UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

_____________________________

 )

In re: ) CASE NO. 18-11977-RAM

 ) CHAPTER 13

JUAN A. GONZALEZ and )

CAROLINA GONZALEZ, )

 )

Debtors. )

 )

 )

DR. MARIA GABRIELA NOGUERA, )

et al., )

 )

Plaintiffs, )

 )

vs. ) ADV. NO. 21-01140-RAM

 )

JUAN A. GONZALEZ and )

CAROLINA GONZALEZ, )

 )

Defendants. )

 )

ORDER (1) GRANTING CAROLINA

GONZALEZ’S MOTION TO DISMISS; AND

(2) DENYING JUAN GONZALEZ’S MOTION TO DISMISS

Robert A. Mark, Judge

_____________________________________________________________________________ United States Bankruptcy Court

ORDERED in the Southern District of Florida on July 7, 2021.

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The Court conducted a hearing on July 6, 2021, on Defendant, 

Carolina Gonzalez’s Motion to Dismiss [DE# 10] and on Juan A. 

Gonzalez’s Motion to Dismiss [DE# 11] (collectively, the “Motions 

to Dismiss”). After review of the record, including the Motions to

Dismiss, Plaintiffs’ Response to Defendants’ Motions to Dismiss [DE# 

15], and Defendants’ Reply to Plaintiffs’ Response [DE# 17], after 

considering the arguments of counsel, and upon review of applicable 

law, the Court announced its conclusions of law on the record.

The Court concludes that the Complaint does not state a claim 

against Carolina Gonzalez. The two paragraphs in the Complaint 

referring to Mrs. Gonzalez do not allege facts establishing a 

plausible against her for aiding and abetting the fraud allegedly 

perpetrated by Mr. Gonzalez.

 The Complaint does state a claim in all five counts against 

Juan Gonzalez and none of the arguments raised in Juan Gonzalez’s 

Motion to Dismiss support dismissal. First, the Plaintiffs are 

“creditors” entitled to seek a determination that their claims 

should be excepted from discharge. Second, the alleged fraud and 

other bad acts were committed at least, in part, in Florida and this 

Court clearly has jurisdiction. Finally, the Court finds that the 

Complaint should not be dismissed as barred by the applicable statute 

of limitations.

Whether the fraud claims are barred by the applicable statute 

of limitations is a factual issue. Florida Stat. § 95.11(3) provides 

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a four-year limitation for fraud actions. However, pursuant to Fla. 

Stat. § 95.031(2), the four-year period runs “from the time the 

facts giving rise to the cause of action were discovered or could 

have been discovered with the exercise of due diligence.” The 

Complaint alleges that the facts giving rise to the claims filed in 

this proceeding were only recently discovered.

Fla. Stat. § 95.031(2) also provides that, regardless of the 

date the fraud was discovered, “an action for fraud under § 95.11(3) 

must be begun within 12 years after the date of the commission of 

the alleged fraud.” This 12-year statutory bar may preclude the 

Plaintiffs from recovering damages for some of the fraudulent acts 

alleged in the Complaint, but the Complaint contains numerous 

allegations of fraud that are clearly within the applicable 12-year 

period.1

For these reasons, and the additional reasons stated at the 

conclusion of the hearing, which are incorporated here by reference, 

it is -

ORDERED as follows:

1. Carolina Gonzalez’s Motion to Dismiss is granted and the 

Complaint against her is dismissed with prejudice.

2. Juan Gonzalez’s Motion to Dismiss is denied.

1 Although not briefed by the parties, the Court’s preliminary view is that the 

12-year look-back would run from the February 22, 2018 filing date of the 

Defendants’ bankruptcy petition by virtue of 11 U.S.C. § 108(c). 

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3. By July 27, 2021, Juan Gonzalez shall file his Answer and 

Affirmative Defenses, which may include an affirmative defense that 

the claims are barred by the applicable statute of limitations.

###

COPIES FURNISHED TO:

Robert J. Bigge, Jr., Esq.

Jeffrey S. Berlowitz, Esq.

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