UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

www.flsb.uscourts.gov

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. Chapter 11

_____________________________________/

DREW M. DILLWORTH, as Trustee,

Plaintiff,

v. Adv. Pro. No. 20-01072-SMG

AMERANT BANK, N.A., f/k/a

MERCANTIL BANK, N.A., a

National Association,

Defendant.

_____________________________________/

ORDER DISMISSING AMENDED COMPLAINT WITH PREJUDICE

Scott M. Grossman, Judge

_____________________________________________________________________________ United States Bankruptcy Court

ORDERED in the Southern District of Florida on October 8, 2020.

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Perhaps frustrated by an onslaught of litigation that seemed to follow Bal 

Harbour Quarzo, LLC (“BHQ”) and its principals at every turn, Amerant Bank, N.A., 

f/k/a Mercantil Bank, N.A. (“Amerant”) clearly lost confidence in BHQ’s ability to 

repay its debts. Indeed, Amerant may have even known (or at least suspected) that 

BHQ and its principals were defrauding other creditors. Amerant therefore exerted 

its leverage as a secured creditor to exit its relationship with BHQ and maximize 

recovery (or minimize losses) on its claims. According to Drew Dillworth, as 

Liquidating Trustee for BHQ (the “Trustee”), Amerant was “motivated by greed, and 

its urgent desire to exit its relationship”1 with BHQ. But is that alleged motivation 

actionable? Or was Amerant acting within its legal and contractual rights in exerting 

its leverage as a secured creditor to maximize its recovery or minimize its losses?

According to the Trustee, Amerant is liable to repay certain transfers in 

connection with a distressed sale of BHQ’s assets to a third party; for aiding and 

abetting BHQ’s principals’ breaches of their fiduciary duties; and for a conspiracy to 

breach the principals’ fiduciary duties. The Trustee certainly tells a troubling tale of 

how BHQ’s principals allegedly defrauded its non-bank investors, and went to great 

lengths to avoid paying their claims and judgments. Despite the concerning

allegations, however, nothing in the Trustee’s Amended Complaint plausibly alleges 

that any of the actual transfers to Amerant were made for any reason other than that 

BHQ had a legal obligation to make those payments. Nor does anything in the 

 

1 Amended Adversary Complaint to Avoid and Recover Transfers and for Tort Damages (ECF No. 5) 

(the “Amended Complaint”) ¶ 3.

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Amended Complaint plausibly suggest that Amerant aided and abetted, or conspired 

with, BHQ’s principals to breach their fiduciary duties. The allegations show only 

that Amerant – even if it knew of its borrower’s distress, insolvency, or even potential 

fraud – did nothing more than seek to minimize its losses, maximize its recovery, and 

extricate itself from a troubled lending relationship. That these actions may have 

resulted in many unsecured creditor investors recovering little on their claims is 

unfortunate; but it is not actionable against the bank. 

I. Overview.

BHQ was a failed real estate development in South Florida. The Trustee sued 

Amerant to avoid and recover alleged fraudulent transfers, and for tort damages for 

alleged aiding and abetting breach of fiduciary duty and for an alleged conspiracy to 

commit breach of fiduciary duty. Count I of the Amended Complaint2 alleges that

certain payments made to (or for the alleged benefit of) Amerant in connection with 

BHQ’s sale of its property to Beach Haus Bal Harbour, LLC (“Beach Haus”) are 

avoidable as fraudulent transfers under Bankruptcy Code § 548(a)(1)(A) and 

recoverable under Bankruptcy Code § 550. Count II asserts substantially the same 

allegations, but under Florida Statute § 726.105(1)(a) and Bankruptcy Code § 544.

Count III seeks damages for alleged aiding and abetting breach of fiduciary duty, and 

 

2 The Trustee filed his original Adversary Complaint to Avoid and Recover Transfers and for Tort 

Damages (ECF No. 1) on February 7, 2020. Exercising his right under Federal Rule of Civil Procedure 

15(a)(1)(A), made applicable to this adversary proceeding by Federal Rule of Bankruptcy Procedure 

7015, to amend his complaint once as a matter of course within 21 days after serving it, the Trustee 

filed his Amended Complaint on February 13, 2020.

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Count IV seeks damages for alleged conspiracy to breach fiduciary duty. Each count 

also included a request for attorneys’ fees and costs.

Amerant moved to dismiss3 the Amended Complaint under Federal Rule of 

Civil Procedure 12(b)(6)4 for failure to state a claim upon which relief may be granted, 

asserting four principal arguments. First, Amerant argues the challenged 

transactions were not “transfers” by BHQ that can be avoided. Second, Amerant 

argues that the challenged transactions were not avoidable because Amerant held a 

fully secured claim and was not repaid more than it was owed, BHQ’s estate was not 

diminished by the payments to Amerant, and the Amended Complaint failed to allege 

any facts that would show an intent to defraud other creditors.

5 Third, Amerant 

argues the Trustee failed to plausibly allege aiding and abetting liability. And fourth,

Amerant argues the Trustee failed to plausibly allege a conspiracy. Amerant also 

argues that there is no basis for the Trustee’s request for attorneys’ fees and costs.

In response,6 the Trustee contends that the challenged transactions were 

transfers of property of the debtor subject to avoidance; that the transfer of a secured 

asset may be avoided; that the transferred property was not subject to a “valid” lien;7

 

3 Amerant Bank, N.A.’s Motion to Dismiss Adversary Complaint (ECF No. 8) (the “Motion to Dismiss”).

4 Made applicable here by Federal Rule of Bankruptcy Procedure 7012.

5 Amerant Bank, N.A.’s Reply Memorandum in Support of Its Motion to Dismiss Adversary Complaint

(ECF No. 20) (the “Reply”).

6 Liquidating Trustee’s Response in Opposition to Amerant Bank, N.A.’s Motion to Dismiss Adversary 

Complaint [ECF No. 8] (ECF No. 19) (the “Response”).

7 The Amended Complaint contains no plausible allegations supporting this argument. Nor does the 

Amended Complaint contain any claims for relief seeking to determine the validity, extent or priority 

of Amerant’s lien. Accordingly, this argument lacks any merit, and is rejected without further 

discussion.

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and that he pleaded sufficient facts to plausibly allege aiding and abetting and 

conspiracy claims. His Response also includes a “request” (but not a separate motion) 

to replead his Amended Complaint, in which he claimed that he “can plead additional 

factual detail regarding the Transfers, the Sale Transaction, and the Defendant’s 

knowledge and wrongful involvement, but has endeavored to plead ‘a short and plain 

statement’ of the claim showing he is entitled to relief, in accordance with the Rules. 

See F.R.C.P. 8(a)(2).”8 Upon consideration of the Amended Complaint, the Motion to 

Dismiss, the Response, and the Reply, and for the reasons discussed below, the Court 

will grant Amerant’s Motion to Dismiss and dismiss the Trustee’s Amended 

Complaint with prejudice.

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.”9 The plaintiff must plead sufficient facts – which the court must accept 

as true at this stage10 – to allow the court “to draw the reasonable inference”11 of a 

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

formalistic recitation of the elements of a cause of action,”12 and “conclusory 

allegations, unwarranted deductions of fact or legal conclusions masquerading as 

 

8 Resp. 19-20.

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

(2007)).

10 Iqbal, 556 U.S. at 678.

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

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

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facts,”13 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.14

Thus, in evaluating a motion to dismiss, the court must determine, based on 

“judicial experience and common sense,” whether the well-pleaded facts in the 

complaint present a plausible claim for relief.15 Allegations that give rise to an 

“obvious alternative explanation,”16 however, will not meet the plausibility test.

17

Making the plausibility determination is “a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.”18 Where the 

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

plausible,” the court must dismiss the complaint.19

III. Facts.

20

Juan Arcila and Carlos Mahecha21 owned and controlled BHQ.22 In late 2007, 

BHQ purchased real property consisting of twenty co-operative parcels (hotel units) 

in a small boutique hotel, a building that operated an apartment complex, and 

 

13 Warren Tech., Inc. v. UL LLC, 962 F.3d 1324, 1328 (11th Cir. 2020) (quoting Jackson v. BellSouth 

Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004)).

14 Iqbal, 556 U.S. at 679.

15 Id.

16 Id. at 682; Twombly, 550 U.S. at 567.

17 Twombly, 550 U.S. at 557.

18 Iqbal, 556 U.S. at 679.

19 Twombly, 550 U.S. at 570.

20 For purposes of considering the Motion to Dismiss, the Court accepts the ensuing facts alleged by 

the Trustee as true.

21 The Trustee spells this individual’s name as both “Maheca” and “Mahecha” alternatively throughout 

the Amended Complaint. For purposes of this Order, the Court will use the spelling “Mahecha.”

22 Compl. ¶¶ 14-16.

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another vacant building (the “Property”),

23 for $22,422,000.24 BHQ financed this 

purchase with a $15.5 million term loan from Amerant (the “Term Loan”), plus seller 

financing of $3 million,

25 and funded the balance with loans (the “Investor Loans”) 

from individual investors (the “Investors”), most of whom were Colombian residents 

or entities owned or controlled by Colombian residents.

26 The Term Loan was secured 

by a mortgage in favor of Amerant.27 BHQ later borrowed “millions of dollars” more 

from Amerant for construction on the Property (the “Construction Loan,” and 

together with the Term Loan, the “Bank Loans”).28

BHQ defaulted on many of the Investor Loans, and from 2010 through 2017, 

Investors filed approximately forty lawsuits against BHQ.29 By 2015, certain of these 

Investors had obtained judgments against BHQ, and began collection proceedings.30

Although BHQ was not able to pay these judgments,31 it still continued to solicit new 

Investors32 without disclosing these defaults, lawsuits, and related judgments and 

garnishments against BHQ.33 Once BHQ received funds from new Investors, it would 

 

23 Id. ¶ 21.

24 Id. ¶ 22.

25 Id. ¶ 22.

26 Id. ¶¶ 20, 22.

27 Id. ¶ 22.

28 Id. ¶ 23.

29 Id. ¶ 25.

30 Id. ¶ 26.

31 Id. ¶ 26.

32 Id. ¶ 27.

33 Id. ¶ 27.

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use a portion of those funds to make payments to earlier Investors (without disclosing 

this to the new Investors).34

In an alleged effort to hinder and delay Investors’ collection efforts, BHQ 

sometimes moved money between and among bank accounts.35 BHQ also undertook 

other actions to avoid paying its Investors, including implementing a sham sale of 

personal property to an affiliated entity36 and filing false and misleading pleadings 

and affidavits in state court.37 From at least July 2017, BHQ was insolvent and was 

unable to pay its debts as they came due, including the Bank Loans and the Investor 

Loans.38

BHQ was not Mr. Arcila and Mr. Mahecha’s only real estate project, however. 

They also owned and controlled another entity, Luna Developments Group, LLC 

(“Luna”).39 In October 2012, Hemphill Financial, Ltd. (“Hemphill”) obtained a 

$768,464.44 judgment against Luna, after Luna failed to repay a loan Hemphill made 

to it.40 In post-judgment proceedings to collect on that judgment, Hemphill alleged 

that Mr. Arcila and Mr. Mahecha used Luna to run a “classic Ponzi/pyramid scheme” 

and that they were perpetrating a “massive fraud.”41 As part of its collection efforts, 

 

34 Id. ¶ 28.

35 Id. ¶¶ 29, 33.

36 Id. ¶ 30.

37 Id. ¶¶ 31, 32.

38 Id. ¶ 34.

39 Id. ¶ 18.

40 Id. ¶ 35.

41 Id. ¶ 36.

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Hemphill sued Amerant to avoid and recover an alleged $5 million transfer from Luna

to Amerant, which Hemphill alleged was made with actual intent to hinder, delay or 

defraud Luna’s creditors.42

By early 2017, BHQ was in “severe financial distress,”

43 and Mr. Arcila and 

Mr. Mahecha considered several options for BHQ, including engaging a commercial 

real estate firm to market and sell the Property44 or filing a chapter 11 bankruptcy 

case for BHQ.45 According to an appraisal obtained by Amerant, the Property was 

worth $40,260,000 as of January 25, 2017.46 As financial pressures continued to 

mount, BHQ began discussions to sell the Property to Beach Haus.47 On April 3, 2017, 

BHQ then entered into a series of agreements with Beach Haus, by which BHQ gave 

Beach Haus an option to purchase the Property for $20 million; BHQ and Beach Haus 

would endeavor to enter into a joint venture whereby BHQ would contribute the 

Property in exchange for a 45% interest in the joint venture and Beach Haus would 

invest $18 million in exchange for a 55% interest in the joint venture; and by which 

Beach Haus agreed to loan BHQ $1 million.48

 

42 Id. ¶ 37. 

43 Id. ¶ 38.

44 Id. ¶ 40.

45 Id. ¶ 44.

46 Id. ¶ 48. This was about $4.5 million less than its $44,820,000 appraised value in 2015. Id. ¶ 47.

47 Id. ¶¶ 49-50.

48 Id. ¶¶ 55-56. BHQ used the proceeds of the $1 million loan to satisfy one of the Investor’s judgments 

and prevent an execution sale, to pay legal fees, and to transfer more than $300,000 to an affiliate. Id.

¶ 59.

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But BHQ and Beach Haus did not consummate this contemplated joint 

venture, and instead BHQ ended up agreeing to sell the Property49 to Beach Haus for 

$18 million “with adjustments,” plus an “earn-out” in favor of BHQ (the “Earn Out”).50

The Earn Out “was neither an ownership interest nor an equity participation in 

Beach Haus and did not limit Beach Haus’ complete control over the Property. 

Rather, the Earn-Out was Beach Haus’ contractual obligation to make certain 

payments to BHQ in the future based on several contingencies, conditions and 

assumptions following a liquidity event.”51 The Earn Out was “deeply subordinated 

and contingent,” and not secured by any collateral of Beach Haus.

52

The sale to Beach Haus closed on July 13, 2017.53 The Purchase and Sale 

Agreement and related closing statement required BHQ to fund $1,318,678.49 in 

closing and other seller-related costs.54 Because BHQ did not have the cash to do so, 

Beach Haus funded these amounts, resulting in the ultimate purchase price for the 

Property – excluding the Earn Out – being $19,386,975.39.

55 Amerant received 

 

49 The Property consisted of substantially all of BHQ’s assets, and included licenses, permits, 

authorizations, approvals and general intangibles, all appurtenant rights on the Property and all 

furniture, fixtures, equipment, machinery and other items of personal property located on or used in 

the operation of the Property. Id. ¶ 69.

50 Id. ¶ 71.

51 Id. ¶ 71.

52 Id. ¶ 72.

53 Id. ¶ 75. The Trustee also alleges that BHQ provided a false “Owner’s Affidavit” to a title agent in 

connection with the closing, and that “upon information and belief” Amerant “knowingly allowed and 

facilitated . . . this communication to be delivered to the title agent.” Id. ¶ 84. But the Trustee provides 

no factual support for this conclusory allegation.

54 Id. ¶ 76.

55 Id. ¶ 76.

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$3,540,759.20 in cash from the closing, consisting of (1) $2,853,945.53 in payment of 

principal debt; (2) $483,403.33 in accrued interest; and (3) $203,410.34 as an impact 

fee.56 Amerant was also credited $250,000 for a pre-closing deposit,

57 and received 

reimbursement of $100,000 in legal fees incurred in connection with Hemphill’s 

collection litigation.58 Besides the Earn Out, BHQ received no other proceeds from 

the sale,59 and after the sale, BHQ was left with millions of dollars of claims and no 

meaningful assets – other than the Earn Out – with which to pay these debts.60

In addition to the payments it received from the closing, Amerant also financed 

a portion of Beach Haus’s purchase61 by extending a $9.265 million loan to Beach 

Haus.62 In substance, Amerant allowed Beach Haus to assume $9,265,315.03 of 

BHQ’s Term Loan.

63 But Amerant underwrote it as a new loan with Beach Haus as 

the borrower, and with the stated purpose being “to finance the acquisition” of the 

Property.64 Amerant performed due diligence on Beach Haus and its insiders, 

required Beach Haus to execute a “new (amended and restated) note” from Beach 

Haus to Amerant, and required a new limited guaranty from a principal of Beach 

 

56 Id. ¶ 116.a.

57 Id. ¶ 116.a n.6.

58 Id. ¶ 116.b.

59 Id. ¶ 85.

60 Id. ¶ 85. 

61 Id. ¶¶ 77-79.

62 Id. ¶ 78. 

63 Id. ¶¶ 77, 78. The Trustee and Amerant apparently dispute whether Beach Haus “assumed” the 

remainder of BHQ’s debt to Amerant, or whether Amerant extended a new loan to Beach Haus to fund 

the purchase. This distinction makes no material difference to the Court’s analysis.

64 Id. ¶¶ 78, 79.

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Haus.65 As part of the transaction, Amerant then granted releases to BHQ, as well as 

to Mr. Arcila and Mr. Mahecha, as guarantors of the Bank Loans.

66 The releases, 

however, contained carve-outs for certain fraudulent transfer claims, including those 

that could be brought by BHQ or a bankruptcy trustee for BHQ.67 Amerant also 

required BHQ to pay Hemphill $1,000,000 to satisfy its judgment against Luna.

68

The Trustee alleges that Amerant understood BHQ’s financial distress.69 The 

Bank Term Loan was placed in Amerant’s “special assets” division during 2009, 

where it remained until 2012,70 and in 2013, Amerant “flagged” BHQ’s account for a 

Bank Secrecy Act inquiry.71 Amerant also learned in 2013 that BHQ had 

approximately $16 million in debt separate from the Bank Loans.72 After two missed 

payments to Amerant in the summer of 2016, Amerant again transferred the Bank 

Loans to its “special assets” division, where they remained until the sale to Beach 

Haus closed in July 2017.73 At or around this time, Amerant knew about the 

Investors’ lawsuits against BHQ.74 And of course as defendants in litigation brought 

by Hemphill seeking to avoid and recover from Amerant alleged fraudulent transfers 

 

65 Id. ¶ 78.

66 Id. ¶ 78.

67 Id. ¶ 106.

68 See notes 39-42, supra.

69 Compl. ¶ 86.

70 Id. ¶ 87.

71 Id. ¶ 88.

72 Id. ¶ 89.

73 Id. ¶ 90.

74 Id. ¶ 91.

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by Luna, Amerant was certainly aware that Hemphill had alleged that Mr. Arcila 

and Mr. Mahecha were operating a “Ponzi/pyramid scheme.”75

With a distressed credit in its special assets division, Amerant understandably 

was closely monitoring the situation, and was in frequent communication with BHQ

about, among other things, certain of the Investors’ litigation and efforts to collect on 

their judgments.76 Amerant was also concerned that other Investors might file 

fraudulent transfer claims seeking recovery against Amerant.77 And Amerant 

expressed to BHQ Amerant’s “very strong desire” for BHQ to avoid bankruptcy.78 By 

the time the sale to Beach Haus closed on July 13, 2017,79 the Bank Loans were in 

default80 and Amerant’s internal records showed its concern that BHQ “demonstrated 

an inability and/or unwillingness to make payment in a timely manner as evident by 

a slow payment history and previous garnishments on their [Amerant] deposit 

accounts.”81

After the Beach Haus sale closed, BHQ (through Mr. Arcila) prepared and sent 

a letter to the Investors “regarding, among other things, the sale transaction,” which 

letter was intended to “keep investors calm” and “prevent more lawsuits.”82 By the 

 

75 Id. ¶ 92.

76 Id. ¶ 93.

77 Id. ¶ 94.

78 Id. ¶ 95.

79 Id. ¶ 75.

80 Id. ¶ 34.

81 Id. ¶ 98.

82 Id. ¶ 111.

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time the letter was sent, though, a receiver had been appointed for BHQ (which fact 

was not disclosed in the letter).

83 The letter also failed to inform the Investors of 

lawsuits filed by certain other Investors, that BHQ had paid millions of other 

Investors’ claims, and that BHQ considered and rejected a chapter 11 bankruptcy 

filing.84 Mr. Arcila was ultimately indicted in December 2019 for one count of 

conspiracy to commit wire fraud.85

IV. Analysis.

A. Fraudulent Transfer Claims.

1. Which of the Challenged Transactions Are Actually “Transfers” 

Subject to Avoidance?

The Trustee seeks to avoid and recover the following alleged transfers to 

Amerant related to BHQ’s sale of its Property to Beach Haus on July 13, 2017,86 under 

Bankruptcy Code § 548(a)(1)(A) and Florida Statute § 726.105(1)(a) (made applicable 

here by Bankruptcy Code § 544(b)):87

 $3,540,759.20: consisting of (1) $2,853,945.53 in payment of principal debt 

to Amerant; (2) $483,403.33 in accrued interest; and (3) $203,410.34 as an 

impact fee (the “Secured Claim Paydown”);

88

 

83 Id. ¶ 112.

84 Id. ¶ 112.

85 Id. ¶ 114.

86 Id. ¶ 116.

87 Bankruptcy Code § 544 allows a trustee 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.” 

11 U.S.C. § 544(b). The applicable state law here is Florida’s Uniform Fraudulent Transfer Act, Fla. 

Stat. § 726.101, et seq. (“FUFTA”).

88 As part of the Secured Claim Paydown, Amerant was credited for a $250,000 pre-closing deposit. 

Compl. ¶ 116.a n.6.

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 $100,000.00: for reimbursement of Amerant’s legal fees incurred in the 

Hemphill Litigation (the “Legal Fee Reimbursement”);

 $9,265,315.03: the amount of BHQ’s debt that Beach Haus assumed as part 

of the sale transaction (the “Debt Assumption”); and

 $1,000,000.00: $1,000,000 paid by BHQ to Hemphill (“Hemphill Payment”), 

to satisfy Hemphill’s judgment89 against Luna,90 but which [allegedly] 

benefitted Amerant by resolving the Hemphill fraudulent transfer 

litigation.91

The first step in determining whether the Amended Complaint states a claim is to 

determine whether the challenged transactions are “transfers” subject to avoidance. 

The Bankruptcy Code92 defines “transfer,” in relevant part, as “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.”93 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 

encumbrance.”94 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.”95

 

89 Compl. ¶ 81.

90 Id. ¶¶ 35-36.

91 Id. ¶ 36.

92 11 U.S.C. § 101, et seq.

93 11 U.S.C. § 101(54)(D).

94 Fla. Stat. § 726.102(14).

95 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).

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As noted, under both the Bankruptcy Code and FUFTA, an “indirect” transfer 

may be a transfer that is subject to avoidance.96 The Trustee alleges here that BHQ 

had no cash when it sold the Property to Beach Haus, and that Beach Haus therefore

funded the cash required of BHQ at closing.97 Thus, the Trustee’s allegations suggest 

that the Secured Claim Paydown, the Legal Fee Reimbursement, and the Hemphill 

Payment were paid with cash originating from Beach Haus. Accepting the Amended 

Complaint’s allegations as true for purposes of this Order, the Court will therefore 

assume that the Secured Claim Paydown, the Legal Fee Reimbursement, and the 

Hemphill Payment were indirect transfers of interests of BHQ in property. But unlike 

the Secured Claim Paydown and the Legal Fee Reimbursement, the Hemphill 

Payment was not a transfer to Amerant. This transfer was to Hemphill. Indeed, in 

another adversary proceeding related to BHQ’s bankruptcy case, the Trustee has 

separately sued – and obtained a default judgment against – Hemphill avoiding this 

very transfer.98 That Amerant insisted on BHQ satisfying Hemphill’s claims does not 

 

96 See In re FBN Food Serv., Inc., 175 B.R. 671, 683 (Bankr. N.D. Ill. 1994), aff’d sub nom. In re FBN 

Food Servs., Inc., 185 B.R. 265 (N.D. Ill. 1995), aff’d and remanded sub nom. Matter of FBN Food 

Servs., Inc., 82 F.3d 1387 (7th Cir. 1996) (“an indirect transfer is when A has a claim against B, and 

instead of B paying A directly for the claim, A directs B to pay C. The transfer from A to C is an indirect 

transfer of A’s property.”) (citing Virginia Nat. Bank v. Woodson, 329 F.2d 836 (4th Cir.1964); Smith 

v. Patton, 194 Ill. 638, 62 N.E. 794 (1902)).

97 Compl. ¶ 76.

98 Dillworth v. Hemphill Fin., Ltd., Adv. No. 20-01075-SMG. The Court can always take judicial notice, 

under Fed. R. Ev. 201(c)(1), of its own docket when considering a Rule 12(b)(6) motion. Harrington v. 

Racki (In re Bishop), 578 B.R. 158, 164 (Bankr. W.D.N.Y. 2017) (“The Court can always take judicial

notice of its own docket”); In re HRN Grp., LLC, No. 18-63282-WLH, 2020 WL 426048, at *2 (Bankr. 

N.D. Ga. Jan. 27, 2020) (quoting Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1280 (11th Cir. 1999))

(“As the Eleventh Circuit has explained, ‘[i]n determining whether to grant a Rule 12(b)(6) motion, the 

court primarily considers the allegations in the complaint, although matters of public record . . . may 

be taken into account.’”).

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in any way suggest that the Hemphill Payment was a transfer to Amerant.99

Accordingly, the Hemphill Payment was not a transfer to Amerant that is subject to 

avoidance here.

Likewise, the Debt Assumption (Beach Haus’s assumption of BHQ’s remaining 

debt, or Amerant’s extension of new credit to Beach Haus in an equal amount,

regardless of how characterized) was not a transfer of an interest of BHQ in property 

to Amerant. Under FUFTA, “property” is defined as anything that may be the subject 

of ownership.”100 The debt initially owed by BHQ to Amerant – and then assumed by

Beach Haus – was not property of BHQ. It was a liability or obligation of BHQ, and 

was property of Amerant.101 Thus, BHQ did not transfer any “property” it owned to 

Amerant in connection with the Debt Assumption. Before the “transfer,” BHQ owed 

Amerant $9.265 million. After the “transfer,” Beach Haus then owed Amerant $9.265 

million, and BHQ was relieved of this liability. Even though the definition of a 

transfer is broad, and a transfer can be “indirect,” no asset or property of BHQ was 

 

99 The Trustee suggests, however, that Amerant “received the benefit of $1,000,000 in liability 

reduction” by virtue of this payment. Compl. ¶ 117. Putting aside for a moment that receiving “the 

benefit of” a hypothetical liability reduction is not the same thing as receiving property or an interest 

in property from a debtor, this argument really is – to quote the Trustee – a classic “straw-man” 

argument. See Resp. 5, 12. The Trustee bases his argument on the assumption that Amerant was 

actually liable to Hemphill as the recipient of an alleged fraudulent transfer from Luna. But there are 

no allegations in the Amended Complaint to support this contention. An equally plausible explanation 

is that Hemphill – perhaps somewhat like the Trustee here – was pursuing a claim against a bank 

that received a payment from Hemphill’s debtor (Luna), and sought to challenge that payment so that 

it could try to claw back those funds in order to recover on its own claim.

100 Fla. Stat. § 726.102(11). The Bankruptcy Code does not define “property,” but the definition of 

“transfer” in the Bankruptcy Code includes “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.” 

11 U.S.C. § 101(54).

101 Delaware v. New York, 507 U.S. 490, 499 (1993) (“the property interest in any debt belongs to the 

creditor rather than the debtor”).

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transferred to Amerant as part of this transaction.102 The asset of BHQ that was 

transferred in connection with this transaction was the Property. But the Property 

was transferred to Beach Haus,103 not to Amerant. The Debt Assumption was 

therefore not a transfer that can be avoided as to Amerant under either the 

Bankruptcy Code or FUFTA.

104 Accordingly, the only transfers to Amerant 

potentially subject to avoidance are the Secured Claim Paydown and the Legal Fee 

Reimbursement. But, as discussed next, there are no plausible allegations that these 

transfers were made for any reason other than that BHQ was legally obligated to 

make them to Amerant.

2. The Trustee Has Not Plausibly Alleged Actual Intent to Hinder, 

Delay or Defraud Creditors.

The Trustee characterizes the challenged transactions as “actual intent 

fraudulent transfer[s],”105 but argues that he has not pleaded the term “defraud.”106

In other words, of the phrase “actual intent to hinder, delay or defraud creditors,” the 

 

102 See, e.g., In re Brasby, 109 B.R. 113, 124 (Bankr. E.D. Pa. 1990), aff’d sub nom. Brasby v. Joseph G. 

Perry, Inc., No. CIV. A. 90-0859, 1992 WL 21362 (E.D. Pa. Jan. 27, 1992) (“[a]ssumption of secured 

debt is generally viewed as a component of the purchase price” paid to a debtor. It is value given to a 

debtor, not taken away.”)

103 Indeed, in the related adversary proceeding of Dillworth v. Beach Haus Bal Harbour, LLC, Adv. 

Pro. No. 18-1448-SMG, the Trustee previously sued Beach Haus to avoid the transfer of the Property 

to Beach Haus. That adversary proceeding was later settled by Beach Haus for $7.5 million (Main 

Case ECF No. 505). As noted above, the Court may take judicial notice of its own docket in considering 

a Rule 12(b)(6) motion. See note 98, supra.

104 Even if the Debt Assumption could be characterized as a payoff of BHQ’s debt to Amerant (rather 

than an assumption by Beach Haus of this debt) – and therefore a transfer from BHQ to Amerant –

for the reasons discussed below, there are no plausible allegations that this transfer was made for any 

reason other than that BHQ owed this money to Amerant in respect of its secured claim.

105 Compl. ¶ 124.

106 Resp. 10 n.28.

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Trustee claims he is only seeking to avoid the alleged transfers as having been made 

with the actual intent to hinder or delay BHQ’s creditors. In defending his Amended 

Complaint from dismissal, however, the Trustee then argues the he has specifically 

pleaded facts “supporting the Debtor’s fraudulent intent to hinder and delay 

creditors.”107 Either way, the Trustee fails to plausibly allege these transfers were 

made with actual intent to hinder or delay BHQ’s creditor’s, or with fraudulent intent 

to hinder or delay BHQ’s creditors. 

In support of his claims, the Trustee alleges six statutory badges of fraud

establish that BHQ “had the actual intent to hinder and/or delay its creditors in 

connection with the sale transaction” and in making the transfers at issue: (a) that 

the transfers were not disclosed or were concealed; (b) before the transfer was made 

the debtor had been sued or threatened with suit; (c) the debtor was insolvent or 

became insolvent shortly after the transfer was made; (d) the transfer occurred 

shortly before or shortly after a substantial debt was incurred; (e) the debtor retained 

possession or control of the property transferred after the transfer; and (f) the transfer 

was of substantially all of the debtor’s assets.108

 

107 Resp. 10. Without explaining this seemingly nuanced distinction, the Trustee appears to be arguing 

that he is not alleging any of the alleged transfers were made with actual intent to defraud BHQ’s 

creditors, but instead that they were made with fraudulent intent to hinder and delay BHQ’s creditors. 

The Trustee offers no cogent argument or supporting case law to support any meaningful distinction 

between “a transfer made with actual intent to hinder, delay or defraud creditors,” and “a transfer 

made with fraudulent intent to hinder and delay creditors.” Regardless, for the reasons discussed 

above, the Amended Complaint fails to state a claim under either phrasing of the language.

108 Compl. ¶ 120.

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But to prosecute a claim based on actual intent to hinder, delay, or defraud a 

creditor, the plaintiff must show that the alleged fraudulent intent is related to the 

transfers sought to be avoided.109 Here, of the six badges of fraud alleged, only two 

even arguably apply to the transfers at issue to Amerant:

110 that before the transfers 

were made BHQ had been sued or threatened with suit, and that BHQ was insolvent 

or became insolvent shortly after the transfers. The other alleged badges are not 

plausibly applicable here. There are no plausible allegations that any of the subject 

transfers were not disclosed or were concealed. The sale of the Property to Beach 

Haus was a publicly recorded and documented transaction, as would have been Beach 

Haus’s assumption of the mortgage debt. And that BHQ may have been concealing 

other assets and transfers from its other creditors is not probative of whether the 

transfers at issue to Amerant were made with actual intent to hinder delay or defraud 

creditors.

Likewise, there are no plausible allegations that any of the transfers occurred 

shortly before or shortly after a substantial debt had been incurred. The allegations 

show that BHQ had incurred substantial debt over many years. And while creditors 

were actively pursuing BHQ to obtain judgments at the time of the transfers here, 

that does not equate to incurring a new substantial debt shortly before or shortly 

 

109 Bakst v. Bank Leumi, USA (In re D.I.T., Inc.), 561 B.R. 793, 803 (Bankr. S.D. Fla. 2016) (citing 

Sharp Int’l Corp. v. State St. Bank & Trust Co. (In re Sharp Int’l Corp.), 403 F.3d 43, 56-57 (2d Cir. 

2005)).

110 Indeed, it appears the Trustee is confusing badges of fraud that would pertain to his fraudulent 

transfer claim against Beach Haus with respect to the Property, with any potentially applicable badges 

of fraud as to the actual transfers at issue here from BHQ to Amerant.

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after any of the specifically alleged transfers. The judgments being sought by the 

Investors were in respect of debts incurred well before these alleged transfers.

The allegation that BHQ retained possession or control of the property 

transferred through the Earn Out is not only not plausible, it directly contradicts the 

Trustee’s earlier allegation that the Earn Out “was neither an ownership interest nor 

an equity participation in Beach Haus and did not limit Beach Haus’ complete control 

over the Property.”111 Further, this allegation pertains to the Property that BHQ sold 

to Beach Haus; it is not in any way probative of BHQ’s alleged intent to hinder or 

delay creditors by making the alleged transfers here to Amerant 

Finally, the Trustee’s allegation that BHQ transferred substantially all of its 

assets to Beach Haus does not plausibly support a fraudulent transfer claim against 

Amerant. To the contrary, it supports a plausible explanation why Amerant received 

the alleged transfers: because BHQ was disposing of its assets that secured Amerant’s 

claims, BHQ necessarily had to pay its secured creditor (or get its consent) to transfer 

its assets to Beach Haus. 

With respect to the Secured Claim Paydown, nothing plausibly alleges it was 

made for any reason other than that BHQ owed Amerant this money.112 “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 

 

111 Compl. ¶ 71.

112 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).

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largesse.’”

113 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 to secure the debt.114 There have been no such plausible 

allegations here. Nor have there been any plausible allegations that Amerant was not 

entitled to the Legal Fee Reimbursement under its loan documents (which would be 

customary and commercially reasonable for Amerant to be entitled to such payment).

At bottom, none of the allegations plausibly allege that Amerant was paid for 

any reason other than that BHQ was obligated to do so. Nor do the allegations 

plausibly allege that Beach Haus’s assumption of BHQ’s debt – or even BHQ’s 

satisfaction of Hemphill’s claims – were done with the intent to hinder or delay BHQ’s 

other creditors. Accordingly, the Trustee has failed to state a claim upon which relief 

may be granted with respect to both Counts I and II of his Amended Complaint.115

B. Aiding and Abetting Breach of Fiduciary Duty.

Count III alleges Amerant aided and abetted Mr. Arcila and Mr. Mahecha’s 

breaches of their fiduciary duties to BHQ. 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 

 

113 Barbee v. Amerant Bank, N.A., (In re Luna Devs. Grp., LLC), 618 B.R. 595, 611 (Bankr. S.D. Fla. 

2020) (quoting Simpson, 763 So. 2d at 1081 (quoting Jacksonville Bulls Football Ltd. v. Blatt, 535 

So.2d 626, 629 (Fla. 3d DCA 1988))).

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

115 Because the Court has found that two of the four challenged transactions were not even transfers 

subject to avoidance, and as to the other two, the Trustee has not plausibly alleged those transfers 

were made with actual intent to hinder, delay or defraud creditors, the Court need not address 

Amerant’s argument that there were no avoidable transfers because it held a fully secured claim, was 

not repaid more than it was owed, and BHQ’s estate was not diminished by the payments to Amerant.

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(3) rendering of substantial assistance in committing the wrongdoing by the alleged 

aider and abettor.116 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 customer was engaging in wrongful or illegal activity.117

This “knowledge” element “will only be satisfied if the plaintiff pleads facts 

demonstrating that the bank had ‘actual knowledge’ of the wrongdoings.”118

With respect to the first prong – an underlying violation – the Trustee must 

allege there was a 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.119 Based on the facts pleaded in the Amended 

Complaint, the Trustee has plausibly alleged that Messrs. Arcila and Mahecha had a 

fiduciary duty to BHQ, as its managers and control persons. Although the Trustee’s 

allegations that the Property could have been sold for enough to pay Amerant in full 

and provide some recovery for the Investors are somewhat lacking, the Court will 

presume that the Trustee plausibly pleaded breaches of fiduciary duty and 

proximately-caused damages, based at least on the allegations that BHQ had 

 

116 Furr v. T.D. Bank, N.A. (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)).

117 Luna Devs., 618 B.R. at 613 n.156 (collecting cases).

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

App’x at 907).

119 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)).

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considered but decided not to file for bankruptcy earlier. Thus, to determine whether 

the Trustee adequately stated a claim for aiding and abetting breach of fiduciary 

duty, the Court will presume the Trustee adequately pleaded an underlying violation

here – breach of fiduciary duty by Messrs. Arcila and Mahecha. But it is with respect 

to the other two elements of aiding and abetting breach of fiduciary duty – knowledge 

and substantial assistance – where the Trustee’s claim meets its demise.

With respect to knowledge of breach of fiduciary duty, the Trustee has alleged 

that Amerant knew Messrs. Arcila and Mahecha had been accused of perpetrating a 

massive Ponzi scheme through Luna; that the Property was being sold to Beach Haus 

for less than its appraised value; that the sale to Beach Haus would net no cash 

proceeds for BHQ (other than through the Earn-Out); and that many Investors had 

sued BHQ. The Trustee also alleges that Amerant actually knew that if the Property 

had been sold for more money, other creditors could have been paid, and that 

Amerant knew BHQ had other available options to achieve fair market value for the 

Property – like filing for bankruptcy – but failed to do so. But these allegations do not 

plausibly support the element of actual knowledge of breach of fiduciary duty. It was 

impossible for Amerant – or anyone else – to have actually known that if the Property 

had been sold for more money, other creditors could have been paid. Indeed, Beach 

Haus assumed over $9 million of secured debt in connection with the sale of the 

Property.120 It is one thing to allege that if Messrs. Arcila and Mahecha did not breach 

 

120 Thus, BHQ would have had to sell the Property for well more than $9 million over the Beach Haus 

sale price, in order to pay Amerant in full and then have additional proceeds available for other 

creditors.

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their fiduciary duty and either properly marketed the Property or caused BHQ to file 

for bankruptcy earlier, then the Property could have been sold for more money. But 

it is quite another thing to allege that Amerant knew – actually knew – that if the 

Property had been sold for more money, other creditors could have been paid.121 This 

is mere conjecture by the Trustee, and there are no plausible allegations to support 

Amerant’s actual knowledge of any breach of fiduciary duty by Messrs. Arcila and 

Mahecha.

The Trustee’s allegations of substantial assistance fall even shorter than his 

knowledge allegations. “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.”122 But “mere inaction” will constitute substantial 

assistance “only if the defendant owes a fiduciary duty directly to the plaintiff.”123

Moreover, “in the context of aiding and abetting claims against banks, Florida law 

does not require banks to investigate their customers’ transactions.”124 Here, there 

are no plausible allegations that Amerant owed a fiduciary duty to BHQ or its 

creditors. Indeed, Amerant’s fiduciary duty was to its own shareholders to minimize 

its losses on a distressed credit and extricate itself from the risk of continuing to be 

 

121 The Trustee’s allegations regarding the appraised value of the Property, while perhaps probative 

of his fraudulent transfer claims against Beach Haus, do not support his allegations that Amerant 

knew Messrs. Arcila and Mahecha were breaching their fiduciary duties to BHQ.

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

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

124 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).

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in a borrower-lender relationship with BHQ.125 Thus, in extending credit to Beach 

Haus to fund its purchase of the Property (and therefore substitute a more 

creditworthy borrower for BHQ), Amerant did not substantially assist in Messrs. 

Arcila and Mahecha breaching their fiduciary duties. 

Likewise, Amerant requiring BHQ to satisfy Hemphill’s judgment against 

Luna – and thus extricate Amerant from Hemphill’s fraudulent transfer suit – does 

not demonstrate substantial assistance in breach of fiduciary duty. It demonstrates 

that Amerant had had enough of this lender-borrower relationship, and wanted out.

It also plausibly demonstrates – as would be customary with commercial loan 

documents – that BHQ and its principals had an obligation to Amerant to indemnify 

Amerant against claims of this type. That the claims asserted were fraudulent 

transfer claims relating to another entity controlled by Messrs. Arcila and Mahecha 

says nothing about the merits of those claims, though.

Similarly, Amerant’s desire for a release – to stem off and extricate itself from 

further litigation that seemed to follow BHQ at every turn – and Amerant’s request 

for additional security to protect itself from lingering litigation in the form of a 

collateral assignment with respect to the Earn Out, do not plausibly allege 

substantial assistance. They show Amerant sought to protect itself and maximize 

recovery on its collateral. Finally, Amerant’s alleged failure to stop BHQ from making 

 

125 See Sharp, 403 F.3d at 52-53 (lender’s discovery that its borrower “was rife with fraud was an asset” 

of the lender, who “had a fiduciary duty to use that asset to protect its own shareholders, if it legally 

could.”)

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alleged false representations to a title company does not constitute – or even support 

– a claim for aiding and abetting a breach of fiduciary duty.126

Clearly, Amerant had a distressed borrower. Perhaps worse than that, 

Amerant had an untrustworthy borrower. Even worse, Amerant had a borrower that 

may have been defrauding other creditors. That Amerant knew these facts and 

sought to extricate itself from its lending relationship with this borrower and 

maximize recovery on its loan – without more – does not demonstrate substantial 

assistance. It demonstrates only that Amerant acted appropriately and prudently as 

a lender seeking to maximize recovery on its loan or minimize its losses, and in 

accordance with its own legal and contractual rights.127 Acts that are “consistent with 

normal, lawful [banking] business practices” – like those undertaken by Amerant 

here – will not support an aiding and abetting breach of fiduciary duty claim.128

Likewise, that the Bank Term Loan was in Amerant’s special assets division, 

that Amerant may have made a Bank Secrecy Act report with respect to this loan or 

borrower, that Amerant was concerned about other litigation relating to this 

borrower (some involving Amerant, some not), and that Amerant therefore sought to 

extricate itself from this relationship and maximize its recovery (or minimize its loss) 

demonstrates only that Amerant was acting consistent with normal, lawful banking 

 

126 In re NewStarcom Holdings, Inc., 547 B.R. 106, 132 (Bankr. D. Del. 2016), aff’d, 608 B.R. 614 (D. 

Del. 2019) (“The question here is whether a failure to act constitutes “aiding and abetting,” and the 

Trustee has offered no precedent or authority for such a holding. “Aiding and abetting,” by definition, 

implies active participation or affirmative action.”).

127 See Sharp, 403 F.3d at 51 (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).

128 Luna Devs., 618 B.R. at 615 n.169 (quoting Krys v. Pigott, 749 F.3d 117, 132 (2d Cir. 2014)).

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business practices. To suggest that a bank taking these prudent steps to address 

these legitimate concerns somehow renders a bank as having substantially assisted 

a breach of fiduciary duty would turn sound banking practice on its head, and 

discourage the very behavior that should be encouraged in responsible lending 

institutions. Count III therefore fails to state a claim upon which relief may be 

granted as well.

C. Conspiracy to Commit Breach of Fiduciary Duty.

In Count IV, the Trustee alleges that Amerant conspired with Messrs. Arcila 

and Mahecha to breach their fiduciary duties. To plausibly allege a civil conspiracy, 

the Trustee must allege: (a) conspiracy between two or more parties, (b) to do an 

unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act 

in pursuance of the conspiracy, and (d) damage to the plaintiff as a result of the acts 

done under the conspiracy.129 An actionable conspiracy requires a plaintiff “provide 

some factual basis for the legal conclusion that a conspiracy existed.”130 But “[t]he 

existence of a conspiracy and an individual’s participation in it may be inferred from 

circumstantial evidence.”131

The Trustee argues that a conspirator need not take part in the planning, 

inception, or successful conclusion of a conspiracy; “the conspirator need only know 

 

129 Camden Shipping Corp. v. Manson Constr. Co., No. 3:07-CV-560-J-25 JRK, 2008 WL 11433231, at 

*4 (M.D. Fla. Mar. 19, 2008); Fla. Fern Growers Ass’n, Inc. v. Concerned Citizens of Putnam Cty., 616 

So.2d 562, 565 (Fla. 5th DCA 1993).

130 Rindley v. Gallagher, 890 F. Supp. 1540, 1557 (S.D. Dist. Fla. 1995).

131 Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So. 2d 1157, 1160 (Fla. 3d DCA 2008).

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of the scheme and assist in it in some way to be held responsible for all of the acts of 

his coconspirators.”132 The Trustee then argues that the “unlawful act” that Amerant 

knew of was Messrs. Arcila and Mahecha’s alleged breaches of their fiduciary duties 

to BHQ,133 and that “just like with his claim for aiding-and-abetting,”134 Amerant 

allegedly had knowledge of this underlying tort. But, for the reasons discussed above, 

there are no plausible allegations that Amerant knew BHQ’s managers were 

breaching their fiduciary duties. Even assuming Amerant did know BHQ’s managers 

were breaching their fiduciary duties, however, there certainly are no plausible 

allegations that Amerant entered into any conspiratorial agreement with BHQ to 

help them do so. 

As pointed out by Amerant, the Trustee’s allegations fail the plausibility test

on their face.

135 Why would Amerant possibly enter into a “corrupt agreement” with 

Messrs. Arcila and Mahecha to sell the Property for $20 million less than its fair 

market value? The facts alleged support the “obvious alternative explanation”136 that 

Amerant wished to extricate itself from a bad loan, a bad borrower, and bad 

principals. There are simply no plausible allegations of any corrupt agreement 

between Amerant and Messrs. Arcila and Mahecha. Indeed, the only plausible 

allegations of any relevant agreements were of the loan agreements between BHQ 

 

132 Id. at 1160.

133 Resp. 18.

134 Id.

135 Reply 17.

136 Iqbal, 556 U.S. at 682; Twombly, 550 U.S. at 567.

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and Amerant in respect of the Bank Loans, pursuant to which it would have been

customary and commercially reasonable to require BHQ to pay Amerant those 

amounts the Trustee challenges here. Count IV therefore fails to state a claim upon 

which relief may be granted and will also be dismissed.137

V. Dismissal With Prejudice.

This Court’s briefing order with respect to the Motion to Dismiss138 clearly 

required the Trustee to file – together with his response to the Motion to Dismiss – a 

motion for leave to amend under Federal Rule of Civil Procedure 15(a)139 along with 

a proposed amended complaint and a redlined comparison indicating the changes, if 

the Trustee wanted to request leave to amend his Amended Complaint. The Briefing 

Order further stated that “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.”

140

Rather than comply with the Briefing Order and Rule 15(a), the Trustee

instead included in his Response a “Request to Replead,” in which he acknowledged 

the Briefing Order, but claims he chose to file his Response to address what he 

 

137 Because the Court has determined that each Count of the Amended Complaint fails to state a claim 

upon which relief may be granted, the Court need not address Amerant’s argument that the Trustee 

has not alleged a legally sufficient basis to recover attorneys’ fees and costs.

138 Order Continuing Pretrial Conference and Setting Briefing Schedule on Motion to Dismiss

(ECF No. 10) (the “Briefing Order”).

139 Made applicable here by Fed. R. Bankr. P. 7015.

140 Briefing Order 2-3 (emphasis in original).

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contends are Amerant’s “mischaracterizations” and “misguided arguments.” The 

Trustee then requests the opportunity to replead if the Court determines his 

Amended Complaint is lacking, and argues that he “can plead additional factual 

detail . . . but has endeavored to plead a ‘short and plain statement’ of the claim 

showing he is entitled to relief.”141

To the extent the Trustee is somehow arguing that Federal Rule of Civil 

Procedure 8(a)(2)142 sets a lower bar than what the Supreme Court has required in 

construing this very rule in Twombly143 and Iqbal,

144 that is of course incorrect. Under 

Twombly and Iqbal, to satisfy the requirement of Rule 8(a)(2) that a pleading must 

contain “a short and plain statement of the claim showing that the pleader is entitled 

to relief,”145 the claim must be plausible on its face.146 The Amended Complaint here 

fails to satisfy that requirement for the reasons discussed in detail above. If the 

Trustee had more factual support for his claims (his Amended Complaint contained 

155 paragraphs spanning 37 pages), he should have included them in the first 

instance.147

 

141 Resp. 19-20 (citing Fed. R. Civ. P. 8(a)(2)).

142 Made applicable here by Federal Rule of Bankruptcy Procedure 7008.

143 550 U.S. 544.

144 556 U.S. 662.

145 Fed. R. Civ P. 8(a)(2).

146 Iqbal, 556 U.S.at 678 (quoting Twombly, 550 U.S. at 570).

147 Indeed, the Trustee’s suggestion that he had more factual support, but was holding it back to 

include in a later amendment, evinces the type of gamesmanship and improper litigation tactics the 

Court sought to deter by specifically requiring the Trustee to file a motion for leave to amend (together 

with a proposed amended complaint and redline) along with his Response. Litigation is supposed to be 

“just, speedy and inexpensive.” Fed. R. Bankr. P. 1001. The lack of merit to the claims as pleaded –

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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 represented by 

counsel, never filed a motion to amend nor requested leave to amend before the 

district court.”148 Here, the Court specifically advised the Trustee in the Briefing 

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

amend with his Response. He did not do so, and the Court need not construe a request 

to amend in a brief as a timely motion for leave to amend under Rule 15(a).

149

The Trustee was given ample notice of Amerant’s grounds for dismissal and 

was provided with an opportunity to seek leave to amend to cure any deficiencies. 

Instead, the Trustee chose to stand on his legally deficient Amended Complaint. By 

doing so, the Trustee has maintained that his Amended Complaint was sufficient as 

pleaded. Now that the Court has determined the Amended Complaint failed to state 

a claim upon which relief may be granted as a matter of law – and the Trustee has

failed to timely and properly propose any further amended complaint – the Trustee 

 

along with his failure to comply with the Briefing Order – can only lead the Court to conclude that the 

Trustee’s strategy was designed to maximize Amerant’s defense costs.

148 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).

149 Perlman v. Bank of Am., N.A., 561 F. App’x 810, 814 (11th Cir. 2014) (affirming 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); see also Isaiah v. JPMorgan Chase Bank, 960 F.3d 1296, 

1308 n.9 (11th Cir. June 1, 2020) (rejecting appellant’s request to amend complaint to assert additional 

facts to avoid dismissal, raised for the first time in supplemental briefing on appeal, where plaintiff 

“maintained throughout that his complaint is sufficient as it presently stands.”).

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will not be given another opportunity to amend his Amended Complaint. The 

Amended Complaint will therefore be dismissed with prejudice.

VI. Conclusion.

The facts alleged here do “not permit the court to infer more than the mere 

possibility”150 of liability against Amerant. Rather, based on the facts alleged and 

accepted as true – along with the Court’s “judicial experience and common sense”151

– the only reasonable inference the Court can draw is that Amerant acted 

appropriately in extricating itself from a troubled credit, and that none of the actual 

transfers made to Amerant were made for any reason other than that BHQ was 

legally obligated to do so under the terms of the Bank Loans. These conclusions are 

“obvious alternative explanation[s]”

152 to the Trustee’s allegations. Accordingly, not 

only do the Trustee’s allegations fail to “nudge” his claims “across the line from 

conceivable to plausible,”153 they do not come anywhere close to this line, and must 

therefore be dismissed. And because the Trustee did not properly and timely request 

leave to further amend his Amended Complaint, dismissal will be with prejudice.

ORDER

For the foregoing reasons, it is therefore ORDERED that:

1. The Motion to Dismiss is GRANTED.

2. The Amended Complaint is DISMISSED WITH PREJUDICE.

 

150 Iqbal, 556 U.S. at 679.

151 Id.

152 Id. at 682; Twombly, 550 U.S. at 567.

153 Twombly, 550 U.S. at 570.

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

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