motion for entry of final default judgment - Creative Capital ...

Case 9:09-cv-80480-DTKH Document 65 Entered on FLSD Docket 06/23/2010 Page 1 of 5UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA(WEST PALM BEACH DIVISION)CASE NO. 09-80480-CIV-HURLEY/HOPKINS(Ancillary Proceeding to U.S.D.C. Case No. 08-81565-CIV-HURLEY/HOPKINS)JONATHAN E. PERLMAN, Esq., as courtappointed Receiver of Creative CapitalConsortium, LLC, et al.,v.Plaintiff,DOROTHY DELISFORT-THEODULE, anindividual, WEALTH BUILDERS CIRCLE,LLC, a Georgia limited liability company,CARIBBEAN AIRWAYS, LLC, a Floridalimited liability company, DONNA HAVER,INC., a Florida limited liability company,GOOD BUY HOMES, INC., a Floridacorporation, INTERNATIONALDEVELOPMENT ENTREPENEURS OFAMERICA, INC., a Florida corporation, andCOMPLETE AUTO REPAYMENTSOLUTIONS, INC., a Georgia corporation,Defendants.__________________________________/MOTION FOR ENTRY OF FINAL DEFAULT JUDGMENTAND MEMORANDUM OF LAWJonathan E. Perlman, Esq., the court appointed Receiver (the “Receiver”) of CreativeCapital Consortium, LLC, A Creative Capital Concept$, LLC, United Investment Club, LLC,Reverse Auto Loan, LLC, Wealth Builders Circle, LLC, The Dream Makers Capital Investment,LLC, G$ Trade Financial, Inc. and Unity Entertainment Group, Inc., (collectively, the“Receivership Entities”), pursuant to Rule 55(b) of the Federal Rules of Civil Procedure, moves

Case 9:09-cv-80480-DTKH Document 65 Entered on FLSD Docket 06/23/2010 Page 2 of 5for entry of final default judgment against the Defendant Carribbean Airways, LLC 1(“Defendant”). In support of this Motion, the Receiver states:INTRODUCTION1. On March 23, 2010, the Clerk of Courts for the United States District Court forthe Southern District of Florida entered a default against the Defendant for failure to appear orotherwise defend. [DE 39]. As more fully set forth below, the Receiver is entitled to a judgmentagainst the Defendant as a matter of law.DISCUSSION2. This is an action brought by the court appointed Receiver to collect amounts duethe Receivership Estate from the Defendant (the “Complaint”). [DE 6]. This action is ancillaryto the main proceeding Securities and Exchange Commission v. Creative Capital Consortium,LLC, et al., Case No. 08-81565-CIV-Hurley/Hopkins, pending in the United States DistrictCourt, Southern District of Florida.3. In the Complaint, the Receiver seeks to avoid and recover alleged transfers madeby the Receivership Entities and/or their alter ego, George Theodule, (collectively “theReceivership Transferors”) to the Defendant pursuant to the Florida Uniform FraudulentTransfer Act (“FUFTA”). The alleged transfers (the “Transfers”) were made to the Defendant inconnection with its status as a Florida limited liability company with a principal place ofbusiness in Lantana, Florida formed by insiders or principals of the Receivership Entities.4. The Receiver seeks avoidance and recovery of the alleged Transfers underFUFTA based upon alternating theories of actual fraud and constructive fraud. With respect toactual fraud, the alleged Transfers were made by the Receivership Entities with the actual intent1The Receiver makes note that the correct spelling of the Defendant’s name is “CarribbeanAirways, LLC” not “Caribbean Airways, LLC” as originally set forth in the Complaint.2

Case 9:09-cv-80480-DTKH Document 65 Entered on FLSD Docket 06/23/2010 Page 3 of 5to hinder, delay, or defraud creditors. With respect to constructive fraud, the alleged Transferswere made by the Receivership Transferors for less than reasonably equivalent value at a timewhen the Receivership Transferors were insolvent.5. In the alternative, the alleged Transfers are recoverable against the Defendantbased upon the equitable theories of unjust enrichment and constructive trust. Namely, that theReceivership Transferors conferred an unearned benefit upon the Defendant which should nowbe disgorged.6. The Receivership Transferors caused the alleged Transfers to be made to theDefendant in the amounts and on the dates identified in the Receiver’s Affidavit, attached heretoas Exhibit “A.”7. On March 23, 2010, the Clerk of Courts for the United States District Court forthe Southern District of Florida entered a default against the Defendant for failure to appear orotherwise defend. By its default, the Defendant admits the well-plead allegations of fact andliability in the Complaint. See Miller v. Paradise of Port Richey, Inc., 75 F. Supp. 2d 1342, 1346(M.D. Fla. 1999), citing Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1988).DAMAGES8. In the instant case, the Receiver’s claim for damages is the amount of thefraudulent transfers or $110,300.00. In support of the damages alleged in the Complaint, theReceiver has submitted evidence in the form of an affidavit and, therefore, a hearing is notnecessary to support the Receiver’s request for damages. See Exhibit “A.” See also Fed. R. Civ.P. 55(b)(2), and Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105,111 (2d Cir. 1997) (“it [is] not necessary for the district court to hold a hearing, as long as itensured that there was a basis for the damages specified in the default judgment”).3

Case 9:09-cv-80480-DTKH Document 65 Entered on FLSD Docket 06/23/2010 Page 4 of 59. Accordingly, based on the foregoing, the Receiver requests that the Court enterfinal judgment in favor of the Receiver and against the Defendant Carribbean Airways, LLC inthe amount of $110,300.00. A proposed Final Judgment is attached hereto as Exhibit “B.”WHEREFORE, based upon the foregoing, the Receiver, Jonathan E. Perlman,respectfully requests that this Court enter a final default judgment against the DefendantCarribbean Airways, LLC.Dated: June 23, 2010Miami, FloridaRespectfully submitted,By: s/ David P. Lemoie_______David C. Cimo (Florida Bar No.: 775400)dcimo@gjb-law.comDavid P. Lemoie (Florida Bar No.: 188311)dlemoie@gjb-law.comGENOVESE JOBLOVE & BATTISTA, P.A.4400 Bank of America Tower100 Southeast Second StreetMiami, Florida 33131Tel: (305) 349-2300Fax: (305) 349-2310Attorneys for ReceiverJonathan E. Perlman, Esq.CERTIFICATE OF SERVICEI hereby certify that on June 23, 2010, the foregoing document was electronically filedwith the Clerk of the Court using CM/ECF. I also certify that the foregoing document is beingserved this day on all counsel of record identified on the attached Service List in the mannerspecified, either via transmission of Notices of Electronic Filing generated by CM/ECF or insome other authorized manner for those counsel or parties who are not authorized to receiveelectronically Notices of Electronic Filing.s/ David P. LemoieDavid P. Lemoie4

Case 9:09-cv-80480-DTKH Document 65 Entered on FLSD Docket 06/23/2010 Page 5 of 5SERVICE LISTJONATHAN E. PERLMAN, ESQ., as court appointed Receiver of Creative CapitalConsortium, LLC, et al. v. DOROTHY DELISFORT-THEODULE, et al.CASE NO. 09-80480-CIV-HURLEY/HOPKINSUnited States District Court, Southern District of FloridaDavid C. Cimo, Esq.dcimo@gjb-law.comDavid P. Lemoie, Esq.dlemoie@gjb-law.comGENOVESE JOBLOVE & BATTISTA, P.A.Miami Tower, 44th Floor100 Southeast Second StreetMiami, FL 33131Telephone: (305) 349-2300Facsimile: (305) 349-2310Attorneys for the Receiver Jonathan E. Perlman, Esq.Via CM/ECFDorothy Delisfort-Theodule (Pro Se Defendant)2108 New London PlaceSnellville, GeorgiaVia U.S. MailCaribbean Airways, LLCc/o Registered Agent Frantz Vilce10474 Boynton Place Cir., #633Boynton Beach, FL 33437Via US Mail & Certified Return Receipt Requested10061-008/1585

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Case 9:09-cv-80480-DTKH Document 65-3 Entered on FLSD Docket 06/23/2010 Page 1 of 1UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA(WEST PALM BEACH DIVISION)CASE NO. 09-80480-CIV-HURLEY/HOPKINS(Ancillary Proceeding to U.S.D.C. Case No. 08-81565-CIV-HURLEY/HOPKINS)JONATHAN E. PERLMAN, Esq., as courtappointed Receiver of Creative CapitalConsortium, LLC, et al.,v.Plaintiff,DOROTHY DELISFORT-THEODULE, etal.,Defendants.__________________________________/ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENTTHIS CAUSE is before the Court on the Receiver’s Motion for Entry of DefaultJudgment against Carribbean Airways, LLC. [DE ___]. Having considered the Motion and thefile in this action, and good cause appearing, it is ORDERED AND ADJUDGED that:1. The Receiver’s Motion for Entry of Default Judgment [DE ___ ] is GRANTED.2. Pursuant to Fed. R.Civ.P.58, the court will enter default judgment in favor of theReceiver by separate order.DONE and ORDERED in chambers at West Palm Beach, Florida, this ____ day of__________________, 2010._______________________________________DANIEL T.K. HURLEYUnited States District Court Judge

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