UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

FT. LAUDERSALE DIVISION

www.flsb.uscourts.gov

In re: Case No. 20-22409-PDR

DARD DEFRAND Chapter 13

Debtor 

_______________________________/ 

NATIONWIDE JUDGMENT 

RECOVERY, INC.

Plaintiff, 

 v. Adv. Proc. No.: 21-01047-PDR

DARD DEFRAND, 

 Defendant. 

_______________________________/

EXPEDITED DEFENDANT’S MOTION TO VACATE CLERK’S DEFAULT

Defendant Dard Defrand (“Defendant”), by and through undersigned counsel, pursuant to 

Bankruptcy Rule 7055(c), files this Motion to Vacate Clerk’s Default and states:

1. Defendant filed a Chapter 13 bankruptcy on November 12, 2020.

2. On February 11, 2021, Plaintiff filed the underlying Complaint to Determine 

Dischargeability of Debt against Defendant pursuant to 11 U.S.C. 523 (a)(2)(A).

3. The underlying claim was acquired by Plaintiff and is based on a default money 

judgment for $34,667.27 against the Defendant in a class action clawback/fraudulent transfer lawsuit 

relating to an alleged 2011/2012 Ponzi scheme. Defendant was one of over 700,000 investors in the 

alleged ZeekRewards Ponzi scheme. 

4. A response to the underlying complaint was due March 15, 2021.

5. On April 13, 2021, a clerk’s default was entered in this case (DE 9).

6. On May 13, 2021, a motion for default and default final judgment was filed by 

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Plaintiff (DE 17), which is set for hearing on June 17, 2021 at 10:30AM.1

7. In support of this motion, attached hereto and incorporated herein is the Defendant’s 

Sworn Declaration. 

8. The proper standard to be used herein is the “good cause” standard for setting aside 

a clerk's default pursuant to Rule 55(c)/Bankruptcy Rule 7055. ‘Good cause is a mutable standard, 

varying from situation to situation,’ nevertheless factors for Courts to consider include ‘whether the 

default was culpable or willful, whether setting it aside would prejudice the adversary, and whether 

the defaulting party presents a meritorious defense,’ in addition to ‘whether the defaulting party 

acted promptly to correct the default.’ Compania Interamericana Export- Import, S.A. v. Compania 

Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996). 

9. Defendant has acted promptly to correct the default. Defendant did not ignore these 

proceedings. Defendant did receive the complaint. However, his English is limited, and it is difficult 

for him to understand complex things. Defendant intended to respond to the complaint but was 

distracted and delayed by the pressures of his spouse who needs special care, the COVID-19 

pandemic that hampered his search for counsel, and his demanding work as a driver. It was not until 

around May 21, 2021 that he received the notice of hearing for June 17, 2021 on the motion for 

default that he remembered these proceedings. Defendant immediately sought counsel and retained 

Kiem Law PLLC on May 25, 2021. 

10. Defendant filed his current Chapter 13 bankruptcy because he did not have the money 

to repay the default money judgment and he wanted to save his home from foreclosure. Defendant

was not aware of the default money judgment until he was contacted by Plaintiff in the latter part of 

2020. If the default money judgment for $33,327.43 is allowed to be nondischargeable it will create 

a significant financial hardship for Defendant. Defendant is married with gross monthly household 

1 Plaintiff previously filed a Motion for Default (DE 11), which was set for hearing on May 13, 2021. It is unclear 

from the docket what the disposition is on the foregoing motion. 

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income of approximately $3500. Defendant requires food stamp assistance to meet his household 

needs. He does not have the means to pay such a judgment. 

11. Additionally, based on a review of the docket in this adversary it doesn’t appear that 

there will be significant prejudice to the Plaintiff or the case in general if the clerk’s default is vacated. 

No discovery appears to have been done and the only substantive motion is the motion for default 

judgment, which the Plaintiff may likely revise to a motion for summary judgment if the clerk’s 

default is vacated. 

12. Furthermore, Defendant invested cash of approximately $1,000.00 into ZeekRewards

and received cash of approximately $3,000.00 from ZeekRewards. The net amount Defendant 

received from ZeekRewards was approximately $2,000.00, and not $24,816.57 as alleged in the 

complaint. Defendant did not know that ZeekRewards was a fraudulent scheme. Defendant did not 

personally know the organizers of the scheme. Defendant did not create the scheme. Defendant’s 

connection to the scheme was limited to that of an investor. Defendant believed the funds he received 

from ZeekRewards were returns on his investment. 

13. Finally, Plaintiff relies mainly on Husky International Electronics, Inc. v.Ritz, 136 

S. Ct. 1581 (2016).

2

 Husky stands for the narrow proposition that a material misrepresentation by 

a debtor is not required to support a claim of actual fraud. Husky did not, however, eliminate the 

requirement that the debt itself be “obtained by” actual fraud committed by a debtor. Mr. Defrand 

committed no actual fraud. He did not create the scheme. He was a mere participant like over 

700,000 other people. He did not initiate any transfers with the intent to hinder delay or defraud. 

The Defendant is simply a good faith transferee who invested about $1,000 and received a net gain 

2

In Husky, Husky International Electronics, Inc. sold products to Chrysalis Manufacturing Corp., but Chrysalis

did not pay Husky for the products. Daniel Lee Ritz, Jr., a director and owner of at least 30% of Chrysalis's common 

stock, depleted Chrysalis of assets (that could have been used to pay the debt to Husky) by transferring large sums of 

money to other entities Mr. Ritz controlled. Husky then sued Mr. Ritz under a Texas law that allows creditors to hold 

shareholders liable for corporate debts. Mr. Ritz subsequently filed for bankruptcy, and Husky sought a determination 

that its claim against Mr. Ritz was not dischargeable under section 523(a)(2)(A).

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of approximated $2,000 in scheme that was not his making. He is just no Mr. Ritz in Husky. As 

such, it is unlikely that Plaintiff will be successful in its complaint against the Defendant if the case 

proceeds on the merits. 

Based on the foregoing, Defendant respectfully requests that the Court vacates the clerk’s default 

(DE 9) and reset the deadlines in the Order Setting Status Conference and Establishing Procedures and 

Deadlines (DE 3), which will allow the Defendant to litigate the issues in the adversary on the merits of the 

case. 

WHEREFORE, Defendant respectfully requests that the Court enters an Order vacating 

the clerk’s default (DE 9), resetting the deadlines in the Order Setting Status Conference and 

Establishing Procedures and Deadlines (DE 3), and for such other and further relief as the Court 

may deem just and prudent.

CERTIFICATE OF SERVICE

I certify that a true copy of this document was served on 5/27/2021 via CM-ECF e- mail, 

and U.S. Mail on the following:

21-01047-PDR Notice electronically mailed to:

Martin L Sandler, Esq on behalf of Plaintiff Nationwide Judgment Recovery, Inc.

martin@sandler-sandler.com

21-01047-PDR Notice mailed to:

Dard Defrand

523 NW 17th Street

Miami, FL 33311

KIEM LAW, PLLC

Attorney for Defendant

8461 Lake Worth Road, Suite 114 

Lake Worth, Florida 33467

Telephone: 561-600-0406, Facsimile: 561-763-7355 

Email: tarek@kiemlaw.com

Dated: 5/27/2021

By: /s/ Tarek K. Kiem

Tarek K. Kiem

Florida Bar No 0637041

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