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

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

UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

www.flsb.uscourts.gov 

In re: 

 

Astor EB-5, LLC, Case No. 18-24170-BKC-AJC 

 Chapter 11 

 Debtor. 

__________________________________/ 

Astor EB-5, LLC, Adv. Case No. 19−01203−AJC 

 Plaintiff, 

v. 

Astor EB−5 Funding, LLC, 

 Defendant. 

____________________________________/ 

DEFENDANT ASTOR EB−5 FUNDING, LLC’S 

ANSWER AND AFFIRMATIVE DEFENSES 

 Defendant Astor EB−5 Funding, LLC (“Defendant”), by and through undersigned 

counsel, files its Answer and Affirmative Defenses. Pursuant to Federal Rule of Bankruptcy 

Procedure 7012(b), Defendant consents to the entry of final orders and judgment by the 

Bankruptcy Court. 

1. Defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 1, which are therefore denied. 

2. Admitted. 

3. Admitted. 

4. Admitted that: (1) the Chapter 11 Case commenced on November 14, 2019 when 

Plaintiff filed a voluntary petition under Chapter 11 of the United States Bankruptcy Code; and (2) 

that prior to the filing of the petition, Hart was the managing member of Plaintiff. Defendant lacks 

Case 19-01203-AJC Doc 10 Filed 08/20/19 Page 1 of 12
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LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

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

knowledge or information sufficient to form a belief as to the truth of the remaining allegations 

contained in paragraph 4, which are therefore denied. 

5. Admitted that Hart incorporated Plaintiff, that Plaintiff acquired a 42-room hotel 

known as the Astor Hotel, and that on August 20, 2013 the Assignment of Leases was recorded in 

the Miami-Dade County Official Records Book 28800 at Page 951. The Assignment of Leases 

attached to the Complaint as Exhibit A otherwise speaks for itself. Defendant lacks knowledge or 

information sufficient to form a belief as to the truth of the remaining allegations contained in 

paragraph 5, which are therefore denied. 

6. Defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 6, which are therefore denied. 

7. Admitted that Defendant filed the Stay Relief Motion requesting an order 

determining the Ground Lease to have been rejected by Plaintiff and surrendering the Property. 

The Stay Relief Motion otherwise speaks for itself. Defendant specifically denies that the mortgage 

in favor of Defendant was unauthorized and specifically denies that Hart or Intercapital Data LLC 

owned any interest in Defendant in August 2017. Defendant lacks knowledge or information 

sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 7, 

which are therefore denied. 

8. Admitted that the Mortgage was recorded in the Official Records of Miami-Dade 

County at Book 30657, Page 1099 on August 16, 2017, and that the Mortgage was also recorded 

in the Official Records of Miami-Dade County at Book 30813, Page 4731. The documents attached 

to the Complaint as Exhibits B and C otherwise speak for themselves. Defendant lacks knowledge 

or information sufficient to form a belief as to the truth of the remaining allegations contained in 

paragraph 8, which are therefore denied. 

Case 19-01203-AJC Doc 10 Filed 08/20/19 Page 2 of 12
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LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

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

9. Denied. 

10. Admitted that the UCC Financing Statement was recorded in Official Records Book 

30657 at Page 1113. The UCC Financing Statement attached to the Complaint as Exhibit D 

otherwise speaks for itself. The remaining allegations in paragraph 10 are denied. 

11. Admitted that on October 1, 2018, the Landlord filed the Eviction Action. The 

remaining allegations in paragraph 11 are denied. 

12. Admitted. 

13. Admitted only that the Agreed Order was entered in the Eviction Action on April 

17, 2019. The Agreed Order attached to the Complaint as Exhibit E otherwise speaks for itself. 

The remaining allegations in paragraph 13 are denied. 

COUNT I 

(Fraudulent Transfer) 

14. Defendant restates and incorporates its responses as stated in paragraphs 1 through 

13. 

15. Paragraph 15 contains no factual allegations, just Plaintiff’s assertion of a legal 

position or conclusion to which no response is appropriate or required. To the extent a response is 

required, Defendant lacks knowledge or information sufficient to form a belief as to the truth of 

the allegations contained in paragraph 15, which are therefore denied. 

16. Denied. 

17. Denied. 

18. Denied. 

19. Denied. 

Plaintiff’s Wherefore clause does not contain factual allegations that require a response. To 

the extent a response is required, Defendant denies all liability and denies that Plaintiff is entitled 

Case 19-01203-AJC Doc 10 Filed 08/20/19 Page 3 of 12
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LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

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

to relief. Defendant specifically denies that Plaintiff is entitled to or properly pleaded a claim for 

prevailing party attorneys’ fees. 

COUNT II 

(Declaration) 

20. Defendant restates and incorporates its responses as stated in paragraphs 1 through 

13. 

21. Paragraph 21 contains no factual allegations, just Plaintiff’s assertion of a legal 

position or conclusion to which no response is appropriate or required. To the extent a response is 

required, Defendant lacks knowledge or information sufficient to form a belief as to the truth of 

the allegations contained in paragraph 21, which are therefore denied. 

22. Admitted. 

23. Paragraph 23 contains no factual allegations, just Plaintiff’s assertion of a legal 

position or conclusion to which no response is appropriate or required. To the extent a response is 

required, Defendant lacks knowledge or information sufficient to form a belief as to the truth of 

the allegations contained in paragraph 23, which are therefore denied. 

Plaintiff’s Wherefore clause does not contain factual allegations that require a response. 

To the extent a response is required, Defendant denies all liability and denies that Plaintiff is 

entitled to relief. Defendant specifically denies that Plaintiff is entitled to or properly pleaded a 

claim for prevailing party attorneys’ fees. 

COUNT III 

(Quiet Title) 

24. Defendant restates and incorporates its responses as stated in paragraphs 1 through 

13. 

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

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

25. Paragraph 25 contains no factual allegations, just Plaintiff’s assertion of a legal 

position or conclusion to which no response is appropriate or required. To the extent a response is 

required, Defendant lacks knowledge or information sufficient to form a belief as to the truth of 

the allegations contained in paragraph 25, which are therefore denied. 

26. Admitted. 

27. The Assignment of Leases attached to the Complaint as Exhibit A speaks for itself. 

Defendant lacks knowledge or information sufficient to form a belief as to the truth of the 

remaining allegations contained in paragraph 27, which are therefore denied. 

28. Defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 28, including all subparts, which are therefore denied. 

The referenced documents attached to the Complaint as Exhibits F, G, H, I, J, K and L speak for 

themselves. 

29. Denied. 

30. Admitted that Defendant claims an interest in the Property by virtue of the 

Mortgage, which speaks for itself, but denied that such interest is inferior in right, title and interest 

to the interest of Plaintiff. 

31. Admitted that Defendant claims an interest in the Property by virtue of the UCC 

Financing Statement, which speaks for itself, but denied that such interest is inferior in right, title 

and interest to the interest of Plaintiff. 

32. Denied. 

33. Denied. 

34. Denied. 

Case 19-01203-AJC Doc 10 Filed 08/20/19 Page 5 of 12
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LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

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

Plaintiff’s Wherefore clause does not contain factual allegations that require a response. 

To the extent a response is required, Defendant denies all liability and denies that Plaintiff is 

entitled to relief. Defendant specifically denies that Plaintiff is entitled to or properly pleaded a 

claim for prevailing party attorneys’ fees. 

COUNT IV 

(Slander of Title) 

35. Defendant restates and incorporates its responses as stated in paragraphs 1 through 

13. 

36. Defendant specifically denies that the Mortgage and UCC Financing Statement are 

unauthorized, that such documents were executed and/or publicly recorded ultra vires or other 

otherwise legally invalid. Defendant lacks knowledge or information sufficient to form a belief as 

to the truth of the remaining allegations contained in paragraph 36, which are therefore denied. 

37. Denied. 

38. Admitted only that the Mortgage and the UCC Financing Statement were recorded 

in the Official Records of Miami-Dade County. Otherwise, the remaining allegations in paragraph 

38 are denied. 

39. Denied. 

40. Denied. 

41. Denied. 

Plaintiff’s Wherefore clause does not contain factual allegations that require a response. 

To the extent a response is required, Defendant denies all liability and denies that Plaintiff is 

entitled to relief. Defendant specifically denies that Plaintiff is entitled to or properly pleaded a 

claim for prevailing party attorneys’ fees and punitive damages. 

Case 19-01203-AJC Doc 10 Filed 08/20/19 Page 6 of 12
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LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

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

AFFIRMATIVE DEFENSES

First Affirmative Defense 

 Each of the claims in the Complaint fail to state a cause of action for which relief can be 

granted. 

Second Affirmative Defense 

 Plaintiff’s claims are barred in whole or in part by the doctrine of waiver. With knowledge 

that the subject transactions were avoidable or otherwise unenforceable, Plaintiff accepted and 

utilized the funds lent by Defendant, thus intentionally relinquishing any rights it may have ever 

had to avoid the subject transactions or otherwise have them declared unenforceable. 

Third Affirmative Defense 

 Plaintiff has failed to identify any creditors to which the transfers complained of in the 

Complaint were fraudulent and without creditors, there is no cause of action for fraudulent transfer 

under Fla. Stat. § 726.105. 

Fourth Affirmative Defense 

 Plaintiff’s claims are barred in whole or in part by the doctrine of unjust enrichment. Given 

that Plaintiff received significant value in exchange for the Mortgage and UCC Financing 

Statement, any recovery by Plaintiff in this action to avoid such transfers would result in unjust 

enrichment to the detriment of Defendant. 

Fifth Affirmative Defense 

 Plaintiff’s claims are barred in whole in in part by Plaintiff’s unclean hands, including but 

not limited to the equitable relief sought in its counts for a Declaratory Judgment and Quiet Title. 

More specifically, Plaintiff complains that its managing member, David Hart, committed fraud in 

granting the Mortgage and UCC Financing Statement in favor of Defendant without required 

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

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

authorization. That is a fraud against Defendant at the hands of Plaintiff resulting in injury to 

Defendant, which bars any relief to Plaintiff. 

Sixth Affirmative Defense 

 Plaintiff’s claims are barred in whole or in part by Plaintiff’s own fraud. More specifically, 

Plaintiff complains that its managing member, David Hart, committed fraud in granting the 

Mortgage and UCC Financing Statement in favor of Defendant without required authorization. 

That is a fraud against Defendant at the hands of Plaintiff resulting in injury to Defendant, which 

bars any relief to Plaintiff. 

Seventh Affirmative Defense 

 Plaintiff’s claims are barred in whole or in part by the doctrine of laches, including but not 

limited to its equitable claims for a Declaratory Judgment and Quiet Title. Plaintiff had actual or 

constructive knowledge of the Mortgage and the UCC Financing Statement no later than August 

2017, nearly two years prior to the filing of this action. Plaintiff’s unreasonable delay and lack of 

diligence in asserting its claims is severely prejudicial to Defendant and bars the relief Plaintiff 

now seeks. 

Eighth Affirmative Defense 

Plaintiff’s claims are barred in whole or in part by the doctrine of estoppel. Defendant has 

in good faith relied upon the conduct of Plaintiff, acting through its member and agent David Hart, 

in lending Plaintiff money and taking the Mortgage and UCC Financing Statement as security. 

Further, Plaintiff has already taken a sworn position in its schedules that the debt owed to 

Defendant is valid. Plaintiff is estopped from now asserting contradictory positions, including but 

not limited to: (1) denying receipt of the benefit of $4.5 million and (2) denying that in 2013 its 

members adopted a resolution to authorize David Hart and Frederic Richardson to enter into an 

Case 19-01203-AJC Doc 10 Filed 08/20/19 Page 8 of 12
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LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

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

execute the Mortgage and Loan Agreements, in order to avoid the Mortgage and UCC Financing 

Statement now that it has decided it would be beneficial to do so. Similarly, Plaintiff is estopped 

from now denying that in 2013, it represented to the United States Citizenship and Immigration 

Services that it would enter into the Mortgage and Loan Agreements with Defendant. 

Ninth Affirmative Defense 

 Plaintiff’s claims are barred in whole or in part by the doctrine of ratification. With full 

knowledge of the material facts concerning the loans from Defendant, the Mortgage and the UCC 

Financing Statement, Plaintiff adopted those actions it now purports to have been done without 

authority by, including without limitation, utilizing the funds lent thus ratifying the subject 

transactions. 

Tenth Affirmative Defense 

 Plaintiff’s claim for Slander of Title is barred in whole or in part based on Defendant’s 

good faith. More specifically, Defendant had a good faith belief that the Mortgage and Financing 

Statement were valid and enforceable and that neither were a false nor malicious statement at the 

time that such documents were recorded. 

Eleventh Affirmative Defense 

 To the extent the issues raised in the Complaint were previously raised in any other 

proceedings, including but not limited to the case styled Fabiola Renza de Valenzuela, et al v. 

Astor EB-5, LLC, et al, Case No. 2018-007415, filed in the Circuit Court of the Eleventh Judicial 

Circuit in and for Miami-Dade County, Florida, such issues or claims may be barred by the 

doctrines of res judicial and/or collateral estoppel. 

Case 19-01203-AJC Doc 10 Filed 08/20/19 Page 9 of 12
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LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

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

Twelfth Affirmative Defense 

 Plaintiff lacks standing to pursue some or all of its claims, including but not limited to its 

claim for Fraudulent Transfer. 

 Defendant reserves the right to amend, modify and/or supplement these Affirmative 

Defenses as further facts become known, either through discovery or otherwise, and on any other 

reasonable basis. 

DEMAND FOR ATTORNEYS’ FEES AND COSTS

 To the extent permitted by law and the agreements between the parties, Defendant demands 

all of its attorneys’ fees and costs incurred in defending against Plaintiff’s claims in this action. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

 

 

Case 19-01203-AJC Doc 10 Filed 08/20/19 Page 10 of 12
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LAW OFFICES OF MELAND RUSSIN & BUDWICK, P.A. 

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

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a true and correct copy of the foregoing was served on August 

20, 2019, via the Court’s Notice of Electronic Filing upon the Registered Users listed on the 

attached Exhibit 1. 

s/ Peter D. Russin 

Peter D. Russin, Esquire 

Florida Bar No. 765902 

prussin@melandrussin.com 

Meaghan E. Murphy 

Florida Bar No. 102770 

mmurphy@melandrussin.com 

MELAND RUSSIN & BUDWICK, P.A. 

3200 Southeast Financial Center 

200 South Biscayne Boulevard 

Miami, Florida 33131 

Telephone: (305) 358-6363 

Telecopy: (305) 358-1221 

Attorneys for Defendant

Case 19-01203-AJC Doc 10 Filed 08/20/19 Page 11 of 12
Exhibit 1 

Electronic Mail Notice List

The following is the list of parties who are currently on the list to receive email notice/service for 

this case. 

 Ricardo Corona bk@coronapa.com, rcorona@coronapa.com 

 Adam I Skolnik askolnik@skolniklawpa.com, 

bk.skolniklaw@gmail.com;skolnikar45106@notify.bestcase.com 

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