Premier Atlantic and 11-2001's Memo in Support of Objection of Attorney's Fees (2!5!10)

IN THE CIRCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT IN AND

FOR DUVAL COUNTY
CASE NUMBER: 2008-CA-13005
DIVISION: CV-E
BANK OF AMERICA, N.A.,
Plaintiff,
vs.
GWINNETT, LLC, et aL
Defendants.
MEM ORANDUM IN SUPPORT OF PENDING OBJECTIONS TO RECEIVER'S
APPLICATION TO PAY FEES AND COSTS AND MOTION FOR ORDER DIRECTING
THE DISGORGEMENT OF FEES AND COSTS PAID FROM ESTATE
Premier Automotive on Atlantic LLC ("Premier Atlantic) and 11-2001, LLC ("11-2001")
file this Memorandum supplemental to the original Objection to Attorneys' Fees and
incorporated Motion for Order Directing the Disgorgement of Fees and Costs Paid from Estate
and state:
1. The Receiver has moved for the authority to pay certain pending Professional
Invoices for fees and costs from his Estates. The application to pay such fees and costs is legally
insufficient and the mechanism for default authorization to pay fees created by the Receiver is
Improper.
2. The Receiver's statement that he does not require the approval of the Court to pay
fees and cost is grossly incorrect I The actual law governing the allowance of charging fees and
costs against a receiver's estate is diametrically opposite to that proposed by the Receiver.
I See Receiver's "Fourth Report" as to 11 ..2001 filed July 8, 2009, in the official record.
3. The Receiver's approved payment default mechanism is an ad. hoc device
designed to circumvent scrutiny, avoid disclosure, and allow the looting of the Estate by
presumptive authorization. Itemized proof of benefit to the Estate is mandatory.
4. Notice is hereby given that Premier Atlantic and 11-2001 hereby state their
standing and continuous objection to every statement for fees and costs approval made by the
Receiver and to the default mechanism for approvaL
Memorandum of Points and Authorities
On December 16, 2009, Premier Atlantic filed a Notice of Objection to the Receiver's
request in his Sixth Report for payment of legal fees and costs. This device is anathema to the
actual legal requirements for approval of fees and costs against the Estate. The Receiver simply
places his total fees and costs at the end of his report and if no objection is made then approval is
automatic. After its objection, Premier Atlantic received copies of redacted legal fees invoices.
The "redacted" invoices demonstrate multiple grounds for disallowing fees and costs. It is certain
that the unsanitized invoices would yield many more grounds for disallowance. Copies of the
redacted legal fees invoices provided for the undersigned's review are attached hereto and made
a part hereof by reference as Composite Exhibit 1.
The Receiver's Invoices provided to date show that virtually none of the contacts and
communications set forth in the legal invoices ever occurred. These invoices are literally being
paid by the Court from property in custodia legis. This creates a strong presumption that many
entries in the legal invoices are fictional.
The Receiver's Invoices contain large charges for highly improper conduct that the
Receiver attempted to disguise. A pertinent case in point is the Receiver's charge against the
Estate for twelve hundred dollars ($1200.00) on July 30, 2009. The entire entry is described
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simply as "Meeting." The actual reason that the July 30
th
entry for the $1200.00 charge to the
Estate says absolutely nothing is because the "Meeting" represents a secret meeting between the
Receiver and the Bank in Orlando, Florida.
There is no doubt the Receiver intended to hide this meeting. The $1200.00 July 30
th
entry is the only one in the entire Invoice that lacks additional description. On the same page as
the $1200.00 Meeting the Receiver's Invoice shows a charge for a "Meeting" on "8/212009 [by]
MH" described as "Met with SK regarding open issue and tool inventory of entire lot." Below
the August 2
nd
charge is another "Meeting" described as "8/3/2009 [by] MH." This "Meeting"
contains the additional description "Picked up Titles at Kia lot. Review Nachman Hayes Titles."
The Receiver's Counsel steadfastly refuses to produce other invoices related to the
Receiver's charges. Premier Atlantic asserts a standing and continuous objection to any fee or
expense approved to date, the payment of any fee or expense set forth in a report or motion, the
payment of any fee or cost not described in a complete invoice disclosed to all parties, the
payment of any fee or expense not specifically proven to benefit the Estate, and any fee or
expense during the period of Akerman's continuing conflict of interest.
Burden of Proof Upon Receiver
It is not incumbent upon Premier Atlantic to prove the invalidity or impropriety of the
fees and costs at issue. The burden of proving entitlement to fees and costs is upon the Receiver.
As a matter of law, such funds cannot be released in payment of fees and costs expended in
pursuing unauthorized, unnecessary, inappropriate, duplicative, wasteful, or deleterious activities
that do not benefit the Estate.
The Supreme Court long ago established the mechanics of the procedure for payment
authorization and the level of proof required.
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Allowance of fees and expenses to a receiver is a judicial question to be judicially
determined in judicial proceedings. As in other judicial proceedings the burden is
on the moving party, the receiver in this case, to show by appropriate proof,
through testimony, depositions. affidavits or otherwise, the services and benefits
which he has rendered the receivership estate and the amount of compensation to
which he is reasonably entitled as well as the propriety and correctness of the
expenditures for which he claims reimbursement or approvaL
* * *
The chancellor should see to it that there is offered and that the record contains
sufficient proof to show the nature and extent of the services rendered by the
receiver, the responsibility assumed by him, the character and extent of the
property committed to his care, the beneficial results of his management the
complexity of his task. the opinions of persons of experience as to the value of the
services rendered by the receiver, and proof of any other material factors. And of
course, interested parties should be afforded the opportunity to rebut the proof
offered by the receiver.
(Emphasis supplied.) Lewis v. Gramil Corp, 94 So.2d 174, 175 -178 (Fla.1957); see also
Feemster v. Schurkman, 291 So.2d 622, 629-630 (Fla. 3d. DCA 1974) (burden is upon the
receiver to show by appropriate proof the benefit which he has rendered the receivership estate).
Approval of Fees and Costs Not Permitted By Ministerial Proceedings
The proof required for the approval of a receiver's fees is for the Court's benefit as much
as any stakeholder. The estate is in custodia legis and benefit to the Estate can never be
presumed.
The very nature of these allowances, constituting, as they do, enforceable costs
in a court of justice, command and should receive the closest scrutiny of the
courts and should never be awarded in a perfunctory proceeding.
(Emphasis supplied.) Lewis, 94 So.2d at 176.
Even a sworn motion for approval of fees paid from a receivership estate is procedurally
and substantively defective as a matter oflaw. A default mechanism for approval has never even
been reported in the case law. The only thing revealed in the Receiver's Report is that he and his
lawyers are seeking to deplete the Estate of a substantial sum of money.
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The receiver alleged in his petition, which was sworn to, that he had expended a
total of 343 hours in performing various duties in managing the hotel, promoting
its business, and protecting the property. He alleged he believed the hotel to be
worth $350,000. The report of receipts and disbursements attached to the
receiver's petition shows that he received from rents a total of $10,256.46, of
which sum $1,148.76 was for advance rents which would be earned after the
receiver had surrendered possession.
Id. at 175.
The Receiver must show by "testimony, depositions, affidavits or otherwise, the services
and benefits which he has rendered the receivership estate" Id.
The Receiver is Duty-Bound to Prove Benefit to the Estate
It is the Receiver's duty to prove the necessity, value, and purpose of all fees and
expenses charged to the estate. Proof is mandatory to protect the Court from accusations of
unjust compensation.
We feel too that a receiver and attorneys who seek and receive compensation for
services rendered as officers of the court in receivership proceedings, as well as
others, should be gravely concerned with seeing that the record in such cause
reflects adequate proof that they have earned the sums awarded, so as to protect
themselves and the court which they serve from accusations that they have
benefitted unjustly from such proceedings.
(Emphasis supplied.) Id. at 176.
Proof and explanation are essential.
When the record fails to establish to our satisfaction a reasonable basis for the
exercise of an enlightened and sound judicial discretion we must return the
cause to the chancellor with directions to take and receive such testimony and
evidence as is necessary to enable the chancellor to properly exercise his
discretion, and which will afford a basis on which the appellate court may
intelligently review it, if review be sought. There is in the record before us only
the petition and answer, the essentials of which we have recited above. These
pleadings do not constitute sufficient proof, in our opinion, to enable the
chancellor to properly exercise his judicial discretion nor do they afford an
adequate basis on which we can intelligently review his order.
Id.
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Governing Principles in Evaluating Fees and Expenses
Principle I. A receiver is not a party to the case in which he is appointed. On the
contrary, a receiver is an agent of the court and is subject strictly to the appointing court's
supervision and control. See Fugazy Travel Bureau, Inc. v. State by Dickinson, 188 So.2d 842,
844 (Fla. 4th DCA 1966). As an officer of the court, a receiver must act with neutrality as to the
parties to the underlying litigation and mirror the underlying impartiality that is incumbent upon
any judicial officer. Id.
Principle II. Since a receiver is not a party, he is not entitled to act as a party, exercise
the rights of a party, or meddle in the affairs of the parties to the underlying litigation.
In the case of L'Engle v. Florida Central Railroad Co., 14 Fla. 266, it was held
that a receiver was not a party in interest to be heard upon a motion to vacate an
order previously made appointing him receiver. The Court observed: 'He (the
receiver) has no right to intermeddle in questions affecting the rights of the
parties or the disposition of the property in his hands.' ... In the order now
being considered, part of the compensation allowed was for participation in
litigation concerning the receiver's appointment. In that litigation the receiver had
no standing. The controversy was entirely between the parties advocating his
appointment and those resisting his appointment. The receiver, as an officer of the
court, had no interest in defending the propriety ofhis appointment and the corpus
of the estate cannot properly be charged with his fees and expense for such
activity.
(Emphasis supplied.) In re Fredcris, Inc., 108 So.2d 901, 904 (Fla. 3d DCA 1959); also cited as
binding authority in Lee Management, Inc. v. Financial Federal Sav. and Loan Ass'n oj Dade
County, 556 So.2d 536 (Fla. 4th DCA 1990) (receiver has no authority to impair or enhance any
person's existing property rights).
Principle III. The common law of the English Chancery Courts and every state in the
Union expressly hold that a custodial receiver is not a party to the underlying litigation and as
such cannot meddle with the rights of the parties or the matters at issue in the underlying action.
6
Indeed, the receiver is prohibited from seeking to participate in matters relating to his own
appointment and authority. In re Fredcris, 108 So.2d 90 lat 904.
Accordingly, receivers must be expressly authorized in the order of appointment to
exercise the procedural rights of a party under the applicable rules of court such as the issuance
of subpoenas and the conduct of discovery. The exercise of authority contrary to the common
law cannot be implied.
The Florida Rules of Civil Procedure are patterned after the Federal Rules of Civil
Procedure. Both sets of rules restrict the right to conduct discovery as belonging to a party. This
absolutely includes the right to issue a subpoena duces tecum for the production of documents
and other things. See u.s. Commodity Futures Trading Com'n v. M25 Investments, Inc., 2009
WL 3740627, 4 (N.D.Tex.,2009) (appointment order expressly provided that "25. Kelly M.
Crawford is appointed temporary Receiver with the powers enumerated below: ... b. Issue
subpoenas to obtain documents and records pertaining to' the receivership, and conduct discovery
in this action on behalf of the receivership estate).
Receiver's Counsel Aware of Lack Authority to Issue Subpoena
The Receiver's Counsel is well aware that his client has no authority to issue a
subpoena. The undersigned has so informed the Receiver's Counsel on more than one
occasion. The last such occasion was on November 1,2009, when the undersigned informed the
Receiver's Counsel, Jacob Brown, Esquire, in no uncertain terms that the Receiver was not a
party and any subpoena issued by Receiver's Counsel would be ignored as a void ultra vires
gesture. This statement was reiterated the following day and Brown was invited to take the
matter up with this Court immediately ifhe thought this violated his client's appointment order.
7
The Receiver made no attempt to enforce this refusal to honor the Receiver's Subpoena
Duces Tecum and made no attempt to bring the issue of the Receiver's authority to act as a party
to the attention of the Court.
Principle IV. Any action beyond the express authorization set forth in the order of
appointment, including taking possession of property that is not authorized to become part of the
Receiver's Estate, subjects the Receiver to individual liability.
Thus, if the receiver steps outside the authority and acts or contracts or is guilty of
misfeasance or negligence, the receiver can be sued as an individual and leave of
court is not necessary. Brooke v. Kettler, 1910, 166 Ala. 76, 51 So. 940; 2 Clarke
on Receivers, 3d ed. s 519(c).
See Murtha v. Steijskal, 232 So.2d 53, 55 (Fla. 4th DCA 1970). Murtha cites to Brooke v.
Kettler, 51 So. 940, 942 (Ala. 1910) as authority for its holding on a receiver's liability for acting
outside the scope of his authority. Brooke invoked the unifoffilly applied common law rule of a
receiver's liability and described it with respect to wrongful possession of property as follows:
It is axiomatic, also, that if a receiver does something outside of his duties as
receiver, or takes possession of property which the court has not authorized him to
take possession of, he cannot claim the protection of the court against a suit
brought against him on account of the same. .. Accordingly it is held that, if the
receiver takes possession of property which is not embraced in the receivership,
the protection of the court appointing the receiver will not be accorded to him.
Brooke, at 942. By definition, any and all actions, services, and expenses associated with such
conduct or property cannot be charged against the lawful assets of the Estate.
Principle V. A receiver should seek the express direction and consent of the
appointing court for any intended action that may substantially affect the rights of a party or a
member of the public who is a stranger to the underlying litigation. The receiver is not the court
and is obligated to seek instructions from the court as to any "important matter affecting the
rights of anyone." 1 Clark on Receivers 38 at 40.
8
A receiver or any party to the main action may ask the court to give instructions to the
receiver concerning his duties or the disposition of receivership property. This is done by a
motion for instructions. It may be a speaking motion. The motion must be served on all parties
not in default. Notice of the hearing on the motion must be given. The court may hear evidence
at the hearing. If such request is granted, the court enters an order instructing the receiver even
though the order may be negative in effect.
A receiver is not a party in the cause. The receiver is an officer of the court and is
subject to the supervision and control of the court. Eppes v. Dade Developers,
1936, 126 Fla. 353, 170 So. 875. In exercising this power the court ... should
require the receiver to serve upon all parties to the cause each and every
application for instructions and require notice and a hearing in order that the court
may be better advised prior to the entry of any order pertaining to the receiver. 75
CJ.S. Receivers s 148.
Fugazy Travel Bureau, Inc. v. State, 188 So.2d 842 (Fla. 4th DCA 1966); Rule 1.080(a), 9:4 on
speaking motions; see also LBUBS 2007-C2 Alii Drive, LLC v. Anekona, LLC, 2010 WL 99362
9 (U.S.D.C., District off Hawaii, January 12, 2010) (receiver has "duty-given [his] very limited
powers-to apply to the court for advice and directions. Where a receiver acts without court
authority, he assumes the risk ofliability for costs and expenses incurred.).
Principle V. A receivership exists to benefit the property over which it has been given
controL See Evans v. Green, 180 So.2d 753 (Fla. 1938). Accordingly, compensation to a
receiver and his authorized consultants is restricted generally to protecting the receivership
property or in providing some other tangible benefit to the Estate. Fees charged for services
performed incompetently, negligently, ignorantly, pointlessly, or that serve another's interest
provide no benefit to the receivership estate. See Tanner v. Ledington, 513 So.2d 255, 256 (Fla.
2d DCA 1987), citing Creative Property Management, Inc. v. General Electric Corp. of
Georgia, 314 So.2d 807 (Fla. 3d DCA 1975).
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If the Receiver is authorized to employ legal counsel then such lawyer is restricted to
providing authorized legal services that benefit the Estate. The proper focus of a receiver's
attorney's assistance is the receiver, not any particular party or person. Attorney's fees are
allowed only to the extent that they relate to the "practice of law" and do not include tasks that
should be expected of a qualified receiver in performing his assigned duties. See Am Jur 2d Ed.,
Receivers, 224.
Attorney's fees to be charged against a receivership estate are subject to the same
evidentiary showing as the fees of a receiver.
As in the matter of the receiver's fees we find no adequate proof upon which the
chancellor could have determined the extent of the need for legal services by the
receiver, the amount of legal services rendered, or the reasonable value thereof,
and what we have said above concerning the awarding of receiver's fees is equally
appropriate to attorney's fees for a receiver . . . We feel constrained to say . . .
receiverships should be administered as economically as reasonably possible, and
therefore allowances for services performed by court officers must be just but
should be moderate rather than generous. 75 C.J.S., Receivers, 389(a), p. 1064.
Lewis, 94 So.2d at 177.
Likewise, fees that do not benefit the estate include those expended in defense of the
receiver's conduct, including violating his authority as receiver.
[FJormer receiver successfully moved the trial court to permit the award of
attorney's fees and costs for the defense of ongoing actions brought by one of the
parties against the receiver and his employees personally for allegedly tortious
acts committed during the receivership. Because these expenses did not arise out
of the receivership and could not in any way benefit the receivership estate, as
opposed to the receiver individually, the trial court wholly lacked authority to
award them. In re Fredcris, Inc., 108 So.2d 901 (Fla. 3d DCA 1959).
Accordingly, we grant the instant petition for prohibition precluding the lower
court from further proceedings In the matter.
Sundale Associates, Ltd. v. i\;[oore, 481 So.2d 1300, 1301 (Fla. 3d DCA 1986).
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Conflicts of Interest and Disqualification of Fees
The value of legal services to the estate is a legitimate area of inquiry prescribed by law
in awarding attorney's fees to a receiver's attorneys. There is no other agent that operates so
effectively to devalue the worth oflegal services than a compelling and substantial conflict in the
judgment and loyalty of an attorney because he has standing attorney-client obligations with two
adverse and opposing clients in the same litigation.
In the context of a receivership, such a conflict in judgment and loyalty is geometrically
magnified. The legal advice and. recommendations of the conflicted attorney can result in the
violation of a fiduciary duty owed by one client or expose that client to liability for damages to
the opposing client or others impacted by the Receiver's conduct.
There is no equivalent circumstance in which the compromise of sound legal judgment
can wreak havoc on the innocent. There is no more egregious exercise of compromised legal
judgment than when exercised by an entrusted judicial officer in violation of a sacrosanct
fiduciary duty. It is the combination of these circumstances and the foreseeable lethality of such
conflicted legal judgment that resulted in the severe admonition contained in the axiom of equity
explicated in what is known to every experienced receiver's counsel as the "Rule of Farwell."
[W]e hold it is the duty of courts of chancery to strictly enforce the principle,
clearly established, that a receiver will not be permitted to employ as his counsel
one whose interests, in person or as attorney for another, are hostile to the
interests represented by and the duties of such receiver, and, it being the duty of
the attorney to know the law in that behalf, it was his duty to decline to accept
employment by the receiver, and his doing so and seeking to act on both sides
with such hostile interests, is fraud, and the order allowing fees to Sutherland as
attorney for the receiver must be set aside.
Farwell v. Great Western Tel. Co., 161 Ill. 522,613,44 N.B. 891,920 (1896) (emphasis added).
The Rule of Farwell has its origins in more general maxims of equity that define the
relationship and obligations of a receiver. A court-appointed receiver is a "full-fledged
11
fiduciary." Fleet Nat. Bank v. H & D Entertainment, Inc., 96 F.3d 532, 540 (1st. Cir.l996). A
receiver is a representative of the court and of all parties with an interest in the litigation. Thus, a
receiver owes fiduciary duty to all the parties in interest and is "under the duty to act impartially
toward, and protect the rights of, all parties." 16 Fletcher Cyc. Corp. 7813. See also, Phelan v.
Middle States Oil Corp., 154 F.2d 978, 991 (2d Cir'! 946) (receiver owes a duty of strict
impartiality and undivided loyalty to all parties interested in the receivership estate, and must not
dilute that loyalty).
Due to the fiduciary nature of his duty to the parties, a receiver is not permitted to deal
with the trust estate for his own benefit and advantage or for that another. See Id.; Sanders v.
Stevens, 51 F.2d 743, 744 (D.Miss.S.D.1931); In re Singer Furniture Corp., 47 F.2d 780, 784
(DCt.S.D.N.Y.l931); In re Insull Utility Investments, 6 F.Sup 653, 660 (D.C.ll1.l933). accord
Phelan v. Middle States Oil Corp., 154 F.2d 978, 991 (2d Cir.1946) (receiver must act openly
and fairly, and must not use position for their own profit or to further the interests ofthemselves
or any other person with whom the receiver is associated).
The Rule of Farwell's core prohibition has been codified by rule in all fifty states. In
Florida, the Rule of Farwell is reflected in the comments to Rule 4-1.7(a). The rule makes clear
that a lawyer cannot represent parties with adverse or potentially opposing interests in the
context of any type of litigation. Further, a lawyer "may not act as advocate against a client the
lawyer represents in some other matter, even if the other matter is wholly unrelated." Rule 4-1.7,
Comment.
A lawyer also "may not represent mUltiple parties to a negotiation whose interests are
fundamentally antagonistic to each other." Id. Further, the Rules prevent law firms from using
the much maligned practice of claiming "Chinese Walls" between separate departments and
12
offices of the same finn to prevent such conflicts. The Rules provide that if one attorney within a
firm is prohibited from representing clients due to a conflict of interest, the disqualification from
representation is imputed to every other member of the finn without exception. Rule 4-1.1 O(a).
Apart from the ethical and disciplinary implications of prohibited dual representation, the
common law of Florida imposes the penalty provided in the Rule of Farwell when an attorney
burdened with a known conflict of interest seeks compensation for such valueless services.
Any attorney subject to a conflict of interest because of a client relationship with a party
with a direct interest in the conduct of the receiver and a client relationship as legal counselor to
the receiver perfonning such duties may not recover any fees for services perfonned after the
date he knew or should have known that a prohibited conflict existed because of the opposing
interests between the (client) party and the receiver. See James T, Butler, P.A. v. Walker, 932
So.2d 1218 (Fla. 5th DCA 2006); Hill v. Douglass, 271 So.2d 1 (Fla.1972) (an attorney's right to
recover a fee tenninates when the attorney realizes or should have realized that he cannot
ethically represent his client's interests). See also Adams v. Montgomery, Searcy & Denney, P.A.,
555 So.2d 957 (Fla. 4th DCA 1990) (holding that attorney's right to recover a fee tenninates
when attorney realizes or should have realized that he cannot ethically represent his client).
Compare Pessoni v. Rabkin, 220 A.D.2d 732, 633 N.Y.S.2d 338 (N.Y.App.Div.1995)
(explaining that a violation of New York's disciplinary rule results in the forfeiture of attorney's
fees).
By definition, it should be automatically presumed as a matter of law that a receiver's
position is adverse to all parties with an interest in his duties and estate. "Because the receiver is
an officer of the court and should be as free from 'friendliness' to a party as should the court
itself' Harkin v. Brundage, 276 u.s. 38, 48 S.Ct. 268, 275-276, 72 L.Ed. 457. The position of
13
the receiver is that of an officer of the court. He may be considered a "quasi-trustee;" he is not
appointed for the benefit of either party, and does not derive his authority from either one. 65
AmJur.2d Receivers 3, 135, 138-140 (1972). It is well settled that wherever there is a
fiduciary relationship, the strictest rule as to impartiality and disinterest is enforced for the
protection of both the trustee and the beneficiary. Cahall v. Lofland, 12 Del. Ch. 125, 107 A. 769
(1919). Thus it follows that no one ordinarily may be appointed receiver whose personal
interests would substantially conflict with his unbiased judgment and duties as receiver. Law of
Receivers, supra, 115.
As a practical matter, a lawyer subject to a probable or even potential conflict should
never act as counsel to a receiver. It is fundamental that an attorney should never act as counsel
for a receiver if a client of his firm is a party or person with a direct interest and stake in the
receivership. There are sound reasons for this absolutism.
In the normal client conflict situation it is generally the attorney who becomes liable for
elevating one client's interests over that of another. The harm caused by such conflict is
restricted to the injured client. The conflict creates no direct liability between the favored and
injured client. The conflict creates no additional1iability in the injured client as a direct result of
the offending attorney's conflict. Such private client attorney conflicts do not affect the
operation, reputation, or dignity of any court, and generally have no secondary impact on the
public.
A conflict of interest that directly affects the actions taken by a receiver has exponentially
greater and weighty consequences. A receiver is a fiduciary to the court and persons with a
cognizable interest in the estate. A receiver is a state actor exercising state authority.
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A receiver is subject to individual liability and must hire separate counsel for all matters
in which his actions are challenged as unauthorized or illegal. The instant case is a text book
example of why a conflicted attorney should never serve in the position of legal advisor to a
receiver.
Akerman Senterfitt Has a Present, Active, Substantial, and Lucrative Attorney-Client
Relationship with Bank of America, N .A.
The Bank of America, N.A. is an active marquee client of Akerman Senterfitt The firm
vigorously markets its relationship with Bank of America. Premier Atlantic's and 11-2001 's
"MOTION TO DISQUALIFY RECEIVER MICHAEL PHELAN AND RECEIVER'S
COUNSEL AKERMAN SENTERFITT, LLP" and "MOTION REQUESTING THE COURT
TO INITIATE PROCEEDINGS TO DETERMINE IF RECEIVER'S COUNSEL IS SUBJECT
TO DISQUALIFICATION FOR THE DUAL REPRESENTATION OF THE RECEIVER AND
BANK OF AMERICA, N.A. IN THE SAME PROCEEDING WHERE THE ADVERSE
POSITION OF THE BANK IN RELATION TO THE RECEIVER IS A MATTER OF
RECORD" are incorporated herein by reference as if each was fully restated herein.
A Concrete Adversarial Conflict Promptly Arises
The record shows that within days of the inception of the Premier Atlantic Receivership,
the Bank and the Receiver developed an adverse relationship. The relationship became adverse
because. as the record shows, the Receiver attempted to use his own independent judgment and
discretion rather than submit to the direction ofthe Bank.
At the May 14, 2009, hearing, the Court appointed Mr. Phelan as the Receiver for the
Bank's alleged Collateral as to 11-2001. The Order was entered on May 18, 2008, the same day
that the United States Bankruptcy Court dismissed the proceedings involving 11-2001.
15
After the May 14th Order was entered, Jacksonville Auto Mall, LLC ("JAM") offered the
highest price and least expense for the 11-20001 vehicles and all of the other property that
constituted the alleged Collateral the Receiver was seeking to sell. The Receiver, in an effort to
save the Estate tens of thousands of dollars in critical expenses, left the vehicles and non-vehicle
Collateral staged for sale on the dealership premises, rather than rent a warehouse and absorb the
costs of security, insurance, movers, and the like.
Adversarial Conflict Arises Again Between the Bank and Receiver
The Receiver filed a motion for approval of the Collateral sale to JAM on May 21,2009.
This proposed sale represented the highest yield proposal to the Estate and would not include the
normal expenses associated with auctions sales. The Bank again opposed the Receiver even
though his fiduciary duty to the Estate required he accept the most lucrative proposal for the
Estate.
The Bank demanded that the Receiver confiscate every item of property from the
premises of 11-2001, and incur the substantial and likely long-term warehouse expenses of
storing such a mass of vehicles and miscellaneous personal property. The Bank wanted the
Receiver to collect everything on-site and leave nothing but a husk at 11-2001' s premises. The
Bank holds a purchase money mortgage on the real property and wishes to foreclose on the
same.
This was the second time in less than a month the Bank acted to coerce the Receiver to
abandon the highest and best offer and place property in storage. However, this storage bill
would be far more substantial than that associated with Premier. The Bank's demand was
indefensible, improper, and pointedly irrational. Any attorney loyal to the Receiver would have
16
made short shrift of the Bank's interference and advised the Receiver that it was his duty to not
commit waste.
The Receiver's lawyers did nothing to protect the Receiver, prevent waste to the Estate,
or rectify the Bank's continuing effort to dominate the Receiverships. They simply stood down
and backed away to make way for their real client.
Knowing that its attorneys were representing the Receiver, on June 5, 2009, the Bank
filed BANK OF AMERICA, N.A.'S MOTION TO COMPEL RECEIVER'S COMPLIANCE
WITH THE MAY 14, 2009 APPOINTING ORDER" (the "Motion"). The Motion seeks, inter
alia, an order (1) removing Receiver, Michael Phelan for refusing to honor the Court's Order
(malfeasance) and (2) assessing the Receiver (official capacity) the fees and costs in bringing the
Motion. The Bank's Motion represents a direct assault on the Receiver and his Estate. See
"BANK OF AMERICAS, N.A.'S MOTION TO COMPEL RECENER'S COMPLIANCE
WITH THE MAY 14,2009 APPOINTING ORDER" attached hereto and made a part hereof as
Exhibit 2.
The Bank's Motion seeks to remove the Receiver for pursuing the highest and most
immediate return to the Estate on property losing value daily. The Motion is openly adverse,
hostile, and antagonistic towards the Receiver and his Estate.
Akerman Senterfitt took no action to defend the Receiver or the Estate. Akerman
Senterfitt took no action to support the Receiver's desire to liquidate depreciating property and
avoid fees and expenses. To date, Akerman Senterfitt has not filed any response to the Motion or
otherwise opposed the Bank's allegations. The Receiver informed the purchaser that he could not
sell the property to him until the Bank approved the sale and if he acted anyway he would be
fired.
17
The Receiver and Bank of America Secret Strategy Conference
On July 30,2009, the invoices reflect that the Receiver, Jacob Brown, the Receiver's lead
counsel, and Bank of America "representatives" engaged in what appears to have been and all
day conference. The conference was hosted by Akerman Senterfitt in their Orlando office. The
conference was not disclosed to other persons. The conference was not disclosed in any
subsequent report or paper.
The Receiver Is the Corrupt Servant of Bank of America
The Receiverships have been terminally infected by the power and financial influence of
the Bank. The insider who paved the way for this complete corruption of duty and obligation is
Akerman Senterfitt who has millions of dollars in present and future fees heavily invested in
Bank of America. The infidelity of the Receiver to his obligations runs so deep that he and the
Bank jointly and secretly met to plan strategies and assign specific tasks for the use of his
Receiverships against Premier Atlantic and 11-2001.
It is incomprehensible that officers of this Court would participate in a secret out-of-town
meeting with a self-interested and adverse party litigant engaged in active litigation against
persons to whom the judicial officers owes a sacrosanct duty of fairness and impartiality. There
is little difference between this Court driving to Orlando to meet secretly with an adverse party
and this Court's Receiver and his Counsel doing the same thing. Now the Receiver and his
counsel deign to be paid for these actions.
Summary of Issues Requiring Discovery
There are so many irregularities in the invoices presented to date that, if the Court is to
have a meaningful evidentiary hearing to determine whether or not the fees and costs are
justified, discovery must be permitted of the Receiver and his Counsel. The subject categories
18
below describe the general defects of invoices provided thus far. The invoices that the Receiver's
Counsel is still withholding that relate to the Receiver should simply be stricken if not produced.
Vagueness: Almost every invoice entry is vague to the point that the purpose of the
alleged service rendered or the issue that such service relates to is unknowable. Many invoice
entries are vague to the point that the nature and purpose of the service rendered cannot be
determined in relation to the specific Estate in interest. Dozens of invoice entries employ
intentionally vague terminology to leave the reader in the dark such as work on "open" issues
and conferences with "interested" or "various" parties.
Unsupported Entries: A cursory spot check of approximately 15 days of activity
relative to communication with the Receiver to see if the entry was verified in the Receiver's
Invoices did not reveal a single corresponding entry of communication that was billed in the
Akerman Invoice. Between August 3rd and August 17th of 2009 the Akerman invoices show a
conference or e-mail communication with the Receiver on August 3
rd
, August 5
th
, August 6
th
,
August 11
th
, and August lih, The receiver's invoice does not show a single corresponding
conference or e-mail entry for any of the dates billed.
Duplication of Billing Entries: The invoices are replete with duplicate entries spread
between the two Estates. The entries are generally so vague that it cannot be determined if the
entry had a relationship with either Estate. It is impossible to determine if the entry represents a
service (assuming some service was performed) of benefit to the Estates,
Employment of Aaron Cohen, Esquire and Work Done in His Name: Aaron
Cohen's bills facially provide no benefit to either Estate. There is no purpose to or for Mr.
Cohen's services except to use his name and address on certain legal process created exclusively
by Akerman. It can only be concluded that Mr. Cohen was used to mask some other additional
19
conflict that Akerman wanted to publically disguise. Akerman would perform the apparent
"conflicted" legal work and insert Mr. Cohen's name as the attorney of record. Assisting
Akerman in covertly earning fees on conflicted legal work is of no benefit to the Estate.
Legal Services Related to Clark Road: Each and every one of these related entries,
including all fees spent in the meritless pursuit of the legal fees of Stutsman Thames & Markey,
are not compensable. These fees represent the patent abuse of the Receiverships. Akerman knew
absolutely that the Bank not only had no security interest in these proceeds originally, but that
the Bank affirmatively waived the express opportunity to make any such claim when directed to
do so in the bankruptcy proceedings related to 11-2001.
The funds were illegally seized and the Receiver's Counsel knew that 11-2001 had
standing objection to the seizure. Mr. Brown knew that 11-2001 's counsel was awaiting his
"promised" reply to the objection and assumed Brown would make no attempt to distribute those
funds to the Bank until the objection was heard by the Court.
Mr. Brown made a deliberate attempt to get the funds into the hands of the Bank where a
legal security interest would arise and not only withheld that fact from 11-2001 's counsel, but
affirmatively misrepresented that the objection made at the August 20,2009, hearing "is the first
time we've I've heard today that there's an issue that those funds are not the subject of this
receivership ..." (Emphasis supplied.) See 08120/09 TR at 61, 1-15.
Work Related to Motions For Determination, October 9
th
Order and Subsequent Seizures:
Akerman prepared the Motions for Determination as part ofthe strategy to use the Receiverships
to further damage the Premier Atlantic and 11-2001. The receiver sold the cars as titled
originally and the Bank did not object. It was understood clearly by everyone with any
knowledge of the judicial sales that the dealerships would sell the vehicles purchased.
20
Jacksonville Auto Mall, LLC ("JAM") paid hundreds ofthousands of dollars to the Receiver and
left the titles to the vehicles exactly as sold by the Receiver.
The Receiver's Counsel later claimed surprise that the titles remained exactly as sold by
the Receiver and declared, per the Bank's direction, that the Receiver may be required to re-seize
and re-sell the judicially approved vehicles because the Receiver sold the vehicles titled to the
dealerships. The Receiver refused to advise the Court that the vehicles had been sold free and
clear of the Bank's lien or that the Receiver, regardless of the title delivered, had sold all
beneficial and equitable rights in the vehicles to JAM, that any claim by the Bank was stopped,
or that JAM had an equitable lien superior to any interest the Bank could possibly claim.
The Receiver's Counsel sent a letter to attorneys for Premier Atlantic on Friday
afternoon, October 2, 2009. The letter demanded the production of hundreds of stored files
related to vehicles long past sold by October 9, 2009. This put the attorneys and the entire
accounting staff to work virtually 24 hours per day from October 4th until after the October 9
th
hearing. In fact, while the October 9
th
hearing transpired, the entire accounting staff was still
completely consumed in this task. These records had nothing to do with actual "Collateral."
At the same time, Counsel for the Receiver made a great show of how the Motions for
Determination would be called up for hearing on October 9
th
by sending a huge volume of title
related documents to opposing counsel on Wednesday, October i
h
and asking if all could
consent to the entry of the documents into evidence on the issue set forth in the Motions for
Detennination. In fact, this was all a ruse to again sandbag opposing counsel. The Receiver and
the Bank had no intention of having the noticed Motions for Determination heard by the Court.
The transcript of the hearing describes what actually happened. The Bank's proposed
October 9
th
Order directed expansion of the receivership into a "full receivership." Akerman had
21
three attorneys review the proposed order drafted by the Bank. Akerman had an obligation to
advise the Court regarding the obvious defects in the proposed order and the injunctions included
that were never applied for or mentioned by the Court during the hearing, yet its lawyers failed to
do so.
Akerman could have directed the Receiver to execute the Order in a fashion that would
have at least avoided a full scale illegal seizure of the real property over which the Receiver had
no rights or authority. Akerman could have directed the Receiver to use the same discretion in
seizing personal property that some owners were shown and other denied. Akerman could have
avoided the use of rented law enforcement and security officers, whose use had not been
authorized by the Court. Akerman could have avoided the Receiver's public breach of the peace
by advising him that the Court did not authorize ejectment of employees and customers from the
premises and further advising him to wait until the close ofbusiness to seize the property.
Because of the indiscriminate and illegal way in which the October 9
th
Order was
executed the Court has spent days and days attempting to dig the Receiver out of its own self
created nightmare. The Receiver's Counsel has attempted on multiple occasions to sell personal
property and vehicles without any representation or other statement by the Receiver that the
property was the lawful Collateral ofthe Bank:. The Receiver's Estate is admittedly, even by his
Counsel's admission, wasting away. This waste is largely due to Akerman's intentionally inept
handling of all of these events.
It is not a question as to whether the methods employed to conduct the Receiverships are
inadequate, because there are no methods in these Receiverships. All that the services related to
these fees have done is expose the Receiver to individual liability, send his professional
22
reputation to ruin, and generate claims and appeals that are inevitable in undoing the Gordian
Knot tied by Akerman and the Bank.
The Freeze of Third Party Deposit Accounts and the Motion for Temporary Injunction
Premier Atlantic's and 11-2001 's "MOTION TO DISQUALIFY RECEIVER MICHAEL
PHELAN AND RECEIVER'S COUNSEL AKERMAN SENTERFITT, LLP" and "MOTION
REQUESTING THE COURT TO INITIATE PROCEEDINGS TO DETERMINE IF
RECEIVER'S COUNSEL IS SUBJECT TO DISQUALIFICATION FOR THE DUAL
REPRESENTATION OF THE RECEIVER AND BANK OF AMERICA, N.A. IN THE SAME
PROCEEDING WHERE THE ADVERSE POSITION OF THE BANK IN RELATION TO
THE RECEIVER HAS AND CONTINUES TO BE A STANDING MATTER OF RECORD
AND IN REPRESENTING BOTH THE RECEIVER AND BANK IN NEGOTIATIONS
RELATIVE TO RESOLVING ADVERSE POSITION BETWEEN RECEIVER AND BANK
OF AMERICA, N.A." are herby adopted by reference in their entirety as if each was fully set
forth herein.
Incorporated Motion To Disgorge Fees And Costa Authorized In Prior Order
The very clear admonition in Lewis is worth revisiting to remind all why the Court must
properly evaluate fees and costs paid from a receivership estate.
We feel too that a receiver and attorneys who seek and receive compensation
for services rendered as officers of the court in receivership proceedings, as
well as others, should be gravely concerned with seeing that the record in
such cause reflects adequate proof that they have earned the sums awarded,
so as to protect themselves and the court which they serve from accusations
that they have benefitted unjustly from such proceedings.
Lewis v. Gramil Corp" 94 So.2d 174, 176 (Fla.l957).
The Court has no authority to authorize the payment of fees and costs that do not benefit
the Estate. The Court is not authorized to award fees and costs that have never been disclosed,
23
reviewed, analyzed, or proven as legitimate. The Court is not authorized to award fees and costs
that were earned by dual representation of adverse clients in the same proceeding. The Court is
not authorized to authorize fees and expenses in furtherance of any breach of duty or an
unauthorized act by the Receiver.
Akerman Senterfitt should be denied compensation for all services rendered and expenses
incurred. Akerman Senterfitt should be required to disgorge all compensation and expenses paid
from the Estate by virtue of misrepresenting the very clear and simply understood law of
compensation relative to receiverships. It matters not whether the misrepresentation was
intentional or out of ignorance of the law. Attorneys who act in the certain knowledge of their
perfected ignorance are as valueless as one who intentionally brings his client to ruin. In the end,
the rubble still piles as high.
WHEREFORE, based on the above, Premier Kia and 11-2001 respectfully request an
Order:
1) denying all fees and costs to Akerman Senterfitt and disqualifying the firm
immediately from acting as counsel for the Receiver; and
2) requiring Akerman Senterfitt to deposit all fees and costs paid from the Estate to the
firm in the Registry of the Court pending further order of the Court; and
3) allowing any other supplemental relief deemed just and appropriate.
Dated atJacksonville, Duval County this 5th day of February, 2010.
W. Douglas Moody, Jr"deFBN: 301779)
4631 Salisbury "", 4024
Jacksonville, Flor' a 32256
(904) 607-4725 /'
Email: dmoodytfealerlaw@aol.com
24
./
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by hand
delivery this 5th day of February, 2009 to Jacob Brown, Esq., Akerman Senterfirt, 50 N. Laura
St., Jacksonville, FL, 32202-3646; Gilbert L. Feltel, Esquire, One Independent Drive, Suite
1700, Jacksonville, Florida 32202; and via U.S. Mail this 5th day of February 2010 to Aaron
Cohen, Esquire, P.O. Box 4218, Jacksonville, Florida 32201.
W. Douglas Mood Jr., N: 301779)
4631 Salisbury R d ite 4024
Jacksonville, Flori a 32256
(904) 607-4725
Email: dmoodydealerlaw@aol.com
25
Exhibit I
Aaron R. Cohen, P .A.
Client Billing Worksheet
In re: 11-2001
Date Description Time Amount
7/20109
7/21/09
7/27/09
7/31109
8/4/09
8/5/09
8/6/09
8/11109
8/11109
Aaron Cohen 1Time
Receive and review e-mail with 3 attachments .3
from Jay Brown regarding First Motion For
Allowance OfInterim Fees And Costs; e-mail to
Jay regarding fees and costs
Aaron Cohen 1Time
Prepare billing and review files and 1.0
correspondence, proofread
Aaron Cohen 1Time
Receive e-mail from Jay regarding attending 30
th
.1
meeting by phone
Aaron Cohen 1Time
Receive and review e-mail designating tasks .4
from both receiverships, 11-2001, and Premier
Automotive on Atlantic; step by step analysis
and split of tasks
Aaron Cohen 1Time
Receive and review e-mails regarding employees 2.5
still onsite; phone conference with Jay; copied
and reviewed other e-mails between Jay and
Phelan; receive proof, serve subpoenas
Aaron Cohen 1Time
Research DMV records for records related to 11- 1.0
2001 LLC, Premier Automotive on Atlantic
LLC; e-mail from, e-mail to Mark Healey
Aaron Cohen / Time
Receive e-mail trail regarding lack of .3
cooperation from Kazran regarding tum over of
records; phone conference with Jay
Aaron Cohen 1Time
Receive and review e-mail from Jay Brown .2
regarding Orders to show cause and expedited
hearings; respond with short notice of
appearance.
Aaron Cohen 1Time
Receive and review various responses to Jay 1.0
Brown's e-mail of 8-6 of all counsel involved;
motions to set hearing for order to show cause, et
$90.00
$300.00
$30.00
$120.00
$750.00
$300.00
$90.00
$60.00
$300.00
8/12/09
8/13/09
8117109
8/25/09
10/5/09
10113109
11/4/09
1115/09
11112/09
11117/09
cetera; motion to conform sale, motions to
determine property
Aaron Cohen 1Time
Receive and review affidavits to be used in .3
motions to set hearings, confirm sale et cetera on
8-13.
Aaron Cohen I Time
Receive and review request for docs; answer to .75
amended complaint, Bank: of America request
for copies, Defendant's motion to file amended
answer, receive scheduling e-mail for 8-20.
Aaron Cohen 1Time
E-mail to Jay regarding difficulty in covering .2
hearings on 8-20 and previous communications
Aaron Cohen 1Time
Receive and review e-mail from Rhonda .3
Boatwright regarding Mercantile production
Aaron Cohen 1Time
Letters to Jay regarding production of documents .4
from Mercantile Bank and wrong account
numbers being subpoenaed; gave receiver right
contact person and proposed bill for research et
cetera ...
Aaron Cohen 1Time
E-mail bill from Wachovia to Jay to present to .2
Receiver for docs from any subpoena
Aaron Cohen 1Time
Receive and review, execute Motion for TRO; 1.5
serve copies; phone conference with jay; review
e-mail
Aaron Cohen 1Time
Drive to courthouse - personally file .3
Aaron Cohen 1Time
Receive and review e-mail from Jay Brown .3
regarding results of hearing and new hearing
dates on my motions of 12/16, docket dates
Aaron Cohen 1Time
Receive and review 43 page motion to dissolve 1.5
receivership with attachments; phone call to Jay
Brown
$90.00
$225.00
$60.00
$90.00
$120.00
$60.00
$450.00
$90.00
$90.00
$450.00
Current invoice total 12.55 $3,765.00
Less remaining credit -$980.00
($5,000.00 credit, less $4,020.00 deducted for last invoice)
Total Due $2,785.00
Post Office Box 4906
Orlando, FL 32802
Tel: 407-423-4000 Fax: 407-254-3593
Bill Date
Bill No.
21-Aug-09
8426059
MICHAEL PHELAN
MICHAEL MOECKER & ASSOCIATES, INC.
6861 S.W. 196 AVENUE - SUITE 201-04
FORT LAUDERDALE, FL 33332
Client Name:
Matter Name:
Matter Number:
PHELAN, MICHAEL
PREMIER AUTOMOTIVE ON ATLANTIC, LLC
0227433
INVOICE SUMMARY
For professional services rendered through August 21,2009 as summarized below and described in the
narrative statement:
SERVICES $ 9,206.00
DISBURSEMENTS $ 224.48
TOTAL THIS INVOICE $ 9,430.48
---'--'-'---"
To ensure proper credit to the above account, please indicate matter 110. 0227433
alld return remittance sheet with payment in USfimds.
WiredJimds accepted:
Akerman, Senterfitt & Eidson Operating Account
c/o SunTrust Bank, Atlanta, GA
ABA Number: 061000104
Account Number: 0215-252207533
Reference your invoice number and matter number
IRS EIN 59-3117860
AKERMAN SENTERFITI
DALLAS DENVER' FT LAVDERDALE . JACKSOl'\YILLE' Los ANGELES MADISON M!A'\II' NEW YORK' ORLANDO
TALLAHASSEE . TAMPA' TYSONS COR!\ER . \VASHINGTON DC . WEST PALM
Akerman Senterfitt Page 3
053016 PHELAN, MICHAEL
0227433 PREMIER AUTOMOTIVE ON ATLANTIC, LLC
As of
Bill Number
21-Aug-09
8426059
Date Services Initials Hours Value
3-Aug-09 CONTINUE WORK ON V ARIOUS SUBPOENAS
AND OTHER OPEN ITEMS, TELEPHONE
CONFERENCE AND E-MAIL
CORRESPONDENCE WITH RECEIVER RE SAME
JAB 0.50 180.00
4-Aug-09 FINALIZE VARIOUS SUBPOENASINOTICES,
COMMUNICATIONS WITH ATTORNEY FRAME
REREYNOLDSANDREYNOLDSDATA
JAB 0.50 180.00
4-Aug-09 PREPARE SUBPOENAS TO PREMIER
AUTOMOTIVE, REYNOLDS AND REYNOLDS,
ORAYROBINSON, STUTSMAN THAMES;
DRAFT NOTICE OF SERVICE OF SUBPOENA
DUCES TECUM WITHOUT DEPOSITION TO
BANK OF AMERICA; DRAFT NOTICE OF
PRODUCTION FROM NON-PARTY RE:
STUTSMAN THAMES; DRAFT NOTICE OF
PRODUCTION FROM NON-PARTY RE:
ORAYROBINSON; DRAFT SUBPOENA TO KIA
MOTORS; DRAFT SUBPOENA TO HYUNDAI
MOTOR AMERICA CORPORATION; DRAFT
NOTICE OF PRODUCTION FROM NON-PARTY
RE: HYUNDAI MOTOR AMERICA
CORPORATION; DRAFT NOTICE OF
PRODUCTION FROM NON-PARTY RE: KIA;
DRAFT NOTICE OF PRODUCTION FROM NON
PARTY RE: REYNOLDS AND REYNOLDS;
COORDINATE SERVICES OF NOTICES ON ALL
PARTIES; DRAFT AMENDED CERTIFICATE OF
SERVICE
JSM 5.00 825.00
5-Aug-09 COORDINATE SERVICE OF SUBPOENA ON
PREMIER AUTOMOTIVE
JSM 0.20 33.00
6-Aug-09 TELEPHONE CONFERENCE AND E-MAIL
CORRESPONDENCE WITH RECEIVER AND
OTHER INTERESTED PARTIES RE
DOCUMENTATION/RECORD PRODUCTION,
WORK ON MOTIONS IN RECEIVERSHIP
JAB 0.60 216.00
7-Aug-09 CONTINUED WORK ON VARIOUS MOTIONS
RELATED TO OPEN ISSUES IN RECEIVERSHIP
JAB OAO 144.00
10-Aug-09 WORK ON VARIOUS MOTIONS RELATED TO
RECEIVERSHIP
JAB 1.00 360.00
1O-Aug-09 RESEARCH RE TRANSFERABILITY OF MOTOR RCE 1.00 335.00
053016 PHELAN, MICHAEL As of 21-Aug-09
0227433 PREMIER AUTOMOTIVE ON ATLANTIC, LLC Bill Number 8426059
VEHICLE FRANCHISE AGREEMENT; PREP ARE
MOTION FOR DETERMINING WHETHER
MOTOR VEHICLES ARE COLLATERAL OF
BANK.
ll-Aug-09 FINALIZE VARIOUS MOTIONS RELATED TO
RECEIVERSHIP, COMMUNICATIONS WITH
RECEIVER AND COUNSEL FOR VARIOUS
PARTIES RE SAME
JAB 2.00 720.00
ll-Aug-09 FINALIZE MOTION FOR DETERMINATION
THAT CERTAIN PROPERTY IS TO BE
ADMINISTERED BY THE RECEIVER OF
DEFENDANT, PREMIER AUTOMOTIVE ON
ATLANTIC, MOTION TO SET HEARING AND
FOR ENTRY OF AN ORDER TO SHOW CAUSE,
AND NOTICE OF EX PARTE HEARING;
COORDINATE SERVICE ON ALL COUNSEL OF
JSM 1.00 165.00
RECORD
11-Aug-09 PREPARATION OF MOTION FOR
DETERMINATION THAT MOTOR VEHICLES
ARE TO BE ADMINISTERED BY RECEIVER;
CONFERENCE RE SCHEDULING OF HEARING
DURING EX PARTE HOURS; REVIEW OF E
MAILS TO ATTORNEYS FOR DEFENDANTS RE
RCE 0.70 234.50
SCHEDULING OF HEARINGS.
12-Aug-09 FINALIZE PHELAN AFFIDAVIT IN SUPPORT OF
MOTION TO SET, ATTENTION TO OPEN ISSUES
RE RECEIVERSHIP
JAB 1.00 360.00
12-Aug-09 DRAFT AFFIDAVIT IN SUPPORT OF ENTRY OF
ENTRY OF AN ORDER TO SHOW CAUSE
JSM 0.30 49.50
13-Aug-09 HEARING ON MOTION TO SET; POST -HEARING
COMMUNICATIONS WITH INTERESTED
PARTIES; SUBPOENA TO JACKIE MAJOR
DUNCAN; ATTENTION TO ISSUES RE REFUSAL
TO ACCEPT SERVICE; REVISE AND SUBMIT
PROPOSED ORDER SETTING HEARINGS;
REVIEW CASE PLEADINGS IN PREPARATION
FOR UPCOMING HEARINGS
JAB 2.50 900.00
13-Aug-09 FINALIZE ORDER GRANTING MOTION TO SET
HEARING AND FOR ENTRY OF AN ORDER TO
SHOW CAUSE; DRAFT LETTER TO JUDGE
JSM 0.50 82.50
Akennan Senterfitt Page 5
SCHEMER RE: PROPOSED ORDER:
COORDINATE SERVICE ON COUNSEL OF
RECORD
13-Aug-09 REVIEW SEVERAL E-MAILS RE SCHEDULING
OF HEARING ON MOTION AND PREPARATION
FOR SAME.
RCE 0.10 33.50
17-Aug-09 PREP ARA TION FOR UPCOMING HEARING ON
PENDING MOTIONS, COMMUNICATIONS WITH
RECEIVER RE SAME
JAB 1.70 612.00
18-Aug-09 TELEPHONE CONFERENCE WITH
BORROWER'S COUNSEL RE OPEN ISSUES AND
ITEMS FOR POSSIBLE CONSENT;
PREPARATION FOR HEARINGS
JAB 0.80 288.00
19-Aug-09 CONFER WITH COUNSEL FOR BANK OF
AMERICA RE DOCUMENT PRODUCTION;
CORRESPONDENCE TO RECEIVER RE SAME;
DRAFT PROPOSED ORDERS FOR
TOMORROW'S HEARING; PREPARATION FOR
HEARINGS; E-MAIL CORRESPONDENCE AND
TELEPHONE CONFERENCE WITH ATTORNEY
SCHMITT RE PROPOSED ORDER AND OPEN
ISSUES
JAB 2.00 720.00
19-Aug-09 DRAFT ORDER GRANTING MOTION FOR
DETERNIINATION THAT CERTAIN PROPERTY
IS TO BE ADMINISTERED BY THE RECEIVER
OF DEFENDANT, PREMIER AUTOMOTIVE ON
ATLANTIC
JSM 0.50 82.50
19-Aug-09 DRAFT ORDER GRANTING RECEIVER'S
MOTION TO APPROVE FEES OF RECEIVER
AND RECEIVER'S COUNSEL AND TO
ESTABLISH MECHANISM FOR APPROVAL OF
FUTURE FEES AND COST
JSM 0.50 82.50
19-Aug-09 REVIEW AND EDIT PROPOSED ORDER ON RCE 1.00 335.00
MOTION TO REQUIRE FLORIDA DEPARTMENT
OF REVENUE TO PROVIDE TAX RETURNS OF
DEFENDANT; PREPARE FOR HEARING ON
VARIOUS MOTIONS; TELEPHONE
CONFERENCE WITH ATTORNEY FOR BANK;
PREPARE PROPOSED ORDER ON ACCESS TO
BOOKS AND RECORDS,
Date Services
20-Aug-09 PREPARATION FOR AND PARTICIPATION IN
HEARINGS ON VARIOUS MOTIONS; POST
HEARING COMMUNICATIONS WITH
RECEIVER AND INTERESTED PARTIES; AND
ATTENTION TO FINALIZING PROPOSED
ORDERS
20-Aug-09 ASSIST WITH HEARING PREPARATION
20-Aug-09 PREP ARATION FOR AND ATTENDANCE AT
HEARINGS ON VARIOUS MOTIONS; REVISE
PROPOSED ORDER GRANTING AMENDED
MOTION TO CONFIRM SALE; PREPARE
PROPOSED ORDER OVERRULING OBJECTIONS
TO RECEIVER'S NOTICES OF NON-PARTY
PRODUCTION; REVISE PROPOSED ORDER ON
ACCESS TO BOOKS AND RECORDS;
EXCHANGE OF E-MAILS WITH MICHAEL
PHELAN RE PROPOSED ORDER ON ACCESS TO
BOOKS AND RECORDS; CONFERENCE WITH J.
BROWN RE PREPARATION OF PROPOSED
ORDERS.
Initials
JAB
Hours
3.00
Value
1,080.00
JSM
RCE
0.50
3.30
82.50
1,105.50
Total Services ...... ................................................................................................................................... $9,206.00
Disbursements
08111/09 DUPLICATING
08/12/09 DUPLICATING
08/19109 DUPLICA TING
Total for DUPLICATING
0.20
88.80
29.40
0.20
16.80
15.40
4.00
11.00
19.00
184.80
053016
0227433
PHELAN, MICHAEL
As of
Bill Number
21-Aug-09
8426059
Disbursements
07/28/09 LIBRARY RESEARCH CHARGES ACCURINT 07/01/2009- 39.68
07/31/2009
39.68
Total Disbursements ................................................................................................................................. $224.48
Total for MISCELLANEOUS LIBRARY CHARGES
Initials Name Hours Rate Amount
JAB 1. A.BROWN 16.00 360.00 5,760.00
JSM J. S.MEEHAN 8.50 165.00 1,402.50
RCE R. C. ELLIOTT 6.10 335.00 2,043.50
Total 30.60 $9,206.00
Bill Date 9-Sep-09
Orlando, FL 32802
Bill No. 8431433
Tel: 407-423-4000 Fax: 407-254-3593
MICHAEL PHELAN
6861 S.W. 196 AVENUE - SUITE 201-04
Client Name: PHELAN, MICHAEL
Matter Name: PREMIER AUTOMOTIVE ON ATLANTIC, LLC
Matter Number: 0227433
INVOICE SUMMARY
For professional services rendered through August 31, 2009 as summarized below and described in the
SERVICES $ 3,032.50
To ensure proper credit to the above account, please indicate matter no. 0227433
and return remittance sheet with payment in US fimds.
Wiredfimds accepted:
clo SunTrust Bank, Atlanta, GA
IRS EIN 59-3117860
AKERMAN SENTERFITT
DALLAS DENVER' F'r LAICDERDALE . JACKSONVILLE' Los ANGELES' MADISON' MIAMI' NEW YORK' ORLANDO
TALLAHASSEE' TAMPA' TYSONS CORillER . WASHINGTON DC . WEST PALM
21-Aug-09 ATTENTION TO POST-HEARING MATTERS
AND PROPOSED ORDERS; COMMUNICATIONS
WITH RECEIVER AND ATTORNEY SCHMITT
RESAME
JAB 0.80 288.00
21-Aug-09 REVISE AND EDIT PROPOSED ORDER
GRANTING AMENDED MOTION TO CONFIRM
SALE, PROPOSED ORDER ON BOOKS AND
RECORDS AND PROPOSED ORDER
OVERRULING OBJECTIONS TO SUBPOENAS;
PREP ARE E-MAILS TO OPPOSING COUNSELS
RE REVIEW OF PROPOSED ORDERS; REVIEW
E-MAIL FROM R. THAMES RE PROPOSED
ORDER ON OBJECTIONS TO SUBPOENAS;
REVIEW E-MAIL FROM G. FELTEL RE
PROPOSED ORDER ON ACCESS TO BOOKS
AND RECORDS; REVISE AND EDIT PROPOSED
ORDER ON ACCESS TO BOOKS AND RECORDS.
RCE 0.90 301.50
24-Aug-09 COMMUNICATIONS WITH ATTORNEY
SCHMITT AND FOR RECEIVER RE PROPOSED
ORDERS AND OTHER POST -HEARING ITEMS
JAB 0.30 108.00
24-Aug-09 RECEIVE AND REVIEW E-MAIL FROM
MICHAEL PHELAN RE DISBURSEMENT TO
RCE 0.60 201.00
BANK OF AMERICA; TELEPHONE
CONFERENCE WITH CHARLIE SCHMITT RE
PROPOSED ORDER ON BOOKS AND RECORDS;
PREPARE E-MAIL TO MR. SCHMITT
FORWARDING PROPOSED ORDER AND
BLACKLINE.
25-Aug-09 REVIEW ALL TITLE FILES, CONTRACTS AND
DATABASE AND COMPILE INFORMATION
REGARDING ALL TRANSACTIONS BETWEEN
PREMIER AUTOMOTIVE AND THE BANK.
AGM 2.00 330.00
25-Aug-09 REVIEW E-MAILS FROM MARK HEAL Y RE
REVIEW OF BOOKS AND RECORDS;
EXCHANGE OF E-MAILS RE PARALEGAL
RCE 1.40 469.00
ASSISTANCE FOR MR. HEALY; REVIEW E
MAIL FROM GIL FELTEL; SEVERAL
TELEPHONE CONFERENCES WITH MR. HEALY
RE ACCESS TO BOOKS AND RECORDS;
TELEPHONE CONFERENCE WITH CHARLIE
SCHMITT RE RECEIVER'S ACCESS TO BOOKS
Akennan Senterlitt Page 4
~
Services Initials Hours Value
AND RECORDS; EXCHANGE OF E-MAILS WITH
CHARLIE SCHMITT AND MR. HEALEY RE
ACCESS TO RECORDS; PREPARE E-MAIL TO
MICHAEL PHELAN RE DISBURSEMENT OF
FUNDS TO BANK OF AMERICA.
26-Aug-09 CONTINUE TO REVIEW ALL TITLE FILES, AGM 5.00 825.00
CONTRACTS AND DATABASE AND COMPILE
INFORMATION REGARDING ALL
TRANSACTIONS BETWEEN PREMIER
AUTOMOTIVE AND THE BANK.
27-Aug-09 CONTINUE TO REVIEW ALL TITLE FILES, AGM 2.00 330.00
CONTRACTS AND DATABASE AND COMPILE
INFORMATION REGARDING ALL
TRANSACTIONS BETWEEN PREMIER
AUTOMOTIVE AND THE BANK.
28-Aug-09 COMMUNICATIONS WITH ATTORNEY JAB 0.20 72.00
SCHMITT AND RECEIVER RE STATUS OF
DOCUMENT/COMPUTER SYSTEM REVIEW
AND FINALIZING PROPOSED ORDER
31-Aug-09 COMMUNICATIONS WITH COUNSEL FOR JAB 0.30 108.00
BANK OF AMERICA AND RECEIVER RE OPEN
ISSUES
Total Services ......................................................................................................................................... $3,032.50
Disbursements Value
Total for POSTAGE 9.68
08/24/09 DUPLICATING 8.70
Total for DUPLICATING 8.70
07/23/09 TELEPHONE SOUNDPATH LEGAL CONF CALL INV 3.26
#08140908/21109 (J BROWN - JAX)
Total for TELEPHONE 3.26
08/24/09 DELIVERY SERVICE - PRIORITY COURIERS COURIER 4.60
SERVICES FROM ERIN COHEN TO NS JAX ON 8/4/09
4.60
0227433 PREMIER AUTOMOTIVE ON ATLANTIC, LIC Bill Number 8431433
Disbursements
Total for DELIVERY SERVICE
08/26/09 SERVICE OF PROCESS - SHARP PROCESS, INC.: SERVICE 140.00
OF SUBPOENAS ON BANKS (RIC W ACHOVIA; RIC
MERCANTILE BANK; RIC VYSTAR CREDIT UNION; RIC
FOR SUNTRUST BANK; RIC REGIONS BANK) ON 8120/09.
RE: MICHAEL PHELAN V. 11-2001 LLC. JSM-1902
Totalfor SERVICE OF PROCESS 140.00
08/31109 COURT REPORTER - GEORGIA WINEGEART & 37.50
ASSOCIATES APPEARANCE AT HEARING BEFORE
JUDGE SCHEMER ON 8/20/09 JAB-1685
Total for COURT REPORTER 37.50
Aketman Senterfitt Page 6
Initials Name
AGM A. G. MCDONALD
JAB J. A. BROWN
RCE R. C. ELLIOTT
Total
Rate Amount
9.00 165.00 1,485.00
1.60 360.00 576.00
2.90 335.00 971.50
13.50 $3,032.50
Orlando, FL 32802
Tel: 407-423-4000 Fax: 407-254-3593
Bill Date
Bill No.
7-Aug-09
8420605
MICHAEL PHELAN
6861 S.W. 196 AVENUE - SUITE 201-04
Client Name:
Matter Name:
Matter Number:
PHELAN, MICHAEL
0227433
INVOICE SUMMARY
For professional services rendered through July 31, 2009 as summarized below and described in the
SERVICES $ 2,035.50
and return remittance sheet with payment in USfunds.
Wiredfimds accepted:
IRS EIN 59-3117860
AKERMAN SENTERFITT
DALLAS' DENVER' FT LAliDERDALE . JACKSONVILLE' Los ANGELES' IVL\D1S0N MIAMI' NEW YORK' ORLAI'DO
TALLAHASSEE' TAMPA' TYSONS CORNER' WASHINGTON DC . WEST P A L ~ ' I
Akerman Senterfitt
Date Services
9-Jul-09 COMMUNICATIONS WITH ATTORNEY FELTEL
AND MESSRS. PHELAN AND HEALY RE OPEN
ITEMS IN RECEIVERSHIP, ATTENTION TO
PREPARING SUBPOENA TO REYNOLDS &
REYNOLDS
14-Jul-09 TELEPHONE CONFERENCE WITH ATTORNEY
CARLA FRAME (IN HOUSE COt.JNSEL FOR
REYNOLDS & REYNOLDS) RE OBTAINING
RECORDS
20-Jul-09 REVIEW FEE MOTION, E-MAIL
CORRESPONDENCE TO ATTORNEY FRAME RE
REYNOLDS AND REYNOLDS DOCUMENTS
22-Jul-09 FINALIZE MOTION TO APPROVE FEES
28-Jul-09 REVIEW ACCURINT REPORT ON PREMIER
AUTOMOTIVE ON ATLANTIC LLC
30-Jul-09 TRAVEL TO AND FROM, PREPARATION FOR
AND P ARTICIPA TION IN CONFERENCES WITH
RECEIVER AND BANK OF AMERICA
REPRESENTATIVES RE OPEN ISSUES IN
RECEIVERSHIP, POST -CONFERENCE
ATTENTION TO OPEN ISSUES
30-Jul-09 REVIEW SCHEDULES, STATEMENT OF
FINANCIAL AFFAIRS, AND MONTHLY
FINANCIAL REPORTS FOR BANK ACCOUNT
INFORMATION; DRAFT SUBPOENAS TO
WACHOVIA AND BANK OF AMERICA
31-Jul-09 E-MAIL CORRESPONDENCE WITH CLIENT
SUMMARIZING OPEN ITEMS AND STRATEGY
GOING FORWARD,
COMMUNICATIONS/CONFERENCE WITH
ATTORNEY FELTEL RE SAME, ATTENTION TO
PREPARE SUBPOENA AND MOTIONS
RELATED TO OPEN ISSUES
31-Jul-09 PREPARE SUBPOENAS
Initials
JAB
As of
Bill Number
Hours
0.30
JAB 0.20
JAB
JAB
JSM
JAB
0.30
0.20
0.20
1.50
JSM 1.50
JAB 1.00
JSM 3.00
Page 3
31-Jul-09
8420605
Value
108.00
72.00
108.00
72.00
33.00
540.00
247.50
360.00
495.00
Total Services ......................................................................................................................................... $2,035.50
Date Disbursements Value
053016 PHELAN, MICHAEL As of 31-Jul-09
0227433 PREMIER AUTOMOTIVE ON ATLANTIC, LLC . Bill Number 8420605
Total Disbursements ................................................................................................................................... $13.40
053016 PHELAN, MICHAEL As of 31-Jul-09
Initials Name Rate Amount
JAB 1. A. BROWN 3.50 360.00 1,260.00
JSM J. S.MEEHAN 4.70 165.00 775.50
Total 8.20 $2,035.50
Orlando, FL 32802
Tel: 407-423-4000 Fax: 407-254-3593
Bill Date
Bill No.
8-Dec-09
8454977
MICHAEL PHELAN
6861 S.W. 196 AVENUE - SUITE 201-04
Client Name:
Matter Name:
Matter Number:
PHELAN, MICHAEL
0227433
INVOICE SUMMARY
For professional services rendered through November 30, 2009 as summarized below and described in
the narrative statement:
SERVICES $ 6,824.00
PREVIOUS BALANCE
(Please disregard if already paid.
Includes payments received through 12/8/09)
17,611.84
TOTAL NOW DUE AND PAYABLE $ 24,575.88
To ensure proper credit to the above account, please indicate matter 110. 0227433
and return remittance sheet with payment in US ftmds.
Wired ftmds accepted:
IRS EIN 59-3117860
AKERMAJ'l SENTERFITT
OALLAS' DENVER FT LAUDERDALE JACKSONVILLE' Los ANGELES MADISON' MIAMI NEW YORK' ORLANDO
TALLAHASSEE' TAMPA TYSONSCORt'lER' WASHINGTON DC . WEST PALM
Akennan Senterfitt
Date Services
2-0ct-09 COMPILE, REVIEW AND ORGANIZE
NUMEROUS DOCUMENTS IN PREPARATION'
FOR FORWARDING SAID DOCUMENTS TO
OPPOSING COUNSEL.
7-0ct-09 COMPILE AND REVIEW ORGANIZE
NUMEROUS DOCUMENTS RECEIVED FROM
RECEIVER AND ORGANIZE ALL SAID
DOCUMENTS RESPONSIVE TO SUBPOENA
DUCES TECUM FROM BANK OF AMERICA
9-0ct-09 COMPILE AND ORGANIZE NUMEROUS
DOCUMENTS RECEIVED FROM THE CLIENT IN
PREPARATION FOR HEARING,
2-Nov-09 ATTENTION TO MOTIONS TO SELL VEHICLES
AND TO LOCK DOWN MERCANTILE
ACCOUNTS; COMMUNICATIONS WITH
RECEIVER AND COUNSEL FOR PARTIES RE
SAME; TELEPHONE CONFERENCE WITH
GOVERNMENT AGENCY OFFICIAL RE
SUBPOENA ENFORCEMENT
2-Nov-09 TELEPHONE CONFERENCE WITH MARK
HEALY RE: VEHICLES IN STORAGE
SPREADSHEET; DRAFT MOTION FOR
AUTHORITY TO SELL VEHICLES AT AUCTION
2-Nov-09 PREPARE MOTION FOR TURNOVER OF
TRANSFERRED PROPERTY; REVIEW BANK
ACCOLWTSTATEMENTSANDPREPARE
CHART OF BANK ACCOUNT TRANSFERS;
REVIEW FLORIDA SECRETARY OF STATE
WEBSITE TO DETERMINE OWNERSHIP OF US
OUTFITTERS LLC AND 10-2008 LLC,
3-Nov-09 PREPARATION FOR COMPLIANCE WITH
GOVERNMENT AGENCY SUBPOENA;
ATTENTION TO FINALIZING MOTIONS;
INITIAL REVIEW OF BANK OF AMERICA'S
MOTION TO STRIKE
3-Nov-09 TELEPHONE CONFERENCE WITH M, HEALY
RE: VEHICLES TO BE AUCTIONED; REVISE
LIST OF VEHICLES
3-Nov-09 FURTHER PREPARATION OF MOTION FOR
Initials
AGM
AGM
AGM
JAB
JSM
RCE
JAB
JSM
RCE
Page 3
As of 30-Nov-09
Bill Number 8454977
Hours Value
1.20 198,00
1.55 255,75
0,55 90.75
1.80 684,00
1.00 165,00
1.90 665,00
1.20 456,00
0.20 33,00
1.20 420.00
053016 PHELAN, MICHAEL As of 30-Nov-09
Date Services
TURNOVER OF TRANSFERRED PROPERTY,
MOTION FOR TEMPORARY INJUNCTION AND
MOTION FOR INTERPLEADER.
4-Nov-09 CONFERENCE WITH GOVERNMENT AGENCY
OFFICIALS RE COMPLIANCE WITH
SUBPOENA; ATTENTION TO FINALIZING
MOTIONS RELATED TO SALE OF PROPERTY
AND MERCANTILE ACCOUNTS
4-Nov-09 PREPARE E-MAIL TO AARON COHEN
FORWARDING EXHIBITS FOR MOTION.
5-Nov-09 FINALIZE MOTION FOR AUTHORITY TO SELL
VEIDCLES BY AUCTION AND PROPOSED
ORDER GRANTING RECEIVER'S MOTION FOR
AUTHORITY TO SELL VEHICLES BY AUCTION;
E-MAIL TO M. PHELAN AND M. HEALY
FORWARDING DRAFT MOTION
6-Nov-09 FINALIZE AND CIRCULATE MOTION TO SELL
VEHICLES
6-Nov-09 FINALIZE MOTION FOR AUTHORITY TO SELL
VEHICLES BY AUCTION; COORDINATE FILING
AND SERVICE OF SANIE
9-Nov-09 COMMUNICATIONS WITH COUNSEL FOR
PARTIES RE HEARING ON MOTION TO
APPROVE SALE OF VEHICLES
9-Nov-09 DRAFT NOTICE OF EX PARTE HEARING;
COORDINATE FILING AND SERVICE OF SAME
1O-Nov-09 COMMUNICATIONS WITH MERCANTILE'S
COUNSEL AND BANK OF AMERICA'S
COUNSEL RE PENDING MATTERS
10-Nov-09 REVISE ORDER GRANTING RECEIVER'S
MOTION FOR AUTHORITY TO SELL VEHICLES
BY AUCTION; DRAFT MOTION TO SET
HEARING; DRAFT NOTICE OF EX PARTE
HEARING; TELEPHONE CONFERENCE WITH
JUDICIAL ASSISTANT
12-Nov-09 EX PARTE HEARING ON MOTION FOR SALE
OF VEHICLES; POST -HEARING E-MAIL
CORRESPONDENCE TO RECEIVER RE STATUS
OF CASE; REVIEW NOTICE OF APPEAL
Initials
JAB
RCE
JSM
JAB
JSM
JAB
JSM
JAB
JSM
JAB
Hours Value
2.00 760.00
0.10
OAO
35.00
66.00
0.50
0.30
0.50
OAO
0.30
0.80
190.00
49.50
190.00
66.00
114.00
132.00
1.50 570.00
Date Services
12-Nov-09 COORDINATE DUPLICATION OF DOCUMENTS
PRODUCED BY MERCANTILE AND
W ACHOVIA FOR COUNSEL FOR BANK OF
AMERICA
13-Nov-09 E-MAIL CORRESPONDENCE WITH RECEIVER
RE NOTICE OF APPEAL
13-Nov-09 REVIEW DOCKET RE: DATE NOTICE OF
APPEAL FILED
13-Nov-09 REVIEW NOTICE OF APPEAL OF ORDER
EXPANDING RECEIVERSIDP; EXCHANGE OF E
MAILS RE TIMELINESS OF APPEAL;
RESEARCH RE WHETHER ORDER IS STAYED
PENDING APPEAL.
17-Nov-09 E-MAIL TO M. PHELAN AND M. HEALY
FORWARDING MOTION TO DIS SOL VE ORDER
AND VACATE RECEIVERSHIP
18-Nov-09 CORRESPONDENCE TO ATTORNEY MOODY
RE PENDING MOTION; E-MAIL
CORRESPONDENCE TO ATTORNEYS BARNETT
AND GOULD RE SAME
18-Nov-09 REVIEW MOTION TO DISSOLVE ORDER AND
VACATE RECEIVERSHIP; DRAFT LETTER TO
DOUGLAS MOODY REQUESTING EXHIBITS TO
MOTION TO DIS SOL VE ORDER AND VACATE
RECEIVERSIDP
23-Nov-09 COMMUNICATIONS RE HEARING ON MOTION
TO VACATE ORDER EXPANDING
RECEIVERSIDP
23-Nov-09 REVIEW NOTICE OF HEARING; REVIEW CASE
DOCKET
23-Nov-09 RECEIVE AND NOTICE OF HEARING ON
MOTION TO DISSOLVE RECEIVERSIllP;
FOR BANK OF AMERICA RE HEARING NOTICE;
TELEPHONE CONFERENCE WITH 1. BROWN RE
SCHEDULING OF HEARING; TELEPHONE CALL
TO JOELLE FISHER, ATTORNEY FOR
DEFENDANT, RE HEARING; TELEPHONE
CONFERENCE WITH NOEL LAWRENCE RE
Initials
JSM
JAB
JSM
RCE
JSM
JAB
JSM
JAB
JSM
RCE
Hours
0.20
Value
33.00
0.30
0.10
1.10
114.00
16.50
385.00
0.20
0.80
33.00
304.00
0040 66.00
0.30
0.10
0.80
114.00
16.50
280.00
HEARING ON MOTION TO DrSSOL VE;
PREPARE E-MAILS TO A TIORNEY FOR BANK
OF AMERICA RE HEARING.
24-Nov-09 EXCHANGE OF E-MAILS WITH ATTORNEY RCE 0.50 175.00
FOR BANK OF AMERICA RE STATUS OF
HEARING ON MOTION TO DISSOLVE
RECEIVERSHIP; REVIEW MOTION TO STRIKE
OR MOTION TO CONTINUE HEARING ON
MOTION TO DISSOLVE RECEIVERSHIP;
TELEPHONE CONFERENCE WITH J. BROWN RE
HEARING.
30-Nov-09 ATTENTION TO FINALIZING RECEIVER JAB 0.30 114.00
REPORT AND ATTACHMENTS THERETO
30-Nov-09 DRAFT LETTER TO MARK HEALY JSM 0.20 33.00
FORWARDING ORIGINAL CERTIFICATES OF
TITLE
Total Services ......................................................................................................................................... $6,824.00
Disbursements
11110109 DUPLICATING 7.20
11/12109 DUPLICATING 8.20
11/10/09 DELIVERY SERVICE - PRIORITY COURIERS COURIER 9.19
SERVICES FROM ERIN COHEN TO AlS JAX ON 10/19/09
11110109 DELIVERY SERVICE - PRIORITY COURIERS COURIER 13.65
SERVICES FROM AlS JAX TO FRED TROMBERG ON
10/19/09
Total for DELIVERY SERVICE 22.84
053016
0227433
PHELAN, MICHAEL
As of
Bill Number
30-Nov-09
8454977
Disbursements
11113/09 WESTLA W RESEARCH 111609 ELLIOTT,RA YE 38.80
JACKSONVILLE
Total for WESTLA W RESEARCH 38.80
AGM A. G. MCDONALD 3.30 165.00 544.50
JAB J. A. BROWN 9.50 380.00 3,610.00
JSM J. S.MEEHAN 4.30 165.00 709.50
RCE R. C. ELLIOTT 5.60 350.00 1,960.00
Total 22.70 $6,824.00
Orlando, FL 32802
Tel: 407-423-4000 Fax: 407-254-3593
Bill Date
Bill No.
Il-Nov-09
8448452
MICHAEL PHELAN
6861 S.W. 196 AVENUE SUITE 201-04
Client Name:
Matter Name:
Matter Number:
PHELAN, MICHAEL
0227433
INVOICE SUMMARY
For professional services rendered through October 31,2009 as summarized below and described in the
SERVICES $ 17,155.00
- . ~ - - ..~ . - ~ . ~ ..~ . - . - - ..- . - . ~ - ~ - - ~ - - - - -
and return remittance sheet with payment in USfimds.
Wired/unds accepted:
IRS EIN 59-3117860
AKERMAN SENTERFITT
DALLAS' DENYER' FT LU'DERDALE . JACKSONVILLE' Los ANGElES' MADISO:\ ,MIAMI' NEW YORK' ORLANDO
TALL\uASSEE ,TAMPA' TYSONS CORNER' \VASHINGTON DC . WEST PALM
180.00
Akerman Senterfitt
Date Services
30-Sep-09 REVIEW CHARTS RECEIVED FROM RECEIVER
AND DRAFT CORRESPONDENCE TO C.
SCHMITT REGARDING REQUESTING
ADDITIONAL INFORMATION.
1-0ct-09 REVISE AND CIRCULATE DRAFT LETTER RE:
UNACCOUNTED FOR VEHICLES; TELEPHONE
CONFERENCE WITH ATTORNEY FELTEL RE:
UPCOMING HEARINGS
2-0ct-09 COMPILE, REVIEW AND ORGANIZE
NUMEROUS DOCUMENTS IN PREPARATION
FOR FORWARDING SAID DOCUMENTS TO
OPPOSING COUNSEL.
2-0ct-09 FINALIZE CORRESPONDENCE TO ATTORNEYS
SCHMITT AND FISHER RE UNACCOUNTED
FOR VEHICLES; E-MAIL CORRESPONDENCE
TO RECEIVER RE SUBPOENA FROM BANK OF
AMERICA; ATTENTION TO PREPARATION FOR
OCTOBER 9TH HEARINGS
5-0ct-09 COMMUNICATIONS WITH RECEIVER RE BANK
OF AMERICA SUBPOENA; PREPARATION FOR
UPCOMING HEARINGS
6-0ct-09 REVIEW DOCUMENTS WITH MR. HEALY AND
ATTEND TO RESPONDING TO BANK OF
AMERICA SUBPOENA AND OCTOBER 9TH
HEARINGS; COMMUNICATIONS WITH
RECEIVER AND COUNSEL FOR PARTIES RE
ISSUES RELATED TO OCTOBER 9TH
HEARINGS
6-0ct-09 ASSISTANCE WITH PREPARATION FOR
HEARING ON OCTOBER 9,2009
6-0ct-09 REVIEW E-MAILS RE PREPARATION FOR
HEARINGS ON FRIDAY; EXCHANGE OF E
MAILS WITH J. BROWN RE STATUS OF
PRODUCTION OF DOCUMENTS FROM
FLORIDA DEPARTMENT OF REVENUE.
7-0ct-09 COMPILE AND REVIEW ORGANIZE
NUMEROUS DOCUMENTS RECEIVED FROM
RECEIVER AND ORGANIZE ALL SAID
DOCUMENTS RESPONSIVE TO SUBPOENA
Initials
JAB
Asof
Bill Number
Hours
0.50
JAB 0.50
AGM 1.20
JAB 1.20
JAB
JAB
0.70
1.80
JSM
RCE
1.00
0.20
AGM 1.55
Page 3
31-0ct-09
8448452
Value
180.00
198.00
432.00
252.00
648.00
165.00
67.00
255.75
Akerman Senterfitt
Date Services
DUCES TECUM FROM BANK OF AMERICA.
7-0ct-09 FURTHER ATTENTION TO RESPONSE TO
BANK OF AMERICA SUBPOENA;
CORRESPONDENCE TO ATTORNEYS SCHMITT
AND FISHER RE SAME; ATTENTION TO
PREPARATION OF OCTOBER 9TH HEARINGS
7-0ct-09 TELEPHONE CONFERENCE WITH FLORIDA
DEPARTMENT OF REVENlJE RECORDS
CENTER RE PRODUCTION OF DOCUMENTS
SUBJECT TO ORDER REQUIRING DISCLOSURE
OF TAX RETURNS.
8-0ct-09 PREPARATION FOR HEARINGS ON CONTINUE
MOTIONS; VARIOUS COMMUNICATIONS
WITH RECEIVER AND COUNSEL FOR PARTIES
RE DOCUMENT PRODUCTION ISSUES AND
HEARING RELATED ISSUES
8-0ct-09 TELEPHONE CONFERENCE WITH FLORIDA
DEPARTMENT OF REVENUE
REPRESENTATIVE RE PRODUCING
DOCUNIENTS PURSUANT TO ORDER
REQUIRING DISCLOSURE.
9-0ct-09 COMPILE AND ORGANIZE NUMEROUS
DOCUMENTS RECEIVED FROM THE CLIENT IN
PREPARATION FOR HEARING.
9-0ct-09 PREPARATION FORAND PARTICIPATION IN
HEARING ON MOTION TO EXPEND
RECEIVERSHIP; ATTENTION TO POST
HEARING ISSUES; REVIEW ORDER
EXPANDING RECEIVERSHIP; VARIOUS
COMMUNICATIONS WITH RECEIVER AND
COUNSEL FOR PARTIES RE ORDER AND
TRANSITION RELATED ISSUES
9-0ct-09 ASSISTANCE WITH PRE-HEARING AND POST
HEARING MATTERS
9-0ct-09 REVIEW AND PROVIDE COMMENTS FOR
PROPOSED ORDER ON EXPANSION OF
RECEIVERSHIP.
10-0ct-09 ATTENTION TO COMPLIANCE WITH ORDER
EXPANDING RECEIVERSHIP
Initials
JAB
As of
Bill Number
Hours
1.50
RCE 0.10
JAB 2.50
RCE 0.l0
AGM
JAB
0.55
6.50
JSM
RCE
JAB
2.00
0.10
0.80
Page 4
31-0ct-09
8448452
Value
540.00
33.50
900.00
33.50
90.75
2,340.00
330.00
33.50
288.00
Akennan Senterfitt
Date Services
12-0ct-09 TRAVEL AND FROM THE DEALERSHIP AND
ASSIST RECEIVER.
12-0ct-09 COMMUNICATIONS WITH RECEIVER AND
COUNSEL FOR PARTIES RE ISSUES RELATED
TO ORDER IMPLEMENTATION; ON SITE
CONFERENCE WITH RECEIVER AND JSO
REPRESENTATIVES RE SAME AND
PROTESTOR INTERFERENCE; ANAL YSIS OF
UCC FILINGS AND ATTEND TO LIEN SEARCH
12-0ct-09 REVIEW UCC REGISTRY FOR UCC FILED BY
BANK OF AMERICA
12-0ct-09 TRAVEL TO/FROM DEALERSHIP WITH J.
BROWN TO MEET WITH JSO
13-0ct-09 CONFERENCE WITH J. BROWN REGARDING
OF STRATEGY RELATED TO CLOSING OF KIA
DEALERSHIP AND MEDIA COVERAGE.
13-0ct-09 COMMUNICATIONS WITH RECEIVER RE
ENFORCING ORDER EXPANDING
RECEIVERSHIP AND ATTENTION TO ISSUES
RELATED THERETO; OUTLINE MOTION TO
SELL ADDITIONAL PROPERTY AND
ATTENTION TO INFERIOR LIEN TREATMENT
14-0ct-09 COMMUNICATIONS WITH MR. PHELAN AND
MR. HEALY RE ENFORCEMENT OF ORDER
EXP ANDING RECEIVERSHIP
14-0ct-09 REVIEW PUBLIC RECORDS RE: JUDGMENTS,
UCCS, AND MORTGAGES
15-0ct-09 COMMUNICATIONS WITH RECEIVER, JUDGE
SCHEMER'S JUDICIAL ASSISTANT, AND DMV
REP CAROL LEWIS RE DMV RELATED ISSUES;
REVIEW CORRESPONDENCE FROM COUNSEL
FOR FLORIDA BANK RE POTENTIAL
COMPETING SECURITY INTERESTS;
COMMUNICATIONS WITH RECEIVER RE SAME
AND OTHER ISSUES RELATED TO SATISFYING
REQUIREMENTS OF ORDER EXPANDING
RECEIVERSHIP; E-MAIL CORRESPONDENCE
TO ATTORNEYS SCHMITT, FISHER AND
MOODY RE PRODUCTION OF DOCUMENTS
Initials
AGM
JAB
As of
Bill Number
Hours
3.40
3.50
JSM
JSM
EHT
0.10
1.50
0.20
JAB 1.80
JAB 0.50
JSM
JAB
1.50
4.50
Page 5
31-0ct-09
8448452
Value
561.00
1,260.00
16.50
247.50
63.00
648.00
180.00
247.50
1,620.00
053016 PHELAN, MICHAEL Asaf 31-0ct-09
AND GOVERNMENT AGENCIES
lS-0ct-09 DRAFT MEMO SUMMARIZING UCC,
JUDGMENT, AND MORTGAGE SEARCH
JSM 2.00 330.00
16-0ct-09 VARIOUS COMMUNICATIONS WITH
RECEIVER AND COUNSEL RE ISSUES
RELATED TO EXPANDED ORDER INCLUDING
FLORIDA BANK LETTER AND KEY
TURNOVER; INITIAL REVIEW OF ADDITIONAL
LIEN CLAIMS ON PERSONAL PROPERTY;
COMMUNICATIONS WITH RECEIVER RE
COMPLIANCE WITH REQUESTS FROM
GOVERNMENT AGENCIES
JAB 2.50 900.00
16-0ct-09 DRAFT MEMO SUMMARIZING UCC,
JUDGwIENT, AND MORTGAGE SEARCH
JSM 0.50 82.50
19-0ct-09 ANALYSIS OF UCC FILINGS, JUDGMENT LIEN
AND TAX LIENS; ATTENTION TO RESPONSE
TO GOVERNMENT SUBPOENA; CONFER WITH
RECEIVER RE OPEN ISSUE AND VISIT
WAREHOUSE WHERE PERSONAL PROPERTY
IS STORED; E-MAIL CORRESPONDENCE WITH
ATTORNEY BARNETT RE RETURN OF KEYS;
REVIEW E-MAIL CORRESPONDENCE FROM
MR. KAZMAN RE HIS LIST OF OPEN ISSUES;
REVIEW DOCUMENTS PRODUCED BY
REGIONS BANK; ATTENTION TO
CIRCULATING SAME
JAB 4.50 1,620.00
19-0ct-09 DRAFT LETTER TO CHARLES F. SCHMITT AND
JOELLE FISHER FORWARDING KEYS
JSM 0.20 33.00
19-0ct-09 CONFERENCE FOR CLIENT REGARDING
COMPLIANCE WITH ADMINISTRATIVE
SUBPOENA; REVIEWED SUBPOENA AND
RECEIVERSHIP ORDER.
PCM 0.50 192.50
20-0ct-09 COMMUNICATIONS WITH RECEIVER AND
MEDIA (KEN AMARO) RE CONSUMER ISSUES;
ATTENTION TO COMPLIANCE WITH GOY.
AGENCY SUBPOENA
JAB 0.80 288.00
21-0ct-09 COMwlUNICATIONS RE PREMISES
INSPECTION AND RETURN OF KEYS;
SKINNER RE MERCANTILE ACCOUNT FREEZE;
JAB 1.80 648.00
053016 PHELAN, MICHAEL As of 31-0ct-09
CHAG RE GATEWAY ONE RETURNING
UNFUND CONTRACTS; COMMUNICATIONS RE
COMPLIANCE WITH GOVERNMENT
SUBPOENA
22-0ct-09 TRAVEL TO AND FROM DEALERSHIP AND AGM 1.50 247.50
MEET THE RECEIVER WITH THE KEYS TO THE
DEALERSHIP AND WALK AROUND
DEALERSHIP WITH DEFENDANTS COUNSEL.
22-0ct-09 CORRESPONDENCE TO ATTORNEY SKINNER JAB 0.80 288.00
RE MERCANTILE ACCOUNTS;
COMMUNICATIONS RE COMPLIANCE WITH
SUBPOENA FROM GOVERNMENT AGENCY
23-0ct-09 CONFERENCE WITH MESSRS PHELAN AND JAB 0.50 180.00
HEALY RE OPEN ITEMS IN RECEIVERSHIP
27-0ct-09 VARIOUS COMMUNICATIONS RE JAB 0.80 288.00
COMPLIANCE WITH GOVERNMENT AGENCY
SUBPOENASffiEQUESTS
29-0ct-09 REVIEW AND ANALYZE CORRESPONDENCE JAB 0.50 180.00
RELATED TO MERCANTILE BANK ACCOUNTS
29-0ct-09 REVIEW AND ANALYZE LETTER FROM DOUG RCE 0.20 67.00
MOODY TO ATTORNEY FOR MERCANTILE
BANK RE OWNERSHIP OF BANK ACCOUNTS;
CONFERENCE RE SAME.
Total Services ....................................................................................................................................... $17,155.00
Date Disbursements
~
Total for POST A GE 1.39
Akerman Senterfitt
Disbursements
Total for DUPLICATING
10/06/09 TELEPHONE SOUNDPATH LEGAL CONF. CALL INV
#10/21109 (J BROWN - JAX)
10/08/09 TELEPHONE SOUNDPATH LEGAL CONF. CALL INV
#10121109 (J BROWN JAX)
Total for TELEPHONE
10114/09 OTHER TRAVEL EXPENSES - JENNIFER S. MEEHAN:
MILEAGE FOR TRAVEL TO PREMIER AUTOMOTIVE ON
ATLANTIC FOR MEETING WITH JSO RE: ENFORCEMENT
OF ORDER EXPANDING RECEIVERSHIP ON 10/12/09 JM
1902
Total for OTHER TRAVEL EXPENSES
10113/09 COURT REPORTER RILEY REPORTING & ASSOCIATES,
INC.: ATTENDANCEATHEARINGBEFORE
HONORABLE JACK M. SCHEMER ON 9/9/09 JM-0902
Total for COURT REPORTER
Page 8
As of 31-0ct-09
Bill Number 8448452
78.20
0.40
6.00
6.40
0.40
299.40
14.17
3.63
17.80
8.25
130.00
130.00
8.25
053016 PHELAN, MICHAEL As of 31-0ct-09
AGM A. G. MCDONALD 8.20 165.00 1,353.00
EHT E. H. TRENT 0.20 315.00 63.00
JAB J.A.BROWN 38.50 360.00 13,860.00
JSM J. S. MEEHAN 8.80 165.00 1,452.00
PCM P.C.MARSH 0.50 385.00 192.50
RCE R. C. ELLIOTT 0.70 335.00 234.50
Total 56.90 $17,155.00
Orlando, FL 32802
Tel: 407-423-4000 Fax: 407-254-3593
Bill Date
Bill No.
6-0ct-09
8438754
MICHAEL PHELAN
6861 S.W. 196 AVENUE - SUITE 201-04
Client Name:
Matter Name:
Matter Nnmber:
PHELAN, MICHAEL
0227433
INVOICE SUMMARY
For professional services rendered through September 30, 2009 as summarized below and described in
the narrative statement:
SERVICES $ 1,420.00
and return remittance sheet with payment in USfimds.
Wiredfunds accepted:
Akennan, Senterfitt & Eidson Operating Account
c/o SunTrust Bank, Atlanta, GA
IRS EIN 59-3117860
AKERMAN SENTERFITT
DALLAS' Dp,YER FT LAUDERDALE' JACKSONVILLE Los ANGELES MAOISON' MIAMI' NEW YORK' ORLANDO
TALLAHASSEE' TAMPA' TYSONS CORNER' WASIIINGTON DC . WEST PALM
053016 PHELAN, MICHAEL As of 30-Sep-09
~
Services
2-Sep-09 COMMUNICATIONS WITH RECEIVER AND
DEFENDANT'S COUNSEL RE OPEN ISSUES.
3-Sep-09 COMMUNICATIONS WITH RECEIVER RE
STATUS OF RECORD REVIEW; INITIAL
REVIEW OF VYSTARRECORDS.
4-Sep-09 TELEPHONE CONFERENCE AND E-MAIL
CORRESPONDENCE WITH COUNSEL FOR
DEFENDANTS RE PROPOSED ORDER ON
DOCUNIENT PRODUCTION, COMPUTER
RECORDS, ETC.
ll-Sep-09 REVIEW PROPOSED REVISIONS TO PROPOSED
ORDER REQUIRING ACCESS TO BOOKS AND
RECORDS MADE BY ATTORNEY FOR 11-2001;
PREPARE E-MAIL TO ATTORNEY FOR 11-2001
RE DISAGREEMENT WITH REVISIONS.
14-Sep-09 REVISE AND EDIT PROPOSED ORDER
REQUIRING ACCESS TO BOOKS AND
RECORDS; PREPARE E-MAIL TO DEFENDANT'S
ATTORNEY FORWARDING PROPOSED ORDER;
PREPARE LETTER TO JUDGE FORWARDING
PROPOSED ORDER FOR SIGNATURE.
17-Sep-09 E-MAIL CORRESPONDENCE TO RECEIVER RE
DOCUMENT PRODUCTION, SUBPOENAS AND
OTHER ISSUES IN DOCUMENT PRODUCTION
17-Sep-09 REVIEW E-MAIL FROM G. FELTEL RE
INFORMATION FROM DEPOSITION.
IS-Sep-09 E-MAIL CORRESPONDENCE AND TELEPHONE
CONFERENCE WITH RECEIVER RE MISSING
VEHICLES AND DOCUNIENT PRODUCTION
22-Sep-09 FINALIZE NOTICE OF PRODUCTION IN
RESPONSE TO REQUESTS ON THIRD PARTY
SUBPOENAS
24-Sep-09 COMMUNICATIONS WITH RECEIVER RE
MISSING VEHICLES; RECEIVER REPORT AND
STATUS OF DOCUMENT REVIEW
29-Sep-09 REVIEW MISSING CARS LIST; TELEPHONE
CONFERENCE WITH MESSRS HEALY AND
PHELAN RE SAME; E-MAIL
Initials
JAB
JAB
JAB
Hours
0.50
0.50
0.30
RCE 0.30
RCE 0.40
JAB
RCE
JAB
JAB
JAB
JAB
0.30
0.10
0.30
0.30
0.20
O.SO
Value
lS0.00
lS0.00
10S.00
100.50
134.00
10S.00
33.50
10S.00
10S.00
72.00
28S.00
Akennan Senterfitt
Page 4
0227433 PREMIER AUTOMOTIVE ON ATLANTIC, LLC Bill Nmnber 8438754
Services Initials
CORRESPONDENCE TO ATTORNEY COHEN RE
MERCANTILE BANK SUBPOENA
Total Services ......................................................................................................................................... $1,420.00
Initials Name Rate Amount
JAB J. A. BROWN" 3.20 360.00 1,152.00
RCE R. C. ELLIOTT 0.80 335.00 268.00
Total 4.00 $1,420.00
Exhibit 2
IN THE CIRCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT IN
AND FOR DUVAL COUNTY,
FLORIDA
BANK OF AMERICA, N.A., a nationally chartered
banking association,
Plaintiff,
vs.
GWINNETT, LLC, an administratively dissolved
Florida limited liability company; SUMMIT
AUTOMOTIVE GROUP, LLC, a Florida limited
liability company; 11-2001, LLC, a Florida limited
liability company; PREMIER CHRYSLER, JEEP
DODGE, LLC, a Georgia limited liability company; .
Case No. 16-2008-13005
PREMIER AUTOMOTIVE ON ATLANTIC, LLC, a
Florida limited liability company; PREMIER
Division: CV-E
AUTOMOTIVE AT THE AVENUES, LLC, a Florida
limited liability company; NORTHSIDE
CONSULTING, LLC, an administratively dissolved
Florida limited liability company; INFINIQUEST
LLC, a Delaware limited liability company; SAM
KAZRAN, an individual; JOSHUA FARID, an
individual; ARAM ASKARIFAR, an individual; and
ONYYX DEVELOPMENT GROUP, LLC, a Florida
limited liability company,
Defendants.
---------------------------------
I
PILED
JUN 05Z00
9
,,--=-- ;i1..
CLERK C l n c U I ~
BANK OF AMERICA, N.A.'S MOTION TO COMPEL RECEIVER'S
COMPLIANCE WITH THE MAY 14,2009 ORDER APPOINTING RECEIVER
Plaintiff, Bank of America, N.A. (the "Bank"), by and through undersigned
counsel, moves to compel the Receiver Michael Phelan's compliance with the Court's
May 14, 2009 Order appointing receiver. As grounds therefore, the Bank would show:
1. On May 14, 2009, after hearing evidence and the argument of counsel, the
Court entered its Order Appointing Receiver As To 112001 And Denying Without
Prejudice Appointment Of A Receiver As To Premier Chrysler Jeep Dodge, LLC (the
"Order"). In relevant portion, the Order expressly directs the appointed Receiver for
Defendant 11-200I, LLC Michael Phelan, to discharge his duties as follows:
a. The Receiver will promptly take possession of all accounts, chattel paper,
deposit accounts, documents (including all negotiable and non-negotiable
documents of title covering any Collateral), equipment, general intangibles,
intellectual property, instruments and inventory (including all materials, work
in progress and finished goods), whether now owned or existing or hereafter
acquired, wherever located, an insurance policies, insurance proceeds, books
and records relating to the foregoing, and cash and non-cash proceeds and
products thereof, as such terms may be defined by Revised Article 9 of the
Uniform Commercial Code (collectively, the "Collateral").
b. For all such Collateral taken into possession by the Receiver, including but
not limited to automobile vehicle inventory, the Receiver will marshal such
assets at a location other than the dealership business location. For Collateral
consisting of books and records of 11-2001, LLC, the Receiver will be
provided full access (as set forth below) to such records but will only take
possession of and marshal copies of such records as required by the Receiver
for discharge of his duties hereunder.
Order, Paragraphs 3(a) and (b).
2. Notwithstanding the Court's express direction to the Receiver to
promptly take possession of aU of the Collateral and marshal it away from the dealership
location some 22 days ago, the Receiver has simply failed or refused to do so.
3. Instead, all of the Collateral remains at the dealership. Rather than
marshal the Collateral offsite in preparation for commercially reasonable liquidation
activities as required by the Order, the Receiver has instead ignored the express terms of
the Order and attempted to sell a substantial portion (the new car inventory) of the
Collateral back to a sister company of 11-2001 based on a purchase offer made to the
Receiver at the hearing appointing the Receiver. See, First Report of Receiver as to
Defendant 11-2001 (a copy of which is attached as Exhibit A).
2
4. The Receiver has not reported, and apparently has not taken, any other
actions to determine the market value of the Collateral the Receiver proposes to sell
other than relying on the information provided by Defendant 11-2001. Receiver prefers
to sell that Collateral to an affiliate of the debtor without ever determining through an
auction, or any other third party marketing tool, just what type of price that Collateral
might bring. This is not commercially reasonable, is contrary to the express terms of the
Order and damages the Banle
5. In addition to attempting to dispose of the new vehicle collateral without
.ascertaining its market value, the Receiver has utterly failed to marshal or remove any of
the other assets comprising the CollateraL With the exception of placing an
administrative hold on an 11-2001's bank account, the Receiver has apparently
completely failed to ascertain the location of, or marshal, any of the other Collateral
contained within the Court's Order. As set forth in Exhibit A, Receiver intends to
commence its duties with respect to the other Collateral only after it completes the
proposed vehicle sale to debtor's affiliate. Again, this is not commercially reasonable, is
contrary to the Order and damages the Bank.
WHEREFORE, the Bank respectfully requests this Court enter an Order:
a. Compelling Receiver'S strict compliance with its responsibilities laid out
in the terms and conditions of the original Order;
b. Setting appropriate milestone dates for Receiver's prompt compliance;
c. Directing the Receiver to undertake and document its activities aimed at
marshaling the Collateral and determining the market value for that
Collateral.
3
d. Directing the Receiver to reimburse the Bank for its fees and costs in
bringing this motion; and
e. Providing the Bank such other and further relief as the Court deems
appropriate up to and including appointment of a replacement receiver to
carry out the original
Respectfully submitted this day of June, 2009.
By-+____ _________
Florida Bar Number 993603
David D. Bums
Florida Bar Number 878081
One Independent Drive, Suite 1700
Jacksonville, FL 32202
(904) 598-00341 (904) 598-0395 Facsimile
gfeltel@tannerbishop1aw.com
Attorneys for Bank ofAmerica, N.A.
CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that on June a true and
correct copy of the foregoing was served via U.S. Mail on Richard R. Thames, Esq., 50
N. Laura St., Suite 1600, Jacksonville, FL 32202; Michael R. Freed, Esq., Brennan
Manna & Diamond, 800 W. Monroe Street, Jacksonville, FL 32202; Robert D. Wilcox,
Esq., Wilcox Law Firm, 4190 Belfort Road, Suite 315, Jacksonville, FL 32216; Bohdan
Neswiacheny, Esq., Law Office of Bohdan Neswiacheny, 151 College Dr. Suite 5,
Orange Park, FL 32065; Walter D. Moody, Jr., Esq., Myers & Fuller, P.A., 2822
Remington Green Circle, Tallahassee, FL 32308-3769; Fred Tromberg, Esq., 4925 Beach
Blvd., Jacksonville, FL 32207, Jacob A. Brown, Akerman Senter:fitt, 50 N. Laura Street,
Suite 2500, Jacksonville, Florida 32202. A

00013193.doc
4
i
EXHIBIT A
I
. i
5
11-2001, LLC
Case # Div CV-E
First Report ofReceiver
Michael Phelan
May 21, 2009
Receiver Michael Phelan was appointed by Judge Schemer on May 14. 2009. A
copy of the Judge's order is attached as Exhibit A.
Receiver's Initial Duties:
TIle Receiver was appointed to take inunedlate control ofall assets ofthe
dealership and to liquidate those assets in any orderly manner. The judge also granted the
Receiver full access to the books and records of the dealership with the understanding
that the Receiver could copy or print out from the computer file but could not remove any
original recOrd.
Receiver Engages Counsel:
The Receiver engaged Jacob Brown ofAkerman Senterfitt to represent him in this
case. Mr. Brown will also be assisted by Raye Curry Elliot of Akerman. Senterfitt.
Dealership Inventory Issues:
At the appointment hearing, the Receiver was presented with an offer to purcbase
41 vehicles for $397,500. The Receiver verified and inspected the 41 vehicles located
between the two Iacksonville dealerships. The Receiver also identified three additional
floor planned vehicles. The Receiver verified that the prices offered were reasonable
quick sale prices and the funds were not coming from any named party to the lawsuit.
The Receiver has filed a motion to approve sale which will be heard on May 27,2009. A
copy of the sale motion is attached as Exhibit B. The buyer, Jacksonville Auto Mall, LLC
has wired $350,000 to the Receiver Trust Account.
Other Assets:
The Receiver identified three Mercantile Bank Accounts in the Name of 11-2001
LLC and blocked access to them. There is about $60,000 in those accounts. The parts
inventory and FF&E are still on the premises. The receiver anticipates.an imminent offer
for that property ill sitll.
Books and Records:
The Receiver bas requested an accounts receivable aging, a parts inventory listing
and a backup ofthe computer file. Those have been promised by the dealership, but not
yet received
Inventory Reconciliation:
Once the above open items have been resolved. the Receiver win proceed to
reconciliation ofthe bank's inventory records with the dealerships inventory records.
Receipts and Disbursements ofReceiversbjp:
The Receiver has received $350,000 and expects further payment of5l47,500 and
about $30,000 for vehicle inventories. No further asset sales are pending yet. The
receiver bas not disbursed any funds to date. Estimated fees and expenses ofthe Receiver
to date are $5,000. Estimated fees and expenses ofReceiver's counsel to date are 53,000.

:,."."1
IN THE C(RCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT IN AND
FOR DUVAL COUNTY. FLORIDA
CASE NO.: 2008 {3005-CA
DIVISION: CVE
BANK OF AMERICA, N.A., a nationally
chartered banking association,
Plaintiff,
VS.
GWlNNETI, LLC, an administratively
dissolved Florida limited liability company;
SUMMIT AUTOMOTIVE GROUP, LLC, a
Florida limited liability company; 11-2001,
LLC, u Horida limited liability company;
PREMIER CHRYSLER, JEEP DODGE, LLC,
Il Georgia limited liability company; PREMIER
AUTOMOTIVE ON LLC, a
Florida limited liability company; PREMIER
. AUTOMOTIVE A r TIlE AVENUES, LLC. a
Florida limited liability company;
NORTHSIDE CONSULTINO, LLC, an
ndminiSlralivcLy dissolved Florida limited
liability company; TNFINfQUEST LLC, a
Delaware limited liability compnny; SAM
KAZRAN, an individual; JOSHUA FARlO, an
individual; ARr'\JVt ASKARIFAR, an
individu",l; and ONYYX DEVELOPMENT
GROUP, LLC.a Florida Iimhed liability
comptm}',
Defendants.
I
-_._-------
EMERGENCY MOTION TO CONFIRM SALE OF VEHlCLES
The Receiver. Michad Phelan, by and through his undersigned counsel, moves this Court
for an ortler continuing the sale of cenain motor vchides (as described herein), and in support
thereof Slates liS follows:
jJA4S5i96;11
1. This Court appointed Michael Phelan the Receiver of Defendant, 11-200 J. LLC
("Premier Atiantic'1. by Order dated May 14,1009.
2. The Receiver has received an offer from Jacksonville Auto Mall LLC in the
amount of $397,000.00 for the purchase of forty-one (41) Hyundai motor vehicles that the
Receiver took possession of from 11-2001, LtC (the "Vehicles"). A list of the Vehicles and a
COP)' of the written offer 10 purchase from Jacksonville Auto Mall LLC are attached hereto and
incorporated herein as Composite E.xbibit A.
3. The Receiver feels that this offer is reasonable nnd that it is in alt hltercsted
panics' best interest \0 proceed WIth a sale oftne Vehicles to Jacksonville Auto Mall LLC.
4. FurthennoTe, the Receiver intends 10 sell to Jacksonville AUla Mull LLC tlle
additional three (3) Hyundai motor vehicles, specifically the 2009 Hyundai Accent GLS VIN
284935, 2009 Hyundai Accent GLS VIN 285548, nnd 2009 Hyundai Sonata VIN 440485 (the
"Additional VehiclesU) tbai are described al tJlI: bottom of the list attached hereto, for a price (0
be agreed upon.
5. tvlr. Kazmn has confinned that all funds for the purchase of the Vehicles and
Additional Vehicles nre not Collatcrdl nor arc such funds being provided by any of Premier
Chrysler Jeep Dodge, LLC, 11-2001, LLC, Sunlmit Automotive Group, LtC, Gwinnett, LLC or
Premier AutuIllotive on Atlantic, LLC.
6. While there are nltematives mechanisms for Ihe sale of the Vehicles and
Additional Vehicles, including. but notlimiled to, an auction with competitive bidding, there is
also uncertainty us to the net amount to be received through such alternative sale mechanisms
and there is no guaranty that such alternatives would result in a higher net yield
WHEREFORE, the Receiver, Michael Phelan. respectfully seeks the cntry of an Order
confinning his authorization to sell the Vehicles \0 jacksonville Auto Mall LLC for $397,000.00

and to sell the Additional Vehicles to Jacksonville Auto Mall LLC for a price 10 be agreed upon
in the fonn attached hereto as Exhibit nand for such other and funher relief as may be just and
proper.
Dated: May ) I ,2009. AKERMAN SENTERFR'T
/" // /"
////
By: .:;--1/4'/
*QlfA. BroWn
F,Jtfrlda B'- No. 0170038
." "
.JSO North Laura Street, Suite 2500
l? Jacksollville, FL 32202
Telephone: (904)
Facsimile: (904) 798-3730
Email!jaeob.brown@akerman.com
A nORNEYS FOR RECE1VER,
MICHAEL PHELAN
.
CERTlFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was furnished by facsimile and U.s.
Mail, postage prepaid and properly addressed, this '21 day of May, 2009, to:
Gilbert L. Fellel. Esq.
One Independent Drive.. Suite 1700
Charlie Hawkins, Esq.
Harris B. Winsbcrg, Esq.
600 Peachtree Street NE, Suite 5200
Atlanta. GA )0308
Michael R. Freed, Esq.
800 West Monroe Street
Roben D. Wilcox. Eliq.
4190 Selfort Road, Suite 315
Richard R. Thames, Esq.
50 N. Luura Street. Suite 1600
Michael Phelan
6861 SW 196 Ave, Building 200
Fort Lauderdale, FL 33332
Bohdan Neswiacheny, Esq.
151 College Dr., Suite 5
Orange Park, FL 32065
WalterD. Moody, Jr., Esq.
2822 Remington Green Circle
Tallahassee, FI- 32308-3769
Fred Tromberg, Esq.
4925 Beach Blvd.

Premier Atlantic and 11-2001's Memo in Support of Objection of Attorney's Fees (2!5!10)

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IN THE CIRCUIT COURT OF THE

FOURTH JUDICIAL CIRCUIT IN AND

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