________________________

Leiderman Shelomith Alexander + Somodevilla, PLLC

Miami | Fort Lauderdale

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

Fort Lauderdale Division

www.flsb.uscourts.gov

In re:

EMMA BUMSHTEYN,

Debtor.

___________________________________/

Case No. 18-23930-BKC-PDR 

Chapter 7

KENNETH A. WELT, Chapter 7 Trustee,

Plaintiff,

vs.

EMMA BUMSHTEYN and YEVGENIYA 

BUMSHTEYN, both Individually and as Trustee 

of the Bumshteyn Family Irrevocable Inter 

Vivos Trust,

Defendants.

____________________________________/

Adv. Case No. 21-01069-PDR 

PLAINTIFF’S MOTION TO STRIKE DEMAND FOR JURY TRIAL

AND AFFIRMATIVE DEFENSES

Plaintiff, Kenneth A. Welt, Chapter 7 Trustee (the “Plaintiff”), by counsel, pursuant to this 

Court’s Order Setting Status Conference and Establishing Procedures and Deadlines [ECF No. 3] 

(the “Order Setting Deadlines”), requests the Court enter an order: (a) striking the Defendants’ 

demand for a jury trial, as set forth in the Answer of Defendants Emma Bumshteyn and Yevgeniya 

Bumshteyn (Trial by Jury Demanded) [ECF No. 7] (the “Answer”); (b) striking the footnote in the 

Answer, indicating that Defendant Yevgeniya Bumshteyn does not submit or consent to the 

jurisdiction of this Court; (c) striking Affirmative Defense No. 2 (Lack of Jurisdiction); and (d) 

striking Affirmative Defense No. 4 (Plaintiff Lacks Standing), and in support thereof, states as 

follows:

1. On February 26, 2021, the Plaintiff commenced this adversary proceeding by filing 

a Complaint (1) Objecting to Debtor’s Discharge; (2) Avoiding Certain Fraudulent Transfers; and 

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(3) for the Recovery of Such Assets Transferred or the Value Thereof [ECF No. 1] (the 

“Complaint”). The counts of the Complaint relating to Yevgeniya Bumshteyn were based upon 

11 U.S.C. §§ 544 and 550 (avoidance and recovery of fraudulent transfers under the Florida 

Uniform Fraudulent Transfer Act).

2. On March 1, 2021, the Court entered the Order Setting Deadlines. The Order 

Setting Deadlines was served upon both Defendants, in accordance with Fed. R. Bankr. P. 7004 

(see ECF No. 4).

3. Relevant to this Motion are paragraphs 2 and 3 of the Order Setting Deadlines. 

Paragraph 2 of the Order Setting Deadlines states:

RIGHT TO JURY TRIAL; WAIVER. Unless each party has timely filed a 

statement of consent under Local Rule 9015−1(B), and unless otherwise ordered 

by the Court, not later than fourteen days before the date first set for the status 

conference, each party requesting a jury trial on any issue in this proceeding must 

file with this Court a motion for withdrawal of the reference pursuant to Local Rule 

5011−1. FAILURE OF ANY PARTY TO FILE A MOTION TO WITHDRAW 

THE REFERENCE ON OR BEFORE THE DEADLINE PROVIDED IN 

THIS PARAGRAPH CONSTITUTES WAIVER BY SUCH PARTY OF ANY 

RIGHT TO TRIAL BY JURY IN THIS PROCEEDING.

4. Paragraph 3 of the Order Setting Deadlines states:

OBJECTION TO ENTRY OF FINAL ORDERS AND JUDGMENTS BY 

THE BANKRUPTCY COURT; CONSENT. Unless otherwise ordered by the 

Court, not later than fourteen days before the date first set for the status conference, 

each party objecting to the entry of final orders or judgments by this Court on any 

issue in this proceeding must file with this Court a motion pursuant to Rule 7016(b), 

Fed. R. Bankr. P., requesting that this Court determine whether this proceeding is 

subject to the entry of final orders or judgments by this Court. Any such motion 

will be treated as an objection to the entry of final orders or judgments by this Court. 

FAILURE OF ANY PARTY TO FILE A MOTION ON OR BEFORE THE 

DEADLINE PROVIDED IN THIS PARAGRAPH CONSTITUTES 

CONSENT BY SUCH PARTY TO THIS COURT ENTERING ALL 

APPROPRIATE FINAL ORDERS AND JUDGMENTS IN THIS 

PROCEEDING. Nothing in this paragraph limits this Court's ability to determine 

whether this proceeding is subject to entry of final orders or judgments by this 

Court.

5. The date first set for the Status Conference in this proceeding was April 15, 2021 

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Leiderman Shelomith Alexander + Somodevilla, PLLC

Miami | Fort Lauderdale

at 10:00 a.m. [ECF No. 2]. The Status Conference was held and concluded on that date.

6. Therefore, pursuant to paragraph 2 of the Order Setting Deadlines, the deadline for 

the Defendants to file a motion for withdrawal of the reference, pursuant to Local Rule 5011-1, 

was April 1, 2021. To date, no such motion has been filed.

7. In addition, pursuant to paragraph 3 of the Order Setting Deadlines, the deadline 

for the Defendants to file a motion, pursuant to Fed. R. Bankr. P. 7016(b), requesting that this 

Court determine whether this proceeding is subject to the entry of final orders or judgments by this 

Court, was April 1, 2021. To date, no such motion has been filed.

8. Instead, on April 8, 2021, the Defendants filed the Answer, and merely included in 

the title of that document “(Trial by Jury Demanded)”.

9. As set forth in the Order Setting Deadlines – in all caps and bold – the failure of 

any party to file a motion to withdraw the reference by the deadline constitutes a waiver by such 

party of any right to trial by jury in this proceeding.

10. As such, the Defendants have waived their right to seek a trial by jury in this 

proceeding, and the request contained in the title of the Answer should be stricken.

11. Furthermore, as set forth in the Order Setting Deadlines – in all caps and bold –

the failure of any party to file a motion, pursuant to Fed. R. Bankr. P. 7016(b), requesting that this 

Court determine whether this proceeding is subject to the entry of final orders or judgments by this 

Court, constitutes a consent by such party to this Court entering all appropriate final orders and 

judgments in this proceeding.

12. In the Defendants’ Answer, Yevgeniya Bumshteyn, stated in a footnote that she 

“does not submit or consent to the jurisdiction of the bankruptcy court on the issues raised and 

hereby demand [sic] an article III adjudication of all claims related to her.”

13. Furthermore, Affirmative Defense No. 2 alleges that this Court lacks subject matter 

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Leiderman Shelomith Alexander + Somodevilla, PLLC

Miami | Fort Lauderdale

jurisdiction and personal jurisdiction, and Affirmative Defense No. 4 alleges that the Plaintiff lacks 

article III standing to bring this action against the Defendants.

14. The footnote and these affirmative defenses should be stricken, because they were 

waived by the Defendants’ failure to timely file a motion, pursuant to Fed. R. Bankr. P. 7016(b), 

as required in the Order Setting Deadlines.

15. Furthermore, pursuant to Fed. R. Civ. P. 12(b), made applicable herein through Fed. 

R. Bank. P. 7012, a motion asserting lack of subject matter or personal jurisdiction must be made 

before pleading if a responsive pleading is allowed.

16. In short, the Defendants have implicitly consented to this Court entering all 

appropriate final orders and judgments in this proceeding, and the Defendants cannot now, in lieu 

of timely filing the required motion, assert that they oppose this Court’s jurisdiction or otherwise 

do not submit or consent to the jurisdiction of this Court. “Express consent is not required; consent 

may be implied so long as it is knowing and voluntary. Wellness Intern. Network, Ltd. v. Shariff, 

135 S. Ct. 1932, 1948 (2015). For example, a party may consent to entry of a final order or 

judgment in the bankruptcy court by failing to timely object. In re Bellingham Ins. Agency, Inc., 

702 F.3d at 566-70”. In re SpinLabel Techs., Inc., 2020 WL 4805475, at 3 (Bankr. S.D. Fla. Feb. 

6, 2020) (Kimball, J.).

WHEREFORE, the Plaintiff respectfully requests the Court enter an order: (a) striking the 

Defendants’ demand for a jury trial in the Defendants’ Answer; (b) striking the footnote in the 

Answer, indicating that Defendant Yevgeniya Bumshteyn does not submit or consent to the 

jurisdiction of this Court; (c) striking Affirmative Defense No. 2 (Lack of Jurisdiction); (d) striking 

Affirmative Defense No. 4 (Plaintiff Lacks Standing); and (e) granting such other and further relief 

as the Court deems just and proper.

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________________________

Leiderman Shelomith Alexander + Somodevilla, PLLC

Miami | Fort Lauderdale

Dated: April 26, 2021 LEIDERMAN SHELOMITH

ALEXANDER + SOMODEVILLA, PLLC

Attorneys for the Plaintiff

2699 Stirling Road, Suite C401

Ft. Lauderdale, Florida 33312

Telephone: (954) 920-5355

Facsimile: (954) 920-5371

By:_________/s/______________

ZACH B. SHELOMITH

Florida Bar No. 0122548

zbs@lsaslaw.com

CERTIFICATE OF SERVICE

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

April 26, 2021 to all parties on the list to receive e-mail notice/service for this case, via the Notice 

of Electronic Filing (which is incorporated herein by reference).

By:_________/s/________________

Zach B. Shelomith

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