Alesco Response
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Case 3:07-cv-00032-HWM-HTS
Document 24
Filed 06/26/2007
Page 1 of 5
IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION ALESCO FINANCIAL, INC. f/k/a SUNSET FINANCIAL RESOURCES, INC., a Maryland corporation, Movant, v.
CASE NO. 3:07-cv-00032-12HTS
ANTHONY R. PORTER, an individual, DOROTHY M. PORTER, an individual, FRANK AMELUNG, an individual, EUGENIA AMELUNG, an individual, and RICHARD AMELUNG, an individual, Respondents. / ALESCO FINANCIAL INC., a Maryland corporation, Plaintiff, v. FRANK A. AMELUNG and EUGENIA M. AMELUNG, Trustees under the Amelung Family Revocable Trust dated December 14, 2005, Defendant. / JUDGMENT CREDITOR ALESCO FINANCIAL INC.’S RESPONSE TO MOTION OF RESPONDENTS FRANK AMELUNG, EUGENIA AMELUNG AND RICHARD AMELUNG FOR ENLARGEMENT OF TIME TO RESPOND TO INTERROGATORIES COMES NOW Plaintiff ALESCO FINANCIAL INC. (hereinafter “Alesco”), by and through its undersigned counsel, and hereby responds to the Motion of Respondents Frank Amelung, Eugenia Amelung and Richard Amelung for Enlargement of Time to Respond to Interrogatories as follows. 1.
Alesco Financial Inc. is the judgment creditor named under and is the
current holder of a judgment entered in this cause on March 29, 2007, against the
Case 3:07-cv-00032-HWM-HTS
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Filed 06/26/2007
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judgment debtors Frank A. Amelung, Eugenia M. Amelung, Richard Amelung, Dorothy Porter and Anthony Porter in the principal amount of $13,060,614.63 (hereinafter the “Judgment”). Alesco Financial Inc. is the holder of the March 29, 2007, judgment. 2.
The Judgment referred to in Paragraph 1 above remains unsatisfied and is
not currently the subject of an appeal or of a motion for reconsideration which would stay the Judgment. 3.
As correctly noted by the Judgment Debtors, the Interrogatories in Aid of
Execution were served on the Judgment Debtors, through counsel, on May 25, 2007. 4.
Alesco Financial Inc. objects to the Motion for Enlargement and respect-
fully requests the entry of an Order denying the Motion and directing the service of the Judgment Debtors’ responses to those Interrogatories. MEMORANDUM OF LAW Alesco Financial Inc. respectfully requests that the Judgment Debtors motion for enlargement be denied. Alesco Financial Inc. reasonably believes that Alesco Financial Inc. will be prejudiced in its efforts and/or ability to collect on the subject judgment if delay is encountered in the discovery process employed by Alesco Financial Inc. to identify assets subject to levy and execution on the Judgment and, therefore, respectfully requests that the Court, in the exercise of its discretion, deny the Judgment Debtors’ Motion. See Demint v. NationsBank Corp., 208 F.R.D. 639 (M.D. Fla. 2002); see also Fisher v. Office of the State Attorney 13th Judicial Circuit Florida, 162 Fed. Appx. 937 (11th Cir. 2006). Alesco Financial Inc. has learned, through independent investigation, that the Judgment Debtors have made transfers of personal assets which, upon information and
2
Case 3:07-cv-00032-HWM-HTS
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belief, were made for the purpose of hindering, delaying or defrauding Alesco Financial Inc. in the collection of the Judgment1. Attached to this response as Exhibits A is a copy of a Warranty Deed which was recorded a mere twelve days after the Judgment was entered in which the judgment creditors Eugenia M. Amelung and Frank A. Amelung transferred their interest in a parcel of real property formerly owned by Eugenia M. Amelung in Marathon, Florida to the Amelung Revocable Family Trust dated as of December 14, 2005. To that extent, the Judgment Debtors’ suggestion in the Motion that the requested extension will not adversely affect any party is disingenuous. Alesco Financial Inc. fears that if additional time is granted to the Judgment Debtors to respond to the interrogatories that the Judgment Debtors will continue to make transfers of personal assets for purposes of hindering Alesco Financial Inc.’s ability to collect on the judgment. It is particularly telling that the Judgment Debtors have confirmed that draft responses have been prepared with the information on hand yet have not served those responses on Alesco Financial Inc.’s counsel and apparently are seeking to withhold those responses for the additional thirty days requested in the Motion. Moreover, the Judgment Debtors have failed to allege that no other reasonable means of obtaining the information needed to prepare their respective responses to the interrogatories exist, such as through resort to records maintained by the Judgment Debtors’ personal accountants or attorneys, to warrant the requested enlargement of time to respond.
1
While Alesco Financial Inc. believes that the Judgment Debtors are taking these actions for the actual purpose of hindering, delaying or defrauding Alesco Financial Inc.’s ability to collect on the subject judgment, Alesco Financial Inc. has no reason to believe that counsel for the Judgment Debtors is participating in those transfers or that he is even aware of the Judgment Debtors having undertaken such transfers. 3
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Alesco Financial Inc. notes that Fed. R. Civ. P. 26(e) itself provides a mechanism which contemplates service of discovery responses with the best information on hand at the time and with the responding party to have the option of later supplementing those responses as additional information becomes available. For each of the foregoing reasons, Alesco Financial Inc. requests that the Judgment Debtors’ Motion for Enlargement be denied. WHEREFORE, Alesco Financial Inc. respectfully requests the entry of an Order denying the Judgment Debtors’ Motion for Enlargement of Time to Respond to Interrogatories and directing the service of a response within three days of the date of the entry of such Order. RESPECTFULLY SUBMITTED this 26th day of June, 2007. MOSELEY, PRICHARD, PARRISH, KNIGHT & JONES
/s Eric L. Hearn Eric L. Hearn Florida Bar No. 0094269 501 W. Bay Street Jacksonville, Florida 32202 (904) 356-1306; (904) 354-0194 (facsimile)
4
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CERTIFICATE OF SERVICE I certify that on June 26, 2007, I electronically filed the foregoing response to Respondents’ motion for enlargement of time with the Clerk of the Court by using the CM/ECF filing system, which will send a notice of electronic filing to the following counsel of record: John Barber MacDonald Akerman Senterfitt 50 N. Laura St., Suite 2500 Jacksonville, FL 32202
/s Eric L. Hearn Eric L. Hearn, Attorney
5
Document 24
Filed 06/26/2007
Page 1 of 5
IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION ALESCO FINANCIAL, INC. f/k/a SUNSET FINANCIAL RESOURCES, INC., a Maryland corporation, Movant, v.
CASE NO. 3:07-cv-00032-12HTS
ANTHONY R. PORTER, an individual, DOROTHY M. PORTER, an individual, FRANK AMELUNG, an individual, EUGENIA AMELUNG, an individual, and RICHARD AMELUNG, an individual, Respondents. / ALESCO FINANCIAL INC., a Maryland corporation, Plaintiff, v. FRANK A. AMELUNG and EUGENIA M. AMELUNG, Trustees under the Amelung Family Revocable Trust dated December 14, 2005, Defendant. / JUDGMENT CREDITOR ALESCO FINANCIAL INC.’S RESPONSE TO MOTION OF RESPONDENTS FRANK AMELUNG, EUGENIA AMELUNG AND RICHARD AMELUNG FOR ENLARGEMENT OF TIME TO RESPOND TO INTERROGATORIES COMES NOW Plaintiff ALESCO FINANCIAL INC. (hereinafter “Alesco”), by and through its undersigned counsel, and hereby responds to the Motion of Respondents Frank Amelung, Eugenia Amelung and Richard Amelung for Enlargement of Time to Respond to Interrogatories as follows. 1.
Alesco Financial Inc. is the judgment creditor named under and is the
current holder of a judgment entered in this cause on March 29, 2007, against the
Case 3:07-cv-00032-HWM-HTS
Document 24
Filed 06/26/2007
Page 2 of 5
judgment debtors Frank A. Amelung, Eugenia M. Amelung, Richard Amelung, Dorothy Porter and Anthony Porter in the principal amount of $13,060,614.63 (hereinafter the “Judgment”). Alesco Financial Inc. is the holder of the March 29, 2007, judgment. 2.
The Judgment referred to in Paragraph 1 above remains unsatisfied and is
not currently the subject of an appeal or of a motion for reconsideration which would stay the Judgment. 3.
As correctly noted by the Judgment Debtors, the Interrogatories in Aid of
Execution were served on the Judgment Debtors, through counsel, on May 25, 2007. 4.
Alesco Financial Inc. objects to the Motion for Enlargement and respect-
fully requests the entry of an Order denying the Motion and directing the service of the Judgment Debtors’ responses to those Interrogatories. MEMORANDUM OF LAW Alesco Financial Inc. respectfully requests that the Judgment Debtors motion for enlargement be denied. Alesco Financial Inc. reasonably believes that Alesco Financial Inc. will be prejudiced in its efforts and/or ability to collect on the subject judgment if delay is encountered in the discovery process employed by Alesco Financial Inc. to identify assets subject to levy and execution on the Judgment and, therefore, respectfully requests that the Court, in the exercise of its discretion, deny the Judgment Debtors’ Motion. See Demint v. NationsBank Corp., 208 F.R.D. 639 (M.D. Fla. 2002); see also Fisher v. Office of the State Attorney 13th Judicial Circuit Florida, 162 Fed. Appx. 937 (11th Cir. 2006). Alesco Financial Inc. has learned, through independent investigation, that the Judgment Debtors have made transfers of personal assets which, upon information and
2
Case 3:07-cv-00032-HWM-HTS
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Filed 06/26/2007
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belief, were made for the purpose of hindering, delaying or defrauding Alesco Financial Inc. in the collection of the Judgment1. Attached to this response as Exhibits A is a copy of a Warranty Deed which was recorded a mere twelve days after the Judgment was entered in which the judgment creditors Eugenia M. Amelung and Frank A. Amelung transferred their interest in a parcel of real property formerly owned by Eugenia M. Amelung in Marathon, Florida to the Amelung Revocable Family Trust dated as of December 14, 2005. To that extent, the Judgment Debtors’ suggestion in the Motion that the requested extension will not adversely affect any party is disingenuous. Alesco Financial Inc. fears that if additional time is granted to the Judgment Debtors to respond to the interrogatories that the Judgment Debtors will continue to make transfers of personal assets for purposes of hindering Alesco Financial Inc.’s ability to collect on the judgment. It is particularly telling that the Judgment Debtors have confirmed that draft responses have been prepared with the information on hand yet have not served those responses on Alesco Financial Inc.’s counsel and apparently are seeking to withhold those responses for the additional thirty days requested in the Motion. Moreover, the Judgment Debtors have failed to allege that no other reasonable means of obtaining the information needed to prepare their respective responses to the interrogatories exist, such as through resort to records maintained by the Judgment Debtors’ personal accountants or attorneys, to warrant the requested enlargement of time to respond.
1
While Alesco Financial Inc. believes that the Judgment Debtors are taking these actions for the actual purpose of hindering, delaying or defrauding Alesco Financial Inc.’s ability to collect on the subject judgment, Alesco Financial Inc. has no reason to believe that counsel for the Judgment Debtors is participating in those transfers or that he is even aware of the Judgment Debtors having undertaken such transfers. 3
Case 3:07-cv-00032-HWM-HTS
Document 24
Filed 06/26/2007
Page 4 of 5
Alesco Financial Inc. notes that Fed. R. Civ. P. 26(e) itself provides a mechanism which contemplates service of discovery responses with the best information on hand at the time and with the responding party to have the option of later supplementing those responses as additional information becomes available. For each of the foregoing reasons, Alesco Financial Inc. requests that the Judgment Debtors’ Motion for Enlargement be denied. WHEREFORE, Alesco Financial Inc. respectfully requests the entry of an Order denying the Judgment Debtors’ Motion for Enlargement of Time to Respond to Interrogatories and directing the service of a response within three days of the date of the entry of such Order. RESPECTFULLY SUBMITTED this 26th day of June, 2007. MOSELEY, PRICHARD, PARRISH, KNIGHT & JONES
/s Eric L. Hearn Eric L. Hearn Florida Bar No. 0094269 501 W. Bay Street Jacksonville, Florida 32202 (904) 356-1306; (904) 354-0194 (facsimile)
4
Case 3:07-cv-00032-HWM-HTS
Document 24
Filed 06/26/2007
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CERTIFICATE OF SERVICE I certify that on June 26, 2007, I electronically filed the foregoing response to Respondents’ motion for enlargement of time with the Clerk of the Court by using the CM/ECF filing system, which will send a notice of electronic filing to the following counsel of record: John Barber MacDonald Akerman Senterfitt 50 N. Laura St., Suite 2500 Jacksonville, FL 32202
/s Eric L. Hearn Eric L. Hearn, Attorney
5
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