{M1877419.1} 1 

UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA 

WEST PALM BEACH DIVISION 

www.flsb.uscourts.gov

In re: 

CHANCE & ANTHEM, LLC Case No. 18-16248-BKC-MAM 

 

Debtor. Chapter 7 

________________________________/ 

ROBERT C. FURR not individually but 

as Chapter 7 Trustee of the estate of the Adv. Proc. No. 22-01031-MAM 

Substantively Consolidated Debtors, 

Chance & Anthem, LLC, Sovereign 

Gaming & Entertainment, LLC, 

Florida’s Association of Community 

Banks and Credit Unions, Inc., and 

Sympatico Equine Rescue, Inc. 

Plaintiff 

v. 

OPTIMUMBANK, a Florida 

corporation, 

Defendant. 

________________________________/ 

MOTION TO DISMISS COMPLAINT 

Defendant, OPTIMUMBANK, by undersigned counsel and pursuant to Federal Rule of 

Civil Procedure 12(b)(6) (made applicable to this adversary proceeding by Fed. R. Bankr. Proc. 

7012(b)), files this motion to dismiss the complaint filed by plaintiff, Robert C. Furr not 

individually but as Chapter 7 Trustee of the estate of the Substantively Consolidated Debtors, 

Chance & Anthem, LLC, Sovereign Gaming & Entertainment, LLC, Florida’s Association of 

Community Banks and Credit Unions, Inc. and Sympatico Equine Rescue, Inc. (“Trustee”), and 

would show the Court as follows: 

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INTRODUCTION 

In this adversary proceeding, the Trustee seeks to avoid an alleged fraudulent transfer that 

occurred over eight years ago. The complaint should be dismissed as Plaintiff’s allegations 

establish that the Trustee’s fraudulent transfer claims are time-barred pursuant to 11 U.S.C. § 

546(a) as this action was commenced over four years after entry of the order for relief in the abovecaptioned bankruptcy proceeding. Moreover, the Trustee’s unjust enrichment claim must be 

dismissed as the Trustee’s allegations demonstrate that it was filed well beyond the four-year 

statute of limitations for asserting such a claim. 

MOTION TO DISMISS STANDARD 

1. Fed. R. Civ. P. 12(b)(6), as made applicable to bankruptcy proceedings by Fed. R. 

Bank. P. 7012(b), provides a mechanism by which a party may seek to dismiss a complaint for 

“failure to state a claim upon with relief may be granted.” 

2. Taking into account the heightened pleading standard set forth by the United States 

Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 

S.Ct. 1937 (2009), the United States Bankruptcy Court for the Southern District of Florida has 

stated: 

In order to survive a motion to dismiss, a plaintiff must allege more than “labels and 

conclusions,” or simply recite the elements of a cause of action. Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The complaint must 

contain sufficient factual matter to state a claim that is plausible on its face. Aschcroft v. 

Iqbal, ____ U.S. ___ 129 S.Ct. 1937, 1949 173 L.Ed.2d 868 (2009). A claim is considered 

factually plausible when “the plaintiff pleads factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 

Failure to state a claim for relief is a purely legal question. Sinaltrainal v. Coca-Cola Co., 

578 F.3d 1252, 1270, n. 19 (11th Cir. 2009). The courts have authority to “fully resolve 

any purely legal question” on a motion to dismiss and consequently, there is no “inherent 

barrier to reaching the merits [of a claim\ at the 12(b)(6) stage. Marshall County Health 

Car Auth v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993). 

In re all American Semiconductor, Inc., 427 B.R. at 564. 

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THE TRUSTEE’S ALLEGATIONS AND MATTERS FROM THE DOCKET 

3. “On April 30, 2014, Defendant sold its shares in OB SPV to William Siskind in 

exchange for payment of $1,000,000.00) Dollars.” Complaint, ¶ 18 & Exh. A. The purchase price 

was paid for by a transfer of $1 Million to Defendant made by Consolidated Debtor, FLACC (the 

“Transfer”) which, in turn, used cash that it obtained from Consolidated Debtor, Sovereign.” Id. 

4. “On January 29, 2018 (the “Petition Date”), the Debtor, Chance and Anthem, LLC 

(“Debtor”) filed a voluntary petition for relief ...” Complaint, ¶ 18. The filing of the voluntary 

petition constituted an order for relief pursuant to 11 U.S.C. § 301(b). 

5. On January 29, 2018, George W. Liebmann was appointed as interim trustee. D.E. 

4. 

6. On May 25, 2018, Robert C. Furr was appointed as chapter 7 trustee. D.E. 76. 

7. “On January 4, 2021, the Trustee filed an Agreed Motion to Substantively 

Consolidate [sic] FLACC, Sympatico and Sovereign into the Debtor’s bankruptcy Estate.” 

Complaint, ¶ 11. 

8. “On January 29, 2021, the Court granted the Subcon Motion.” Complaint, ¶ 12 

9. The Order granting the Subcon Motion provides that: “Sovereign Gaming & 

Entertainment, LLC, Florida’s Association of Community Banks and Credit Unions, Inc. and [sic] 

Sympatico Equine Rescue, Inc. are substantively consolidated with the Debtor’s bankruptcy estate 

effective as of the Debtor’s Petition Date of January 29, 2018.” Order [D.E. 300], ¶ 2. 

10. On January 31, 2022, the Trustee commenced this adversary proceeding. 

THE TRUSTEE’S CLAIMS ARE TIME BARRED 

A. The Fraudulent Transfer Claims are Time-Barred. 

11. The Trustee’s fraudulent transfer claims are brought pursuant to 11 U.S.C. § 544. 

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12. 11 U.S.C. § 546 provides, in relevant part, that: 

(a) An action or proceeding under section 544, 545, 547, 548, or 553 of this title 

may not be commenced after the earlier of – 

(1) the later of – 

(A) 2 years after the entry of the order for relief; or 

(B) 1 year after the appointment or election of the first trustee under 

section 702, 1104, 1163, 1202, or 1302 of this title if such 

appointment or such election occurs before the expiration of the 

period specified in subparagraph (A); 

13. An order for relief was entered on January 29, 2018, and a trustee was appointed 

on the same date. This adversary proceeding was commenced over four years later – on January 

31, 2022. Accordingly, the Trustee’s fraudulent transfer claims are time-barred pursuant to 11 

U.S.C. 546(a) and should be dismissed. 

B. The Unjust Enrichment Claim is Time-Barred. 

14. The statute of limitations on a claim for unjust enrichment is four years. Xavier v. 

Leviev Gymelgreen Marquis Developers, LLC, 117 So.3d 773, 775 (Fla. 3rd DCA 2012); Swafford 

v. Schweitzer, 906 So.2d 1194, 1195 (Fla. 4th DCA 2005); Flatiorns Bank v. Alan W. Steinberg 

L.P., 233 So.3d 1207, 1213 (Fla. 3rd DCA 2017). 

15. “The status of limitations for an unjust enrichment claim begins to run at the time 

the alleged benefit is conferred and received by the defendant.” Flatiorns, 233 So.3d at 1213 

(citing Beltran v. Miraglia, 125 So.3d 855, 859 (Fla. 4th DCA 2013); Barbara G. Banks, P.A. v. 

Thomas D. Lardin, P.A., 938 So.2d 571, 577 (Fla. 4th DCA 2006)). 

16. In the present matter, the alleged transfer occurred on April 30, 2014. Even if the 

Trustee is afforded the benefit of tolling pursuant to 11 U.S.C. § 108, the statute of limitations for 

asserting the unjust enrichment claim ran no later than January 28, 2020. As such, the claim is 

time-barred and should be dismissed. . 

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WHEREFORE, defendant, OPTIMUMBANK, respectfully requests that the Court dismiss 

the adversary complaint with prejudice and grant such other and further relief as it deems just and 

proper. 

Dated March 2, 2022 Respectfully submitted, 

JONES WALKER LLP 

 Attorneys for OPTIMUMBANK 

201 Biscayne Blvd., Suite 2600 

Miami, Florida 33131 

Email: sdrobny@joneswalker.com

Telephone: (305) 679-5700 

Facsimile: (305) 679-5710 

By: /s/ Stephen P. Drobny 

Stephen P. Drobny 

Florida Bar No. 55732 

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CERTIFICATE OF SERVICE 

I CERTIFY that on March 2, 2022, a true and correct copy of the foregoing notice was 

served on all parties listed below via ECF for those parties receiving electronic notice and by first 

class U.S. mail upon the Debtor. 

Barry P. Gruher 

200 E. Broward Blvd. #1110 

Ft. Lauderdale, FL 33301 

bgruher@gib-law.com

Chance & Anthem, LLC

3445 Santa Barbara Drive 

Wellington, FL 33414

Jeffrey M Siskind 

Attorney for Debtor 

3465 Santa Barbara Drive 

Wellington, FL 33414

/s/ Stephen P. Drobny 

Stephen P. Drobny

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