Myers v. 3073 Horseshoe Drive, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

GREGORY B. MYERS,

Plaintiff,

v. Case No: 2:23-cv-95-JES-NPM

3073 HORSESHOE DRIVE, LLC,

Defendant.

OPINION AND ORDER

This matter comes before the Court on defendant’s Motion for

Summary Judgment as it Relates to Count One of Plaintiff’s Fourth

Amended Complaint (Doc. #114) filed on February 24, 2025. After

several extensions of time, plaintiff filed a Response in

1

Opposition (Doc. #128) on April 11, 2025 , and defendant filed a

Reply (Doc. #131) on April 21, 2025. On May 15, 2025, plaintiff

filed a Motion for Final Judgment as to Count I of Plaintiff’s

Fourth Amended Complaint (Doc. #133). Defendant filed a Reply

(Doc. #135) on June 2, 2025, incorporating its Motion for Summary

2

Judgment (Doc. #114). On June 11, 2025, plaintiff filed another

1

Plaintiff filed an Amended Response in Opposition (Doc.

#134) to incorporate the Motion for Final Judgment as to Count I

of Plaintiff’s Fourth Amended Complaint (Doc. #133).

2

Plaintiff filed a Reply to Reply (Doc. #137) on June 23,

2025, without leave of Court and therefore the document was not

considered. See M.D. Fla. R. 3.01(d); Doc. #79 at 5 (“Any motion

Motion for Final Summary Judgment as to Count II of Plaintiff’s

Fourth Amended Complaint (Doc. #136). Counts II and III were

dismissed with prejudice on January 15, 2025. (Doc. #106.) A

motion to alter or amend judgment was denied. (Doc. #119.)

I.

Summary judgment is appropriate only when the Court is

satisfied that “there is no genuine dispute as to any material

fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to

find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material”

if it may affect the outcome of the suit under governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A

court must decide ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.’”

Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th

Cir. 2004) (quoting Anderson, 477 U.S. at 251).

In ruling on a motion for summary judgment, the Court views

all evidence and draws all reasonable inferences in favor of the

for a sur-reply is disfavored and should be made only in

exceptional circumstances.”).

non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). However, “if

reasonable minds might differ on the inferences arising from

undisputed facts, then the court should deny summary judgment.”

St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198

F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983)

(finding summary judgment “may be inappropriate even where the

parties agree on the basic facts, but disagree about the factual

inferences that should be drawn from these facts”)). “If a

reasonable fact finder evaluating the evidence could draw more

than one inference from the facts, and if that inference introduces

a genuine issue of material fact, then the court should not grant

summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).

“Pro se pleadings are held to a less stringent standard than

pleadings drafted by attorneys and will, therefore, be liberally

construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998); Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003).

When a motion for summary judgment has been

made properly, the nonmoving party may not

rely solely on the pleadings, but by

affidavits, depositions, answers to

interrogatories, and admissions must show that

there are specific facts demonstrating that

there is a genuine issue for trial. Although

we must view factual inferences favorably

toward the nonmoving party and pro se

complaints are entitled to a liberal

interpretation by the courts, we hold that a

pro se litigant does not escape the essential

burden under summary judgment standards of

establishing that there is a genuine issue as

to a fact material to his case in order to

avert summary judgment.

Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990) (citation

omitted).

II.

Plaintiff’s Fourth Amended Complaint (Doc. #91) is the

operative pleading, and Count I is the only remaining count.

Counts II and III were dismissed with prejudice by Opinion and

Order (Doc. #106) on January 15, 2025. Therefore, plaintiff’s

request for summary judgment as to Count II will be denied as moot.

In Count I of the Fourth Amended Complaint (Doc. #91),

plaintiff seeks relief under Section 362(k) of the Bankruptcy Code

alleging that that defendant “intentionally and willfully violated

the automatic stay by pursuing the Bond Claim in Circuit Court.

When a creditor has actual knowledge that a debtor has filed a

bankruptcy petition, the creditor has an affirmative duty to

terminate or undo any action, which violates the automatic stay.

Instead, Horseshoe proceeded with the Bond Claim without any regard

to what was stayed or not stayed and, in doing so, violated §§

362(a)(1) and (3).” (Doc. #91 at ¶ 43) (citing Rucker v. Great

Dane Petroleum Contractors, Inc., 2:21-cv-207-SPC-MRM, 2021 WL

3617456, at *1 (M.D. Fla. Aug. 16, 2021). Defendant filed an

Answer Affirmative Defenses and Request for Jury Trial to Count I

(Doc. #105) on January 9, 2025.

The following facts are admitted and undisputed: On January

28, 2021, Gregory B. Myers (Myers or plaintiff) filed a Chapter 13

petition for bankruptcy protection in the Middle District of

Florida Bankruptcy Court, Case No. 2:21-bk-00123. On March 18,

2022, Myers filed a Complaint against 3073 Horseshoe Drive, LLC

(Horseshoe or defendant) in Collier County state court (state court

action), Case No. 22-CA-0453. On March 18, 2022, Myers filed a

Notice of Lis Pendens in the state court action. (Docs. ## 91 &

105 at ¶¶ 36-39.) On or about June 7, 2022, Horseshoe filed a

Motion to Dismiss Plaintiff’s Complaint With Prejudice; Motion for

Order to Show Cause Why the Complaint Should Not be Dismissed With

Prejudice; and Motion to Discharge the Lis Pendens Not Founded on

a Recorded Instrument (Doc. #114-1) in the state court action

seeking a hearing, to discharge the lis pendens, and to dismiss

the complaint. A hearing was held on June 29, 2022, and the motion

denied in favor of a future motion for summary judgment. (Doc.

#133 at 55.) On July 28, 2022, Horseshoe moved in the state court

to exercise its discretion to require plaintiff to post a bond in

the amount of $541,024.72. (Id. at 58, 65.) On August 5, 2022,

an evidentiary hearing was held. (Id. at 93.) On August 9, 2022,

Horseshoe submitted a proposed order to the state court judge.

(Id.at 99.)

On August 17, 2022, the state court directed Myers to post a

$150,000 bond. (Docs. ## 91, 105 at ¶¶ 40-41.) The Order Denying

Defendant’s Motion to Discharge the Lis Pendens and Requiring

Plaintiff to Post Lis Pendens Bond (Doc. #114-2) noted its “broad

discretion” to require a bond and based the amount of bond on the

attorney’s fees incurred by defendant and foreseeable attorney’s

fees. A deadline of August 27, 2022, was set to post the bond or

the lis pendens would be dissolved. (Doc. #133 at 103.) On August

29, 2022, Myers sought a rehearing asserting that the bond against

him was a violation of the automatic stay under the Bankruptcy

Code. (Docs. ## 91, 105 at ¶ 42; Doc. #133 at 105.) On or about

September 13, 2022, the motion was denied. (Doc. #133 at 110.)

On September 2, 2022, in the state court, Myers filed a Motion

to Convert Appeal to a Petition for Writ of Prohibition arguing

that the bond constituted a claim against Myers and thus was a

violation of the automatic stay under the Bankruptcy Code. (Case

No. 2:21-bk-00123, Doc. #285 at pp. 58-66.) On September 21, 2022,

in the Middle District of Florida Bankruptcy Court, defendant filed

an Amended Motion to Confirm That the Automatic Stay Does Not

Apply, and in the Alternative, for Relief From the Automatic Stay,

Including Prospective Relief (Case No. 2:21-bk-00123, Doc. #285,

pp. 1-9) arguing that the automatic stay did not apply to stay

actions filed by the debtor, and even if it did apply, it should

be terminated or prospective relief granted in light of delay

tactics. Myers filed a Response (Id. at Doc. #296) on October 12,

2022, arguing that defendant had not filed a proof of claim,

expressed no objection to allowing defendant to “defend itself”

but objecting to requiring a bond in the state court action as a

violation of the automatic stay. A hearing was scheduled for

October 13, 2022. (Id. at Doc. #297.) On October 24, 2022, the

Bankruptcy Court issued an Order (Doc. #133, p. 112) granting

defendant’s motion for reasons stated orally in court, finding

that:

….

2. The automatic stay of 11 U.S.C. § 362 does

not apply to and does not stay the Collier

County Action or any appeal related thereto.

3. To the extent the automatic stay is

applicable in any way to the Collier County

Action, the Court grants relief from the

automatic stay in this case for all purposes

related to the Collier County Action.

4. Under 11 U.S.C. § 105(a), the relief

granted in this Order is prospective, so that

11 U.S.C. § 362 shall not operate as a stay of

any claims between Movant and Debtor in any

future bankruptcy case filed by Debtor;

provided, however, this order is without

prejudice to Debtor’s right to seek imposition

of the automatic stay in any such future case.

(Id. at 113.) See also In re Myers, No. 2:21-BK-00123-FMD, 2023

WL 350183, at *4 (Bankr. M.D. Fla. Jan. 20, 2023) (noting that an

order was issued confirming that the stay did not apply).

On December 1, 2022, Horseshoe filed a Motion for Entry of an

Immediate Order Discharging Lis Pendens (Doc. #133 at 115) because

the bond was not posted. On December 8, 2022, the state court

issued an Amended Order Discharging Lis Pendens after Myers failed

to post the bond or proof of compliance and the lis pendens was

dissolved and discharged. (Doc. #133 at 119-120.) The case was

refiled in federal court on February 13, 2023, and commenced anew.

III.

In this case, the Bankruptcy Court lifted the stay noting

that “(a) Debtor is the plaintiff in the case of Gregory B. Myers

v. 3073 Horseshoe Drive, LLC, Case No. 2022-CA-000453, pending in

the Twentieth Judicial Circuit Court in and for Collier County,

Florida (the “Collier County Action”), and (b) the events giving

rise to Debtor’s claims in the Collier County Action occurred in

2022, over a year after Debtor filed this Chapter 13 case on

January 28, 2021.” (2:21-bk-00123-FMD, Doc. #299.) The Order was

issued after the bond was imposed. Although it is well established

that “[t]he automatic stay provision of the Bankruptcy Code, 11

U.S.C. § 362, does not extend to lawsuits initiated by the debtor,”

Crosby v. Monroe Cnty., 394 F.3d 1328, 1331 n.2 (11th Cir. 2004)

3

(citing 11 U.S.C. § 362) (collecting cases) , plaintiff argues that

3

“Martin–Trigona v. Champion Fed. Sav. & Loan Ass'n, 892 F.2d

575, 577 (7th Cir. 1989) (the automatic stay is inapplicable to

suits by the debtor); Carley Capital Group v. Fireman's Fund Ins.

Co., 889 F.2d 1126, 1127 (D.C. Cir. 1989) (same); see also Victor

Foods, Inc. v. Crossroads Econ. Dev. of St. Charles County, Inc.,

977 F.2d 1224, 1227 (8th Cir. 1992); Trans Caribbean Lines, Inc.

v. Tracor Marine, Inc., 49 B.R. 360, 362 (S.D. Fla. 1985) (stating

defendant’s request for the bond, and/or the imposition of the

bond by the state court at its request, went beyond merely

defending and constituted an active violation of the stay.

Under the Bankruptcy Code, the filing of a voluntary petition,

a joint petition, or an involuntary petition:

operates as a stay, applicable to all

entities, of—

(1) the commencement or continuation,

including the issuance or employment of

process, of a judicial, administrative, or

other action or proceeding against the debtor

that was or could have been commenced before

the commencement of the case under this title,

or to recover a claim against the debtor that

arose before the commencement of the case

under this title;

(2) the enforcement, against the debtor or

against property of the estate, of a judgment

obtained before the commencement of the case

under this title;

(3) any act to obtain possession of property

of the estate or of property from the estate

or to exercise control over property of the

estate;

(4) any act to create, perfect, or enforce any

lien against property of the estate;

(5) any act to create, perfect, or enforce

against property of the debtor any lien to the

extent that such lien secures a claim that

arose before the commencement of the case

under this title;

that the automatic stay provision only applies to proceedings

against the debtor).”

(6) any act to collect, assess, or recover a

claim against the debtor that arose before the

commencement of the case under this title;

(7) the setoff of any debt owing to the debtor

that arose before the commencement of the case

under this title against any claim against the

debtor; and

(8) the commencement or continuation of a

proceeding before the United States Tax Court

concerning a tax liability of a debtor that is

a corporation for a taxable period the

bankruptcy court may determine or concerning

the tax liability of a debtor who is an

individual for a taxable period ending before

the date of the order for relief under this

title.

4

11 U.S.C. § 362(a). “[A]n individual injured by any willful

violation of a stay provided by this section shall recover actual

4

The stay does not apply to all situations, see 11 U.S.C. § 362(b),

and upon request the stay can be lifted or modified:

(1) for cause, including the lack of adequate

protection of an interest in property of such

party in interest;

(2) with respect to a stay of an act against

property under subsection (a) of this section,

if--

(A) the debtor does not have an equity in such

property; and

(B) such property is not necessary to an

effective reorganization….

(4) with respect to a stay of an act against

real property under subsection (a), by a

creditor whose claim is secured by an interest

in such real property, if the court finds that

the filing of the petition was part of a scheme

damages, including costs and attorneys’ fees, and, in appropriate

circumstances, may recover punitive damages.” 11 U.S.C. §

362(k)(1). “‘[W]illfulness generally connotes intentional action

taken with at least callous indifference for the consequences.’”

Jove Eng'g, Inc. v. I.R.S., 92 F.3d 1539, 1555 (11th Cir. 1996)

(quoting Sizzler Family Steak Houses v. Western Sizzlin Steak

House, Inc., 793 F.2d 1529, 1535 (11th Cir. 1986). “The violator’s

specific intent to violate the automatic stay is not required.”

Id. (citation omitted). “Willfulness requires either ‘actual

knowledge that a bankruptcy is under way,’ [] or, as some courts

have held, ‘notice of sufficient facts to cause a reasonably

prudent person to make additional inquiry to determine whether a

bankruptcy petition has been filed.’” In re White, 410 B.R. 322,

326 (Bankr. M.D. Fla. 2009) (citation omitted). “When a creditor

receives actual notice of the filing of a case, the burden is on

the creditor to ensure that the automatic stay is not violated.”

In re Roche, 361 B.R. 615, 623 (Bankr. N.D. Ga. 2005).

to delay, hinder, or defraud creditors that

involved either--

(A) transfer of all or part ownership of, or

other interest in, such real property without

the consent of the secured creditor or court

approval; or

(B) multiple bankruptcy filings affecting such

real property.

11 U.S.C. § 362(d).

It is undisputed that Horseshoe was made aware of the

bankruptcy filing during the state court proceedings and that

Horseshoe sought a ruling that the automatic stay did not apply to

the proceedings. “The decision whether to post a lis pendens bond

is discretionary. To have a bond set, the bond proponent must show

that damages may result from the lis pendens. [] Generally, this

will require an evidentiary hearing where the bond’s proponent may

present evidence on the issue of damages.” Levin v. Lang, 994 So.

2d 445, 446 (Fla. 3d DCA 2008) (internal citations omitted). The

state court conducted a hearing before deciding to impose a bond

in an amount much less than was requested, at its discretion, and

plaintiff did not pay the bond. The Bankruptcy Court found that

the automatic stay did not apply even if decided after application

of the bond and after the bond was due to be paid.

“Individuals seeking damages for stay violations have the

burden of proof to establish that the wrongdoer violated the

automatic stay and the violation was willful.” In re Rose, 645

B.R. 253, 259 (Bankr. M.D. Fla. 2022) (citing In re Rivera, Case

No. 6:09-bk-00340-ABB, 2009 WL 3735834, *2 (Bankr. M.D. Fla. Nov.

5, 2009)). Plaintiff “bears the burden of proving both knowledge

and damages by a preponderance of the evidence” and “it is more

likely than not that he suffered compensable damages as a result

of the violation.” In re Minawi, 651 B.R. 72, 76 (Bankr. M.D.

Fla. 2023). The burden on plaintiff is to show evidence that is

“more convincing than the evidence offered in opposition to it”

that there was a willful violation of the automatic stay and

damages. United States v. Watkins, 10 F.4th 1179, 1184–85 (11th

Cir. 2021) (citations omitted).

The Court finds summary judgment is due to be granted in favor

of defendant as no violation can be shown. “Even if a defendant's

actions violate the automatic stay, an individual debtor does not

have a claim under § 362(h) if the stay violation does not result

in any injury to the debtor.” In re Hutchings, 348 B.R. 847, 899

(Bankr. N.D. Ala. 2006). See also In re Caffey, 384 B.R. 297, 309

(Bankr. S.D. Ala. 2008), subsequently aff'd, 384 F. App'x 882 (11th

Cir. 2010) (“For Debtor to recover damages he must also prove that

he was injured by the willful violation.”). Debtor has shown no

actual damages as a result of the imposition of the bond because

the bond was not paid, and it was not reimposed.

Accordingly, it is now

ORDERED:

1. Defendant’s Motion for Summary Judgment as it Relates to

Count One of Plaintiff’s Fourth Amended Complaint (Doc.

#114) is GRANTED as to Count I in favor of defendant and

against plaintiff who shall take nothing.

2. Plaintiff’s Motion for Final Judgment as to Count I of

Plaintiff’s Fourth Amended Complaint (Doc. #133) is

DENIED.

3. Plaintiff’s Motion for Final Summary Judgment as to Count

II of Plaintiff’s Fourth Amended Complaint (Doc. #136) is

DENIED as moot.

4. The Clerk shall enter judgment pursuant to the January 15,

2025, Opinion and Order (Doc. #106) dismissing Counts II

and III of the Fourth Amended Complaint with prejudice and

as set forth in this Opinion and Order, terminate all

pending motions and deadlines as moot, and close the file.

DONE AND ORDERED at Fort Myers, Florida, this 23rd day of

June 2025,

— OL

: hu » Loeb

adi EF. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Parties of record