United States District Court, M.D. Florida, Tampa Division
ALLA PASTERNACK, Executrix of the Estate of Leon Frenkel, Plaintiff,
BRUCE K. KLEIN, individually, and in all other employee, owner, member, corporate and agent capacities as regards his various business entities, and OZEAN PARTNERS, LLC, Defendants.
HERNANDEZ COVINGION UNITED STATES DISTRICT JUDGE
matter comes before the Court pursuant to Defendants Bruce
Klein and Ozean Partners, LLC's Motion for Summary
Judgment (Doc. # 67), filed on December 27, 2017, and
Plaintiff Alla Pasternack's Motion for Summary Judgment
(Doc. # 68), filed on December 28, 2017. Each side filed
responses in opposition. (Doc. ## 76, 80). Pasternack filed a
reply to Klein and Ozean Partners' response on February
20, 2018. (Doc. # 82). For the reasons that follow, the Court
denies both Klein and Ozean Partners' Motion and
Frenkel and Klein had a business relationship. On May 7,
2010, Klein, Klein's company Victory Partners, LLC, and
Frenkel executed a promissory note “in favor of 
Frenkel, for the principal amount of $153, 000.00, plus
standard interest at the rate of 8%, payable on demand”
and “a pledge agreement . . . guarantying the [Victory
Partners] Note.” (Doc. # 68 at ¶ 2; Doc. # 68-1 at
16, 25, 36). Then, on June 17, 2011, “a promissory note
[was] executed by  Frenkel and  Klein . . . in favor of
 Frenkel, for the principal amount of $25, 000.00, plus
standard interest at the rate of 12%” as well as
“a pledge agreement . . . guarantying the Klein
Note.” (Doc. # 68 at ¶ 2; Doc. # 68-1 at 29, 33,
of Klein and Victory Partners' later defaults on these
notes and pledge agreements, Frenkel filed an action for
breach of contract and to pierce the corporate veil on April
18, 2014, in the United States District Court for the Eastern
District of Pennsylvania. (Doc. # 69-1). After Frenkel served
them, Klein and Victory Partners failed to appear. The
Pennsylvania court subsequently entered default judgment for
Frenkel and against Klein and Victory Partners on August 11,
2014. (Doc. # 69-6 at 2).
March 9, 2015, Klein and his then-wife Elise Gieger Klein
entered a Matrimonial Settlement Agreement, through which
Gieger agreed to transfer title of a Florida condo in
Longboat Key to Klein so that Klein could retain exclusive
use and possession of it. (Doc. # 69-3). The Matrimonial
Settlement Agreement states that Klein had been residing in
the Longboat Key property since November of 2013.
(Id. at 2). Then, on September 19, 2015, Gieger
transferred the Longboat Key property to Ozean Partners for
$10.00. (Doc. # 69-5). Ozean Partners had been created a
little over a month before the transfer - on August 10, 2015
- with Klein as its managing member. (Doc. # 69-4).
on October 30, 2015, Klein and Victory Partners moved to set
aside the default judgment in the Pennsylvania action, which
that court allowed on March 21, 2016. (Doc. # 69-6). Before
deciding the motion to set aside default, the Pennsylvania
court held an evidentiary hearing on January 22, 2016, at
which Klein testified. In his testimony, he stated that he
had been living with a friend in Sarasota from April to
September of 2014. (Doc. # 77-4 at 37:20-23). He acknowledged
that prior to May of 2014, he had not been residing at the
Longboat Key property for months and would only stay at the
property for a few nights at most because “it was like
a jail” for Klein. (Id. at 60:9-61:17). From
January to May of 2014, Klein would stay at the property
“six, seven days a month, at the most.”
(Id. at 62:17-21). Nevertheless, Klein acknowledged
the Longboat Key property's address was listed on his
driver's license. (Id. at 55:15-57:11). Klein
further testified that, although his answer in his divorce
proceedings stated he resided at the Longboat Key property,
his residence was actually in New Jersey. (Id. at
when the property was transferred by his ex-wife to Ozean
Partners, Klein explained that he had no ownership interest
in the property or Ozean Partners - he was only the manager
of Ozean Partners for its formation. (Id. at
93:20-94:14, 95:22-23). Because he “wasn't
interested in living at that location, staying there or
whatever you want to call it, ” his son Peter Klein,
who is the owner of Ozean Partners, resided at the property.
(Id. at 95:14-21). Relatedly, in his deposition
taken on January 8, 2016, Klein stated that the Longboat Key
property was “not [his] residence, ” that he does
not live at that address and never did. (Doc. # 77-2 at
13:8-22). He testified that in 2015 he did not consider the
Longboat Key property his residence. (Id. at
the Pennsylvania action was still ongoing, Frenkel initiated
this action on February 29, 2016, asserting claims for actual
fraudulent transfer of the Longboat Key property and for
constructive fraudulent transfer of the property against
Klein and Ozean Partners. (Doc. # 1). The case was stayed
pending the outcome of the Pennsylvania action on November
15, 2016. (Doc. # 38). Then, on March 14, 2016, Frenkel filed
an Amended Complaint with the same claims. (Doc. # 8). The
Second Amended Complaint was filed on May 10, 2016, again
asserting the same claims. (Doc. # 30). After Frenkel's
death, his daughter and executrix of his estate, Pasternack,
substituted herself as plaintiff on May 2, 2017. (Doc. # 43).
Pennsylvania action, the parties settled as to multiple
claims, but Klein failed to tender the settlement payment
until the Pennsylvania court imposed sanctions. (Doc. ##
69-10 at 8-9, 69-12, 69-14). A bench trial for the remaining
claims was held on January 9, 2017, and on July 24, 2017, the
Pennsylvania court entered judgment against Klein and Victory
Partners for $318, 744 in principal and pre-judgment
interest, with $62.88 in pre-judgment interest per day. (Doc.
# 69-14 at 1, 24). After final judgment was entered in the
Pennsylvania action, the Court lifted the stay in this action
on August 22, 2017. (Doc. # 48).
Ozean Partners took out a $150, 000 mortgage on the Longboat
Key property in favor of Samuel Mesrie on July 15, 2017.
(Doc. # 69-13). A Florida UCC security interest listing Ozean
Partners as the debtor was filed on the Longboat Key property
on July 18, 2017, to expire on July 18, 2022, with Samuel
Mesrie as the secured party. (Doc. # 77-12). An Assignment of
Leases and Rents was recorded for the Longboat Key property
on July 20, 2017, on behalf of Samuel Mesrie. (Doc. # 77-11).
“[o]n August 4, 2017, Ozean Partners through their
manager John Tidrow, executed a quit claim deed in favor of
Bruce Klein for transfer of ownership and title to Bruce
Klein, ” which “was filed and recorded with the
Clerk for Sarasota County, Florida on such date.” (Doc.
# 67 at ¶ 3; Doc. # 67-1; Doc. # 69-15). Klein paid
$10.00 in consideration for the Longboat Key property. (Doc.
# 69-15 at 1). Also on August 4, 2017, Klein executed and
filed a Homestead Declaration and application with the
Sarasota County Clerk. (Doc. # 67-2). In the Homestead
Declaration, Klein declared under penalty of perjury that his
“date of permanent residency” was February 20,
2007. (Id. at 4-5).
parties mediated on November 17, 2017, but reached an
impasse. (Doc. # 66). Because Pasternack had not been
physically present at the first mediation, the parties
mediated a second time at the Court's direction but again
met an impasse. (Doc. ## 72, 84). The parties filed
cross-Motions for Summary Judgment, which have been briefed.
(Doc. ## 67-68, 76, 80, 82).
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986).
issue is genuine if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,
742 (11th Cir. 1996)(citing Hairston v. Gainesville Sun
Publ'g Co., 9 F.3d 913, 918 (11th Cir. 1993)). A
fact is material if it may affect the outcome of the suit
under the governing law. Allen v. Tyson Foods, Inc.,
121 F.3d 642, 646 (11th Cir. 1997). The moving party bears
the initial burden of showing the court, by reference to
materials on file, that there are no genuine issues of
material fact that should be decided at trial. Hickson
Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260
(11th Cir. 2004)(citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). “When a moving party has
discharged its burden, the non-moving party must then
‘go beyond the pleadings, ' and by its own
affidavits, or by ‘depositions, answers to
interrogatories, and admissions on file, ' designate
specific facts showing that there is a genuine issue for
trial.” Jeffery v. Sarasota White Sox, Inc.,
64 F.3d 590, 593-94 (11th Cir. 1995)(citing Celotex,
477 U.S. at 324).
there is a conflict between the parties' allegations or
evidence, the non-moving party's evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party's favor. Shotz v. City of
Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003).
If a reasonable fact finder evaluating the evidence could
draw more than one inference from the facts, and if that
inference introduces a genuine issue of material fact, the
court should not grant summary judgment. Samples ex rel.
Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th
Cir. 1988)(citing Augusta Iron & Steel Works, Inc. v.
Emp'rs Ins. of Wausau, 835 F.2d 855, 856 (11th Cir.
1988)). However, if the non-movant's response consists ...