover v. Home & City Sav. Bank, 574 So. 2d 306 (Fla. 1st DCA 1991) and 

Fla. Stat. § 673.6041)).

12. Once a plaintiff presents an original, uncanceled promissory note, the burden shifts 

to the payor to prove any defenses to payment. In re Neves, No. AP 10-02122-LMI, 2014 WL 

7070938, at *6 (Bankr. S.D. Fla. Dec. 11, 2014) (citations omitted))).

13. Considering the Debtor’s schedules, the Debtor’s testimony and the fact that the 

Note was not marked cancelled, and the language of the alleged general release, the only 

conclusion remains that the Note remained due and payable as of the Petition Date. The 

Defendant’s motion references that his work was on behalf of Brickell Restaurante and not the 

Debtor individually, such that any release should have been by Brickell Restaurante only. The 

alleged general release does not specifically renounce the rights of the Debtor under the Note. This 

position is supported by the plain language of the document. 

14. To apply the general release broadly would necessitate adding language to same. 

Case 20-01086-RAM Doc 32 Filed 05/08/20 Page 3 of 5
Page 4 of 5

15. Second, if the release does somehow release the Defendant and the Court vacates 

the judgment, the Trustee contends that the release instrument is a fraudulent transfer subject to 

avoidance. The Trustee requests that the Court grant the Trustee leave to amend the Complaint to 

assert additional theories of liabilities. 

16. Fed. R. Civ. P. 15, made applicable to this proceeding pursuant to Fed. R. Bankr.P.

7015, governs amendments to a complaint. Under Fed. R. Civ. P. 15, a party may amend its 

pleading with leave of court, and “the court should freely give leave when justice so requires.” 

Fed.R.Civ.P. 15(a)(2); In re NuMed Home Health Care, Inc., 326 B.R. 859, 864 

(Bankr.M.D.Fla.2005); Pepe (U.K.) Ltd. v. Grupo Pepe, Ltda., 1992 WL 313098 at *5 

(S.D.Fla.1992). “[T]he purpose of Rule 15(a) is to assist the disposition of litigation on the merits 

of the case rather than have pleadings become ends in themselves.” In re NuMed Home Health 

Care, Inc., 326 B.R. at 864.

17. Here, the alleged general release was delivered to the Trustee after the Complaint 

was filed and after additional facts were discovered by the Trustee. The Debtor’s records do not 

indicate that the Defendant made any payments, whatsoever, such that the release of the Note was 

for no consideration. 

18. Accordingly, the Trustee requests that the Court deny the Motion to Dismiss [D.E. 

25]. In the event that the Court vacates the judgment, the Trustee requests that the Court grant the 

Trustee leave to amend the Complaint to assert additional causes of action. 

Case 20-01086-RAM Doc 32 Filed 05/08/20 Page 4 of 5
Page 5 of 5

CERTIFICATE OF SERVICE

I CERTIFY that a true and correct copy of the foregoing was served by U.S. First Class 

Mail or Email, as indicated below, on May 6, 2020, upon the following:

Pablo Barreiro

17555 Collins Ave., Apt. 2504

Sunny Isles, FL 33160

pablogbarreiro@yahoo.com 

pablogbarreiro@gmail.com

Via US Mail and Email 

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

Electronic Filing (CM/ECF) on this 6th day of May, 2020, upon all registered users in this case. 

DUNN LAW, P.A.

Counsel for Plaintiff, Marcia T. Dunn, Trustee

66 West Flagler Street, Suite 400

Miami, Florida 33130

Tel: 786-433-3866 

Fax: 786-260-0269

Barry.Turner@dunnlawpa.com

By: /s/ Barry S. Turner 

 Barry S. Turner, Esq.

 Florida Bar No. 85535

Case 20-01086-RAM Doc 32 Filed 05/08/20 Page 5 of 5