TAGGED OPINION

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

In re: 

BAL HARBOUR QUARZO, LLC Case No. 18-11793-SMG

a/k/a Synergy Capital Group, LLC,

a/k/a Synergy Investments Group, LLC,

Debtor.

______________________________________/

DREW W. DILLWORTH, as Trustee,

Plaintiff, 

v. Adv. No. 20-01079-SMG

CARLOS ELIAS MAHECHA DIAZ, 

MARIA ANASTASIA CASAS MATIZ, 

FELIPE MAHECHA CASAS, and

CAMILO E. MAHECHA,

Defendants.

______________________________________/

Scott M. Grossman, Judge

_____________________________________________________________________________ United States Bankruptcy Court

ORDERED in the Southern District of Florida on December 3, 2021.

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ORDER GRANTING IN PART AND 

DENYING IN PART MOTIONS TO DISMISS, DENYING 

AS MOOT MOTION FOR LEAVE TO AMEND COMPLAINT,

AND GRANTING LEAVE TO FURTHER AMEND COMPLAINT

Plaintiff, Drew Dillworth, as liquidating trustee of the Bal Harbour Quarzo 

Liquidating Trust (the “Plaintiff”) filed an eighteen-count complaint1 (the 

“Complaint”) against Defendants Carlos Elias Mahecha Diaz (“Carlos”), Maria 

Anastasia Casas Matiz (“Anastasia”), Felipe Mahecha Casas (“Felipe”), and Camilo 

E. Mahecha (“Camilo,” and together with Carlos, Anastasia, and Felipe, the 

“Defendants”) relating to a failed real estate development project. The Complaint

includes fourteen counts to avoid and recover fraudulent transfers, three counts for 

breach of fiduciary duty, and one count for aiding and abetting breach of fiduciary 

duty. Some of the fraudulent transfer counts seek to avoid transfers that were not 

made by the Debtor, Bal Harbour Quarzo, LLC (“BHQ”), and some seek to avoid 

transfers made more than four years after BHQ’s bankruptcy petition date. The 

Defendants all filed motions to dismiss2 (the “Motions to Dismiss”), which collectively 

raise the following arguments:

• The Complaint fails to state a claim to avoid and recover fraudulent transfers;

• The Plaintiff lacks standing to seek avoidance of transfers from Synergy 

Capital Group, LLC (“Synergy Capital”), which is not the debtor in this case;

• The Plaintiff may not seek to avoid transfers made more than four years before 

BHQ’s bankruptcy petition date;

• The Plaintiff is not entitled to extraterritorial recovery of property;

1 ECF No. 1.

2 ECF Nos. 70, 71, 72, 82.

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• As to Anastasia, Felipe and Carlos, the Complaint fails to state a claim for 

breach of fiduciary duty;

• As to Anastasia and Felipe, the Complaint fails to state a claim for aiding and 

abetting breach of fiduciary duty; and

• As to Anastasia and Camilo, the Court lacks personal jurisdiction over them.

The Plaintiff then filed a motion for leave to amend his Complaint to correct a 

scrivener’s error and to provide a public record reference3 (the “Motion for Leave to 

Amend”). 

Upon careful review of the Complaint, the Motions to Dismiss, the response 

briefs4 (the “Responses”) and the reply briefs,5 as well as the Motion for Leave to 

Amend and the proposed amended complaint attached thereto (the “Proposed 

Amended Complaint”), the response thereto filed by Anastasia, Felipe, and Camilo,6

and the joinder therein filed by Carlos,7 the Court will grant in part and deny in part 

the Motions to Dismiss, but with leave for the Plaintiff to further amend his 

Complaint to address the pleading deficiencies discussed below. Because additional 

amendments will be required, the Motion for Leave to Amend will be denied as moot

with respect to the Proposed Amended Complaint.

I. Personal Jurisdiction.

In analyzing a motion to dismiss for lack of personal jurisdiction under Federal 

Rule of Civil Procedure 12(b)(2), made applicable here by Federal Rule of Bankruptcy 

Procedure 7012(b), the Court must “determine whether the applicable statute 

3 ECF No. 83.

4 ECF No. 84, 85, 86, 108.

5 ECF No. 96, 97, 98, 111.

6 ECF No. 95. 7 ECF No. 110.

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potentially confers jurisdiction over the defendant, and then determine whether the 

exercise of jurisdiction comports with due process.”8 Here, the applicable statute that 

potentially confers jurisdiction over Anastasia and Camilo is Federal Rule of 

Bankruptcy Procedure 7004(f),9 which provides that:

If the exercise of jurisdiction is consistent with the Constitution and 

laws of the United States, serving a summons or filing a waiver of 

service in accordance with this rule or the subdivisions of Rule 4 

F. R. Civ. P. made applicable by these rules is effective to establish 

personal jurisdiction over the person of any defendant with respect to a 

case under the Code or a civil proceeding arising under the Code, or 

arising in or related to a case under the Code.

Neither Anastasia nor Camilo have challenged service of process under Bankruptcy 

Rule 7004 or any applicable subdivisions of Federal Rule of Civil Procedure 4.10 And 

this civil proceeding clearly arises under the Bankruptcy Code (as to the fraudulent 

transfer claims) and is related to a case under the Bankruptcy Code (as to the breach 

of fiduciary duty and aiding and abetting breach of fiduciary duty claims).11

So, to determine whether this Court has personal jurisdiction over Anastasia 

and Camilo, the Court must determine whether the exercise of jurisdiction is 

consistent with the Constitution and laws of the United States.12 For the exercise of 

personal jurisdiction to be consistent with the Constitution and laws of the United 

8 Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 942 (11th Cir. 1997) (citing 

Sun Bank, N.A., v. E.F. Hutton & Co., Inc., 926 F.2d 1030, 1033 (11th Cir. 1991); Go–Video, Inc. v. 

Akai Elec. Co., Ltd., 885 F.2d 1406, 1413 (9th Cir. 1989)).

9 Johnson v. Lovato (In re Jimenez), 627 B.R. 536, 544 (Bankr. S.D. Fla. 2021).

10 Counsel for the Defendants agreed to accept service on their behalf. See ECF No. 42, ¶ 3. 11 See 28 U.S.C. § 1334(b).

12 See Fed. R. Bankr. P. 7004(f).

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States, defendants must have sufficient minimum contacts with the United States13

“such that the maintenance of the suit does not offend traditional notions of fair play 

and substantial justice.”14 While personal jurisdiction may be either general or 

specific, in either case it “must comport with the requirements of due process.”15

General jurisdiction exists when a foreign defendant’s affiliations with the forum “are 

so ‘continuous and systematic’ as to render them essentially at home in the forum.”16

For specific jurisdiction, there must be “an affiliation between the forum and the 

underlying controversy.”17

“A plaintiff seeking the exercise of personal jurisdiction over a nonresident 

defendant bears the initial burden of alleging in the complaint sufficient facts to make 

out a prima facie case of jurisdiction.”18 This prima facie showing “must include an 

averment of facts, which, if credited, would suffice to establish jurisdiction over the 

defendant.”19 A defendant can rebut the plaintiff’s allegations by presenting “direct, 

13 In bankruptcy proceedings – where subject matter jurisdiction is based on 28 U.S.C. § 1334(b) – the 

sovereign exercising jurisdiction is the United States of America, not a particular state. Jimenez, 627 

B.R. at 545 (citing Hosking v. TPG Capital Mgmt., L.P. (In re Hellas Telecomms. (Luxembourg) II SCA, 

547 B.R. 80, 97 (Bankr. S.D.N.Y. 2016)). Minimum contacts with the United States as a whole – as 

opposed to any particular state – is therefore sufficient to satisfy the Fifth Amendment’s due process 

requirements. Id. Accordingly, any argument about Florida’s long-arm statute is inapposite here. 14 Jimenez, 627 B.R. at 544–45 (cleaned up).

15 Brit. Am. Ins. Co. Ltd. v. Fullerton (In re Brit. Am. Ins. Co. Ltd.), 2013 WL 1881712, at *2 (Bankr. 

S.D. Fla. 2013). 16 Id. (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).

17 Id. (cleaned up).

18 United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009) (citing Posner v. Essex Ins. Co., 

Ltd., 178 F.3d 1209, 1214 (11th Cir. 1999); Polskie Linie Oceaniczne v. Seasafe Transport A/S, 795 

F.2d 968, 972 (11th Cir. 1986)); see also Lehman Bros. Special Fin., Inc. v. Bank of Am. (In re Lehman 

Bros. Holdings Inc.), 535 B.R. 608, 618 (Bankr. S.D.N.Y. 2015) (citing O’Neill v. Asat Trust Reg. (In re 

Terrorist Attacks on September 11, 2001), 714 F.3d 659, 673 (2d Cir. 2013); Penguin Grp. (USA) Inc. v. 

Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010)).

19 Lehman Bros. Holdings, 535 B.R. at 618 (citing Metro. Life Ins. Co. v. Robertson–Ceco Corp., 84 F.3d 

560, 567 (2d Cir. 1996); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994)).

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highly specific testimonial evidence regarding a fact essential to jurisdiction.”20

Where a defendant supports its jurisdictional challenges with affidavit evidence, the 

burden then shifts back to the plaintiff to produce evidence supporting jurisdiction.21

If the plaintiff does not then counter that evidence, the allegation may be deemed 

refuted.22

Although Anastasia and Camilo make arguments in their Motions to Dismiss

that the Court lacks personal jurisdiction over them, they have not submitted any 

evidence (such as affidavits or other “direct, highly specific testimonial evidence”) in 

support of those arguments. The Plaintiff, on the other hand, made a prima facie 

showing in the Complaint that personal jurisdiction exists over Anastasia and 

Camilo. The Complaint adequately alleges that both Anastasia and Camilo have 

sufficient minimum contacts with the United States23 “such that the maintenance of 

the suit does not offend traditional notions of fair play and substantial justice.”24

These allegations include that Camilo is a United States citizen with a Social Security 

number, who is registered to vote in Florida,25 and who has a Florida driver’s 

license.26 As such, the Plaintiff has pleaded a prima facie case of general jurisdiction 

over Camilo.27 With respect to Anastasia, the allegations include that she has a 

20 Id. (citing In re Methyl Tertiary Butyl Ether Prod. Liab. Litig., 2014 WL 1778984, at *1 (S.D.N.Y. 

2014)). 21 United Techs. Corp., 556 F.3d at 1274.

22 Lehman Bros. Holdings, 535 B.R. at 618.

23 See note 13, supra. 24 Jimenez, 627 B.R. at 544–45 (cleaned up).

25 Compl. ¶ 11.

26 Id. ¶ 12.

27 Although the Complaint adequately pleaded personal jurisdiction over Camilo, the additional 

allegations in the Proposed Amended Complaint bolster these allegations.

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United States Social Security number, that she held and continues to hold title to 

real property in the United States, that she maintained and continues to maintain 

financial and other business relationships in the United States, that she was a de 

facto manager of BHQ, that she was an active participant in BHQ’s solicitation of 

financing, that she directed BHQ’s hotel staff on furniture, fixtures and equipment 

purchases, and that she herself was an investor in BHQ.28 These allegations make a 

prima facie showing of both general and specific jurisdiction over Anastasia. With the 

Plaintiff having sustained his initial burden of making a prima facie case for personal 

jurisdiction, and Anastasia and Camilo having failed to satisfy their burden to rebut 

those allegations,29 the Motions to Dismiss for lack of personal jurisdiction over 

Anastasia and Camilo will be denied.

II. Failure to State a Claim Upon Which Relief May Be Granted.

To avoid dismissal for failure to state a claim upon which relief may be granted, 

a complaint must state a claim for relief that is “plausible on its face.”30 A claim for 

relief is plausible on its face where the plaintiff pleads sufficient facts to allow the 

court “to draw the reasonable inference” of a defendant’s liability.31 But if the “wellpleaded facts do not permit the court to infer more than the mere possibility” of 

liability, the complaint must be dismissed.32

28 Id. ¶ 9.

29 That the Plaintiff sought to serve Anastasia and Camilo with process in Colombia does not 

necessarily lead to the conclusion that they do not have sufficient minimum contacts with the United 

States. In only means that when the Plaintiff attempted to serve them, he believed they were not then 

in the United States.

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

(2007)).

31 Id. (citing Twombly, 550 U.S. at 556).

32 Id. at 679.

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A. Breach of Fiduciary Duty and Aiding and Abetting Breach of Fiduciary 

Duty Claims. 

Beginning with the claims for breach of fiduciary duty and aiding and abetting 

breach of fiduciary duty, upon a careful and thorough review of the Complaint the 

Court concludes that as to these counts,33 the Complaint adequately states claims for 

relief as to each applicable Defendant.34 The Motions to Dismiss will therefore be 

denied as to these counts.

B. Avoidance of Fraudulent Transfers.

With respect to the fourteen counts to avoid and recover fraudulent transfers,

the Defendants argue that the Complaint fails to sufficiently state a cause of action 

to avoid any transfers as either actually or constructively fraudulent, that the 

Plaintiff lacks “standing”35 to avoid transfers from Synergy Capital, and that the 

Plaintiff may not avoid transfers made more than four years before BHQ’s petition 

date. But for the “standing” and timing issues discussed below, generally speaking 

the Court concludes that the Complaint plausibly alleges claims to avoid and recover 

fraudulent transfers. This includes claims to avoid and recover transfers that may 

not have been made directly to a Defendant, but instead were made for the benefit of 

33 Counts XV, XVI, XVII, and XVIII.

34 This includes adequately pleading damages, although as the Plaintiff acknowledges in his 

Responses, the Complaint contained “scrivener’s errors” in alleging that the Defendants owed a 

fiduciary duty to creditors. (ECF No. 84, at 21 n.19; ECF No. 86, at 26 n.20; ECF No. 108, at 22 n.21).

These “scrivener’s errors” will need to be corrected in an amended complaint. 35 The parties’ characterization of this issue as one of “standing,” is a misnomer. Gierum v. Glick (In 

re Glick), 568 B.R. 634, 656 (Bankr. N.D. Ill. 2017). The arguments concern a plaintiff’s authority to

bring these claims, not the justiciability of the claims. Id.

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a Defendant.36 And this is so even under the heightened pleading standard of Federal 

Rule of Civil Procedure 9(b). As for the “standing” and timing issues, however, for the 

reasons discussed below the Motions to Dismiss are well-taken and will be granted, 

but with leave to amend.

1. Alter ego claims.

The Plaintiff is correct that based upon sufficient facts, a trustee can seek to 

avoid transfers from an alter ego of a debtor.37 But, the facts presently alleged in the 

Complaint as to Synergy Capital do not support this relief. One of the cases cited by 

the Plaintiff is illustrative of this point. In Energy Smart,38 a trustee for debtor 

Energy Smart, Inc., a Delaware corporation, contended that a non-debtor entity –

Energy Smart, Inc., a Florida corporation (“Energy Smart FL”) – was an “affiliate” of 

and the “alter ego” of the debtor, as to which the trustee could seek to disregard its 

corporate entity “in order to recover transfers of funds allegedly made by Energy 

Smart FL.”39 Based on the evidence presented at trial, however, the court determined 

that the trustee failed to satisfy her burden of proving that Energy Smart FL was the 

debtor’s alter ego, and accordingly, the trustee was not entitled to recover any 

36 See Cameron v. Lifsey (In re Carpets, Inc.), 522 B.R. 718, 720 (Bankr. M.D. Fla. 2014) (“once a trustee 

proves that a transfer is avoidable, the trustee may seek to recover against any transferee or an entity 

for whose benefit the transfer is made. . . . It is sufficient to simply allege sufficient facts to show a 

plausible case that the Defendants were the beneficiaries of avoidable transfers.”); 11 U.S.C. § 550(a).

37 See e.g., Official Comm. of Unsecured Creditors v. 1st Choice Breeding, LLC (In re Haisfield), 2014 

WL 12951417 at *7 (Bankr. M.D. Fla. 2014); Energy Smart, Inc. v. Musselman (In re Energy Smart,

Inc.), 381 B.R. 359 (Bankr. M.D. Fla. 2007); see also Searcy v. Knight (In re Am. Int’l Refinery), 402 

B.R. 728, 748 (Bankr. W.D. La. 2008) (avoidance actions on behalf of a debtor’s alleged alter ego are 

not precluded as a matter of law, assuming the trustee can adequately plead the elements of an alter 

ego claim under applicable state law); ASARCO LLC v. Americas Mining Corp., 382 B.R. 49, 68 (S.D. 

Tex. 2007) (applying Delaware law in holding that the debtor had standing to challenge a transfer of 

assets held by its wholly owned subsidiary).

38 381 B.R. 359.

39 Id. at 378–79.

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transfers made by Energy Smart FL.40 The court held that that the trustee failed to 

sustain her burden on both procedural and substantive grounds. Procedurally, the 

court denied the trustee’s claims because Energy Smart FL was not named as a 

defendant by the trustee, was not served with process, and was not provided notice 

and a full opportunity to respond to the alter ego allegations. Thus, the court ruled, 

Energy Smart FL was not afforded due process.41

Substantively, courts will pierce a corporate veil under Florida law where a 

corporation was “organized or used to mislead creditors or to perpetrate a fraud upon 

them.”42 To do so, the court must find, by a preponderance of the evidence, that:

(1) a shareholder dominated and controlled the corporation to such an 

extent that the corporation’s existence was in fact nonexistent and the 

shareholders were in fact alter egos of the corporation;

(2) the corporate form must have been used fraudulently or for an 

improper purpose; and

(3) the fraudulent or improper use of the corporate form caused injury 

to the claimant.43

Here, the Plaintiff argues that the Complaint adequately alleges that Synergy 

Capital was BHQ’s alter ego. In support of this argument, the Plaintiff points to 

several conclusory allegations which generally allege that Synergy Capital was 

BHQ’s alter ego,44 as well as specific allegations that Synergy Capital and Synergy 

Investments Group, LLC (“Synergy Investments,” and together with Synergy 

40 Id. at 380. 41 Id. at 379.

42 In re Xenerga, Inc., 449 B.R. 594, 598–99 (Bankr. M.D. Fla. 2011) (quoting Seminole Boatyard, Inc. 

v. Christoph, 715 So.2d 987, 990 (Fla. 4th DCA 1998)) (cleaned up).

43 Id. (cleaned up). 44 Compl. ¶¶ 166, 170, 174.

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Capital, the “Synergy Entities”) were determined by a Florida state court to be BHQ’s 

alter egos.45

But the Plaintiff admits he cited to the wrong Florida state court case in 

support of his allegations that Synergy Capital was BHQ’s alter ego. His Motion for 

Leave to Amend proposes to amend his Complaint to correct this “scrivener’s error” 

and cite to the correct state court case: Soto v. Bal Harbour Quarzo.46 According to 

the Proposed Amended Complaint, the state court entered a default order in the Soto

case (the “Default Order”), in which it adjudged that “a default is entered against the 

Implead Defendants, Synergy Capital Group LLC (sic) and Synergy Investments 

Group, LLC who are hereby deemed to be the alter ego of the Defendant, Bal Harbour

Quarzo, LLC, and according [sic] are subject to this Court’s Post Judgment 

Receivership.”47

Unlike in Energy Smart, where relief was sought against the debtor’s alleged 

alter ego, the Plaintiff here seeks no relief against the Synergy Entities.48 So with 

some additional detail about notice to and service upon the Synergy Entities in the 

Soto case, the allegations in the Proposed Amended Complaint would plausibly allege 

that the Synergy Entities have not contested – after appropriate due process – that

45 Compl. ¶ 24.

46 Case No. 17-7147 CA 01 (Fla. 11th Jud. Cir.). 47 ECF No. 83 at 13.

48 Under Florida law, there is no independent cause of action for alter ego liability or to pierce a

corporate veil. Rather, the determination that an entity is an alter ego of another entity, or that its 

corporate veil should be pierced, is a remedy and not an affirmative cause of action. In re Fiddler's 

Creek, LLC, 2010 WL 6618876, at *2 (Bankr. M.D. Fla. 2010) (citing Tara Prods., Inc. v. Hollywood 

Gadgets, Inc., 2010 WL 1531489 at *9 (S.D. Fla. 2010)).

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they were BHQ’s alter egos. In other words, allegations that the state court receiver49

sought to implead the Synergy Entities into BHQ’s state court receivership, that the 

Synergy Entities failed to respond to the impleader complaint, and that they were 

then defaulted and “deemed” by the state court to be BHQ’s alter egos would plausibly 

support the Plaintiff’s claim – from a procedural due process standpoint – that he can 

seek to avoid and recover transfers made by Synergy Capital. 

But that only gets the Plaintiff part of the way there. The Plaintiff is asserting 

that under Florida law, Synergy Capital’s corporate veil should be pierced so it can 

be treated as one and the same entity with BHQ, such that he can seek to avoid 

transfers made by Synergy Capital. Neither the Complaint nor the Proposed 

Amended Complaint allege, however, that the Defendants are bound by the Default 

Order.50 If the Plaintiff cannot plausibly allege that the Defendants are bound by the 

Default Order, then the Plaintiff must instead affirmatively allege plausible 

substantive allegations that Synergy Capital was in fact BHQ’s alter ego under 

Florida law. The original Complaint was deficient in this regard, and the Proposed 

Amended Complaint – which comes closer to addressing the procedural due process 

issues discussed in Energy Smart – still fails to plausibly allege the substantive 

elements required to pierce Synergy Capital’s corporate veil under Florida law. As 

49 The Proposed Amended Complaint is unclear as to whether the receiver or the plaintiff in the Soto

action sought to implead the Synergy Entities.

50 The Plaintiff has not specifically argued that the Default Order has any preclusive effect here, such 

that the Defendants would be collaterally estopped from contesting that Synergy Capital was BHQ’s 

alter ego. But the allegations in the Complaint (and even those in the Proposed Amended Complaint) 

would not appear to support such a claim. See Harris v. Jayo (In re Harris), 3 F.4th 1339, 1345 (11th 

Cir. 2021) (collateral estoppel under Florida law requires that “the parties and issues be identical, and 

that the particular matter be fully litigated and determined in a contest which results in a final 

decision of a court of competent jurisdiction.”) (cleaned up).

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such, the Complaint needs further amendment before the Plaintiff can proceed to 

seek avoidance and recovery of transfers made by Synergy Capital. Ultimately, the 

trier of fact in this adversary proceeding will have to determine whether Synergy 

Capital was in fact BHQ’s alter ego, and if so, whether the transfers from Synergy 

Capital are avoidable. But the facts currently alleged in the Complaint do not 

plausibly support this relief. The Motions to Dismiss will therefore be granted on this 

basis, but with leave for the Plaintiff to further amend his complaint to address these

identified deficiencies.51

2. Transfers Made Outside of the Four-Year Lookback Period.

Bankruptcy Code section 544(b)(1) allows a trustee to avoid a transfer “that is 

voidable under applicable law by a creditor holding an unsecured claim that is 

allowable under section 502 of [the Bankruptcy Code] or that is not allowable only 

under section 502(e) of [the Bankruptcy Code].”52 In this case, the applicable law upon 

which the Plaintiff relies is Florida’s Uniform Fraudulent Transfer Act.53 Fla. Stat. 

§ 726.110(1) sets forth the general rule that a cause of action to avoid a transfer made 

with actual intent to hinder, delay, or defraud any creditor of the debtor is 

extinguished if the action is not brought within four years after the transfer was 

51 Although not referenced in his Proposed Amended Complaint, the Plaintiff attached to his Responses

a copy of a Receiver’s Brief in Support of Finding of Civil Contempt filed in the state court case of 

Larino Invests., Inc. v. Bal Harbour Quarzo, LLC, Case No. 2017-005794-CA-01 (Fla. 11th Jud. Cir.). 

In that brief, the Plaintiff (then in his capacity as receiver for BHQ) made certain factual allegations 

– which were not pleaded in the original Complaint and were not included in the Proposed Amended 

Complaint – that would plausibly support a claim that Synergy Capital was BHQ’s alter ego. 52 11 U.S.C. § 544(b)(1).

53 Fla. Stat. §§ 726.101, et seq.

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made.54 But the statute also allows such a claim to be brought later if it is brought 

“within 1 year after the transfer or obligation was or could reasonably have been 

discovered by the claimant.”55 Relying on this one-year “savings clause,” the Plaintiff

argues that he was appointed as state court receiver for BHQ within one year of its 

bankruptcy petition date, and therefore he could not have discovered the transfers 

until he was appointed. Alternatively, the Plaintiff argues that to the extent it is not 

his knowledge but rather the knowledge of a creditor in whose shoes he stands in 

asserting these claims under Bankruptcy Code section 544(b)(1), the Complaint

adequately pleads that BHQ concealed these transactions from the “Lenders,”56 such 

that the Lenders could not have discovered these transactions until the Plaintiff was 

put in place (initially as a receiver in state court). In other words, it was not until the 

Plaintiff was appointed as receiver and started investigating BHQ that he discovered 

these transfers and informed one or more Lenders about them, thus providing the

Lenders with the requisite knowledge within one year of BHQ’s petition date.

Whether any transfers made more than four years before BHQ’s petition date 

were – or could reasonably have been – discovered within the year before BHQ’s 

petition date will ultimately be a question for the trier of fact, if adequately pleaded.

But to adequately state a claim that would not be time-barred under Fla. Stat. 

§ 726.110(1), a plaintiff must identify an unsecured creditor (sometimes called a 

54 If a creditor existed who could have brought such a claim as of a debtor’s bankruptcy petition date, 

Bankruptcy Code section 546(a) then permits a bankruptcy trustee to bring the claim within two years 

after the petition date. 11 U.S.C. § 546(a)(1).

55 Fla. Stat. § 726.110(1).

56 Defined in the Complaint as more than 160 individuals and entities who made $34 million in loans 

to and investments in BHQ. Compl. ¶ 35.

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“triggering creditor”) that would have had actual standing to seek to avoid and 

recover the applicable transfers as of the petition date.57 As currently pleaded, the 

Complaint fails to state a claim to avoid these older transfers because the Plaintiff 

did not identify a “triggering creditor” with this knowledge – even if that knowledge 

might have been supplied by the Plaintiff in his then-capacity as receiver. The 

Plaintiff’s general allegations of concealment and the date of his appointment as 

receiver, along with his investigations and discovery, do not suffice. Accordingly, the 

Plaintiff’s claims seeking to avoid and recover transfers made more than four years 

before BHQ’s petition date will be dismissed, but without prejudice to the Plaintiff 

filing an amended complaint.

C. Extraterritorial Recovery of Property.

Finally, the Defendants argue that “to the extent Plaintiff is seeking to avoid 

or recover property transferred outside of the United States,” the Complaint fails to 

provide any basis for that relief. The Plaintiff makes clear in his Responses,58

however, that he is not seeking to avoid the transfer of any property located outside 

the United States, and that the relief sought does not involve any extraterritorial 

application of sections 548 or 550 of the Bankruptcy Code. With that clarification –

which was clear to the Court from the Complaint itself – this argument is moot and 

the Motions to Dismiss are denied on this basis as well.

57 Furr v. T.D. Bank, N.A. (In re Rollaguard Sec., LLC), 570 B.R. 859, 881 (Bankr. S.D. Fla. 2017) (a 

trustee “must identify by name at least one creditor with an allowable unsecured claim that could have 

sought avoidance of the transfer in question under Florida law.”) (citing Bakst v. Bank Leumi, USA 

(In re D.I.T., Inc.), 561 B.R. 793, 800 (Bankr. S.D. Fla. 2016)); UMB Bank, N.A. v. Sun Capital Partners 

V, LP (In re LSC Wind Down, LLC), 610 B.R. 779, 785-86 (D. Del. 2020).

58 ECF No. 84 at 16-17; ECF No. 85 at 18-19; ECF No. 86 at 21-22; ECF No. 108 at 18-19. 

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III. Motion for Leave to Amend.

Because the Proposed Amended Complaint does not address and cure all of the 

pleading deficiencies discussed above, the Motion for Leave to Amend must be denied 

as moot, but without prejudice to the Plaintiff filing another amended complaint to 

cure these deficiencies.

IV. Conclusion. 

For the foregoing reasons, it is therefore ORDERED that:

1. The Motions to Dismiss are all GRANTED IN PART and DENIED IN 

PART, as set forth above.

2. The Motion for Leave to Amend is DENIED as MOOT.

3. The Plaintiff is granted leave to file an amended complaint within 21 

days after entry of this Order. Upon filing an amended complaint, the Defendants 

will have 21 days to respond to the amended complaint.

# # #

Copy furnished to all counsel of record by CM/ECF.

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