UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

www.flsb.uscourts.gov

In re: Chapter 11

AVENTURA HOTEL PROPERTIES, LLC, Case No. 21-12374-BKC-RAM

TRIPTYCH MIAMI HOLDINGS, LLC, Case No. 21-12375-BKC-RAM

Debtors (Jointly Administered Under Case 

No. 21-12374-BKC-RAM)

_____________________________________/

DEBTORS’ OBJECTION TO MOTION FOR RELIEF FROM THE AUTOMATIC STAY 

FILED BY NON-CREDITOR MIGUEL SIERRALTA [ECF No. 42]

AVENTURA HOTEL PROPERTIES, LLC (“AHP”) and TRIPTYCH MIAMI 

HOLDINGS, LLC (“TMH,” and collectively, the “Debtors” or “Debtors-In-Possession”), 

pursuant to 11 U.S.C. §362(a) and (d), Fed. R. Bankr. P. 4001 and Local Rule 4001-1(C), file this 

Objection to the Motion for Relief from the Automatic Stay Filed by Non-Creditor Miguel 

Sierralta [ECF No. 42] (the “Motion”) filed through his counsel Raul Espinoza, Esq. on May 13, 

2021, and state:

INTRODUCTION

On March 12, 2021, the Debtors filed voluntary petitions in this Court for relief under 

Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”). Debtor AHP is a 

Florida limited liability company that owns real property in Miami, Florida. AHP owns .99 acres 

at 3601 N. Miami Avenue – the crossroads of Miami’s Midtown, Wynwood and Design District 

neighborhoods (the “Property”). AHP acquired the Property for purposes of developing the 

Triptych Project – a mixed-use hotel project located on (“Triptych Project”). Debtor TMH holds 

100 percent of the membership interests in Debtor AHP. In turn, Debtor TMH is owned by nonCase 21-12374-RAM Doc 49 Filed 05/27/21 Page 1 of 9
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debtor HES Triptych Holdings, LLC (“HES Triptych”).

The Movant1claims to be a creditor of Town Arts Properties, LLC and Alberto 

Abilahoud (collectively, “Town Arts”). Movant sued Town Arts in state court for breach of a 

promissory note and to foreclose on an alleged pledge of certain membership interests nondebtor HES Triptych. See Motion at ¶¶4-5. To be sure, the Debtors are not indebted to the 

Movant. The Debtors have not pledged their property to the Movant in any respect whatsoever. 

However, in the State Court Action, Movant states that “based on the rights conferred by the 

Security Agreement, [Movant] has a direct interest in Triptych, Aventura and the Lots.” 

See Motion at Exhibit A, ¶32. Notably, the Debtors are not party to the referenced Security 

Agreement, which is annexed as Exhibit B to the Complaint in the State Court Action (Exhibit A 

to the Motion). The “Lots” at issue in the State Court Action are the Property owned by Debtor 

AHP in fee simple.

The Movant purportedly requests stay relief in order to pursue relief against both the nondebtors Town Arts and the Debtors in the State Court Action. The Movant asserts that he intends 

to seek the following relief in the State Court Action:

 A temporary injunction which “simply seeks an order from the Court enjoining 

HES and the Debtors to keep Movant informed [sic] prior to, during and after any 

disposition or encumbrance of their membership interest and/or the Lots” Motion 

at ¶11. 

 An Order granting relief from the automatic stay to allow Movant to prosecute his 

claims against the Defaulting Defendants and obtain injunctive relief enjoining 

the Debtors to keep Movant informing of any transactions involving the sale, 

conveyance, encumbrance, disposition or transferring of the Lots.” Motion at ad 

damnum.

 

1Movant, Miguel Sierralta, an individual, is the Plaintiff in the matter Miguel Sierralta vs. Jesus Alberto 

Abilahoud, et al., Case No. 2020-10341-CA-01, which was filed on May 13, 2020 in the Circuit Court of 

the Eleventh Judicial Circuit in and for Miami-Dade County, Florida (the “State Court Action”).

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The Movant asks for extraordinary relief without providing a single legal basis to support 

his request. On one hand, the Movant wishes to ask the State Court for an injunction that would 

require the Debtors to keep him informed concerning the affairs of the Debtors. On the other 

hand, the Movant seeks to use the State Court Action as a vehicle to liquidate his alleged claim 

against the Property owned by Debtor AHP and subject to the automatic stay. 

The Movant fails to establish good cause (or any cause) for this relief. To the extent that 

Movant sincerely wishes to be informed concerning the disposition of the Debtors’ assets, he has 

already achieved that objective be appearing in this bankruptcy case through his counsel. In this 

respect, the Movant will receive monthly operating reports and notice of any proposed sale or 

use of the Debtors’ property. 

Finally, to the extent that Movant seeks a determination concerning his interests in the 

Debtors’ assets, the Bankruptcy Court is the proper forum to adjudicate any such claim and not 

the State Court Action. The Motion should be denied in its entirety. 

THE REQUEST FOR STAY RELIEF SHOULD BE DENIED

1. Movant’s Request for Stay Relief Must Be Denied as it Fails to Establish Any 

“Cause” Under 362(d)(1) Justifying Relief From the Automatic Stay.

A court may grant relief from the automatic stay imposed by 11 U.S.C. § 362(a) only “for 

cause,” 11 U.S.C. § 362(d)(1), and the burden of establishing a prima facie case of “cause” falls 

squarely on the movant. See, e.g., In re Rothstein Rosenfeldt Adler, P.A., Case No. 09-34791-

RBR, 2011 Bankr. LEXIS 591, at *6 (S.D. Fla. Bankr. Jan. 24, 2011). The Bankruptcy Code 

does not provide a definition of “cause” for which modification is appropriate. Therefore, the 

court must determine whether discretionary relief from the stay is appropriate on a case by case 

basis. In re Errico, 618 B.R. 41, 48 (Bankr. M.D. Fla. 2020). “The party asserting that cause 

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exists has the burden of establishing the legally sufficient basis for such relief.” In re Louis, 20-

62841- JWC, 2020 WL 2843013, at *2 (Bankr. N.D. Ga. May 29, 2020). 

When considering whether cause exists to lift the automatic stay to allow continuation of 

a pending in lawsuit, courts in this jurisdiction consider whether: (a) any “great prejudice” to 

either the bankrupt estate or the debtor will result from continuation of a civil suit; (b) the 

hardship to the moving party by maintenance of the stay considerably outweighs the hardship of 

the debtor, and (c) the creditor has a probability of prevailing on the merits of his case. In re 

Makerewicz, 121 B.R. 262, 265 (Bankr. S.D. Fla. 1990). Generally, the court should balance the 

potential hardship that will be incurred by the moving party if the stay is not lifted against the 

potential prejudice to the debtor and the debtor’s estate. In re Gulfstream Crane, LLC, Case No. 

09-37091-BKC-RBR, 2010 Bankr. LEXIS 5665, at *4 (S.D. Fla. Bankr. Mar. 4, 2010). In 

considering whether a movant has carried its burden, a court must consider the “the totality of 

the circumstances in each particular case.” In re Bryan Road, LLC, 382 B.R. 844, 854 (S.D. Fla. 

Bankr. 2008).

Here, the Movant claims that he wishes to be informed of the Debtors’ financial affairs

by obtaining an injunction in the State Court Action. He has accomplished that by appearing in 

this Chapter 11 case. However, it appears that the Movant wishes to obtain stay relief in order to 

achieve a determination in the State Court Action that his claims against non-debtors are 

somehow enforceable against the property of the Debtors’ bankruptcy estates. The Movant fails 

to offer any basis – legal or factual – that entitles him to that relief. 

If the State Court Action proceeds as framed – the Debtors will have a distinct interest in 

discovery and evidentiary matters (at a minimum) to the extent that Movant seeks to enforce a 

judgment he may obtain against Town Arts against property of the Debtors’ estates. This alone 

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is sufficient grounds to maintain the automatic stay in place over the State Court Action. See 

Eastern Air Lines, Inc. v. Rolleston (In re Ionosphere Clubs, Inc.), 111 B.R. 423, 434-35 

(S.D.N.Y. 1990) (maintaining automatic stay when continuing action against third party would 

inevitably involve debtor and burden it with discovery); In re Johns–Manville Corp., 26 B.R. 

420, 430 (Bankr. S.D.N.Y. 1983) (same), aff'd in part, 40 B.R. 219 (S.D.N.Y. 1984), rev'd in part 

on other grounds, 41 B.R. 926 (S.D.N.Y. 1984). 

The Movant has failed to event proffer that he will be prejudiced if he cannot seek a 

“reporting injunction” against the Debtors in the State Court Action, has failed to offer why the 

reporting by the Debtors in these Chapter 11 proceedings are insufficient, or how he has any 

probability of succeeding against the Debtors in the State Court Action. The Debtors, in turn,

will be greatly prejudiced if they are forced to duplicate reporting requirements in the State Court 

Action or otherwise be forced to defend against claim that – if meritorious – could have timely 

been asserted against the Debtors in this proceeding. 

2. The State Court Action Seeks to Assess Claims Against the Debtor in Violation of 

Section 362(a)(6) of the Bankruptcy Code.

Section 362(a)(6) of the Bankruptcy Code prohibits any act to assess a claim against a 

debtor that arose pre-petition. “Post-petition attempts to assess, impose and/or liquidate a debt 

against a Chapter 11 debtor outside of the bankruptcy court go to the essence of the Chapter 11 

claims process, and are the very reason why there is an automatic stay.” In re Nortel Networks 

Corp., 2010 WL 891263 at *6 (Bankr. D. Del. March 9, 2010); Maritime Elec. Co. v. United 

Jersey Bank, 959 F.2d 1194, 1207 (3d Cir. 1991) (holding that attempt to obtain a judgment 

against a debtor outside the bankruptcy court violates the stay); In re Fiddler’s Creek, LLC, 2010 

WL 6618876 (Bankr. M.D. Fla. Sept. 15, 2010); In re Muhlig, 494 B.R. 755, 764 (Bankr. S.D. 

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Fla. 2013) (Mark, J.) (“The leading bankruptcy treatise has explained that ‘[t]he stay of section 

362 is extremely broad in scope and . . . applies to almost any type of formal or informal action 

taken against the debtor or the property of the estate.’” (quoting 3 Alan N. Resnick & Henry J. 

Sommer, Collier on Bankruptcy ¶ 362.03 (16th rev. ed. 2013)).

Similarly, Courts have looked to the risks to a debtor of prejudice from collateral 

estoppel, res judicata, and record taint. See Union Trust Phila., LLC v. Singer Equip. Co. (In re 

Union Trust Phila., LLC), 460 B.R. 653, 657 (E.D. Pa. 2011) (providing that in subsequent suits, 

debtor could be bound by “critical factual and legal issues” determined in the proceedings 

against non-debtor); Ionosphere, 111 B.R. at 435 (“[D]ue to the risk of possible adverse findings 

under theories of collateral estoppel and respondeat superior, [the debtor] will be forced to 

protect its interests if the [plaintiffs are] allowed to proceed.”); W.R. Grace & Co. v. Chakarian, 

386 B.R. 17, 33-34 (Bankr. D. Del. 2008) (holding that if third-party action were to continue, 

debtors would not have opportunity to defend themselves, thereby creating immediate liquidated 

claim against debtors); In re Philadelphia Newspapers, LLC, 407 B.R. 606, 615 (E.D. Pa. 2009); 

Sudbury, Inc. v. H. Escort, 140 B.R. 461 (Bankr. N.D. Ohio 1992); In re Jefferson County, Ala., 

491 B.R. 277 (Bankr. N.D. Ala. 2013); Calpine Corp. v. Nevada Power Co. (In re Calpine 

Corp.), 354 B.R. 45, 48 (Bankr. S.D.N.Y. 2006). See also In re Am. Film Techs., 175 B.R. 847, 

853-55 (Bankr. D. Del. 1994) (rejecting argument that, even if collateral estoppel applied, suits 

against non-debtors should not be enjoined because the non-debtors were allegedly 

independently liable) (quoting In re Lomas Fin. Corp., 117 B.R. 64, 67 (S.D.N.Y. 1990)). 

Although Movant asserts that the State Court Action only seeks affirmative relief against 

non-debtors, the State Court Action requires that certain findings be made against the Debtors 

based upon facts and legal conclusions that are disputed by the Debtors – i.e., whether Movant 

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has a “direct interest” in the Property. This allegation clearly evidences that the State Court 

Action seeks to assert and assess a claim against the Debtors (however pleaded) and should 

remain stayed.

3. The Motion Does Not Comply with The Local Rules and Must Be Denied. 

The Motion was filed pursuant to the Court’s negative notice protocol set forth in Local 

Rule 4001-1, which requires a party seeking relief from the automatic stay to serve the seven 

largest unsecured claims according to the debtor’s list of 20 largest creditors when a committee 

has not been appointed. The Motion does not certify that service to this constituency was 

attempted. As such, it should be denied for failing to provide adequate notice to parties-ininterest. 

WHEREFORE, Chapter 11 Debtors-in-Possession AVENTURA HOTEL 

PROPERTIES, LLC and TRIPTYCH MIAMI HOLDINGS, LLC respectfully request that the 

Court enter an order (i) denying the Motion; and (ii) granting such other and further relief as is 

just and proper.

Dated: May 27, 2021

Respectfully Submitted,

GENOVESE JOBLOVE & BATTISTA, P.A.

Attorneys for Debtors-in-Possession

100 Southeast Second Street, Suite 4400

Miami, Florida 33131

Telephone: (305) 349-2300

By: /s/ Jesus M. Suarez 

Jesus M. Suarez, Esq.

Florida Bar No. 60086

JSUAREZ@GJB-LAW.COM

Case 21-12374-RAM Doc 49 Filed 05/27/21 Page 7 of 9
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CERTIFICATE OF SERVICE

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

27, 2021 upon all creditors and parties in interest registered to receive electronic notification on 

this case via the Court’s Case Management/Electronic Case Filing System and/or U.S. Mail as 

reflected on the Service List below.

By: /s/ Jesus M. Suarez 

Jesus M. Suarez, Esq.

SERVICE LIST

Served Via CM/ECF Notification

Eric N Assouline, Esq on behalf of Creditor Elisabeth Eljuri

ena@assoulineberlowe.com, ah@assoulineberlowe.com

Jose A Casal on behalf of Creditor Fifteen Midtown Properties, LLC

jose.casal@hklaw.com, josie.vila@hklaw.com

Ileana Cruz on behalf of Creditor Miami Dade County Tax Collector

cao.bkc@miamidade.gov

Raul E. Espinoza on behalf of Interested Party Miguel Sierralta

respinoza@repalaw.com, gfoschini@repalaw.com

Mariaelena Gayo-Guitian on behalf of Debtor Triptych Miami Holdings, LLC

mguitian@gjb-law.com, gjbecf@gjb-law.com;vlambdin@gjb-law.com;cesser@gjblaw.com;chopkins@gjb-law.com;gjbecf@ecf.courtdrive.com

Peter H Levitt, Esq on behalf of Creditor QR Triptych LLC

plevitt@shutts-law.com, sboisvert@shutts.com

Office of the US Trustee

USTPRegion21.MM.ECF@usdoj.gov

Aliette D Rodz on behalf of Creditor QR Triptych LLC

arodz@shutts.com

Steven D Schneiderman on behalf of U.S. Trustee Office of the US Trustee

Steven.D.Schneiderman@usdoj.gov

Case 21-12374-RAM Doc 49 Filed 05/27/21 Page 8 of 9
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Jeffrey I. Snyder, Esq. on behalf of Creditor LV Midtown LLC

jsnyder@bilzin.com, eservice@bilzin.com;lflores@bilzin.com;jeffrey-snyder9959@ecf.pacerpro.com

Jesus M Suarez on behalf of Debtor Aventura Hotel Properties, LLC

jsuarez@gjb-law.com, gjbecf@gjb-law.com;chopkins@gjb-law.com;jzamora@gjblaw.com;ecastellanos@gjb-law.com;gjbecf@ecf.courtdrive.com

Jesus M Suarez on behalf of Debtor Triptych Miami Holdings, LLC

jsuarez@gjb-law.com, gjbecf@gjb-law.com;chopkins@gjb-law.com;jzamora@gjblaw.com;ecastellanos@gjb-law.com;gjbecf@ecf.courtdrive.com

Jesus M Suarez on behalf of Interested Party Triptych Miami Holdings, LLC

jsuarez@gjb-law.com, gjbecf@gjb-law.com;chopkins@gjb-law.com;jzamora@gjblaw.com;ecastellanos@gjb-law.com;gjbecf@ecf.courtdrive.com

Case 21-12374-RAM Doc 49 Filed 05/27/21 Page 9 of 9