IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT TN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO.; 113-1208 3CA2 0 D ALL FACTORING DE VENEZUELA, C.A., & y. ATMOSPHERE FUND SPC LTD.; CP CAPITAL SECURITIES, INVERSIONES 01590, C.A., AMICORP FUND SERVICES N.V., PROFESIONALES DE BOLSA, ARMANDO IACHINI, MARTIN LITWAK, LUIS WOLKOWIEZ, JORGE REYES, and RICARDO RIPEPI, Defendants. f 3 = 3 a a 2 = 2 ° COMPLAINT Plaintiff, All Factoring de Venezuela, C.A., hereby sues Defendants, Atmosphere Fund SPC Ltd., CP Capital Securities, Inversiones 01590, C.A., Amicorp Fund Services N.V., Profesionales De Bolsa, Armando Iachini, Martin Litwak, Luis Wolkowiez, Jorge Reyes, and Ricardo Ripepi and alleges as follows: JURISDICTION, VENUE AND PARTIES This is an action for damages in excess of $15,000, and thus falls within the _ jurisdiction of this Court. Venue is proper in Miami-Dade County, Florida pursuant to Florida Statutes § 47.011. 2, All Factoring de Venezuela, C.A., (“AE”) is a factoring company incorporated under the laws of Venezuela and having its registered office at Av. Francisco de Miranda, Edificio Parque Cristal, Piso 08, Oficina 8-8, Urb. Los Palos Grandes, Chacao, Venezuela 1060. [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.3. Atmosphere Fund SPC Ltd. (“Atmosphere Fund”) is a segregated portfolio ‘company incorporated under the laws of the British Virgin Islands and having its registered office at Wattley Building, P.O. Box 3410, Road Town, British Virgin Islands. Atmosphere Fund is subject to the personal jurisdiction of this Court pursuant to Florida Statutes § 48.193(1)(a) and § 48.193 (1)(b), respectively, because (a) it conducted and engaged in business in the State of Florida through the entities and/or individuals listed below and (b) it conspired with the entities and/or individuals listed below to commit tortious acts against AFV in the State of Florida. 4. Armando Tachini (“lachini”), is an individual residing in Venezuela and who is otherwise sui juris, Upon information and belief, Tachini is the ultimate beneficial owner and the alter ego of Atmosphere Fund, Upon information and belief, lachini, personally and through various agents, conspired with others to commit tortious acts against AFV in the State of Florida and is subject to the personal jurisdiction of this Court pursuant to Florida Statutes § 48.193(1)(b). 5. Martin Litwak (“Litwak”), is an individual residing in Uruguay and who is otherwise sui juris. Litwak is a Director of Atmosphere Fund and the alter ego of Atmosphere Fund, Upon information and belief, Litwak, personally and through various agents, conspired with others to commit tortious acts against AFV in the State of Florida and is subject to the personal jurisdiction of this Court pursuant to Florida Statutes § 48.193(1)(b). 6. CP Capital Securities, Inc. (“CP Capital”), is a Florida financial services company having its registered office and principal place of business at 1428 Brickell Avenue, Suite 600, Miami, Florida 33131. CP Capital is the Broker and Custodian for Atmosphere Fund and conducts business in the State of Florida. Further, upon information and belief, CP Capital conspired with others to commit a tortious act against AFV in the State of Florida and is also 2 [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A. eaesubject to the personal jurisdiction of this Court pursuant to Florida Statutes § 48.193(1)(b). 7. Jorge Reyes (“Reyes”) is an individual residing in Miami-Dade County, Florida and who is otherwise sui juris. Reyes is an employee of CP Capital and a principal agent for Atmosphere Fund, As such, Reyes operates, conducts, engages in, and carries on a business or business venture in the State of Florida and is thus subject to the personal jurisdiction of this Court pursuant to Florida Statutes §§ 48.193(1) and (2). Further, upon information and belief, Reyes conspired to and did directly commit tortious acts against AFV in the State of Florida and is also subject to the personal jurisdiction of this Court pursuant to Florida Statutes § 48.193(1)(b). 8. __ Inversiones 01590, C.A. (“Inversiones”) is a company organized under the laws of Venezuela and having its registered office at Urbanizacion Parque Humboldt, Calle Velutini con Avenida Rio Manapire, Edificio Palmira, Planta Baja, apartamento P-B-2, Prados del Este, Municipio Baruta, Estado Bolivariano de Miranda. The sole shareholder, ultimate beneficial ‘owner, and alter-ego of Inversiones is Luis Wolkowiez who resides in Miami, Florida. Upon information and belief, Inversiones operates, conducts, engages in, and carries on a business or business venture in the State of Florida and is thus subject to the personal jurisdiction of this Court pursuant to Florida Statutes §§ 48.193(1) and (2). Further, upon information and belief, Inversiones conspired to and did commit a tortious act against AFV in the State of Florida and is thus subject to the personal jurisdiction of this Court pursuant to Florida Statutes § 48.193(1)(b). 9, Luis Wolkowiez (“Wolkowie7”) is an individual residing in Miami-Dade County ‘and who is otherwise sui juris. Wolkowiez is the sole shareholder and/or ultimate beneficial owner of Inversiones. As such, Wolkowiez operates, conducts, engages in, and carties on business or business venture in the State of Florida and is thus subject to the personal jurisdiction of this Court pursuant to Florida Statutes § 48.193(1)(a). Further, Wolkowiez, personally and 3 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.through various agents, conspired to and did directly commit a tortious act against AFV in the State of Florida and is thus subject to personal jurisdiction pursuant to Florida Statutes § 48.193(1)(b). 10. Amicorp Fund Services N.V. (“Amicorp”), is a financial services company incorporated under the laws of Curacao and having its registered office and principal place of business at Pareraweg 45, P.O. Box 4914, Curacao, Netherland Antilles. Amicorp is the ‘Administrator for Atmosphere Fund and is a world-wide organization that also conducts business in the State of Florida through its affiliate Amicorp Services Ltd, located at 1001 Brickell Bay Drive, Suite 2306, Miami, Florida 33131. Further, upon information and belief, Amicorp conspired with others to commit tortious acts against AFV in the State of Florida and is thus subject to the personal jurisdiction of this Court pursuant to Florida Statutes § 48.193(1)(). 11. Profesionales de Bolsa (“Profesionales”), is a financial services company incorporated under the laws of Colombia and having a registered office at Calle 938 No.12-18, Edificio Profesionales de Bolsa $.A., Piso 2, 4, y 5, Bogota, Colombia. Upon information and belief, Profesionales conspired with others to commit tortious acts against AFV in the State of Florida and is thus subject to the personal jurisdiction of this Court pursuant to Florida Statutes § 48.193(1}(b). 12, Ricardo Ripepi (“Ripepi”), is an individual residing in Colombia and who is otherwise sui juris. Upon information and belief, Ripepi (as an employee of Profesionales de Bolsa) conspired with others to commit tortious acts against AFV in the State of Florida and is thus subject to the personal jurisdiction of this Court pursuant to Florida Statutes § 48.193(1)(b). GENERAL ALLEGATIO! A. Ripepi Introduces AFV to Atmosphere Fund 13. On or about November 23, 2012, Ripepi, a broker at Profesionales de Bolsa, 4 [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.contacted representatives AFV regarding a short term loan investment operation administered by ‘Amicorp in Curacao, By the time AFV responded to Ripepi regarding the investment transaction the deal was already closed and AFV could not participate. 14, Approximately one week later, Ripepi contacted AFV representatives again regarding another short term investment transaction. This time, Ripepi informed representatives at AFV that another investment transaction was being proposed by Mr. Santiago Goiri (“Giri”), a sales officer at Amicorp in Curacao and that the transaction involved entering into a short term Joan agreement with Atmosphere Fund, whereby Atmosphere Fund would borrow a predetermined sum of money from AFV on a short term basis. Ripepi also indicated to AFV that Atmosphere Fund was administered by Ami rp’s offices in Curacao and that the deal had been presented to him by an employee who worked at Amicorp Curacao (i.e., Goiri) 15. Prior to speaking with representatives at AFV, Ripepi had exchanged numerous communications with Goiri regarding the Atmosphere Fund and the logistics for making a deal. During these communications, Goiri informed to Ripepi that Atmosphere Fund was represented by Reyes, a broker working at CP Capital located in Miami, Florida. Goiri also provided Ripepi with the contact information for Reyes so that he could negotiate directly with Reyes on the terms of a potential financing transaction between All Factoring and Atmosphere Fund, 16. Prior to Ripepi’s conversation with Goiri regarding Atmosphere Fund, Ripepi had never met, heard of, or spoken to Reyes. Similarly, Ripepi had no prior knowledge of ‘Atmosphere Fund. Following Ripepi’s conversation with Goiri, Ripepi asked the compliance department at Profesionales de Bolsa to conduct a background check on both Reyes and ‘Atmosphere Fund. Ripepi also performed his own online background search as well. These searches did not tum up any negative information or history on either Reyes or Atmosphere Fund. s ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.17. Onor around November 29, 2012, Ripepi contacted Reyes directly to gather more details regarding the transaction, including how the financing deal would be structured and documented. Reyes informed Ripepi over the phone that he represented Atmosphere Fund and that Atmosphere Fund would be responsible for preparing the documents necessary to effectuate the transaction with All Factoring. 18. Following this conversation, Reyes sent Ripepi an email at Profesionales de Bolsa \with a zip file containing templates pertaining to the agreements that would be used as the basis for documenting the deal between All Factoring and the Fund. This zip file included the following templates in PDF format: a short term loan agreement, a promissory note, a leter of instruction for repayment, a promissory note assignment, a settlement letter, and a letter of repayment in case of default. All these documents contained the letterhead of Atmosphere Asset ‘Management (the investment manager for Atmosphere Fund) and were designed to be filled and printed online, 19. In addition to these template agreements, Reyes also provided Ripepi with a legal opinion prepared by Valmy Diaz (“Diaz”), a lawyer working at a reputable law firm in Caracas, Venezuela called Torres, Plaz, y Araujo (“IPA”). The purpose of the legal opinion was to provide comfort with respect to the legality and risks associated with an international transaction such as the one being contemplated by AFV and Atmosphere Fund under Venezuelan law. Notably, Reyes informed Ripepi that Diaz at TPA would be responsible for drafting the deal documents based on the templates previously provided, B. _AFV and Atmosphere Fund Exchange Documents through Reyes and Ripepi. 20. After Ripepi reviewed the materials received from Reyes, he then forwarded the template agreements and TPA’s legal opinion to AFV for their own intemal review. Ripepi then began communicating on a regular basis with Francisco Martinez (“Martinez”), a commercial 6 "ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.agent for AFV, in order to complete the financing transaction with Atmosphere Fund. 21. Over the course of numerous communications, Ripepi forwarded to Martinez by email a “Know Your Customer” checklist form on Atmosphere Fund’s letterhead to gather and confirm All Factoring’s corporate information. In return, AFV (through Martinez) requested and was provided with documents regarding Atmosphere Fund, including, a certificate of incorporation, the articles of incorporation, a private placement memorandum, and a copy of Litwak’s passport. All of the materials provided to AFV with respect to Atmosphere Fund except for Litwak's passport, were originally provided by Reyes to Ripepi. Litwak’s passport ‘was provided by Goiri to Ripepi who then forwarded it to AFV. 22. With this information in hand, Martinez proceeded to conduct due diligence on Atmosphere Fund on behalf of AFV. In this regard, AFV was able to locate Atmosphere Fund's website which indicated that the Fund’s directors are Litwak and LG Managers Ltd. The website ‘also confirms that Atmosphere Fund's Administrator is Amicorp, a worldwide financial services company that offers fund administration services. AFV also checked the website for Litwak’s law firm in Uruguay (Litwak & Partners) and found many references to his involvement with investment funds such as Atmosphere Fund. 23. AFV also studied the legal opinion issued by TPA with respect to the structure and documentation to be used for the deal between APV and the Fund. This document was addressed to Claudio Cecchini, Eric Chang, and Jorge Reyes and was signed by Valmy Diaz and Rodolfo Plaz of TPA. Rodolfo Plaz is the President of TPA 24. During Martinez’s conversations with Ripepi regarding the terms of the transaction, Ripepi confirmed that Reyes was the representative of the Fund who was brokering this transaction and that Santiago Goiri had access to the Fund’s accounts and could verify all transactions entered into with the Fund. Ripepi also stated that all documents pertaining to the 7 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.transaction would be drawn up by Diaz at TPA. Ripepi also verbally indicated to AFV that this deal would be completed in a span of 10 business days once the loan proceeds were transferred and confirmed by the Fund. In other words, the money lent by AFV to Atmosphere would be repaid within 10 days business days. 25, Atal times material hereto, AF, in assessing whether to enter into a short term Joan transaction with Atmosphere Fund, reasonably relied upon information provided to its representatives by Ripepi (through Reyes and Goiri as agents for Atmosphere Fund and ‘Amicorp, respectively). AFV"s reliance on this information was reasonable in light of the following facts: a. __ AFV's own independent research confirmed the fact that Litwak was the Director of Atmosphere Fund and that Amicorp was the Administrator for the Fund. b. FV was provided with documentation, including, template agreements on Atmosphere Fund letter head, corporate formation documents, and a copy of Litwak’s passport ¢. _ AFV was asked to provide Atmosphere Fund with information regarding its own company, such as a “Know Your. Customer” checklist and other financial information, indicating that this transaction was being conducted in the ordinary course of business. c AFV and Atmosphere Fund Enter Into Loan Transaction for Bs 234.6 Million. 26. On or about December 4, 2012, AFV started making arrangements on its end to enter into the aforementioned short term loan transaction with Atmosphere Fund in the amount of BsF 151 million. As such, on December 5, 2012, Martinez contacted Valmy Diaz at TPA to inform him that AFV needed the final loan documents before it could make a disbursement to 8 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A,‘Atmosphere Fund. During this conversation, Diaz. confirmed to Martinez that he was working on the loan documents on behalf of Atmosphere Fund and assured him the documents would be transmitted to AFV in short order. 27. On or about December 6, 2012, Ripepi received a fax at Profesionales de Bolsa from Reyes containing a final draft of the first short term loan agreement (the “First Short Term Loan Agreement”) which was signed and executed by Litwak and reviewed by Diaz and Iachini. The First Short Term Loan Agreement provided that AFV would agree to lend and Atmosphere Fund would agree to borrow a total of BsF 151 million payable in Bolivars or in a different currency, at the discretion of Borrower, within thirty (30) days of the date of the agreement. The agreement also provided that AFV was to deposit the BsF 151 million in an account at Banco Banesco (Acct. No, = held in the name of Inversiones 01590, C.A. Ripepi forwarded the First Short Term Loan Agreement to AFV for its review and signature using his email account at Profesionales de Bolsa. 28. Acco! g to two recent letters from Valmy Diaz to counsel for AFV, the First Short Term Loan Agreement was originally provided to him by Mr. Reyes via email According {0 Diaz, “Mr, Armando Tachini of Atmosphere Fund SPC” was also copied on the email. AFV is also in possession of two emails dated December 6, 2012 from Reyes to Ripepi, Diaz, and Iachini (copying Litwak) in which Reyes attaches final drafts of the Short Term Loan ‘Agreement, a promissory note, both of which were purportedly “reviewed by” Valmy Diaz Thus, Ripepi, Reyes, Diaz, lachini, and Litwak all had firsthand knowledge of the contemplated Joan transaction and the fact that AFV was being asked by Atmosphere Fund to deposit the entire Joan balance into an account held in the name of Inversiones. 29. Omor about December 6, 2012, Ripepi received another fax at Profesionales de Bolsa from Reyes containing an instruction letter signed by Litwak (the 9 [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.Letter”). This letter directed AFV to deposit the BsF 151 million borrowed by Atmosphere Fund in an account at Banco Banesco (Acct. No, EES) held in the name of Inversiones 01590, CA. The letter also requested that AFV deposit an additional BsF 56.24 million in light of the fact that the parties had mutually agreed to increase the Total Loan ‘Amount. Ripepi forwarded the First Instruction Letter directly to AFV (through Martinez). 30. Upon receipt of the Fitst Instruction Letter, AFV forwarded to Ripepi an executed copy of the First Short Term Loan Agreement. Ripepi then confirmed to AFV that the Total Loan Amount would still be repaid by Atmosphere Fund in ten (10) days after the transfer of the loan proceeds was verified and confirmed despite the fact that the Short Term Loan Agreements provided for repayment within thirty (30) days. Based on this confirmation, AFV began transferring funds to Inversiones’ bank account shortly thereafter. 31. On or around December 6, 2012, Martinez inquired with Ripepi as to whether the Total Loan Amount could be increased by an additional BsF 27.36 million. Ripepi spoke to Reyes regarding this request and obtained confirmation from him that the loan transaction could be modified to include these additional funds. Shortly thereafter, Ripepi forwarded to Martinez a second letter of instruction directing AFV to deposit the additional BsF 27.36 at Inversiones’ bank account (the “Second Instruction Letter”). ‘The Second Instruction Letter was also signed by Litwak. 32. Based on the two subsequent increases to the Total Loan Amount agreed to by 'AFV and Atmosphere Fund, the aggregate amount borrowed by Atmosphere Fund was BsF 234.6 million (the “Total Loan Amount”), These loans were documented in two separate short term loan agreements: (a) the First Short Term Loan Agreement dated December 6, 2012 in the amount of BsF 151.0 million attached hereto as Exhibit A and (b) the Second Short Term Loan Agreement dated December 7, 2012 between APV and Atmosphere Fund in the amount of 10 [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.Bs 83.6 million attached hereto as Exhibit B (collectively, the “Short Term Loan Agreements”). 33. On or around December 6, 2012, Ripepi received two separate emails from Reyes (copying Diaz, lachini, and Litwak) attaching copies of the Short Term Loan Agreements and confirming the transaction between Atmosphere Fund and AFV for USD $15.5 million. As previously stated, these emails also included Diaz and Iachini (as direct recipients) with copies to Litwak. ‘These emails make clear the fact that Ripepi, Reyes, Diaz, lachini, and Litwak all had direct knowledge that AFV was being asked by Atmosphere Fund to deposit the Total Loan ‘Amount into an account held in the name of Inversiones. 34. On or about December 10, 2012, Martinez, Ripepi, and Mr. Armando Hortua (an officer at Profesionales de Bolsa) met in person at the offices of Profesionales de Bolsa in Bogota to review all of the documents related to this deal and to confirm that everything was executed as previously agreed. At this meeting, Ripepi confirmed that all of the funds except two transfers totaling BsF 104,000 had been received. These two transfers were later confirmed that same afternoon. 35. On or about December 10, 2012, AFV sent Ripepi via email an instruction letter from AFV addressed to Atmosphere Fund with wire transfer information for the repayment of Total Loan Amount owed to AFV pursuant to the Short Term Loan Agreements. Ripepi forwarded this letter to Reyes via email. 36, On December 11, 2012, Ripepi sent Martinez by email a copy of the fully executed Short Term Loan Agreements originally sent by Reyes and a copy of a letter from ‘Atmosphere Fund to JP Morgan Asset Management instructing JP Morgan to wire transfer USD. $15.5 mil sn to an account previously designated by All Factoring in repayment of the Total Loan Amount, ‘This wire transfer instruction was originally sent by Reyes to Ripepi’s fax at Profesionales de Bolsa and was signed by Litwak, Director of Atmosphere Fund. u ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A. eee37. On December 12, 2012, Ripepi forwarded to Martinez by email a written confirmation that USD $15.5 million had been transferred to AFV (the ‘Transfer C. This written confirmation was also Repayment Confirmation”) attached hereto as Exhi originally sent by Reyes to Ripepi's fax at Profesionales de Bolsa 38, On December 13, 2012, Martinez informed Ripepi that the funds had not been received, At this point, Ripepi instructed Martinez to speak to Reyes direetly and proceeded to coordinate a meeting between Martinez and Reyes at the offices of CP Capital (Atmosphere Fund’s Custodian and Broker) located at 1428 Brickell Avenue, Suite 600, Miami, Florida 33131. D. Atmosphere Fund Informs AFV That It Cannot Perform Under the Short Term Loan ‘Agreements and AFV Cancels the Loan Transaction. 39, On the moming of December 14, 2012, Martinez met with Reyes in his office at CP Capital to discuss the status of the funds Atmosphere Fund has presumably wire transferred to AFV two days prior to the meeting. Reyes started the meeting by establishing his credentials during which time he provided Martinez with his business card indicating that he worked for CP Capital and that his position was Managing Director for Latin American Markets. Reyes also wrote down his personal email and cell number on the business card provided to Martinez, During the meeting, Reyes informed Martinez thet Atmosphere Funds had substantial funds ‘under management, that they were a serious organization, and that they had done these deals ‘many times before. At this meeting, Reyes held himself out to be an employee of CP Capital and an agent for Atmosphere Fund. These representations further confirmed AFV's understanding of the agency relationship between Reyes and Atmosphere Fund. 40. Reyes then showed Martinez a set of the original Short Term Loan Agreements signed by Litwak and a repayment schedule that extended to January 30, 2013 Martinez 2 [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A. eeeinformed Reyes that AFV was never given a copy of this repayment schedule and that the repayment schedule was not consistent with Ripepi’s oral representation that repayment would bbe made in ten (10) days of receipt of the Total Loan Amount. Significantly, Reyes statement was also at odds with the thirty (30) day repayment deadline set forth in the Short Term Loan Agreements and undermined the validity of the Wire Transfer Repayment Confirmation provided to AFV by Reyes (through Ripepi). 41. Accordingly, Martinez informed Reyes that the Total Loan Amount borrowed by ‘Atmosphere Fund was already due. Reyes responded by saying that it was impossible to deliver the funds prior to the dates set forth in the repayment schedule and suggested that the funds ‘would start being transferred to AFV during the last week of December 2012 at a rate of BsF 45 million per week, Martinez informed Reyes that he would have to consult with AFV on the proposed timetable before he could to agree to terms that were materially different from the previous agreements. 42, In the afternoon of December 14, 2012, Martinez. sent Reyes a letter indicating that AFV did not agree with Atmosphere’s modified repayment terms and that AFV was cancelling the transaction and requesting that all the funds be retumed immediately (the “Cancellation Letter”). Reyes acknowledged cancellation of the transaction and sent Martinez an email specifying how the Cancellation Letter should be worded. Importantly, Reyes" email stated that the Cancellation Letter should specify the following two points: (a) that 'AFV’s funds were deposited in the account of Inversiones which is the “custodian account” for [Atmosphere Fund and (b) that the transaction between AFV and Atmosphere Fund would be terminated following the return of the loan proceeds to AFV. Ultimately, Reyes signed the Cancellation Letter. As such, Reyes continued to act as Atmosphere’s agent with respect to the cancellation of the transaction and acknowledged that AFV had deposited funds with B ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A. CC ———E—_=_Inversiones’ bank account pursuant to the terms of the Short Term Loan Agreements. AFV and its representatives reasonably relied upon these representations by Reyes. 43. Subsequently thereafter, Reyes and Martinez met again at the offices of CP Capital where Reyes received, signed, and acknowledged on behalf of Atmosphere Fund the Cancellation Letter addressed to the Fund, Litwak, and Reyes formally requesting the return of the funds to AFV. See Exhibit D. Reyes kept a copy of the letter and informed Martinez that he would forward it to Litwak immediately. Reyes also represented to Martinez that AFV would receive BsF 151 million by December 17, 2012 and that the remaining balance would be returned by December 21, 2012. AFV and its representatives reasonably relied upon these false representations. 44, After the meeting with Reyes, Martinez. informed Ripepi that the deal had been cancelled and that AFV was asking for the immediate return of the money. Martinez. provided Ripepi with a copy of the letter and asked him to inform Goiri at Amicorp of this development E. Atmosphere Fund Fails to Return Loan Proceeds to AFV as Promised by its Agents. 45, On December 17, 2012, after numerous failed attempts, Martinez finally was able to reach Reyes to confirm the transfer of the BsF 151 million previously agreed to by the parties Reyes confirmed to Martinez that Atmosphere Fund was getting ready to transfer BsF 151 million back to AFV. Despite this representation, however, no transfer was completed and Reyes ultimately informed Martinez that the transfer could not be made that day because the person who could authorize the transfer was out of the office that day. 46, On the same day, Martinez conferred with Ripepi several times to express concems over Atmosphere Fund’s failure to return any funds as promised. Ripepi informed ‘Martinez that he had spoken with Goiri at Amicorp who has had assured him that the deal was legitimate and the funds would be returned, Similarly, Ripepi also spoke with Reyes who 4 [ASTIGARRA DAVIS MULLINS & GROSSMAN, PLA.reassured him that the money would be repaid to AFV. 47, On December 18, 2012, Martinez again called Reyes to inquire about the status of funds, This time, Reyes informed Martinez. that Atmosphere Fund was again attempting to make the transfer to AFV but that the bank was requiring that the person in charge of the account be physically present at the bank due to the large sum being transferred. Martinez called the bank directly and was able to confirm that there was no such requirement. Subsequently thereafter, Reyes asked Martinez to amend the Cancellation Letter so that the money could be returned to a bank account in the same bank (Banco Baneseo). AFV complied with this request and sent Reyes an amended Cancellation Letter requesting that the funds be retumed to an account in Banco Banesco controlled by AFV. 48, In view of this failure, Martinez then traveled to Miami on December 18, 2012 to meet with Mr. Miteh McInnis (“McInnis”) the CEO of CP Capital. Martinez showed Melnnis the Cancellation Letter and relayed to him the fact that Reyes had promised to return a certain amount of money by that day and that AFV had not yet received any funds. Melnnis called Reyes at his cell phone and asked him to inform Martinez when the funds would be retuned to AFV, During this call, Reyes represented to Martinez that all the funds owed to AFV would be retuned by 1:00 pm. on Friday, December 21, 2012, Melnnis offered Martinez to keep track of Reyes’ assurances and to help in any way he could. AFV detrimentally relied upon these representations made by Melnnis, on behalf of CP Capital and as Reyes's supervisor. 49. Later that day, Reyes called Martinez.to inform him that some of the funds would be transferred that afternoon and to get in touch with Mr. Luis Wolkowiez who managed the account of Inversiones at Banco Banesco. Martinez. called Wolkowiez and was able to confirm that two transfers would be made by Inversiones to APV that day: one transfer for BsF 22,606,000 and another for BSF 5,000,000. Following the transfers, Martinez called Wolkowiez 18 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A, esto confirm the receipt of the funds and suggested that they both meet the next day in his office in Miami. 50. For this part, Ripepi also claims that he called Iachini on December 18, 2012 to determine whether he was aware of what had transpired and what Atmosphere Fund was doing to correct the situation. Ripepi was provided with Iachini’s contact information by Goiri at ‘Amicorp. During the call, lachini confirmed the existence of the transaction and assured Ripe that he should remain calm because everything would work itself out. acl also stated that Reyes was the one responsible for the deal, that he was aware of the fact that the deal had been cancelled by AFV, and that the loan proceeds would be returned to AFV. Specifically, Tachini acknowledged to Ripepi the existence of AFV’s Cancellation Letter formally requesting the return of the funds and the cancellation of the transaction. 51. Onor around the same date, Ripepi claims to have received a message from Goiri indicating that Reyes was getting upset with respect to his involvement and that Reyes wanted both Goiri and Ripepi to discontinue their involvement in the deal so that he could work directly with APV in securing the return of the funds. These communications and representations made on behalf of Atmosphere Fund were ultimately transmitted to Martinez as AFV's representative F.__ AEVIs Introduced to Luis Wolkowiez the Principal for Inversiones and SLB ‘Investments and Armando Iachini the Principal for Atmosphere Fund. 52, On December 19, 2012, at 9:30 am, Martinez met with Wolkowiez at his office located at 8384 NW 68 Street, Miami, Florida 33166 from where he operates a company called S.LB. Investments LLC (“SLB”) and manages Inversiones’ banking operations, Wolkowiez represented to Martinez that he controlled the account of Inversiones at Banco Banesco, but that Inversiones had no direct relationship with Atmosphere Fund. This was the first time AFV was informed that there was allegedly no relationship between Atmosphere Fund and Inversiones. 16 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A. eee53. Martinez described to Wolkowiez the facts surrounding AFV’s deal with ‘Atmosphere Fund, specifically, AFV's deposit of BsF 234.6 to Inversiones and Atmosphere Fund’s promise to repay AFV either in Bolivares or in US dollars within 10 days. Wolkowiez stated that both Inversiones and SLB managed transactions involving US dollars and Venezuelan Bolivares. Specifically, Wolkowiez stated that Inversiones’ bank account was designated as an account used to receive and transfer Venezuelan Bolivares and that SLB’s bank account held with a JPMorgan banking entity was designated as an account used to receive and transfer US dollars. 54. Wolkowiez also stated that SLB’s account was currently receiving US dollars from Venezuela on Wednesdays of certain weeks and, that these US dollars were then transferred out on Friday the same week, With respect to Wolkowiez’s relationship with Reyes, Wolkowiez further stated that the two had an agreement whereby Wolkowiez could supply up to USD $4 million per week from SLB’s account at a U.S. Bank in transactions not to exceed USD $1 million each, Mr. Wolkowiez’s also stated that he expected to receive an aggregate total of USD $100 million from Venezuela over a 25-week period. Thus, if AFV had not cancelled its deal with Atmosphere Fund (which was brokered through Reyes), it would have taken at least 4 weeks for AFV to receive back all of its funds in exchange for its BsF 234.6 loan (as opposed to 10 business days as originally promised). 55. Wolkowiez also stated that he personally knew Iachini and that lachini had asked for his cooperation in retuming the funds to AFV.. In the presence of Martinez, Wolkowier. then called lachini and put him on speaker so that all three men could discuss the situation, Tachini stated that he was the owner of Atmosphere Fund and that Litwak was a Director of the Fund. Tachini also stated that he was aware of the transaction between Atmosphere Fund and AFV, but that he had not authorized Litwak to sign any of the Short Term Loan Agreements, therefore, in ” [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.his opinion no agreements had been validly signed by Atmosphere Fund. Martinez then informed him that AFV had a set of executed documents which had been sent to him on behalf of ‘Atmosphere Fund. Iachini asked Martinez to provide him with a copy of the executed loan agreement which Martinez did on the spot by sending them using Wolkowiez’s email. lachini ended the conversation by assuring Martinez that all of AFV's monies would be promptly retuned, G. _ Wolkowiez Informs AFV of Reyes’s Conspiracy to Defraud AFV By Claiming a Portion of AFV’s Funds. 56. After the conference call with Iachini, Wolkowiez informed Martinez that Inversiones had only been recently notified by Reyes regarding ownership of the funds deposited by AFV, Specifically, Wolkowiez stated that Reyes at first claimed that the BsF 234.6 million belonged to him and that Reyes then revised his statement by indicating that BsF 177.0 million betonged to AFV and that the rest belonged to him. Wolkowiez told Martinez that the difference between BsF 234.6 million and BsF 177 million (ic., 57.6 million) has been paid to Inversiones by Reyes as cancellation of a separate and unrelated outstanding debt. 57. Martinez then showed Wolkowiez the Cancellation Letter requesting the return of the funds which had been acknowledged, accepted, and signed by Reyes on behalf of ‘Atmosphere Fund as well as all the documents supporting the transaction for BsF 234.6 million. Wolkowiez then proceeded to make two transfers to AFV in the amount of BsF 21,000,000 and BsF 55,994,000; thus, returning a portion of the Total Loan Amount. Following, these two transfers, the aggregate amount repaid to AFV by Wolkowiez totaled BsF 104,610,000. Wolkowiez also informed Martinez that the next day he would transfer an additional Bs 30 million, however, this transfer was never completed and the rest of the funds have yet to be received. 18 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A. Se eee eee ee58, After the meeting with Wolkowiez, Martinez. notified Reyes that AFV expected full repayment ofthe Total Amount as promised by Reyes by December 21, 2012, Martinez also proposed that the two meet at his office at CP Capital on December 20, 2012 at 10:00 am. 59, On December 20, 2012, at 9:30 a.m., Martinez met with McInnis at the offices of CP Capital and notified him that AFV had some very serious concerns about the transaction pecause Reyes was not fulfilling promises made on behalf of Atmosphere Fund and because his statements were riddled with inconsistencies. 60, When Reyes finally arrived at the meeting, McInnis asked him (in the presence of Martinez) why AFV's money had not been returned as previously discussed. In response, Reyes unilaterally began asserting allegations that the Short Term Loan Agreements were fraudulent and that a judicial investigation had to be opened, therefore, all remaining payments to AFV were being stopped. Given Reyes’ inability to substantiate these unfounded allegations and sensing that Reyes was merely attempting to buy Atmosphere Fund more time, Martinez informed Reyes that the remaining balance owed by Atmosphere Fund had to be returned by December 21, 2012 as originally promised by Reyes, otherwise Atmosphere Fund would be in default. H. Reyes’ Web of Lies Expands. 61. After the meeting at CP Capital ended, Wolkowiez spoke to Martinez and asked him to participate in a meeting with Reyes and himself at the Miami offices of SLB and Inversiones. During this meeting, Wolkowiez. informed Martinez that Reyes had asked him to aspend all farther payments because there was a purported fraud occurring, It was suggested thatthe parties meet with Amicorp, the Fund’s Administrator, to determine the proper course of action. Martinez agreed to such meeting, on behalf of AFV, wl ich took place at 2:30 p.m. at the offices of Amicorp located at 1001 Brickell Bay Drive, Suite 2306, Miami, Florida 33131. The 19 [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A. eeemeeting was attended by Martinez, Reyes, and Mr. Femando Cancino (“Cancino”) of Amicorp. 62. During this meeting, Cancino asked Reyes to explain the situation concerning the Joan transaction between AFV and Atmosphere Fund. Cancino notified Reyes in the presence of Martinez that the money should be refunded to AFV immediately and that any allegations of fraud had to be taken up between Atmosphere Fund and Amicorp. In fact, Cancino went so far as to mention that AFV had no appropriate role in that investigation. 63. Reyes then responded by stating that the money could not be retumed immediately because the deal had gone through and now AFV had to wait until all the monies came in, Noting the inconsistency between this statement and Reyes's previous fraud allegations, Cancino indicated that it was not possible that the deal had gone through because Reyes had just alleged that Atmosphere Fund did not have a set of validly executed documents and because the Fund had agreed to return the funds to AFV (a process which had already commenced as evidenced by the disbursements to AFV from Inversiones). 64. After this meeting, Cancino asked Martinez to meet him outside of the conference room where he informed him (in his capacity as an agent for Amicorp, the Fund’s administrator) that this problem had nothing to do with AFV and that in his opinion Atmosphere Fund should return the funds immediately. AFV detrimentally relied upon these representations made by Cancino, on behalf of Amicorp, the agent and administrator for Atmosphere Fund. 1. Reyes and Wotkowiez Continue to Conspire to Defraud Against AFV by Virtue of Their Material Misrepresentations and Unfulfilled Promises. 65. After the meeting at Amicorp, Martinez drove to Wolkowiez’s office to determine whether any further payments would be forthcoming from Inversiones. Wolkowiez informed Martinez that he was aware of the outcome of the meeting with Cancino and that Reyes had to make up a balance of approximately BsF 60 million before the rest of the funds could be 20 [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A. ittretuned to AFV. 66. Wolkowiez then called Reyes in the presence of Martinez to ask him when he would be able to return the rest of the funds. While on speaker phone, Reyes represented to Martinez that AEV would receive BsF 76 million the next day (i.e., December 21, 2012) and an additional BsF 20 million before December 31, 2012. Reyes also informed Martinez that the balance would be paid before January 15, 2013 and that a settlement agreement between the Fund, AFV, and some undisclosed investors was being drawn up and would have to be signed. Reyes further indicated to Martinez that Atmosphere Fund’s lawyers would prepare this settlement agreement and that it would be ready for AFV’s signature by December 25, 2012. 'AFV and its representatives reasonably relied upon these representations by Reyes on behalf of Atmosphere Fund 67. Wolkowiez, for his part, also represented 10 Martinez that his lawyer would prepare a settlement agreement to be signed between Inversiones and AFV and that this agreement would include a personal guarantee from Reyes confirming that all funds would be returned by January 15, 2013. Wolkowiez informed Martinez that the agreement being drafted by his attomey would be ready for signing on Friday, December 21, 2013. Ultimately, Wolkowiez represented to Martinez that Inversiones would cover all of the amounts agreed to by Reyes on the dates previously established which is why he was having his own lawyer prepare a separate settlement agreement. AFV and its representatives reasonably relied upon these representations by Wolkowiez on behalf of Inversiones and SLB. 68. On December 21, 2012, the day AFV was promised to receive BsF 76 million, Martinez communicated with Wolkowiez on numerous occasions regarding the status of the wire transfer and the proposed settlement agreement. Initially, Wolkowiez. informed Martinez that there was no reason to worry about the scheduled transfer and settlement agreement was in the a ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.process of being drafted. However, after the last call between Martinez and Wolkowiez.at 3:00 pam, that day, Wolkowiez stopped answering his phone and did not respond to any messages by text, Blackberry Messenger, or by email. Despite his previous representations to Martinez, Wolkowiez never circulated a draft settlement to AFV for its review. 69. At approximately 5:25 pm. on December 21, 2012, Martinez called Reyes regarding the status of the transfer to AFV. Reyes indicated to Martinez that he had made a deposit of Bs 20 million to Inversiones’ bank account (despite the previous promise to transfer Bs 76 million) and that the settlement agreement between AFV and the Fund would be ready for review on December 25, 2013. Despite this representation by Reyes, AFV did not receive any funds on December 21, 2012 as originally promised by Atmosphere Fund and was beginning to realize that the unfulfilled promises made by its agents were becoming a trend. 70. On December 22, 2013, Martinez made several attempts to contact Wolkowiez to no avail, Martinez also called Reyes to inquire about the settlement agreement and he said that it would be ready on December 25, 2012. Reyes did not have an explanation for why the funds ‘were not transmitted to AFV as promised. 71. On December 26, 2012, Martinez met with Wolkowiez at his office in Miami and was informed that Reyes had not made up the difference owed to Inversiones, therefore, Inversiones could not return any additional monies to AFV. Later that afiernoon Martinez met with Reyes who this assured him that all monies would be returned by January 15, 2013 at the latest, Martinez also inquired about the status of the settlement document that was being drafted by lawyers for Atmosphere Fund, however, Reyes was unable to provide any concrete answers. 72, On December 27, 2012, Martinez met with Reyes and Wolkowiez at the offices of SLB and Inversiones to establish concrete timetable for the return of the money to AFV. After a heated exchange, Reyes claimed that it was Wolkowiez who actually had the money and that it 2 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.was exclusively up to him to return it, After Reyes left the meeting, Wolkowiez promised Martinez, that a payment of BsF 50 million would be made on or before December 31, 2012 and the rest before January 15, 2013. Despite the numerous assurances by Reyes and Wolkowiez, on behalf of Atmosphere Fund and Inversiones, respectively, AFV did not receive any funds on or before December 31, 2012, Further, AFV did not have any additional communication from Reyes or Wolkowiez until January 10, 2013. J. Wolkowiez and lachini Induce AFV to Delay Legal Action Through Additional Fraudulent Misrepresentations of Material Facts. 73. On January 10, 2013, Martinez met with Wolkowiez at the offices of SLB and Inversiones to find out why the promised payment of BsF 50 million had not been made. Wolkowiez informed Martinez that Reyes had not made any of the agreed upon transfers to the account of Inversiones, therefore, Inversiones could not make any additional payments to AF, Wolkowiez then expressed his doubts as to whether Reyes would fulfill his obligations to Inversiones, but that ultimately, Inversiones would make good on the promised payments to AFV. AEV reasonably relied upon this representation made by Wolkowiez on behalf of Inversiones. 74, During this meeting, Wolkowiez called Iachini again and put him on the speaker phone. Iachini informed Wolkowiez and Martinez that he would be back in Caracas the weekend of January 12-13, 2013 and, that at that point, he would take care of everything. That evening, Martinez informed Wolkowiez that AFV was considering sending a formal demand letter prepared by AFV’s lawyers. Wolkowiez asked Martinez to wait until Monday, January 14, 2013 in order to give Tachini a chance to make things right on behalf of Atmosphere Fund. AFV reasonably relied upon the representations made by Wolkowie7. and Iachini and was induced into unnecessarily delaying legal action. 23 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.75, On January 14, 2013, Martinez met with Wolkowiez at the offices of SLB and Inversiones to discuss the status of the situation. During this meeting, Wolkowiez informed Martinez that Iachini had decided to distance himself from AFV’s transaction with Atmosphere Fund and that neither he nor Atmosphere Fund would assume any responsibility for the funds that had been deposited to Inversiones. 76. Nonetheless, Wolkowiez presented Martinez with a repayment plan that called for the return of the monies owed by Atmosphere Fund to APV based on the following timeline: (a) BsF 10 million on or before January 18, 2013, (b) BsF 50 million on or before January 31, 2013, and (¢) BsF 70 million on or before February 28, 2013. This proposed repayment schedule did not comply with any of the terms of the Short Term Loan Agreements nor with any of the rumerous promises made by Reyes and Wolkowiez which AFV had detrimentally relied upon in the prior weeks. 77. On January 15, 2013, Martinez met again with Wolkowiez at the offices of SLB ‘and Inversiones who indicated that Reyes had yet to make up the difference and that AFV should consider taking legal action against all the necessary parties, Wolkowiez also informed Martinez that approximately four months ago Inversiones had lost approximately $2.9 million due to a failed investment referred to him by Reyes. Based on Wolkowiez’s description of the situation, it appears that the BsF 59.6 million owed to Inversiones by Reyes is directly related to the USD $2.9 million loss suffered by Wolkowiez with respect to the deal Reyes referred to him and is the reason why Wolkowiez has repeatedly conditioned returning the funds to AFV on his ability to recover from Reyes. K. — Allof the Defendants Continue to Purposefully Misrepresent, Conceal, and Suppress ‘Material Facts in Response to AFV’s Demand Letter. 78. On January 16, 2013, AFV directed its lawyers to send a formal demand letter to 4 [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.all the entities and individuals involved in the transaction (e.g., Atmosphere Fund, Atmosphere ‘Asset Management, CP Capital, Amicorp, Inversiones, SLB, Reyes, McInnis, Wolkowiez, Iachini, Litwak, Cancino, and Diaz) formally demanding the return of all the funds still owed to AFV and giving the parties 30 days’ notice with respect to AFV’s rights pursuant to Florida's Civil Theft Statute (the “Demand Letter”). 79. Not surprisingly, each of the Defendants refused to “accept any responsibility” for their role with respect to the transaction and refused to offer any type of cooperation to AFV despite (a) the existence of written contractual obligations between AFV and Atmosphere Fund and (b) the existence of numerous claims against each of the parties by virtue of their agency and fiduciary relationships with the parties, their fraudulent misrepresentations, their unfilled promises of payment, and the outright theft of funds belonging to AFV. 80. Notably, Atmosphere Fund, Atmosphere Asset Management, and Martin Litwak (through counsel) claimed that the documents referenced in AFV’s demand letter were forgeries without explaining how it obtained the documents to begin with since AFV did not attach any documents to its demand letter to begin with. Moreover, Litwak also claimed that while “possible loan agreements were being negotiated with AFY, it was his understanding, based on an email from Mr, Jorge Reyes on December 14, 2012, that the loan agreement negotiations had fallen apart and that no transactions would take place.” Given this statement, Atmosphere Fund conceded that Reyes and Litwak are its agents and that they were authorized to negotiate the loan transaction at issue on behalf of Atmosphere Fund. Despite admitting that Reyes acted an agent for Atmosphere Fund with respect to the AFV transaction, Atmosphere Fund and Litwak continued their trend of making fraudulent representations by claiming that it “appears [your] client has negotiated with individuals and entities not authorized to speak on behalf of 25 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.Atmosphere.” 81. Amicorp, the Fund’s administrator, also claimed that none of its employees “acted as an agent for any of the parties in connection with the loan agreements at issue.” Interestingly, itis Amicorp's employee, Santiago Goiri, who was the original proponent of this transaction and who stated in unequivocal terms that Reyes is a client of Amicorp and that he manages these types of transactions through Atmosphere Fund out of Miami, Florida 82. In ifs response, CP Capital (the Fund's Broker and the employer of Reyes who facilitated this fraud), claimed that CP Capital does not have any custody of any assets of ‘Atmosphere Fund. However, CP Capital did not address it concerns regarding its negligent supervision of Reyes as an agent of CP Capital and Atmosphere Fund, 83, Reyes, while not responding to AFV's Demand Letter in writing, instead retained counsel dedicated to handling criminal matters. Through his counsel, Reyes’s initial position ‘was that the documents in AFV's possession pertaining to Reyes — the emails to Ripepi, Litwak, Iachini, and Diaz and even the Cancellation Letter he signed — were also forgeries. Despite taking such a strong initial position, three weeks later Reyes informed AFV through counsel that the documents referenced above, in fact, are not forgeries. 84, _ Iachini, for his part has retained counsel and informed AFV through his counsel that he “knows nothing regarding the alleged loans and had no participation with any of the alleged transactions.” This is obviously not true, as Tachini has participated on at least three conference calls with Martinez and Ripepi whereby he provided numerous assurances to Martinez that the money owed to AFV would be repaid and that everything would get straightened out. 85. Diaz, the attorney who purportedly was in charge of drafting the documents for the transaction on behalf of Atmosphere Fund/Reyes, has also taken inconsistent positions and 26 [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A. ££nay also be liable to AFV as a result of his agency relationship with Reyes and Atmosphere Fund, In his two responses to the Demand Letter, Diaz made the following admissions: a. In December 2012, he was asked by Jorge Reyes to review a draft loan agreement between AFV and Atmosphere Fund provided to him via email by Reyes (of which Mr. Armando Iachini was copied). b. Diaz reviewed the loan agreement and provided his opinion on them as @ qualified attomey in Venezuela and partner of the Venezuelan firm Torres, Plaz, y Araujo. c. _Torge Reyes and/or Atmosphere Fund was the client on file 4. Diaz confirmed that in all the documents he reviewed Atmosphere Fund instructed AFV to deposit the money in Inversiones’ bank account at Banco Banesco e. Diaz was formerly employed by Amicorp. L._ AFV Continues to Follow-Up To Determine the Status of the Loan Proceeds After Payment Deadlines Are Not Met by Either Atmosphere Fund or Inversiones. 86. On January 18, 2013, Martinez called Wolkowiez to inquire about the BsF 10 million payment scheduled for that day as previously agreed to by Wolkowiez. During this meeting, however, Wolkowiez informed Martinez that his lawyer had advised him not to make any more payments to AFV, but that he would still like to meet to find a way to fix the situation. Wolkowiez also represented to Martinez that removing SLB from the demand letter was a condition for working out a deal, 87. Martinez. and Wolkowiez subsequently agreed to meet at SLB's office on January 22, 2013 at 11:00 am. However, on his way to the meeting, Martinez was informed by Wolkowiez that he would not be able to make the meeting due another emergency meeting, 21 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.Despite making plans to meet later that afternoon, Martinez did not hear from Wolkowiez again for several days. 88. On January 23, 2013, Martinez received a message from Ripepi indicating that Santiago Goiri wanted to speak with AFV regarding this transaction. On January 24, 2013, Martinez and Goiri spoke directly on the telephone, Notably, Goiri informed Martinez that he had knowledge of previous deals originating from Atmosphere Fund which were brokered by Reyes. Goiri also stated that he was willing to vouch for the authenticity of the transaction and that he had personal knowledge of an email from Litwak confirming the transaction. Goiri was asked by Martinez to tumover any documents AFV needed to support its claims against ‘Atmosphere Fund, however, Goiri claimed that his confidentiality agreement with Amicorp prohibited him for being able to do so. 89. On February 4, 2013, Martinez met with Valmy Diaz in Caracas, Venezuela to discuss his participation in the review of the Short Term Loan Agreements. Diaz told Martinez. that he had reviewed several sets of documents related to the Short Term Loan Agreements between All Factoring and Atmosphere Fund on behalf of law firm Torres, Plaz, y Araujo. Diaz also acknowledged his phone conversation with Martinez on December 5, 2012 regarding the need to have the documents ready prior to transferring the money to Inversiones. Diaz. also confirmed that he received the documents to review from Reyes and that lachini and Litwak were both copied on all of the emails from Reyes. 90. On February 11, 2013, Martinez. met with Ricardo Ripepi in Bogota to request all the documents related to the Atmosphere Fund transaction that had been brokered by him and Profesionales de Bolsa on behalf of AFV. Ripepi said that all phone calls, emails, and faxes were in the possession of Profesionales de Bolsa and that he was going to formally request them and make them available to AFV. 28 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.91. On February 23, 2013, Martinez met with Santiago Goiri in Curacao to discuss the details of his personal knowledge regarding the transaction between AFV and Atmosphere Fund. The meeting, which lasted three hours, focused on the personal connection between the various parties involved in this transaction and the events which transpired behind the scenes, including, the following: a. ‘The structure of the transaction that served as the model for the loan agreement between AFV and Atmosphere Fund was devised by a former ‘Amicorp employee named Eric Chang (“Chang”), along with Valmy Diaz and Jorge Reyes, The initial Aumosphere Fund deal templates (discussed above) were originally provided by Jorge Reyes to Santiago Goiri who then provided them to Ricardo Ripepi. Reyes sent a completed “Know Your Customer” checklist form for both Inversiones and AFV to Amicorp so that Amicorp could prepare certain documents and open a file for Inversiones and AFV. On or around December 5, 2012, Santiago Goiri had communications with Valmy Diaz regarding the preparation of the loan documents between ‘Atmosphere Fund and AFV. On or around December 10, 2012, Santiago Goiri spoke to Reyes who confirmed receipt of a large majority of the funds transferred by AFV to Inversiones. On December 11, 2012, Santiago Goiri received an email from Reyes copying Iachini, Litwak, and Diaz to confirm that the final documents had been prepared and reviewed by Diaz, executed by Litwak, and that all funds had been received by Inversiones. Goiri confirmed that Atmosphere Fund only has two bank accounts, one at Amicorp B&T and the other one at First Caribbean International Bank. Further, Goiri had no knowledge of the letter of instruction to Atmosphere from AFV or the swift confirmation notice purporting to evidence the transfer of funds back to AFV. On or around December 14, 2012, Santiago Goiri received a copy of the Cancellation Letter from Ripepi requesting the retum of the funds and forwarded it to his superiors at Amicorp indicating that there had been many irregularities with the documentation on the part of the Fund. 29 [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.i On or around December 15, 2012, Santiago Goiri participated in a telephone conference with Chang and Reyes to discuss the now defunct deal. Reyes informed the parties that he would take care of everything (as he promised Martinez) oS On or around December 18, Santiago Goiri took part in a telephone conference with Reyes, Iachini, Litwak, and Claudio Cecchini, the head of Fund Services at Amicorp, During this conference call, Iachini stated that although AFV’s money had gone through, Atmosphere Fund was not ‘going to honor the short term loan agreements because AFV did not have the original executed documents. k. In the days following this call, Reyes continued to reassure Amicorp that everything would be okay regarding the transaction because he had sold the deal to a bank in Venezuela (apparently BFC or BNC Bank). L On or around December 19, 2012, Fernando Cancino wrote to Rob Ellis, Claudio Cecchini, and Santiago Goiri informing them of the meeting that had taken place at Amicorp’s office in Miami with Reyes and Martinez. m, Ono around December 28, 2012, Goiri sent a detailed email to Claudio Cecchini, Zulma Pinto, Femando Caneino, and Rob Ellis about all of the events that had transpired in this deal. In this email, Goiri stated that he believed there was a fraud underway and that Amicorp should take action. Claudio Cecchini responded by saying that the short term loan agreement was of no concer to Amicorp. 92. On February 25, 2013, Martinez received a call from Wolkowiez informing him that Reyes had not paid him any money and therefore he could not return any of the funds to ABV. He also mentioned the possibility of having @ meeting (as suggested by AFV’s attorneys), however, this meeting never took place after receiving notice from Wolkowiez’s attorney that a meeting would not be “fruitful.” 93. On March 5, 2013, Martinez met with Wolkowiez at the offices of ‘SLB/Inversiones to discuss a potential agreement involving the repayment of the Total Loan Balance (approximately BsF 130 million). During this meeting the parties also called Iachini so that he could participate in the discussions. Ultimately, lachini maintained his position that he was not involved in this transaction (despite his previous assurances) and that Reyes did not have authority to act on behalf of Atmosphere Fund, therefore, this issue was not his problem. Shortly 30 /ARRA DAVIS MULLINS & GROSSMAN, P.A.thereafter, the conversation with Iachini ended and Wolkowiez informed Martinez that he would get back to him after consulting with his attorney. 94. On March 13, 2013, Martinez contacted Wolkowiez to discuss a potential meeting. During this meeting, Wolkowiez informed Martinez that Reyes was still in Venezuela with Iachini who was helping him find the money needed to repay AFV. Wolkowiez also informed Martinez, that Reyes and Iachini had recently deposited BsF 2 million with Inversiones and had promised Wolkowiez another BsF 20 million by the next day, March 14. Martinez. also asked Wolkowiez what his thoughts were on discussing a potential settlement agreement discussed last week. Wolkowiez responded to Martinez by informing him that Reyes’s lawyer had sent him an email advising him not to negotiate a settlement unless it included all the other parties because otherwise they would proceed against him. Martinez informed Wolkowiez that he could not agree to such terms and that AFV was prepared to file its lawsuit against all the parties. Wolkowiez was very upset by this news and threatened AFV and anybody involved in the deal with retaliation in Venezuela, COUNT I - BREACH OF CONTRACT (Against Atmosphere Fund, Litwak, and Iachini) 95. AEV re-alleges paragraphs 1 through 94 as if fully set forth herein. 96. The Short Term Loan Agreements are valid and enforceable contracts between ABV and Atmosphere Fund. 97. Atmosphere Fund has materially breached the First Short Term Loan Agreement in the amount of Bs 151 million by (a) failing to repay the outstanding balance due as set forth in section 4.1.1 of the First Short Term Loan Agreement and (b) giving information and making representations to AFV that are inaccurate as set forth in section of 4.1.2 of the First Short Term Loan Agreement. 31 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.98. Atmosphere Fund has materially breached the Second Short Term Loan Agreement in the amount of Bs 83.6 million by (a) failing to repay the outstanding balance due ‘as set forth in section 4.1.1 of the Second Short Term Loan Agreement and (b) giving information and making representations to AFV that are inaccurate as set forth in section of 4.1.2 of the First Short Term Loan Agreement. 99, AFV has been damaged as a result of Atmosphere Fund’s breach of the Short Term Loan Agreements. 100, As detailed above, Litwak and Jachini used Atmosphere Fund for improper purposes and in bad faith to effectuate multiple acts of malfeasance against AFV. 101, Iachini (the ultimate beneficial sole shareholder of the fund) and Litwak (the director of the fund), used their power, influence, and control over Atmosphere Fund to such an extent that its corporate existence was in fact non-existent. 102. Upon information and belief, lachini and Litwak disregarded Atmosphere Fund's corporate formalities. Inchini and Litwak also used Atmosphere Fund as a mere instrumentality to further their improper conduct. 103, lachini and Litwak’s improper use of Atmosphere Fund has damaged AFV and, as such, the fund's corporate form should be disregarded so as to hold Iachini and Litwak liable for any and all losses caused by Atmosphere Fund, WHEREFORE, AFV demands judgment against Defendants Atmosphere Fund, lachini, and Litwak for money damages, prejudgment and post judgment interest, costs, and such other and further relief as this Court deems just and proper. COUNT Il - MONEY HAD AND RECEIVED (Against Atmosphere Fund, Inversiones, Wolkowiez and Reyes) 104, AFV re-alleges paragraphs 1 through 94 as if fully set forth herein. 32 [ASTIOARRA DAVIS MULLINS & GROSSMAN, P.A. eee105, ARV transferred BsF 234.6 million to a bank account in name of Inversiones which is directly owned and controlled by Wolkowiez pursuant to the Short Term Loan ‘Agreements entered into with Atmosphere Fund. 106, The Inversiones bank account which received AFV’s funds pursuant to the Short ‘Term Loan Agreements was represented to AFV as being the “custodian account” for ‘Atmosphere Fund and therefore any money received by Inversiones directly benefited Atmosphere Fund. 107. Atmosphere Fund, Reyes, and their agents represented and orally agreed to repay AFV within 10 days of the receipt of the loan proceeds and no Jater than 30 days pursuant to the Short Term Loan Agreements. 108, _Inversiones and Wolkowiez also represented to AFV and its agents on numerous occasions that the funds AFV transferred to Inversiones would be returned by certain deadlines which have since passed. 109. Atmosphere Fund, Inversiones, Wolkowiez, and Reyes had knowledge of and voluntarily accepted the transfer of funds from AFV to Inversiones/Atmosphere Fund and failed to provide AFV with any consideration for these payments. 110. Atmosphere Fund, Inversiones, Wolkowiez, and Reyes received the benefit of the funds transferred by AFV to Inversiones and have only returned BsF 104.6 million of this amount 111. Inversiones, Wolkowiez, and Reyes applied approximately BsF $7.6 million of nes/Wolkowiez which is AFV’s funds to settle an outstanding debt owed by Reyes to Inver completely unrelated to the obligations of Atmosphere Fund under the Short Term Loan Agreements. 3 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.112. _ In faimess and in equity, the remaining BsF 130 million owed to AFV should be returned by Atmosphere Fund, Inversiones, Wolkowiez and Reyes. AFV is entitled to the return of all funds improperly retained by Atmosphere Fund, Inversiones, Wolkowiez and Reyes. WHEREFORE, AFV demands judgment against Atmosphere Fund, Inversiones, Wolkowiez, and Reyes for money damages, prejudgment and post judgment interest, costs, and such other and further relief as this Court deems just and proper. COUNT Il CONVERSION (Against Atmosphere Fund, Inversiones, Wolkowiez, and Reyes) 113, AFV re-alleges paragraphs | through 94 as if fully set forth herein. 114. ARV transferred BsF 234.6 million to a bank account in name of Inversiones which is directly owned and controlled by Wolkowiez pursuant to the Short Term Loan Agreements. 115. The Inversiones bank account which received AFV's funds pursuant to the Short Term Loan Agreements was represented to AFV as being the “custodian account” for ‘Atmosphere Fund and therefore any money received by Inversiones directly benefited Atmosphere Fund, 116. Atmosphere Fund, Reyes, and their agents represented and orally agreed to pay AFV within 10 days of the receipt of the loan proceeds and no later than 30 days pursuant to the Short Term Loan Agreements. 117. Inversiones and Wolkowiez also represented to AFV and its agents on numerous occasions that the funds AFV transferred to Inversiones would be returned by certain deadlines which have since passed. To date, only BsF 104.6 million has been retumed to AFV. 118. The fraudulent misrepresentations and breached oral agreements made by Atmosphere Fund, Inversiones, Wolkowiez, and Reyes are the product of a scheme to defraud 34 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.AFV with the criminal intent of misappropriating the funds AFV transferred to Inversiones pursuant to the Short ‘Term Loan Agreement. 119, Atmosphere Fund, Inversiones, Wolkowiez, and Reyes converted, misappropriated, or otherwise purported to exercise unlawful dominion and control over proceeds belonging to AFV which were transferred to Inversiones/Atmosphere Fund in connection with the Short Term Loan Agreements, 120. Inversiones, Wolkowiez, and Reyes applied approximately BsF 57.6 million of AFV’s funds to settle an outstanding debt owed by Reyes to Inversiones/Wolkowiez which is completely unrelated to the obligations of Atmosphere Fund under the Short Term Loan Agreements. 121. Atmosphere Fund, Inversiones, Wolkowiez, and Reyes have acknowledged the transfer and receipt of the loan proceeds at issue but have not complied with Atmosphere Fund’s obligations pursuant to the Short Term Loan Agreements, or, in the alternative have claimed that the Short Term Loan Agreements are not valid. 122, AFV has made demands to Defendants Atmosphere Fund, Inversiones, Wolkowiez, and Reyes for the return of all loan proceeds that have been misappropriated and converted in bad faith by Atmosphere Fund, Inversiones, Wolkowiez, and Reyes and renews those demands again herein, 123. Atmosphere Fund, Inversiones, Wolkowiez, and Reyes have failed to comply with these demands and have failed to return the balance of the loan proceeds to AFV. 124, ARV has suffered damages as a direct and proximate result of the conversion of Joan proceeds by Defendants Atmosphere Fund, Inversiones, Wolkowiez, and Reyes. WHEREFORE, AFV demands judgment against Defendants Atmosphere Fund, Inversiones, Wolkowiez and Reyes for money damages, the retum of all the converted loan 35 [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.proceeds belonging to AFV, prejudgment and post judgment interest, costs, and, such other and further relief as the Court deems just and proper. COUNT IV ~ CIVIL THEFT (Against Atmosphere Fund, Inversiones, Wolkowier, and Reyes) 125. AFV re-alleges paragraphs 1 through 94 as if fully set forth herein, 126. AFV transferred BsF 234.6 million to a bank account in name of Inversiones Which is directly owned and controlled by Wolkowiez pursuant to the Short Term Loan Agreements. 127. The Inversiones bank account which received AFV’s funds pursuant to the Short Term Loan Agreements was represented to AFV as being the “custodian account” for ‘Atmosphere Fund and therefore any money received by Inversiones directly benefited Atmosphere Fund. 128. Atmosphere Fund, Reyes, and their agents represented and orally agreed to pay AFV within 10 days of the receipt of the loan proceeds and no later than 30 days pursuant to the Short Term Loan Agreements. 129, Inversiones and Wolkowiez also represented to AFV and its agents on numerous occasions that the funds AFV transferred to Inversiones would be returned by certain deadlines which have since passed. 130, These deadlines passed and AFV has yet to be fully repaid despite numerous promises and assurances from Wolkowiez (on behalf of Inversiones) and from Iachini and Reyes (on behalf of Atmosphere Fund). To date, only BsF 104.6 million has been returned to AFV following numerous demands, 131, Inversiones, Wolkowiez, and Reyes applied approximately BsF $7.6 million of AFV’s funds to seitle an outstanding debt owed by Reyes to Inversiones/Wolkowiez which is 36 ASTIGARRA DAViS MULLINS & GROSSMAN, PLA.completely unrelated to the obligations of Atmosphere Fund under the Short Term Loan Agreements. 132. Atmosphere Fund, Inversiones, Wolkowiez, and Reyes had knowledge of and voluntarily accepted the transfer of funds from AFV to Inversiones/Atmosphere Fund and failed to provide AFV with any consideration for these payments. 133, Atmosphere Fund, Inversiones, Wolkowiez, and Reyes converted BsF 130 million belonging to AFV with the criminal intent to permanently deprive AFV of its funds for their own use, 134. AFV made a written demand to the parties for the amounts owed and advised them of AFV rights to seek treble damages pursuant to Florida’s Civil Theft Statute, § 772.11. ‘None of the parties subject to this cause of action complied with AFV’s demand. WHEREFORE, AFV demands judgment against Atmosphere Fund, Inversiones, Wolkowiez, and Reyes for treble damages in accordance with § 772.11, prejudgment and post judgment interest, costs and such other and further relief as this Court deems just and proper. COUNT V - FRAUD (Against Atmosphere Fund, Inversiones, Amicorp, Profesionales De Bolsa, Tachini, Litwak, Wolkowiez, Reyes, and Ripepi) 135. APV re-alleges paragraphs 1 through 94 as if fully set forth herein. 136, Atmosphere Fund, Inversiones, Amicorp, Profesionales De Bolsa, Iachini, Litwak, Wolkowiez, Reyes, and Ripepi knowingly and intentionally made numerous material misrepresentations of material facts to AFV and its representatives regarding the authenticity of the short term loan transaction between AFV and Atmosphere Fund and the repayment of the Total Loan Amount to AFV. 137. Atmosphere Fund, Inversiones, Amicorp, Profesionales De Bolsa, Iachini, Litwak, Wolkowiez, Reyes, and Ripepi also knowingly and intentionally concealed and/or 37 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.suppressed the following material facts from AFV and its representatives regarding the authenticity of the short term Joan transaction between AFV and Atmosphere Fund and the repayment of the Total Loan Amount to AFV. ‘As provided herein, Atmosphere Fund, Inversiones, Amicorp, and Profesionales de Bolsa, through its agents, Reyes, Iachini, Litwak, Wolkowiez, Reyes, and Ripepi, misrepresented, concealed, and/or suppressed the following materials facts to AFV and its agents: that the Inversiones bank account which received AFV’s funds pursuant to the Short Term Loan Agreements was the “custodian account” for Atmosphere Fund; that the Total Loan Amount would be repaid to AFV within 10 days of receipt of the funds from AFV or, in the alternative, within 30 days of the date of the Short Term Loan Agreements. failing to inform AFV that ‘the Total Loan Amount could not be repaid under the terms agreed to by the parties as set forth in sub-paragraph (b) above until after the Short Term Loan Agreements were signed and AFV transferred the Total Loan Amount. that the Total Loan Amount was repaid to AFV via a wire transfer on December 12, 2012. that the Total Loan Amount would be repaid to AFV in two installments, ‘one on on December 17, and the other on December 21, 2012, following the purported cancellation of the Short Term Loan Agreements. that the Total Loan Amount would be repaid to AFV by December 21, 2012 after December 17, 2012 deadline established by Atmosphere’s 38 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.agent in sub-paragraph (d) above passed without being met. g. that any investigation regarding allegations of fraud by Reyes were to be handled by and between Atmosphere Fund and Amicorp and that AFV had no appropriate role in such an investigation. h. that the Total Loan Amount would be repaid to AFV in three installments, ‘one on December 21, 2012, another on or before December 31, 2012, and the third before January 15, 2013, after the deadline established by ‘Atmosphere’s agent in sub-paragraph (e) passed without being met. i. that Atmosphere Fund had transferred BsF 20 million to Inversiones which was to be transferred to AFV on December 21, 2012. |. that Atmosphere Fund's lawyers were preparing a settlement agreement t0 be signed by AFV and Atmosphere Fund on or around December 25, 2012. k. that AFV would receive the Total Loan Amount by January 15, 2013 at the latest, after the first installment deadline in sub-paragraph (g) passed without being met. 1 that the Total Loan Amount would be repaid to AFV in three new installments, one on or before January 18, 2013, another on or before January 31, 2012, and the third before February 28, 2013, after the deadline established by Atmosphere’s agent in sub-paragraph (j) passed without being met. m, failing to inform or warn AFV that Reyes was purportedly not authorized to act on behalf of Atmosphere Fund, despite having first-hand knowledge that AFV had already executed the Short Term Loan Agreements and sent 39 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A. eeethem to Reyes through Ripepi. n. actively concealing and suppressing the truth regarding the transaction between Atmosphere Fund and AFV following numerous requests and demands in light of the agency relationship between the parties. 139. Atmosphere Fund, Inversiones, Amicorp, Profesionales De Bolsa, lachini, Litwak, Wolkowiez, Reyes, and Ripepi knew that the foregoing representations of material fact alleged herein and above were false and made for the unjust purpose of perpetrating a fraud on AFV. 140, Atmosphere Fund, Inversiones, Amicorp, Profesionales De Bolsa, Iachini, Litwak, Wolkowiez, Reyes, and Ripepi knew that the concealment and/or suppression of the foregoing materials facts alleged herein and above were fraudulent and made for the unjust purpose of perpetrating a fraud on AFV. 141. AFV relied on these false representations and was induced into taking certain actions based on these false representations as well as the concealment of certain material facts resulting in injury to AFV. 142. AFV has and continues to suffer damages as of result its reliance on these false representations WHEREFORE, AFV demands judgment against Defendants Atmosphere Fund, CP Capital, Inversiones, Amicorp, Profesionales De Bolsa, lachini, Litwak, Wolkowiez, Reyes, and Ripepi for damages, prejudgment and post judgment interest, costs, and such other and further relief as this Court deems just and proper. COUNT VI - CONSPIRACY TO COMMIT FRAUD (Against Atmosphere Fund, CP Capital, Inversiones, Amicorp, Profesionales De Bolsa, Lachini, Litwak, Wolkowiez, Reyes, and Ripepi) 143, ARV re-alleges paragraphs 1 through 94 as if fully set forth herein. 40 [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A144. AFV transferred BsF 234.6 million to a bank account in name of Inversiones which is directly owned and controlled by Wolkowiez pursuant to the Short Term Loan Agreements. 145, The Inversiones bank account which received AFV's funds pursuant to the Short ‘Term Loan Agreements was represented to AFV as being the “custodian account” for ‘Atmosphere Fund and therefore any money received by Inversiones directly benefited Atmosphere Fund. 146. Atmosphere Fund, Reyes, and their agents represented and orally agreed to pay 'AFY within 10 days of the receipt of the loan proceeds and no later than 30 days pursuant to the Short Term Loan Agreements, 147. Inversiones and Wolkowiez also represented to AFV and its agents on numerous ‘oceasions that the funds AFV transferred to Inversiones would be returned by certain deadlines which have since passed. To date, only BsF 104.6 million has been retumed to AFV. 148. Inversiones, Wolkowiez, and Reyes applied approximately BsF $7.6 million of [AFV’s funds to settle an outstanding debt owed by Reyes to Inversiones/Wolkowiez which is completely unrelated to the obligations of Atmosphere Fund under the Short Term Loan Agreements, 149. Atmosphere Fund, CP Capital, Inversiones, Amicorp, Profesionales De Bolsa, Iachini, Litwak, Wolkowiez, Reyes, and Ripepi, conspired and agreed to enter into an business transaction with AFV under false pretenses for the sole purpose of defrauding AFV and converting its funds with criminal intent. 150, Each of the Defendants acted in furtherance of the conspiracy to defraud AFV by knowingly and intentionally making a series of fraudulent misrepresentations of material fact ‘and/or concealing and suppressing material facts set forth above, and re-alleged herein, in order 4a [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.to (a) induce AFV to loan Atmosphere Fund BsF 234.6 million on terms that were never intended to be honored (b) unlawfully convert AFV’s funds with criminal intent; and (c) conceal con an ongoing fraud in an effort to deceive AFV and prevent it from exercising its legal rights to recover its funds. 151. AFV has suffered damages as a direct and proximate result of the conspiracy perpetrated by Atmosphere Fund, CP Capital, Inversiones, Amicorp, Profesionales De Bolsa, Tachini, Litwak, Wolkowiez, Reyes, and Ripepi. WHEREFORE, AFV demands judgment against Defendants Atmosphere Fund, CP Capital, Inversiones, Amicorp, Profesionales De Bolsa, lachini, Litwak, Wolkowiez, Reyes, and Ripepi for money damages, prejudgment and post judgment interest, costs, and such other and further relief as this Court deems just and proper. COUNT VII - NEGLIGENT SUPERVISION (Against Atmosphere Fund and CP Capital) 152. AFV re-alleges paragraphs 1 through 95 as if fully set forth herein. 153. Atmosphere Fund’s business operations and its dealings with AFV were controlled by numerous entities and individuals acting as authorized agents for Atmosphere Fund, including, CP Capital, Reyes, Iachini, Inversiones, and Wolkowiez 154, CP Capital’s business operations, on behalf of Atmosphere Fund and as its Broker and Custodian, were also managed by CP Capital's employee, Reyes. 155. The existence of these relationships gave rise to a legal duty to supervise on behalf of Atmosphere Fund and CP Capital 156, Atmosphere Fund’s and CP Capital’s legal duty to supervise its authorized agents was negligently breached, 2 [ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.157. Upon information and belief, Atmosphere Fund and CP Capital knew or should have known that Reyes, lachini, and Wolkowiez, were making fraudulent misrepresentations to APV regarding the status of the Short Term Loan Agreements and potentially misappropriating funds belonging to AFV which were intended for Atmosphere Fund and subject to full repayment. 158. AFV suffered damages as a direct and proximate result of Atmosphere Fund's and CP Capital’s negligent supervision of its authorized agents. WHEREFORE, AFV demands judgment against Atmosphere Fund and CP Capital for damages, prejudgment and post judgment interest, costs, and such other and further relief as this Court deems just and proper. COUNT VIII - UNJUST ENRICHMENT (Against Atmosphere Fund, Inversiones, Wolkowiez, and Reyes) 159. AFV re-alleges paragraphs 1 through 94 as if fully set forth herein. 160. AFV transferred BsF 234.6 million to a bank account in name of Inversiones which is directly owned and controlled by Wolkowiez pursuant to the Short Term Loan Agreements entered into with Atmosphere Fund. 161. The Inversiones bank account which received AFV’s funds pursuant to the Short Term Loan Agreements was represented to AFV as being the “custodian account” for Atmosphere Fund and therefore any money received by Inversiones directly benefited Atmosphere Fund. 162, Atmosphere Fund, Reyes, and their agents represented and orally agreed to pay AFY within 10 days of the receipt of the loan proceeds and no later than 30 days pursuant to the Short Term Loan Agreements. 4B ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.163. _Inversiones and Wolkowiez. also represented to AFV and its agents on numerous occasions that the funds AFV transferred to Inversiones would be returned by certain deadlines. 164. These deadlines passed and AFV has yet to be fully repaid despite numerous promises and assurances from Wolkowiez. (on behalf of Inversiones) and from lachini and Reyes (on behalf of Atmosphere Fund). To date, only BsF 104.6 million has been returned to AFV following numerous demands. 165. Atmosphere Fund, Inversiones, Wolkowiez, and Reyes had knowledge of and voluntarily accepted the transfer of funds from AFV to Inversiones/Atmosphere Fund and failed to provide AFV with any consideration for these payments. 166. Atmosphere Fund, Inversiones, Wolkowiez, and Reyes received the benefit of the funds transferred by AFV to Inversiones and have only returned BsF 104.6 million of this amount, 167. Inversiones, Wolkowiez, and Reyes also received a benefit when they applied approximately BsF 57.6 million of AFV’s funds to settle an outstanding debt owed by Reyes to Inversiones/Wolkowiez which is completely unrelated to the obligations of Atmosphere Fund under the Short Term Loan Agreements. 168. Atmosphere Fund, Inversiones, Wolkowiez, and Reyes voluntarily accepted or retained the funds advanced by AFV. 169. Atmosphere Fund, Inversiones, Wolkowiez, and Reyes received the benefit of AFV’s loan proceeds which should either have been returned because the transaction was canceled or repaid in the event the transaction was properly executed. 170. Under the circumstances set forth above, retention of AFV’s funds received by ‘Atmosphere Fund, Inversiones, Wolkowiez, and Reyes is inequitable; thus, the balance of the funds owed to AV should be retumed based on principles of fairness and equity. 44 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.171. AFV is entitled to the return of all funds advanced to Inversiones which was originally made only for the benefit of Defendant Atmosphere Fund. WHEREFORE, AFV demands judgment against Defendants Atmosphere Fund, Inversiones, Wolkowiez, and Reyes for damages, prejudgment and post judgment interest, costs, and such other and further relief as this Court deems just and proper. Dated: April 4, 2013 Respectfully submitted, ASTIGARRAGA DAVIS MULLINS & GROSSMAN, P.A. 701 Brickell Avenue, 16" Floor Miami, Florida 33131 Phone: (305) 372-8282, Facsimile: (305) 372-8202 Attorneys for All Factoring By: Edward H. Davis, Jf, Pfa Bar No. Rafael J. Valdes, Fla. Bar No. 89411 45 ASTIGARRA DAVIS MULLINS & GROSSMAN, P.A.