Filing# 234998812 E-Filed 11/03/2025 01:53:23 PM
`IN THE CIRCUIT COURT OF THE
`SEVENTEENTH JUDICIAL CIRCUIT IN
`AND FOR BROWARD COUNTY, FLORIDA
`CASE NO.. CACE-22-005125
`FVP OPPORTUNITY FUND III,LP, a Delaware
`limited partnership;FVP INVESTMENTS, LLC, a
`Delaware limited liabilitycompany; and FVP
`SERVICING LLC, a Delaware limited liability
`company,
`Plaintiffs,
`VS.
`KARMA OF PALM BEACH INC., et al.,
`Defendants.
`I
`THE FVP PARTIES' RESPONSE IN OPPOSITION TO AVRUMI "JOSH" LUBIN'S MOTION FOR
`JUDGMENT NOTWITHSTANDING THE VERDICT AND MOTION FOR NEWTRIAL
`SCHWARTZ IBRESLIN PLLC, COHEN & MCMULLEN, P.A. BUSCHEL GIBBONS, PA.
`JerryBreslin,Esq Bradford Cohen, Esq. Robert C. Buschel, Esq.
`Florida Bar No.269573 Florida Bar No.: 118176 Florida Bar No. 0063436
`Jonathan Noah Schwartz, Esq., Michael J. McMullen, Esq. 501 East Las Olas Blvd.
`Florida Bar No. 1014596; The Florida Bar No. 106109 Third Floor
`Dupont Building,169 East 1132 SE 3rd Avenue Fort Lauderdale, FL 33301
`FlaglerStreet,Suite 700, Miami, Fort Lauderdale, Florida 33316 Tele:(954)530-5748 (direct)
`Florida 33131, Telephone: (305) Telephone: (954)523-7774
`577-4626. jb@jsjb.law; Facsimile: (954) 523-2656
`js@jsjb.law michael@floridajusticefiiirm. com
`service@floridajusticefirm.com
`*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/03/2025 01:53:23 PM.****
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`Plaintiffs,FVP OpportunityFund III,LP, a Delaware limited partnership(the "FVP
`Fund"), FVP Investments, LLC, a Delaware limited liabilitycompany ("FVP Investments"),and
`FVP ServicingLLC, a Delaware limited liabilitycompany ("FVP Servicing")(collectively,the
`"FVP Parties"),by and through their undersigned counsel, hereby respond in oppositionto
`Defendant Avrumi "Josh" Lubin's ("Lubin")Motion for Judgment Notwithstandingthe Verdict
`and Motion for New Trial (the"Motion").
`I. Introduction:
`At the outset, Defendant Lubin's Motion conflates and interminglesa Motion for Judgment
`Notwithstandingthe Verdict under Fla. R. Civ. P. 1.480 with a Motion for New Trial under Fla.
`R. Civ. P. 1.530. In realityand practice,these are mutually exclusive since grantingone precludes
`the other.
`1
`That said,and addressingthe merits,Lubin's Motion, in conclusoryand broad strokes,
`generallyasserts and argues the followinggrounds for relief under either or both rules:
`1. Failure to establish essential elements of fraud: Lubin's entire argument as to
`sufficiencyrests on the followinggeneralassertions:
`1. "The FVP Parties predicatedtheir fraud claims on a UCC filing preparedby an
`attorney, not by Mr. Lubin."
`2. "The Franklin Parties based their fraud claims on an assignment from Spin Capital,
`LLC, not on any statement or action by Mr. Lubin.
`..
`3. "Plaintiffs' claims were instead premised on actions allegedlytaken by third
`parties, includingattorneys and former co-defendants,not Mr. Lubin himself."
`2. Improper use of video depositiontestimony Plaintiffs used video depositionsand
`therefore deprivingthe jury of the abilityto assess live witness demeanor and denying
`Mr. Lubin the rightto confront adverse witnesses.
`3. False testimony by witness Scott Zankl. Witness Scott Zankl provided false
`1 At most, the trial court may grant one and alternativelygrant the other on the express condition
`that the latter only becomes effective if the former is reversed on appeal.Frazier v. Seaboard
`System R.R., Inc., 508 So. 2d 345 (Fla.1987).
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`testimonyby denying any agreement or settlement with Plaintiffs.
`4. Substantial procedural irregularities:The trial process was tainted by procedural
`issues,includingthe use of video depositionsand misleadingtestimony.
`5. Manifest weight of the evidence: The jury'sverdict was againstthe manifest weight
`of the evidence.
`These grounds,stated in sweeping generalizations,do not approach,much less establish,
`legal groundsthat would enable the Court to grant either a new trial or judgment notwithstanding
`the verdict.
`II. The Pleadings and Procedural Background Related to Issues Raised in the
`Motion:
`The FVP Parties' Fourth Amended Complaint ("FAC") included allegations againstthree
`groups of Defendants:
`1. The Karma Entities Defendants, which consisted of Scott Zankl, Kristen Zankl, and the
`Karma Entities (Karma of Palm Beach Inc., and Karma of Broward Inc.);
`2. The Farache Defendants which consisted of Moshe Farache, Lisa Farache, 1001 Clint
`Moore LLC, and MMS Ultimate Services Inc.; and
`3. The Merchant Cash Advance ( ;MCA'") Defendants, consistingof Defendants Lubin,
`Spin CapitalLLC, Hi Bar CapitalLLC, and Yisroel Herbst (Hi Bar and Herbst are the
`"Hi Bar Parties").
`The jointtrial of the Karma Defendants and the Farache Defendants was severed from the
`trial of the MCA Defendants. Judge Tuter ordered that the trial of the MCA Defendants be held
`first,followed immediately by the trial of the Karma and Farache Defendants - back to back. In
`July2025, the FVP Parties settled with the Hi Bar Parties. In July2025, Defendant Lubin received
`the Settlement Agreement between the FVP Parties and the Hi Bar Parties,which clearlyinformed
`Lubin that the trial ofthe MCA Defendants would proceed againstLubin, Getter,and Hi Bar LLC,
`and that Yisroel Herbst had settled and would not be tried.
`Critically, regardingDefendant Lubin's arguments that he was unable to cross-examine
`any of the Hi Bar Parties whose testimonywas presentedat trial via video depositionunder Fla.
`R. Civ. P. 1.330, the Motion ignores:
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`a. The Hi BarParties were not dismissed from the case until September 23,2025 [D.E.
`2006]. This means Defendant Lubin could have at any time priorto trial,served the
`Hi Bar Parties with notices to appear at trial through their counsel while they were
`stillactive parties.
`b. Lubin could have subpoenaed any witnesses that Lubin desired for trial at any time
`since the trial order specially settingthe trial on March 11, 2025. [Filing#
`218527885 E-Filed 03/11/2025 12:32:17 PM].
`c. Lubin could have compelled production of documents at trial under Fla. R. Civ. P.
`1.410 by servingHi Bar and Herbst's counsel.
`d. Lubin could have deposed Yisroel Herbst and Mordechai Herbst at any time in the
`last two years and equallyused those depositionsat trial.
`e. Lubin was representedby Counsel at the depositionsof Yisroel Herbst and
`Mordechai Herbst.
`f. A substantial portionof the video testimony was that of Lubin himself, who was
`present and testified at trial.
`g. Undersigned counsel provided Lubin's counsel, at no cost, all of the video
`depositionsand deposition designationsin advance of the trial. Lubin was free to
`request and play any of the video depositionsof Yisroel Herbst and Mordechai
`Herbst he deemed appropriate,in addition to the designations.
`As for the arguments that there was a settlement with any of the Karma Defendants and
`that settlement was somehow withheld from Lubin, that is equally incorrect. The Karma
`Defendants and the Farache Defendants were scheduled for trial immediately after the Lubin trial,
`and the Farache Defendants elected to enter into a settlement agreement on the eve of trial. That
`settlement agreement with the Farache Defendants was not completed until after the Lubin trial
`commenced.
`That said,the settlement with the Farache Defendants had no bearingon the trial of the
`Karma Defendants. The FVP Parties were stillgoingto try the remainingDefendants, which were
`MMS Ultimate Services Inc. and the Karma Defendants, at the conclusion of the Lubin trial. The
`FVP Parties then entered into an agreement with MMS Ultimate Services Inc., which left only
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`Scott Zankl and Kristen Zankl remaining as Defendants for trial. At that point,Scott Zankl and
`Kristen Zankl agreed to a judgment againstthem for all claims made againstthem in the FAC.
`Accordingly,there was no and is no "settlement" with Scott Zankl and Kristen Zankl. Scott
`Zankl and Kristen Zankl agreed to a judgment againstthem, jointlyand severally,for the entire
`sum claimed againstthem in the FAC-$7.5 million dollars. This is the same amount that the FVP
`Parties sought againstall Defendants, includingLubin, on the underlyingclaim. Lubin and Getter
`were also found liable for wrongful act damages, which only appliedto certain partiesand not
`Scott or Kristen Zankl.
`III. The Trial and Evidence:
`The FVP Parties allegedand presentedevidence to the jury againstDefendant Lubin on
`the followingcounts of the FAQ
`Count I - Fraud in Inducing the FVP Parties' Loan - againstDefendants Avrumi Lubin,
`Yoel Getter, and Hi Bar CapitalLLC.
`Count II - Conspiracy to Commit Fraud to Induce the FVP Loan - againstDefendants
`Avrumi Lubin, Yoel Getter,and Hi Bar CapitalLLC.
`Count IV - Tortious Interference with Business Relationship- againstDefendants Avrumi
`Lubin, Yoel Getter,and Hi Bar CapitalLLC.
`At trial,the FVP Parties introduced 126 exhibits and called six live witnesses: Keith Lee,
`Tom Betts, Frank O'Donnell, Scott Zankl, Joel Weigert,and Richard Gray. They also called four
`witnesses via depositiontranscripts:Defendant Lubin, Mordechai Herbst, Yisroel Herbst, and
`William Baker.
`The evidence presentedby the FVP Parties was overwhelming. Lubin, on the other hand,
`subpoenaed no witnesses, called no witnesses other than himself, and introduced a single
`document. The jury carefullyconsidered the evidence and found that Defendant Lubin committed
`fraud, engaged in a conspiracy to defraud, and tortiouslyinterfered with the FVP Parties'
`relationshipwith the Karma Entities. The jury also found Lubin liable for the FVP Parties' costs
`and fees in the Bankruptcy Court.
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`IV. The Law:
`A motion for a new trial should be granted onlywhen substantial rightshave been so
`violated that it is clear a fair trial did not take place,and it should be denied when the verdict is
`supported by competent, substantial evidence in the record. Helman v. Seaboard Coast Line
`Railroad 349 So.2d 1187, 1189 (Fla.1977);Fernandez v. Flores, 467 So. 2d 364, 365 (Fla.2d
`DCA 1985).The court's discretion to grant a new trial is invoked only after a party establishes a
`specificor substantial prejudicialerror or when the judge finds that the juryverdict is contrary to
`the manifest weight of the evidence. Krolick v. Monroe ex rel. Monroe, 909 So. 2d 910, 914 (Fla.
`2d DCA 2005). Thus, once an error at trial is established,the trial judge must then determine
`whether the error was harmful in lightofthe entire trial.Samick Corp.v. Jackson, 645 So. 2d 1095
`(Fla.4th DCA 1994).
`Under F. R. Civ. P. 1.530, when grantinga new trial,the Court must articulate in writing
`the "specificgrounds" on which a new trial is granted.Courts have emphasized that general or
`vague statements are insufficient to meet the specificity requirement.For example, a similar
`motion statingthat the jury was influenced by "prejudice, sympathy,or some other improper
`cause" was deemed too vague to satisfythe requirement.Keene v. Chicago Bridge and Iron Co.,
`596 So.2d 700 (1992).
`V. Preservation of the Issue:
`A new trial cannot be grantedon a ground that was not preservedby a timelyobjectionor
`motion duringtrial.Kmart Corp. v. Hayes, 707 So. 2d 957, 957-58 (Fla.3d DCA 1998).A timely
`objectionis as much a predicatefor the grant of a new trial by the lower court as it is a predicate
`for reversal on appeal.Lucas v. Mast, 758 So. 2d 1194, 1196 (Fla.3d DCA 2000).
`VI. Response to Lubin's Individual Arguments:
`As stated above, Lubin's Motion, in broad presumptions,generallyasserts the following
`grounds for relief under either or both rules,and it is hereby respondedto accordingly.
`1. Failure to establish essential elements of fraud: Lubin argues that Plaintiffs did not
`present competent, substantial evidence that Mr. Lubin made any false statement or
`misrepresentation.
`Lubin's motion ignoresthe fact that he testf#edat length,both in his depositionintroduced
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`by the FVP Parties and live before the jury,that he was completelyinnocent of the allegationsand
`did nothing wrong. The jury looked past his repeated denials and considered the mountain of
`evidence that proved exactlywhat the FVP Parties sought to prove-that Lubin was the driving
`force behind the scheme, made the decisions as to what to do, when to do it,how much was to be
`paid,when it was to be paid,and that he profitedfrom the scheme. A scheme where Lubin had
`knowledge that the Zankl entities were contractingand had contracted with Plaintiffs FVP and
`Franklin.
`Here, the evidence was overwhelming that Defendant Lubin was the primary and active
`party drivingthe fraud and that he personallybenefited from it. The evidence includes dozens of
`emails,documents, text messages, bank records,forensic analysis,and hours of live testimony.
`Although Lubin attempted to distance himself and blame his co-conspirators,the jury
`quicklyrejectedhis testimony.The evidence that Lubin was the person responsiblefor filingthe
`UCC termination statement-which was the fraudulent statement Lubin had his lawyer file and
`was directed to the FVP Parties-was voluminous, as shown in dozens of text messages both
`before and after the filing.Lubin's testimony that he had no involvement in the filingwas
`contradicted by both documentary evidence and testimonyand was rejectedby the jury.Therefore,
`no grounds are presentedthat would enable this Court to find,as a matter of law, that fraud was
`not proven by substantial evidence as found by the jury.
`2. Improper use of video deposition testimony Lubin argues Plaintiffs used video
`depositionsand therefore deprivedthe jury of its abilityto assess live witness demeanor
`and denied Lubin the rightto confront adverse witnesses.
`The law in Florida could not be clearer: a party can use the depositionof an opposingparty
`for any purpose. There are no restrictions,and this is embodied in Fla. R. Civ. P. 1.330, which
`states:
`(2)The depositionof a party or of anyone who at the time of takingthe depositionwas
`an officer, director,or managing agent or a person designatedunder rule 1.310(b)(6)or
`1.320(a)to testifyon behalf of a public or privatecorporation,a partnershipor
`association,or a governmental agency that is a party may be used by an adverse party
`for any purpose.
`It is absolutelyroutine in civil trials to introduce deposition testimony.Here, Lubin argues,
`without authority,that live testimony is preferredand that his constitutional rightsto confront the
`witnesses were somehow violated when the FVP Parties presentedcertain testimony of adverse
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`partiesYisroel Herbst and Mordechai Herbst via deposition.As stated above, Lubin's argument
`ignores:(1)the fact that he was representedby counsel at the depositionswho could have asked
`any questionsLubin desired; (2) Lubin had the rightto introduce any depositiontestimony of
`Yisroel Herbst and Mordechai Herbst under Fla. R. Civ. P. 1.330(4);(3) Lubin could have
`subpoenaed Yisroel Herbst and Mordechai Herbst for trial;(4)Lubin could have deposed Yisroel
`Herbst and Mordechai Herbst before trial and introduced that testimonyby deposition; (5)over
`two hours ofthe video depositionsintroduced by the FVP Parties was that of Lubin; and (6)Lubin
`was present and testified before the juryas to his position regardingall ofthe deposition testimony
`that was introduced.
`Lubin cannot ignorehis abilityto present his own evidence under the rules and law and
`then blame the FVP Parties for followingthe rules. Likewise, Lubin cannot ignorethat he test#ied
`as to the subjectmatter introduced via deposition.
`Lubin's objectionsto video depositiontestimonyand his allegedinabilityto cross-examine
`are imagined, conclusory,and completelycontrary to the rules and law. There is a complete lack
`of articulated details as to what live testimonywould have accomplished.The video testimonywas
`very thorough and covered every possiblerelevant topic.Lubin fails to point out any specific
`testimonial evidence that he hoped to have either Yisroel Herbst or Mordechai Herbst testifyto
`during his cross-examination - that is not alreadyin the record - that he suggests would have
`assisted in his pure denial defense.
`Finally, regardingthe video testimony argument, Lubin fails to point out any specific
`objectionsto particular testimonythat the Court overruled;that the Court erred as a matter of law
`in not sustainingthe objection;and that a new trial is therefore required.As such, no grounds are
`presentedthat would enable this Court to find,as a matter of law, that Lubin was prejudicedand
`is entitled to a new trial on this ground.
`3. False testimony by witness Scott Zankl: Witness Scott Zankl provided false testimony
`by denying any agreement or settlement with Plaintiffs.
`This is,again,a wholly fabricated argument not based on either the record or the facts. As
`explainedabove, and as testified to by both Scott Zankl and Keith Lee at the trial,Scott Zankl and
`his wife Kristen were scheduled for the next trial,which was to commence at the end ofthe Lubin
`trial. On cross-examination, Scott Zankl gave completelytruthful testimonywhen he stated that
`he had no settlement agreement with the FVP Parties on the claims made in the FAC. To be clear,
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`Scott Zankl did not have a settlement agreement with the FVP Parties when he testified,did not
`have one after he testified,and still does not have one. In short,the FVP Parties have never entered
`into a settlement agreement with Scott Zankl or Kristen Zankl.
`As the record in this case establishes,when the Lubin trial was concludingand the Farache
`Defendants and Scott and Kristen Zankl were next for trial,Scott and Kristen Zankl agreed to a
`judgment for the entire sum for which they were sued in the FAC. As such, as Scott Zankl has
`testified repeatedly throughoutthis case, he never had a settlement agreement with the FVP Parties
`for any benefit whatsoever, and the best evidence of this is that both he and his wife Kristen now
`have judgments entered againstthem for every dollar for which the FVP Parties sued in the FAC.
`Therefore, this unsupported speculationhas no basis in fact or law, and no grounds are
`presentedthat would enable this Court to find,as a matter of law, that Lubin was prejudicedand
`is entitled to a new trial on this ground.
`4. Substantial procedural irregularities:The trial process was tainted by proceduralissues,
`includingthe use ofvideo depositionsand misleadingtestimony.
`This argument is conclusoryand repetitiveand does not articulate any additional grounds
`on which the Court could grant a new trial or judgment notwithstandinga verdict. The motion
`asserts that there were "substantial proceduralirregularities,""gamesmansh*," and "prejudice
`arisingfrom Plaintiffs' use of extensive pre-recordedvideo depositions."The argument does not
`specifyor cite particularin-trial events that would enable this Court to find,as a matter of law,that
`Lubin was prejudicedand is entitled to a new trial on this ground.
`5. Manifest weight of the evidence: The jury'sverdict was againstthe manifest weight of
`the evidence.
`As with the other general and conclusory arguments, Lubin' s Motion recites boilerplate
`standards such as "manifest weight of the evidence" and the jury being "deceived." What the
`Motion does not even attempt to do is give alternate explanationsfor the dozens of emails, text
`messages, demands for money, money transfers to Lubin or his company, and boasts by Lubin that
`he alone made all the decisions regardingthe MCA loan,payback, and the FVP Parties' three-year
`quest to reclaim their collateral in this Court and the Bankruptcy Court. The Motion does not
`address any of the evidence, much less the mountain of evidence as a whole, that clearlyand
`obviouslyestablished that the "manifest weight ofthe evidence" supportedthe verdicts.
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`As to the jury being"deceived" the Motion does not pointto any trial events that were
`objectedto, and the objectionwas overruled, as to any evidence or testimony that could even
`arguably have misled the jury.The evidence in this case was overwhelming and supported the
`jury'scarefullyreasoned verdict that Lubin engaged in a fraud.
`Again, there is no objectiveview of the testimony and evidence in this case that would
`enable this Court to rule,as a matter of law, that " the jury has been deceived as to the force and
`credibilityof the evidence or has been influenced by considerations outside the record" Cloud v.
`Fallis, 110 So. 2d 669, 673 (Fla.1959).
`Conclusion:
`None ofthe Defendant Lubin' cited grounds--(i)the weight ofthe evidence, (ii)the use of
`video depositions,or (iii)the allegedlyfalse or misleadingtestimony of Zankl - rise to the level
`that Florida case law or proceduralrules would enable this Court to make specific findings,as a
`matter of law, that Lubin was denied a fair trial or that the verdicts were not supported by
`competent, substantial evidence in the record.
`Under the cited standards,a new trial is warranted only if the verdict is "againstthe
`manifest weight of the evidence" or if the jurywas "deceived as to the force and credibilityof the
`evidence" through considerations outside the record - neither of which has been established by
`Lubin's Motion.
`Accordingly,Defendant Lubin's Motion for New Trial and Judgment Notwithstandingthe
`Verdict should be denied.
`Respectfullysubmitted,
`Schwartz IBreslin PLLC
`Fl. Rule of Jud. Admin. 2.516 Notice
`Primary email: EService@JSJB.LAW
`Secondary Email: JB@JSJB.LAW
`/s/ Jerry Breslin
`Jerry Breslin Esq.
`Fla. Bar # 269573
`Email: JB@JSJB.Law
`Schwartz IBreslin,Attorneys at Law
`The DuPont Building
`169 East FlaglerStreet
`Suite 700
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`Miami, Fl 33131
`Tel.: 305-577-4626
`Fax.: 305-577-4630
`/s/ Jonathan Noah Schwartz, Esq.
`Jonathan Noah Schwartz, Esq.
`Florida Bar No. 1014596
`Email: JS@JSJB.Law
`Schwartz IBreslin,Attorneys at Law
`COHEN & MCMULLEN, P.A.
`/s/ Bradford Cohen, Esq.
`/s/ Michael J. McMullen, Esq.
`1132 SE 3rd Avenue
`Fort Lauderdale, Florida 33316
`Telephone: (954)523-7774
`Facsimile: (954) 523-2656
`BUSCHEL GIBBONS, P.A.
`/s/ Robert Buschel, Esq.
`501 East Las Olas Blvd.
`Third Floor
`Ft. Lauderdale, FL 33301
`Telephone: (954) 530-5748
`Certificate of Service
`I HEREBY CERTIFY that a true and correct copy of the foregoingdocument was filed
`with the Clerk of the Courts and served via email through the Florida Courts eFilingPortal in
`accordance with Rule 2.516 of the Florida Rules of Judicial Administration upon all counsel of
`record on November 3,2025.
`BUSCHEL GIBBONS, P.A.
`/s/ Robert Buschel, Esq.
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