Enforce Automatic Stay

Case 09-34791-RBR Doc 14 Filed 11/17/09 Page 1 of 56
UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
www.flsb.uscourts.gov
IN RE: CASE NO.: 09-34791-RBR
ROTHSTEIN ROSENFELDT ADLER, P.A.,1 INVOLUNTARY CHAPTER 11
Alleged Debtor.
____________________________________/
EMERGENCY MOTION TO ENFORCE THE AUTOMATIC STAY

[Hearing Requested on November 20, 2009 at 9:30 a.m.]
Basis for Emergency Relief:

The Movants request that this Court stay any attempt to
conduct third party discovery against the Debtor or the Chief
Restructuring Officer. Currently, one party is attempting to
take the deposition of Stettin on November 19, 2009. It is
impossible for Stettin to continue his review of the Alleged
Debtor’s books and records and prepare this case for
stabilization if he is subject to onerous third party discovery.
The Movants request a hearing on November 20, 2009.2
The Hon. Herbert Stettin (“Stettin”), the State Court appointed3 receiver (“Receiver”) and
Rothstein Rosenfeldt Alder, P.A. (“Alleged Debtor” or “RRA”), by and through Stettin as the
Chief Restructuring Officer (“CRO”) of RRA (collectively the “Movants”), hereby move this
Court for an Order, pursuant to 11 U.S.C. §§ 105(a), 362(a), enforcing the automatic stay and
staying any and all future depositions until further order of this Court (the “Motion”). In support
of the Motion, Stettin states as follows:
BACKGROUND
1. This case was commenced as an involuntary chapter 11 proceeding on November
10, 2009, by four petitioning creditors [D.E. 1]. No Order for Relief has been entered.
1
The address and last four digits of the taxpayer identification number of the Debtor, Rothstein Rosenfeldt Adler,
P.A., is Las Olas City Centre, 401 E. Las Olas Blvd, Suite 1650, Fort Lauderdale, Florida 33301 (TIN 7961).
2
This Motion shall also serve as a motion for a protective order staying any deposition pursuant to Local Rule 7026-
1 and 9014-1.
3
On November 4, 2009, the Honorable Jeffrey E. Streitfeldt, Judge, Broward County Circuit Court, appointed
Stettin as the Receiver of RRA. Broward County Case No. 09-059301.
2443703-1
2. Prior to the commencement of this case, Stuart A. Rosenfeldt (“Rosenfeldt”), on
behalf of himself and RRA, filed a lawsuit against his partner Scott W. Rothstein (“Rothstein”)
alleging multiple wrongful acts on the part of Rothstein, RRA’s former Chief Executive Officer.
Exhibit A attached to D.E.2 (the “Receivership Action”).
3. On November 4, 2009 the state court presiding over the Receivership Action (a)
removed Rothstein as the Chief Executive Officer, and (b) appointed Stettin as the Receiver for
RRA. Exhibit B attached to D.E.2.
4. On November 11, 2009, Rosenfeldt, as the sole officer and director of RRA,
executed a resolution (the “Resolution”) appointing Stettin as the CRO of RRA and delegated to
Stettin all operational and managerial control over RRA. The Resolution, inter alia, authorizes
Stettin, exclusively, to contest or consent to the involuntary petition.
5. Lawyers from RRA represent the plaintiff in the case Jane Doe #2 v. Epstein, 08-
cv-80119 Marra/Johnson (S.D.Fla)(“District Court Action”).4 On November 12, 2009, the
Defendant filed his “Emergency Motion for Order For the Preservation of Evidence &
Incorporated Memorandum of Law.” (“Emergency Motion”) in the District Court Action [D.E.
405], attached hereto as Exhibit A.
6. The motion seeks an “Order to preserve all evidence relevant to the investment
scheme, as described [therein] and to further prohibit the persons and RRA from tampering,
destroying or altering any such evidence.” Emergency Motion at 6.
7. On November 13, 2009, the District Court entered an order granting the
Emergency Motion on a temporary basis. District Court Action [D.E. 408] attached hereto as
Exhibit B.
4
This case has twelve (12) related cases and some related state court litgation. The Movants request that this relief
apply to all related cases and parties, including, but not limited to, Broward County Case No. 09-059301.
2
2443703-1
8. Notwithstanding the shortness of time, Stettin on behalf of RRA filed a brief
response (“Response”). District Court Action [D.E. 409], attached hereto as Exhibit C. In his
Response Stettin agreed that he would comply with the duties imposed upon him by the
Receivership Action and by the Bankruptcy Code, including any obligation to preserve the books
and records of RRA. Stettin recognizes that he has fiduciary responsibilities and that “security of
the firm’s computer system and its documents is one his foremost present concerns and tasks.”
Response at 2. Furthermore, Stettin requested that any deposition of him be postponed for at
least 45 days so that he may continue to address the pressing needs of stabilizing the debtor.
9. The Defendant filed a reply (“Reply”). District Court Action [D.E. 411], attached
hereto as Exhibit D. The Reply seeks to have the originally scheduled depositions proceed on
November 19, 2009, on the basis that certain trial deadlines are going to expire.
RELIEF REQUESTED
10. “The automatic stay is the most important protection afforded a debtor; it is
intended to give a debtor the chance to catch his breath, collect all of the proceedings against him
in one place and proceed to reorganize his affairs.” In re Weinraub, 361 B.R. 586, 591 (Bankr.
S.D. Fla. 2007)(J. Ray); See ACandS, Inc. v. Travelers Cas. & Sur. Co., 435 F.3d 252, 258 (3d
Cir. 2006) (holding “that the automatic stay provision of the Bankruptcy Code promotes a public
policy sufficient to preclude enforcement of an award that violates its terms or interferes with its
purposes”); See also, Cavanaugh v. Conseco Fin. Servicing Corp. (In re Cavanaugh), 271 B.R.
414, 424 (Bankr. D. Mass 2001)(noting that “the automatic stay is the single most important
protection afforded to debtors by the Bankruptcy Code”).
11. Stettin, through his Response, has attempted to accommodate the concerns that
parties may have about the security of RRA documents. However, to permit a non—bankruptcy
court deposition to proceed on the day before this Court has hearings on substantive motions
3
2443703-1
including the motion to appoint a trustee, would undermine the very reason for the automatic
stay. Stettin’s efforts are best utilized in moving this bankruptcy case forward.
12. Moreover, 11 U.S.C. §362(a)(1) stays “the commencement or continuation,
including the issuance or employment of process, of a judicial, administrative, or other action or
proceeding against the debtor that was or could have been commenced before the
commencement of the case under this title, or to recover a claim against the debtor that arose
before the commencement of the case under this title[.]” The allegations in the Emergency
Motion rise to a level to suggests that the Defendant may be bringing claims against RRA for
any alleged malfeasance on the part of RRA that may have occurred prior to Stettin’s
appointment. See Emergency Motion at page 6 (the purposes of the Emergency Motion is to
prevent the Defendants to analyze and evaluate whether the Plaintiffs and their lawyers have
been operating in good faith). This type of discovery is clearly stayed by the operation of 11
U.S.C. §362(a).
13. Section §105(a) is a grant of equitable powers. In re Franzese, 2007 Bankr.
LEXIS 2490, at *5 (Bankr. S.D. Fla. 2007)(J. Ray). In Franzese, this Court re-imposed an
already expired stay pursuant to §105(a). In doing so, the Court noted that it “cannot resurrect an
expired stay. However, the Court will impose a stay identical to § 362(a) pursuant to § 105(a).”
14. This Court also noted, in In re Weinraub, “that re-imposition of the stay is
precisely the type of equitable activity that promotes the purpose of the automatic stay. As such,
the Court is acting within its § 105 mandate to issue any order, process or judgment that is
necessary or appropriate to carry out the provisions of this title.” In re Weinraub, 361 B.R.
586,591 (Bankr. S.D. Fla. 2007)(J. Ray); §105(a); see also In re: Momentum Mfg. Co., 25 F.3d at
1136 (explaining "that § 105(a) should be construed liberally to enjoin [actions] that might
impede the reorganization process.")(brackets in original; internal quotations and citations
4
2443703-1
omitted). Accordingly, it is well within this Court’s ability to stay any further discovery against
Stettin and RRA, as any continued discovery undermines the very provisions of this title.
15. Accordingly, the Movants seek an order that any attempt to set or carryout the
deposition of Stettin by the Defendants violates the automatic stay of 11 U.S.C. §362(a) or
alternatively undermines the purposes of the bankruptcy code and impedes the operation of the
bankruptcy process.
WHEREFORE, the Movants respectfully request the entry of an order: (1) staying,
pending further order of this Court, any deposition of, or further discovery from, Stettin or RRA,
because such deposition or discovery violates the automatic stay, or alternatively, because such
deposition or discovery is contrary to the purposes of the bankruptcy code; and (2) granting such
other relief as the Court deems just and proper.
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via
Regular U.S. Mail, postage prepaid, fax, email and/or overnight delivery upon all parties on the
attached Service List this 17th day of November, 2009.
Dated: November 17, 2009 Respectfully submitted,
BERGER SINGERMAN, P.A.

Attorneys for Alleged Debtor
200 S. Biscayne Blvd., Ste. 1000
Miami, FL 33131
Telephone: (305) 755-9500
Facsimile: (305) 714-4340
By: /s/ Jordi Guso

Paul Steven Singerman
singerman@bergersingerman.com
Florida Bar No. 378860
Jordi Guso
jguso@bergersingerman.com
Isaac Marcushamer
imarcushamer@bergersingerman.com
5
2443703-1
EXHIBIT “A”
EXHIBIT “B”
137889-1
Case 9:08-cv-80119-KAM
Case 09-34791-RBR
Document 408
Doc 14
Entered
Filedon
11/17/09
FLSD Docket
Page11/16/2009
41 of 56 Page 1 of 2
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-CIV-80119-MARRA/JOHNSON
JANE DOE NO. 2,
Plaintiff,
vs.
JEFFREY EPSTEIN,
Defendant.
____________________________________/
Related cases:
08-80232, 08-80380, 08-80381, 08-80994,
08-80993, 08-80811, 08-80893, 09-80469,
09-80591, 09-80656, 09-80802, 09-81092
____________________________________/
ORDER
THIS CAUSE is before the Court on Defendant Epstein’s Emergency Motion for
Order of the Preservation of Evidence (D.E. #405).
The Court has reviewed the above-referenced Motion, which has been styled an
“Emergency” by counsel for Epstein, and agrees that based upon the substance of the
pleading and the nature of the relief sought, the Motion has been properly filed on an
emergency basis. By the Motion, Epstein moves for an order requiring the preservation
of all evidence relevant to the investment scheme referenced in the Motion and further
prohibiting the individuals at the RRA Law Firm from tampering, destroying or altering any
such evidence. Of the three attorneys contacted with respect to their position on the
motion and as to whether they agree to the relief sought or intend to file a response in
opposition, only one attorney, Mr. Bradley Edwards, could definitively state that he had no
Case 9:08-cv-80119-KAM
Case 09-34791-RBR
Document 408
Doc 14
Entered
Filedon
11/17/09
FLSD Docket
Page11/16/2009
42 of 56 Page 2 of 2
opposition to the relief sought in the Motion. The other two attorneys involved, Mr. Paul
Singerman and Mr. Kendall Coffee, have requested until Monday, November 16, 2009, in
which to state either their non-objection to the relief sought, or to file a response in
opposition to the Motion. Mr. Kendall Coffee has stated that he will agree to whatever
position ultimately taken by Mr. Singerman on the issue.
Accordingly, and in an effort to maintain the status quo until such time as the Court
rules on the Motion, it is hereby,
ORDERED AND ADJUDGED that said Motion for the Preservation of Evidence
(D.E. # 405) is GRANTED ON A TEMPORARY BASIS until Tuesday, November 17, 2009,
at which point the Court shall issue a final order on the Motion.
DONE AND ORDERED this November 13, 2009, in Chambers, at West Palm
Beach, Florida.
LINNEA R. JOHNSON
UNITED STATES MAGISTRATE JUDGE
CC: The Honorable Kenneth A. Marra

All Counsel of Record
EXHIBIT “C”
137889-1
EXHIBIT “D”
664210-1
SERVICE LIST
CASE NO.: 09-34791-BKC-RBR

Marianella Morales, Esquire Alison W. Leht
Authorized Agent For Joining Creditors Assistant United States Attorney
Avenida Francisco de Miranda 99 N.E. 4th Street
Torre Provincial “A” 7th Floor
Piso 8 Miami, Florida 33132
Caracas, Venezuela Phone: (305) 961-9176
Fax: (305) 536-7599
John H. Genovese, Esquire Alison.Lehr@usdoj.gov
Robert F. Elgidely, Esquire
Theresa M.B. Van Vliet, Esquire Stuart A. Rosenfeldt, Esquire
Genovese Joblove & Battista, PA Rothstein Rosenfeldt Adler, PA
Bank Of America Tower at International Place 401 East Las Olas Boulevard
100 S.E. 2nd Street Suite 1650
Suite 4400 Fort Lauderdale, Florida 33301
Miami, Florida 33131
Phone: (305) 349-2300 Jeffrey R. Sonn, Esquire
Fax (305) 349-2310 Sonn & Erez, PLC
Broward Financial Center
Kendall Coffey, Esquire 500 E. Broward Boulevard
Coffey Burlington, Suite 1600
Office in the Grove Fort Lauderdale, Florida 33394
Penthouse Phone: (954) 763-4700
2699 South Bayshore Drive Fax (954) 763-1866
Miami, Florida 33133
Office of the US Trustee
The Honorable Herbert M. Stettin 51 Southwest First Avenue
One Biscayne Tower Suite 1204
Suite 3700 Miami, Florida 33130
Two South Biscayne Boulevard
Miami, Florida 33131 Thomas Tew, Esquire
Tew-Cardenas, LLP
John G. Bianco, Esquire Four Seasons Tower
John M. Mulli, Esquire 15th Floor
Tripp Scott 1441 Brickell Avenue
110 Southeast Sixth Street Miami, Florida 33131-3407
Fifteenth Floor
Fort Lauderdale, Fl. 33301
2441794-1
Conrad & Scherer, LLP Special Asst. U.S. Attorney

633 South Federal Highway IRS District Counsel
Fort Lauderdale, FL 33301 1000 S. Pine Island Rd., Ste 340
Tel: 954-462-5500 Plantation, FL 33324-3906
Michael D. Seese, Esq. The Honorable Eric H. Holder, Jr.

Hinshaw & Culbertson, LLP Attorney General of the U.S.
1 E Broward Blvd Ste 1010 950 Pennsylvania Avenue, NW Room 4400
Ft Lauderdale, Florida 33301 Washington, DC 20530-0001
Tel: 954.4677900
Fax: 954.4671024 Honorable Jeffrey H. Sloman,
Acting U.S. Attorney
Internal Revenue Service 99 NE 4th Street
Centralized Insolvency Operations Miami, Fl 33132
P.O. Box 21126
Philadelphia, PA 19114 Daniel Mink
Ovadia Levy
Internal Revenue Service c/o Renato Watches, Inc
Special Procedures - Insolvency 14051 NW 14th Street
7850 SW 6th Court Sunrise, Florida 33323
Plantation, FL 33324
Tel.: (954) 423-7300 William George Salim, Jr.
Fax.: (305) 982-5406 Moskowitz Mandell & Salim
800 Corporate Dr Ste 510
Special Asst. U.S. Attorney Fort Lauderdale, Florida 33334
P.O. Box 9, Stop 8000 Tel: 954.4912000
51 SW 1st Avenue, #1114 Fax: 954.4912051
Miami, Fl 33130
Fax: (305) 530-7139 USI
Attn: Anthony Gruppo
Grant J. Smith, Esq. 200 West Cypress Creek Road
Rothstein Rosenfeldt Adler, P.A. Suite 500
401 East Las Olas Blvd Fort Lauderdale, FL 33309
Suite 1650 Tel: 954-607-4000
Fort Lauderdale, FL 33301
Marc Nurik, Esq.
United Healthcare Rothstein Rosenfeldt Adler, P.A.
Dept. CH 10151 401 East Las Olas Blvd
Palatine, IL 60055 Suite 1650
Fort Lauderdale, FL 33301
Mark Bloom, Esq.
Greenberg Traurig, LLP Robert D. Critton, Esq.
1221 Brickell Avenue Burman, Critton, Luttier & Coleman
Miami, FL 33131 303 Banyan Blvd., Suite 400
T 305.579.0500 West Palm Beach, FL 33401
F 305.579.0717 rcrit@bclclaw.com
2441794-1 2

Enforce Automatic Stay

Încărcat de

Informații document

Descriere originală:

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Enforce Automatic Stay

Încărcat de

Drepturi de autor:

Formate disponibile

Case 09-34791-RBR Doc 14 Filed 11/17/09 Page 1 of 56

UNITED STATES BANKRUPTCY COURT

IN RE: CASE NO.: 09-34791-RBR

ROTHSTEIN ROSENFELDT ADLER, P.A.,1 INVOLUNTARY CHAPTER 11

EMERGENCY MOTION TO ENFORCE THE AUTOMATIC STAY

Basis for Emergency Relief:

of the Motion, Stettin states as follows:

1. This case was commenced as an involuntary chapter 11 proceeding on November

2. Prior to the commencement of this case, Stuart A. Rosenfeldt (“Rosenfeldt”), on

Exhibit A attached to D.E.2 (the “Receivership Action”).

RRA. Exhibit B attached to D.E.2.

Stettin, exclusively, to contest or consent to the involuntary petition.

cv-80119 Marra/Johnson (S.D.Fla)(“District Court Action”).4 On November 12, 2009, the

405], attached hereto as Exhibit A.

destroying or altering any such evidence.” Emergency Motion at 6.

8. Notwithstanding the shortness of time, Stettin on behalf of RRA filed a brief

protection afforded to debtors by the Bankruptcy Code”).

12. Moreover, 11 U.S.C. §362(a)(1) stays “the commencement or continuation,

including the issuance or employment of process, of a judicial, administrative, or other action or

13. Section §105(a) is a grant of equitable powers. In re Franzese, 2007 Bankr.

impede the reorganization process.")(brackets in original; internal quotations and citations

other relief as the Court deems just and proper.

Dated: November 17, 2009 Respectfully submitted,

BERGER SINGERMAN, P.A.

By: /s/ Jordi Guso

UNITED STATES DISTRICT COURT

CASE NO. 08-CIV-80119-MARRA/JOHNSON

JANE DOE NO. 2,

Order of the Preservation of Evidence (D.E. #405).

position ultimately taken by Mr. Singerman on the issue.

rules on the Motion, it is hereby,

CC: The Honorable Kenneth A. Marra

CASE NO.: 09-34791-BKC-RBR

Conrad & Scherer, LLP Special Asst. U.S. Attorney

Michael D. Seese, Esq. The Honorable Eric H. Holder, Jr.

S-ar putea să vă placă și