NPA Associates, LLC et al v. Lakeside Portfolio Managment LLC et al

Filing 49

ORDER granting in part and denying in part 39 Motion to Enforce Settlement Agreement and Escrow Agreement and to Quash Writ of Execution. Signed by Magistrate Judge John J. O'Sullivan on 2/8/2016. (mms)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-23930-CIV-MORENO/O’SULLIVAN
NPA ASSOCIATES, LLC, and
MISCHA HILL ASSOCIATES, LLC,
Plaintiffs,
v.
LAKESIDE PORTFOLIO MANAGEMENT,
LLC, WESTON PORTFOLIO GROUP, LLC,
BRIAN O. PLUNKETT, and
EUGENE WETZOLD,
Defendants.
/
ORDER
THIS MATTER is before the Court pursuant to the Defendants Lakeside Portfolio
Management, LLC and Brian Plunkett’s Motion to Enforce Settlement Agreement and
Escrow Agreement and to Quash Writ of Execution (DE# 39, 11/12/15). This matter
was referred to the undersigned by the Honorable Federico A. Moreno in accordance
with 28 U.S.C. § 636(b) (DE# 43, 12/30/15). Having reviewed the motion, the plaintiffs’
response (DE# 40, 12/1/15), and the defendants’ reply (DE# 12/10/15), and having
heard argument of counsel, it is
ORDERED AND ADJUDGED that the Defendants Lakeside Portfolio
Management, LLC and Brian Plunkett’s Motion to Enforce Settlement Agreement and
Escrow Agreement and to Quash Writ of Execution (DE# 39, 11/12/15) is GRANTED in
part. As counsel for plaintiff conceded during the hearing, the plaintiffs shall exhaust
execution on the assets posted as collateral in Exhibit B to the Escrow Agreement (DE#
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39-2, 11/12/15) before proceeding in execution against the defendants’ other property
and assets. See Kearney Constr. Co. v. Bank of America, N.A., No. 8:09-cv-1912-T33TBM, 2011 WL 693573, at *1 (M.D. Fla. Feb. 18, 2011) (acknowledging that “Florida
law and the UCC do not allow [a judgment creditor] to pursue the Guarantors until [the
judgment creditor] has sold the collateral in a commercially reasonable manner and
applied such proceeds to [satisfy the debt].”) (citing Motorola Commc’ns v. Nat’l Patient
Aids, Inc., 427 So. 2d 1042, 1047 (Fla. 4th DCA 1983)); see also Ayares-Eisenberg
Perrine v. Sun Bank, 455 So. 2d 525, 527 (Fla. 3d DCA 1984) (holding that “Article 9 [of
the Uniform Commercial Code] does not give a secured creditor the authority to harass
a debtor by pursuing contemporaneously two or more remedies ... and that Sun Bank’s
obviously premature action directly on the note was therefore precluded and may not be
resumed until fulfillment of the statutory requirements with respect to disposition of the
collateral”). “Florida courts have held that once a secured party has chosen a remedy,
it must pursue that remedy to fruition, and only then may it pursue satisfaction of the
debt by another method.” Guarantee Ins. Co. v. Brand Mgmt. Serv., Inc., No. 1261670-CIV, 2013 WL 6768641, at *9 (S.D. Fla. Dec. 20, 2013) (citing Ayares-Eisenberg
Perrine, 455 So. 2d at 526) (other citation omitted). It is further
ORDERED AND ADJUDGED that the plaintiffs may proceed with discovery in
aid of execution. It is further
ORDERED AND ADJUDGED that if a deficiency exists after the plaintiffs sell the
collateral that was posted by the defendants pursuant to the Settlement Agreement and
Escrow Agreement, the plaintiffs are entitled to execute on assets and property of the

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defendants in addition to the pledged collateral that was listed on Exhibit B to the
Escrow Agreement (DE# 39-2, 11/12/15). Neither the Settlement Agreement nor the
Escrow Agreement limit the scope of the defendants’ property and assets that are
subject to execution in the event of a default under the contracts or if the sale of the
collateral results in a deficiency of the amount due under the judgment.
DONE AND ORDERED, in Chambers, at Miami, Florida, this 27th day of
January, 2016.

JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
United States District Judge Moreno
All Counsel of Record

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