# Myers v. 3073 Horseshoe Drive, LLC

> District Court, M.D. Florida · June 23, 2025

URL: https://www.frixlaw.com/law-library/cases/11082248

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** June 23, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11082248

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11082248. Public record. Not legal advice.