Demanda Montelli Original

7/21/2019 Demanda Montelli Original

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1200 Four Seasons Tower • 1441 Brickell Avenue • Miami Florida 33131 Phone: (305) 350-5100

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

_________________________________

)

JOHN J. CARNEY, in his capacity as )Court-Appointed Receiver for Michael )Kenwood Group, LLC, et al., )

) CIVIL ACTION NO

) 03:13-cv-00660 (SRU) Plaintiff, )

)

v. )

)PIERO ENRIQUE MONTELLI TORRES, )

INVERPLUS SOCIEDAD DE )

CORRETAJE DE )TITULOS VALORES, C.A., )

IVP OVERSEAS LTD., )

ROMEO MIKAEL MOUAWAD, )

MOUAWAD, JESPA MAWAD DE )MOUAWAD, TANIA MOUAWAD )

MAWAD, MIGUEL ANTONIO )

MOUAWAD MAWAD, )HORION INVESTMENT )

LTD., GRIMSEL GROUP LTD., and )

M. HOLDING S.A., )

)Defendants. ) JULY 10, 2015

_________________________________)

DEFENDANT MIGUEL ANTONIO MOUAWAD

MAWAD’S ANSWER AND AFFIRMATIVE DEFENSES

Defendant Miguel Antonio Mouawad Mawad, by and through his undersigned attorneys,

without consenting to jurisdiction, hereby files this Answer and Affirmative Defenses to Plaintiff

John J. Carney’s First Amended Complaint (the “Complaint”) and denies each and every

allegation not expressly admitted.

Case 3:13-cv-00660-SRU Document 80 Filed 07/10/15 Page 1 of 27



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1200 Four Seasons Tower•

1441 Brickell Avenue •

Miami Florida 33131 Phone: (305) 350-5100

SUMMARY OF CLAIMS1

1. Paragraph 1 is part of a summary of Plaintiff’s claims that does not call for an

admission or denial, but to the extent any allegations pertain to Plaintiff’s claims against

Defendant, Defendant denies them.

2. Defendant is without knowledge or information sufficient to form a belief as to

the allegations made in paragraph 2, and therefore, denies the same.

3. Denied.

4. Denied.

THE DEFENDANTS

THE MONTELLI DEFENDANTS





7.

Defendant is without knowledge or information sufficient to form a belief as to




9. Defendant admits that Inverplus was incorporated in Venezuela and had a

business address in Caracas, but is without knowledge or information sufficient to form a belief

as to the allegations made in the remainder of paragraph 9, and therefore, denies the same.

1 For ease of reference, Defendant includes the headings as stated in the Complaint. However, by doing so,

Defendant does not admit or concede the truthfulness of any the headings or of any matter.




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10. Defendant admits the first sentence of paragraph 10, but is without knowledge or

information sufficient to form a belief as to the remainder of the allegations made in paragraph

10, and therefore denies the same.



12. Defendant admits that Romeo Mikael Mouawad Mouawad is a Venezuelan

citizen, but denies the remainder of paragraph 12.

13. Denied.

14.

Defendant admits the first sentence of paragraph 14, but denies the remainder of

paragraph 14.

15. Denied.

16. Defendant admits the first sentence of paragraph 16 and that he maintained a

residence in Miami Beach, Florida, but denies the remainder of paragraph 16.

17. Defendant admits that he maintains an active Florida motor vehicle registration

and used to own a condominium in New York City, but denies the remainder of paragraph 17.

18. Denied.

19. Defendant admits that Tania Mouawad Mawad is Romeo Mouawad’s daughter,

but denies the remainder of paragraph 19.

20. Defendant admits that each of the four members of the Mouawad family received

a power of attorney over Horion, but is without knowledge or information sufficient to form a

belief as to the remaining allegations made in the first three sentences of paragraph 20, and

therefore, denies the same. Defendant denies the remainder of paragraph 20.




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21. Defendant admits the first sentence of paragraph 21, but is without knowledge or

information sufficient to form a belief as to the allegations made in the second sentence of

paragraph 21, and therefore, denies the same. Defendant denies the remainder of paragraph 21.

22. Defendant admits the first two sentences of paragraph 22, and advises that

Defendant ceased being a shareholder of M. Holding S.A. on May 10, 2011, years before

Plaintiff’s purported service upon the entity. Defendant denies the remainder of paragraph 22.

23. Denied.

NON-DEFENDANTS BCT BANK INTERNATIONAL AND PERAFITA CORP.

24.





RELEVANT RECEIVERSHIP ENTITIES












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JURISDICTION AND VENUE

30. Denied.

31. Denied.

32. Denied.

RECEIVER’S STANDING

33. Admitted.

34. Admitted.

35. Admitted.

36.

Admitted.

37. The allegations of paragraph 37 state legal conclusions to which no response is

required and are, therefore, denied.
















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THE FRAUDULENT SCHEME

ILLARRAMENDI’S NETWORK OF ENTITIES AND FUNDS





50.












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THE GENESIS OF THE FRAUD






















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“OFF THE BOOKS” BANK ACCOUNTS









MONTELLI KNOWINGLY PARTICIPATED IN

AND FURTHERED THE FRAUDULENT SCHEME
















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MONTELLI FALSIFIED RECORDS TO ENABLE THE FRAUDULENT SCHEME


the allegations regarding Francisco Illarramendi and Piero Montelli Torres (“Montelli”) made in

paragraph 74, and therefore denies the same. Defendant denies the allegations made regarding

the Mouawad Defendants in paragraph 74.




















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MONTELLI PROFITED FROM THE FRAUDULENT SCHEME











THE MOUAWAD DEFENDANTS BENEFITED FROM THE FRAUDULENT SCHEME

88. Denied.

89. Denied.

THE SWITZERLAND AND ANDORRA TRANSACTIONS



1. The Failed Andorra Transfers








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97.



2. Transfers to Horion in Switzerland






the allegations made in the first sentence of paragraph 100, and therefore, denies the same.

Defendant admits the second sentence of paragraph 100.




the allegations made in the remainder of paragraph 102, and therefore, denies the same.

103. Denied.




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108.



THE INDIRECT TRANSFERS TO THE MOUAWAD DEFENDANTS
















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the allegations made in the first and second sentences of paragraph 115, and therefore, denies the

same. Defendant denies the remainder of paragraph 115.


the allegations made in the first sentence of paragraph 116, and therefore, denies the same.

Defendant denies the remainder of paragraph 116.



118.







121.












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the allegations made with respect to Grimsel in the first sentence and the allegations made in the

second sentence of paragraph 126, and therefore, denies the same. Defendant denies the

allegations made regarding Defendant M. Holding S.A. in paragraph 126.

127. Denied.

THE NATURE OF THE CAUSES OF ACTION AGAINST DEFENDANTS

128.



129. Paragraph 129 summarizes Plaintiff’s claims and does not call for an admission or

denial, but to the extent any allegations pertain to Plaintiff’s claims against Defendant,

Defendant denies them.

130. Denied.

131.





133. Paragraph 145 summarizes Plaintiff’s claims and does not call for an admission

or denial, but to the extent any allegations pertain to Plaintiff’s claims against Defendant,

Defendant denies them. Defendant denies that the Receiver has the right to amend or revise

Exhibit A and reserves all rights with respect to any proposed amendment or revision.




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FIRST CAUSE OF ACTION

CUFTA SECTION 52-552e(a)(1) (ACTUAL FRAUD)

All Defendants

134.

Defendant realleges and incorporates herein by reference his responses to all of

the forgoing paragraphs of Plaintiff’s Complaint.





137.





139. Denied.

140. Denied.

141. Denied.








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SECOND CAUSE OF ACTION

CUFTA SECTION 52-522e(a)(2) (CONSTRUCTIVE FRAUD)

All Defendants

144.



145. Paragraph 145 summarizes Plaintiff’s claims and does not call for an admission or









149. Denied.

150. Denied.

151. The allegations of Paragraph 151 state legal conclusions to which no response is




153.

Denied.






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THIRD CAUSE OF ACTION

CUFTA SECTION 52-552f(a) (CONSTRUCTIVE FRAUD)

All Defendants

156. Defendant realleges and incorporates herein by reference his responses to all of


157. Paragraph 157 summarizes Plaintiff’s claims and does not call f or an admission or









161. Denied.

162. Denied.



164.

The allegations of paragraph 164 state legal conclusions to which no response is





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FOURTH CAUSE OF ACTION

COMMON LAW FRAUDULENT TRANSFER

All Defendants

Defendant is not required to answer Plaintiff’s Fourth Cause of Action because it has

been dismissed, see ECF No. 74 at 21. Nonetheless, Defendant denies paragraphs 166 through

175.

FIFTH CAUSE OF ACTION

UNJUST ENRICHMENT

All Defendants

176.



177. Denied.

178. Denied.

179. Denied.










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SIXTH CAUSE OF ACTION

CONVERSION

All Defendants

Defendant is not required to respond to Plaintiff’s Sixth Cause of Action because it has

been dismissed, see ECF No. 74 at 21. Nonetheless, Defendant denies paragraphs 183 through

189.

SEVENTH CAUSE OF ACTION

PARTICIPATION IN AND AIDING AND

ABETTING BRACH OF FIDUCARY DUTY

Against Montelli

Defendant is not required to respond Plaintiff’s Seventh Cause of Action because he is

not named in the claim. Nonetheless, Defendant denies paragraphs 190 through 200.

EIGHTH CAUSE OF ACTION

CONSPIRACY TO BREACH FIDUCARY DUTY

Against Montelli

Defendant is not required to respond Plaintiff’s Eighth Cause of Action because he is not

named in the claim. Nonetheless, Defendant denies paragraphs 201 through 209.

NINTH CAUSE OF ACTION

MONEY HAD AND RECEIVED

All Defendants

210. Defendant realleges and incorporates herein by reference his responses to all of


211.

Denied.

212. Denied.






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214. Denied.

215. Denied.





TENTH CAUSE OF ACTION

ACCOUNTING

All Defendants

218.









Defendant denies all of Plaintiff’s requests for relief in the Complaint.

AFFIRMATIVE DEFENSES

Without admitting or conceding any matter, Defendant alleges and asserts the following

defenses in response to the remaining counts of the Complaint, undertaking the burden of proof

only as to those defenses deemed affirmative defenses by law, and does not assume the burden of

proof where substantive law provides otherwise, regardless of how such defenses are

denominated herein. Defendant will rely on all defenses available to him at the time of trial of




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this matter and reserves the right to amend his Answer and Affirmative Defenses. By

designating his Affirmative Defenses, Defendant does not in any way waive or limit any

defenses which are or may be raised by his denials and averments. Defendant’s Affirmative

Defenses are pled in the alternative. For his affirmative defenses, Defendant alleges as follows,

without assuming the burden of proof where the burden is otherwise on Plaintiff:

FIRST AFFIRMATIVE DEFENSE

Failure to State a Cause of Action

Plaintiff’s claims are barred, in whole, or in part, because they fail to state a cause of

action against Defendant.

SECOND AFFIRMATIVE DEFENSE

Personal Jurisdiction

The Court lacks personal jurisdiction over the Defendant.

THIRD AFFIRMATIVE DEFENSE

Statute of Limitations & Laches

Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitation,

statutes of repose, or the doctrine of laches.

FOURTH AFFIRMATIVE DEFENSE

Standing – CUFTA

Plaintiff lacks standing to bring this action because he is not a creditor of the

Receivership Entities and/or because no claim arose before the transfers alleged.




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FIFTH AFFIRMATIVE DEFENSE

Standing – Wagoner Rule

The plaintiff lacks standing to bring this action pursuant to the Second Circuit’s Wagoner

Rule, which provides that “when a bankrupt corporation has joined with a third party in

defrauding its creditors, the trustee cannot recover against the third party for the damage to the

creditors.” Shearson Lehman Hutton, Inc. v. Wagoner , 944 F.2d 114, 118 (2d Cir. 1991).

SIXTH AFFIRMATIVE DEFENSE

Joint & Several Liability

Each Defendant is not legally responsible for the acts or omissions of other named

Defendants, and as such, they should not and cannot be subject to joint and several liability.

SEVENTH AFFIRMATIVE DEFENSE

Estoppel

Plaintiff is estopped from asserting any claims for relief and therefore from recovering

any damages in this action by virtue of the Plaintiff’s own action or conduct, including, among

other things, Plaintiff’s execution of a settlement agreement with and dismissing all claims

against Defendants Inverplus Sociedad de Corretaje de Titulous Valores, C.A. (“Inverplus”) and

Piero Enrique Montelli Torres (“Montelli”) as well as other related, third parties because the

alleged transfers were the result of an agency agreement with Inverplus and its principals.

EIGHTH AFFIRMATIVE DEFENSE

Waiver

Plaintiff has waived any claims for relief and therefore from recovering any damages

from Defendant due to Plaintiff’s settlement agreement with Defendants Inverplus and Montelli

and other, related third parties.




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NINTH AFFIRMATIVE DEFENSE

Release

Plaintiff has released any claims for relief and therefore from recovering any damages

from Defendant by virtue of the Plaintiff’s settlement agreement with Defendants Inverplus and

Montelli and other, related third parties.

TENTH AFFIRMATIVE DEFENSE

Good Faith & Fair Value

Plaintiff’s claims are barred because the alleged transfers were received in good faith and

for a reasonably equivalent value.

ELEVENTH AFFIRMATIVE DEFENSE

Antecedent Debt

Plaintiff’s claims are barred because the alleged transfers satisfied an antecedent debt.

TWELFTH AFFIRMATIVE DEFENSE

Present Value

Plaintiff’s claims are barred because the transfers were made for present value.

THIRTEENTH AFFIRMATIVE DEFENSE

New Value Given

Plaintif f’s claims are barred because the alleged transfers gave new value to or were

made for the benefit of the debtor after the transfers were made.




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FOURTEENTH AFFIRMATIVE DEFENSE

Ordinary Course of Business

Plaintiff’s claims are barred because any alleged transfers or payments were on account

of debt or debts occurred in the ordinary course of business or financial affairs and were made in

the ordinarily course of business.

FIFTEENTH AFFIRMATIVE DEFENSE

Good Faith

Plaintiff’s claims are barred because any alleged transfers were made in good faith to

rehabilitate the debtor and the transfer secured present value given for that purpose. Moreover,

Defendant acted in good faith at all times.

SIXTEENTH AFFIRMATIVE DEFENSE

Set-Off / Reduction

Defendant is entitled to a set-off or reduction against the amount of any recovery Plaintiff

may otherwise have against Defendant in the amount provided by any other Defendant or third

party involved with the alleged transactions in order to settle Plaintiff’s claims.

SEVENTEENTH AFFIRMATIVE DEFENSE

Adequate Remedy at Law

Plaintiff’s equitable claims are barred because Plaintiff has adequate remedies at law.




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EIGHTEENTH AFFIRMATIVE DEFENSE

Conn. Gen. Stat. § 552i(b)(1)

Plaintiff’s claims against Defendant under CUFTA are barred because Defendant was not

a first transferee of any of the challenged transfers or the person for whose benefit such transfer

was made.

NINETEENTH AFFIRMATIVE DEFENSE

Conn. Gen. Stat. § 552i(b)(2)

Plaintiff’s claims against Defendant under CUFTA are barred because Defendant was not

a subsequent transferee of any of the challenged transfers other than a good-faith transferee who

took for value.

DEFENDANT MIGUEL ANTONIO

MOUAWAD MAWAD

By: /s/Adam L. Schwartz

Luis E. Delgado (phv06224)

Kevin Jacobs (phv06227)

Adam L. Schwartz (phv06225)Homer Bonner Jacobs

1200 Four Seasons Tower

1441 Brickell AvenueMiami Florida 33131

Phone: (305) 350-5130

Fax: (305) 982-0085Email: [email protected]

Email: [email protected]

Email:[email protected]

Daniel E. Wenner (ct27852)

Thomas D. Goldberg (ct04386)

Day Pitney LLP

242 Trumbull StreetHartford, CT 06103

Phone: (860) 275-0100

Fax: (860) 275-0343Email: [email protected]




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Email: [email protected]

Attorneys for Miguel AntonioMouawad Mawad


mailto:[email protected]






CERTIFICATION OF SERVICE

I hereby certify that on July 10, 2015, a copy of the foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by email to

all parties by operation of the Court’s electronic filing system or by mail to anyone unable to

accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access thisfiling through the Court’s CM/ECF System.

/s/Adam L. SchwartzAdam L. Schwartz, Esq


Documents

Demanda Montelli Original