In re North Mandalay Inv. Group, Inc., Bankruptcy No. 8:05-BK-7020-ALP.

• Decision Date: 15 July 2005
• Docket Number: Adversary No. 8:05-AP-224-ALP.,Bankruptcy No. 8:05-BK-7020-ALP.
• Citation: 342 B.R. 846
• Parties: In re NORTH MANDALAY INVESTMENT GROUP, INC., Metco Real Estate and Insurance, Inc., Metco Holdings, Incorporated, and Robert J. Metz, Debtors. North Mandalay Investment Group, Inc., Metco Real Estate and Insurance, Inc, Robert J. Metz, and Metco Holdings, Incorporated, Plaintiffs, v. Financial Warehouse Group, L.L.C.; Dale Ayers; Myron Dimsdale; Fairview Commercial Lending, Inc.; Oak Grove FL, L.L.C., a Georgia Limited Liability Company; Baybreeze Hotel FL, L.L.C., Georgia Limited Liability Company; Williamsburg Apartments FL, L.L.C., a Georgia Limited Liability Company; and Pioneer Motorsports, L.L.C., Defendants.
• Court: U.S. Bankruptcy Court — Middle District of Florida

342 B.R. 846

In re NORTH MANDALAY INVESTMENT GROUP, INC., Metco Real Estate and Insurance, Inc., Metco Holdings, Incorporated, and Robert J. Metz, Debtors North Mandalay Investment Group, Inc., Metco Real Estate and Insurance, Inc, Robert J. Metz, and Metco Holdings, Incorporated, Plaintiffs, v. Financial Warehouse Group, L.L.C.; Dale Ayers; Myron Dimsdale; Fairview Commercial Lending, Inc.; Oak Grove FL, L.L.C., a Georgia Limited Liability Company; Baybreeze Hotel FL, L.L.C., Georgia Limited Liability Company; Williamsburg Apartments FL, L.L.C., a Georgia Limited Liability Company; and Pioneer Motorsports, L.L.C., Defendants.

Bankruptcy No. 8:05-BK-7020-ALP.

Adversary No. 8:05-AP-224-ALP.

United States Bankruptcy Court, M.D. Florida, Tampa Division.

July 15, 2005.

Michael P. Brundage, Lynn Welter Sherman, Hill, Ward & Henderson, PA, Tampa, FL, for Debtors.

ORDER ON DEFENDANTS' MOTION TO DISMISS OR FOR ALTERNATIVE RELIEF

ALEXANDER L. PASKAY, Bankruptcy Judge.

(Doc. No. 66)

THE MATTER under consideration in these Chapter 11 cases of North Mandalay Investment Group, Inc., Metco Real Estate and Insurance, Inc., Robert J. Metz, and Metco Holdings, Incorporated, (collectively referred to as the Debtors) is a Motion to Dismiss or for Alternative Relief, filed by Financial Warehouse Group, L.L.C., Dale Ayers, Myron Dimsdale, Fairview Commercial Lending, Inc., Oak Grove FL. L.L.C., Baybreeze Hotel FL, L.L.C., Williamsburg Apartments FL, L.L.C. and Pioneer Motorsports, L.L.C., (jointly referred to as the Defendants) (Doc. No. 66) challenging the legal sufficiency of the Second Amended Complaint for Equitable Relief and Damages, filed by the Debtors. (Second Amended Complaint)(Doc. No.54).

The Defendants' Motion to Dismiss or for Alternative Relief (Motion to Dismiss) ostensibly filed by all Defendants appears to challenge initially all claims asserted by the Plaintiff and all the six Counts asserted in the Second Amended Complaint. However, the body of the text of the Motion to Dismiss leaves no doubt that the Motion to Dismiss as it relates to the claims in Counts I, II, and III request this Court to defer ruling on the claims set forth in Counts I, II, and III of the Second Amended Complaint until the resolution of the threshold issue which is whether or not the transactions between the parties was, in fact, a mortgage transaction involving the properties of the Debtor or a conveyance of ownership of the properties to Dale Ayers and/or the Financial Warehouse Group, L.L.C. or any other company controlled by Dale Ayers.

This Court is satisfied that the proposition of the Defendants is correct and, thereby, shall defer ruling on Counts I, II, and III of the Second Amended Complaint until this Court enters its Order regarding the determination of the properties involved in this dispute.

This leaves for consideration the Motion to Dismiss as it relates to...