Scotello et al v. The Turin Aviation Group, LLC et al
ORDER granting in part and denying in part 37 Motion for a charging order. Signed by Magistrate Judge Amanda Arnold Sansone on 5/6/2022. (BEE)
Case 8:18-cv-01811-JSM-AAS Document 39 Filed 05/06/22 Page 1 of 5 PageID 217
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
and AARON POIDEVIN,
Case No. 8:18-cv-01811-JSM-AAS
Plaintiffs John Scotello, Benjamin Brooks, and Aaron Poidevin
(collectively, the plaintiffs) move for a charging order against Defendant Edwin
Franco’s membership interest in these five companies: Viametris North
(Wimauma); Life Solutions Service, LLC (Life Solutions); The Turin Aviation
Group, LLC (Turin Aviation); and Skyway Defense Industries, LLC (Skyway
Defense). (Doc. 37). Mr. Franco opposes the motion. (Doc. 38).
The plaintiffs obtained a judgment against Mr. Franco for $52,593.85,
plus interest at the statutory rate. The judgment has not been paid in full and
the amount due is $32,658.60. The plaintiffs request that the court issue a
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charging order against Mr. Franco’s transferrable membership interest in
Viametris, Wimauma, Life Solutions, Turin Aviation, and Skyway Defense.
Fed. R. Civ. P. 69(a)(1) provides that “[t]he procedure on execution – and
in proceedings supplementary to and in aid of judgment or execution – must
accord with the procedure of the state where the court is located[.]” The Florida
Limited Liability Company Act (“Florida LLC Act”) governs a judgment
creditor’s levy or seizure of a judgment debtor’s membership interest in an
LLC. For a judgment creditor to create a lien on a judgment debtor’s LLC
interest – including any proceeds of it – Section 605.0503 of the Florida
Statutes provides the judgment creditor’s “sole and exclusive remedy” is to
obtain a charging order or a charging order followed by a foreclosure sale.1 The
remedy “constitutes a lien upon a judgment debtor’s transferable interest and
requires the limited liability company to pay over to the judgment creditor a
distribution that would otherwise be paid to the judgment debtor.” FLA. STAT.
The Florida legislature amended the Florida LLC Act in 2013 “to clarify the
exclusive remedies available to a judgment creditor as to a judgment debtor’s interest
in an LLC [as] a charging order, or a charging order followed by a foreclosure sale.”
Regions Bank v. Hyman, 2015 WL 1912251, at *7 (M.D. Fla. Apr. 27, 2015). The
legislative amendment was enacted to overturn the Florida Supreme Court’s decision
in Olmstead v. FTC, 44 So. 3d 76, 80 (Fla. 2010), because that case allowed a
judgment creditor to create a judgment lien against a single-member LLC either by
charging order and foreclosure sale under the Florida LLC Act, or by filing a judgment
lien certificate against personal property under Section 55.202 of the Florida
Statutes. See Regions Bank, 2015 WL 1912251, at *7. The law now only permits liens
against LLCs through a charging order or charging order and foreclosure sale. Id.
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§ 605.0503(1). This concept is reiterated under Section 605.0502(2), where it
states that “[a] transferee has the right to receive, in accordance with the
transfer, distributions to which the transferor would otherwise be entitled.”
FLA. STAT. § 605.0503(2).
Section 605.0503(1) authorizes a court “to enter a charging order against
a judgment debtor’s transferable interest,” and to require “an LLC to pay over
to the judgment creditor any distribution that would otherwise be paid to the
judgment debtor.” Kostoglou v. Fortuna, 290 So. 3d 924, 925 (Fla. 4th DCA
2020) (citing Panksy v. Barry S. Franklin & Assocs., P.A., 264 So. 3d 961, 962
(Fla. 4th DCA 2019)). When the limited liability company has only one
member, the statute allows a court to order a foreclosure sale if a judgment
creditor establishes that a charging order will not satisfy the judgment. FLA.
STAT. § 605.0503(4). If a limited liability has more than one member then a
judicial sale is not an available remedy. Id. § 605.0503(1).
Viametris was administratively dissolved by the State of Florida in 2018.
(See Doc. 38, Ex. A). Likewise, Wimauma closed and never possessed assets or
income. (Id.). As these companies are not operational, there is no transferable
membership interest that a charging order can attach. Further, Life Solutions
is solely owned by Laura Franco, Mr. Franco’s non-debtor wife. (See Doc. 38,
Ex. B). Mr. Franco has no ownership interest and owns no transferable
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membership interest that a charging order can attach.
Turin Aviation and Skyway Defense are multi-member LLCs. Turin
Aviation has two members, Mr. Franco and Sarah Gilbreath. (Doc. 38, Exs. A,
C). Skyway Defense also has two members, Mr. Franco and Ms. Franco. (Doc.
38, Exs. A, B). Although the court may not order a foreclosure sale, the court
may issue a charging order as to Mr. Franco’s LLC interest in these LLCs,
including any proceeds thereof. See FLA. STAT. § 605.0503 (providing that the
judgment creditor’s “sole and exclusive remedy” is to obtain a charging order);
see also See McClandon v. Dakem & Assocs., LLC, 219 So. 3d 269, 271 (Fla. 5th
DCA 2017) (“Under ...section 605.0503, the charging order entered by the court
should have only directed the LLCs to divert [the debtor’s] rights to the LLCs’
profits and distributions to [the creditor].”); Capstone Bank v. Perry-Clifton
Enters., LLC, 230 So. 3d 970, 971 (Fla. 1st DCA 2017) (“A charging order is a
remedy that a creditor of a member in an LLC ... can receive from a court that
instructs the entity to give the creditor any distributions that would otherwise
be paid to the ... member from the entity.”) (citation and quotation marks
Accordingly, the plaintiffs’ motion for a charging order (Doc. 37) is
GRANTED in part and DENIED in part. Edwin Franco’s individual
transferable interests in The Turin Aviation Group, LLC and Skyway Defense
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Industries, LLC, are charged with payment of the $32,658.60, plus accrued
interest. The Turin Aviation Group, LLC and Skyway Defense Industries LLC
must report and distribute to counsel for the plaintiffs, Brandon Hill, Esq.,
Wenzel Fenton Cabassa, PA, 1110 North Florida Avenue, Suite 300, Tampa,
Florida 33602, all amounts that Mr. Franco is entitled or that become due or
distributable to Mr. Franco and continue to do so until the judgment is
satisfied, or further order of this court. Attorney Hill is directed to serve a copy
of this charging order on Turin Aviation and Skyway Defense and file a notice
ORDERED in Tampa, Florida on May 6, 2022.
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