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FILED: NEW YORK COUNTY CLERK 02/24/2023 11:53 PMINDEX NO. 654992/2022
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/24/2023
AMERICAN ARBITRATION ASSOCIATION
___________________________..____..-----______________________--_______..__________Ç
IN RE: :
: Case 01-20-0007-3684
MARCUS ABRAMS, CLEARWATER VENTURES, LLC, :
and LISA ABRAMS AND THE LISA MARIE ABRAMS :
REVOCABLE TRUST, :
Claimants, :
-against- :
RUSSELL ABRAMS, SANDRA ABRAMS,
and RUSSELLCAR,
:
Respondents. :
____--_________________----------_____________________________________________Ç
AFFIRMATION OF RUSSELL ABRAMS
Russell Abrams under penalties of perjury hereby affirms as follows:
1. I am a named Respondent in this proceeding, a principal of Russellcar, and the husband of Sandra
Piedrabuena the "Respondents"). As such, I have personal knowledge of the facts
(collectively
and circumstances as set forth in this affirmation.
Respondents'
2. This affirmation is submitted in support of the application dismissing the fourth
through ninth all claims as to Sandra Piedrabuena ("Sandra"), and all claims against
claims,
entities" Argentina Real Asset
alleged "related Argentina Capital Management LLC, Partners,
Aracar Aracar Servicios, S.A., Aracar, LLC, Aracar Group Holdings
LP, Financiera, S.A.,
Aracar SPV I LLC, Aracar SPV II LLC, UY Trading LTD, Titan
Corporation, Group Group
Capital II LLC, and SEP Consulting, LLC ("Moving Entity Respondents").
Group
1
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BACKGROUND
3. The Claimants commenced this arbitration on June 24, 2020. Annexed hereto as "A" is a
copy of the Statement of Claim.
4. The crux of this arbitration is an allegation that Russell Car breached a written agreement
entitled Memorization"
"Purchase dated as of 18, 2016 (the "Agreement"). See exhibit
July
"A"
of the Statement of Claim.
5. Amongst other the "transaction"
things, Agreement defines the as total investment amount in
the sum of $1,464,234, a note term of seven years and a maturity date of February/March
(7)
2023.
6. The "B"
Respondents filed an answer dated August 7, 2020. Annexed hereto as Exhibit is a
copy of the Respondent's answer.
The Purchase Memorialization Agreement
7. I am the founder of the Titan Capital Group which at its peak had assets totaling approximately
one billion dollars.
8. Marcus Abrams, my brother, is a lawyer and was formerly employed at Titan Capital Group.
9. In 2015, Marcus and I began discussing an investment opportunity in Russellcar.
10. Russellcar is, and always has been, a taxi fleet company that owns taxi licenses (sometimes
referred to as medallions") and a fleet of hundreds of taxis operating in Buenos Aires,
Argentina. Russellcar also helps aspiring drivers in Buenos Aires enter the market by setting
up bank accounts and helping with recording payments.
11. Russellcar operates through a relatively unsophisticated corporate structure. RusselCar
Inversora is the parent company; and operates through its wholly-owned subsidiaries Crosstax,
Taxcorp, and RusselCar S.R.L ("RussellCar Entities").
2
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12. Russellcar needed capital to purchase taxi licenses in Argentina.
13. As evidenced by my email to Marcus dated "B"
January 22, 2016 (Exhibit of the Statement of
Claim), "we have 100 licenses to purchase-we owned the cars
already and your investment
will be used to purchase the licenses and expenses to convert the car to a registered taxi, about
car."
$19,000 per
14. Marcus agreed to invest in Russellcar and thereafter wired the sum of $200,000 on February
2, 2016, the sum of $500,000 on February and the sum of $300,000 on April
3, 2016, 6, 2016.
15. On July 19, 2016, Marcus sought to memorialize our agreement a draft
and forwarded purchase
agreement. Annexed "C"
hereto as Exhibit is a copy of the July 19, 2016 email.
16. Thereafter, on or about September Marcus and his were in
8, 2016, family visiting my family
our New York City home.
17. Marcus and I went into a separate room and discussed his investment in Russellcar
privately
as well as other matters.
18. Sandra was not present at the meeting or privy to our conversation.
19. Indeed in 2016, Sandra was not involved in the management of RussellCar. Sandra also was
Claimants'
not involved in negotiating the investment.
20. In 2016, Jose Villaba managed RussellCar.
21. Thereafter, Stella Piedrabuena (Sandra's sister) managed RussellCar. Sandra was not involved
in the management of RussellCar. The company president is Stella Piedrabuena, Sandra's
sister. Sandra is also not a signatory to any RussellCar bank accounts.
22. Ultimately, I executed the Agreement on or about September 8, 2016.
23. Sandra was never a party to the Agreement.
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'Russelcar'
24. When defining the parties, the Agreement states that "[f[or purposes of clarity, the
Entity(ies) relating to this transaction have the attached balance sheet at the time of the
1)."
investment. (See corresponding exhibit Statement of Claim Ex. A.
25. That Exhibit 1, in turn, shows a balance sheet with company assets before and after the
prospective capital infusion, including the number of taxi licenses, cars, car equipment, and
cash.
26. That balance sheet could refer to the RussellCar Entities or any future created RussellCar
only
subsidiaries. This is because it reflects as assets: tax licenses, cars and car equipment.
27. It could not have been to any of the Respondents, because none of
referring Moving Entity
them are taxi companies, in the taxi business, or own taxi licenses or cars.
The Issuance of Aracar Shares
28. Prior to the Summer of 2018, Marcus agreed to accept Aracar shares in lieu of payment under
the seven (7) year RussellCar note.
29. Based upon this agreement, Aracar issued a stock certificate to Marcus Abrams dated as of
December "D"
17, 2018. Annexed hereto as Exhibit is a copy of the Aracar stock certificate
issued to Marcus.
30. The issued stock had a valuation of $1,000.00 per shares based upon sales to other in
investors
"2"
2018/2019 and mirrors the formula in Article of the 13% of 50,000
Agreement, namely
shares of common stock issued by Aracar.
31. The stock certificate was emailed to Marcus in May, 2019.
32. In response, Marcus wrote: "[t]his is just how
amazing incredibly sloppy you are with legal
documents-the investment into Russellcar was from and
me, my children's trust as the terms
sheet/contract indicated. Annexed hereto as Exhibit "E"
is a copy of the relevant portions of
4
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the email chain.
33. Thereafter, Aracar confirmed that the stock is issued to the Claimants. Annexed hereto as
"F"
Exhibit is a copy of the January 2021 Aracar letter.
25,
34. Notably, Marcus never returned the stock to Aracar.
certificate
35. Simply put, Marcus can't undo our deal now.
because he needs money
The Arbitration Agreement
threatened to sue Aracar and
36. Despite the issuance of the Aracar Marcus continually
shares,
Marcus' demands.
Sandra, if I did not agree to settle our dispute pursuant to
agreement dated as of
37. Ultimately, the Claimants, RussellCar, and I entered into an arbitration
Annexed hereto as Exhibit "G".
20, 2020 (the "Arbitration Agreement").
February
38. the Claimants filed this arbitration.
Thereafter,
Entities"
The Alleged "Related
entities"- and therefore parties to the Agreement
- a series
39. Marcus attempts to name as "related
created to take advantage of Russellcar and do
Russellcar subsidiaries
of companies that are not
to the balance sheet attached to the
sheet that bears any relationship
not carry a balance
are taxi companies.
Agreement. None of them
LLC and Argentina Real Asset Partners, LP are
Capital Management
Argentina
40. For instance,
shareholders of Argentinian companies. They are not
registered to be
investment vehicles
own or operate any part of Russelcar.
subsidiaries and they do not
Russellcar
Aracar Servicios, S.A., Aracar Group Holdings
Financiera, S.A.,
includes Aracar
Marcus also
41.
SPV II LLC (the "Aracar Entities") and
Aracar Group
Aracar SPV I LLC,
Corporation, Group
Aracar LLC.
5 .
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42. I am not familiar with Aracar LLC and do not know if it exists. If it does, I do not believe that the
Aracar Entities or I have any involvement with it.
43. TheAracar Entities were formed in late 2017, well after theAgreement, and makeupAracar.
44. Aracarisanartificial-intelligence technologyplatformthat helps car dealerships sell more cars
by connecting lenders and consumers.
45. In other words, Aracar is Aracar is in the automobile financing technology business; its
technology facilitates originating and underwriting car loans in Brazil, UruguayandArgentina.
46. It is not a taxi company; and it has nothing to do with Russelcar's Buenos Aires taxi fleet.
47. Annexed as Exhibits H & I are investor presentations showing Aracar's business: automobile
loans.
48. In terms of corporate formation, Aracar Holdings Corporation is a Canadian company and
Group
ultimate holding company, which operates through its wholly-owned subsidiaries: Aracar
Financiera,S.A.(thecompanythatprovidescarloanstoconsumerspurchasing from dealerships)
and Aracar S.A. (the technology company that provides the platform for the Financiera
Servicios,
company).
Aracar SPV I LLC is a special purpose investment vehicle for investing into theAracar
49. Group
holding company.
SPV II LLC is a special purpose vehicle created to purchase notes issues by
50. And Aracar Group
the holding company.
subsidiaries of, RussellCar. In fact, are not
51. None of these companies are related to, let alone they
even in the same business.
LTD and Titan Capital II LLC as respondents. This is also
52. Marcus also names UY Trading Group
wrong.
6
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53. I am the founder of Titan Capital Group, a U.S.-based hedge fund.
54. Titan Capital Group H LLC is the management company of the various funds Titan's
comprising
portfolio. And UY Trading received money from Titan Capital Group to manage investments.
55. Neither of these companies have anything to do with RussellCar, or any business in South
America.
56. Finally, SEP Consulting, LLC is a consulting set up to manage Sandra's investments.
company
It has nothing to do with Russellcar.
FOURTH THROUGH NINTH CLAIMS SHOULD DISMISSED
Fourth Claim
57. The fourth claim alleges without support that I breached a fiduciary duty to the Claimants.
any
58. At the outset, Marcus conveniently forgets that he received and accepted the Aracar stock in lieu
of payment on the note. Thus, there are no damages.
59. Moreover, there is no fiduciary duty. It was an arms-length transaction based upon a contract
prepared by Marcus and executed by me.
60. We are both sophisticated investors and entrepreneurs.
61. Marcus relied upon his own sophisticated business acumen in deciding to invest in RussellCar
and Aracar.
director."
Marcus is a lawyer and a "long time investor and former hedge fund It was
62. Indeed,
that Marcus "invested in Aracar an asset-backed platform in
also reported Group, lending
Argentina" he received and accepted the shares as payment under the note.
thereby showing that
"J" Marcus' as
is a copy of a publication venture known
Annexed hereto as Exhibit regarding
Pollux.
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Claimants'
63. allege, in conclusory fashion, that Respondents breached a
fiduciary duty by "secretly
misappropriating assets of RussellCar to themselves to continue their lavish lifestyles and façade
of wealth". See paragraph 146 of the Statement of Claim.
64. But nothing could be further from the truth.
65. First, there is no fiduciary duty. Marcus was and is a savvy investor that knew full well of the
risks. Indeed, that is why he demanded a guaranty.
Claimants'
66. Moreover, the monies were used to acquire taxi licenses and other related expenses as
"B"
set forth in the email dated January 22, 2016. See exhibit of the Statement of Claim.
Claimants'
67. More specifically, the monies were wired into the account of RussellCar Invesora SA
on February 18, 2016, February 19, 2016, April 13, 2016, and December 15, 2016. Annexed
"K"
hereto as Exhibit are copies of the RussellCar Invesora SA bank statements.
68. RussellCar's accountant prepared a ledger confirming the purchase of taxi licenses, equipment,
Claimants'
and related expenses by RussellCar with investment monies. Annexed hereto as
"L"
Exhibit is a copy of the accountant's ledger.
"M" "N"
69. I have also annexed hereto as Exhibits and are copies of the taxi licenses and a
Claimants'
certification from the accountant, all confirming that monies were used for the
acquisition of tax licenses and related expenses.
70. Regrettably, taxi licenses in Argentina fell due to the pandemic and competing passenger transport
companies.
Claimants' but a
71. Thus, alleged damages, if any, are not result of a breach of fiduciary duty,
collapse in the taxi industry similar to the collapse of yellow cab medallions in New York City.
"G"
72. the risk section of the Argentina Real Assets Partners, LP terms of offering (exhibit
Finally,
of the Statement of Claim, the Risk section not included makes clear that "[A]n
by Claimants)
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Claimants'
63. allege, in conclusory fashion, that Respondents breached a fiduciary duty by "secretly
misappropriating assets of RussellCar to themselves to continue their lavish lifestyles and façade
of wealth". See paragraph 146 of the Statement of Claim.
64. But nothing could be further from the truth.
65. First, there is no fiduciary duty. Marcus was and is a savvy investor that knew full well of the
risks. Indeed, that is why he demanded a guaranty.
Claimants' taxi licenses and other related
66. Moreover, the monies were used to acquire expenses as
"B"
set forth in the email dated January 22, 2016. See exhibit of the Statement of Claim.
Claimants' the account of RussellCar Invesora SA
67. More specifically, the monies were wired into
on February 18, 2016, 19, 2016, April 13, 2016, and December 15, 2016. Annexed
February
"K" Invesora SA bank statements.
hereto as Exhibit are copies of the RussellCar
68. RussellCar's accountant prepared a ledger confinning the purchase of taxi licenses, equipment,
Claimants'
and related expenses by RussellCar with investment monies. Annexed hereto as
"L" of the accountant's ledger.
Exhibit is a copy
"M" "N"
69. I have also annexed hereto as Exhibits and are copies of the taxi licenses and a
Claimants'
certification from the accountant, all confirming that monies were used for the
acquisition of tax licenses and related expenses.
70. Regrettably, taxi licenses in Argentina fell due to the pandemic and competing passenger transport
companies.
Claimants'
71. Thus, alleged damages, if any, are not result of a breach of fiduciary duty, but a
collapse in the taxi industry similar to the collapse of yellow cab medallions in New York City.
"G"
72. Finally, the risk section of the Argentina Real Assets Partners, LP terms of offering (exhibit
of the Statement of Claim, the Risk section not included by Claimants) makes clear that "[A]n
8
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Preview
FILED: NEW YORK COUNTY CLERK 02/24/2023 11:53 PMINDEX NO. 654992/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/24/2023 AMERICAN ARBITRATION ASSOCIATION ___________________________..____..-----______________________--_______..__________Ç IN RE: : : Case 01-20-0007-3684 MARCUS ABRAMS, CLEARWATER VENTURES, LLC, : and LISA ABRAMS AND THE LISA MARIE ABRAMS : REVOCABLE TRUST, : Claimants, : -against- : RUSSELL ABRAMS, SANDRA ABRAMS, and RUSSELLCAR, : Respondents. : ____--_________________----------_____________________________________________Ç AFFIRMATION OF RUSSELL ABRAMS Russell Abrams under penalties of perjury hereby affirms as follows: 1. I am a named Respondent in this proceeding, a principal of Russellcar, and the husband of Sandra Piedrabuena the "Respondents"). As such, I have personal knowledge of the facts (collectively and circumstances as set forth in this affirmation. Respondents' 2. This affirmation is submitted in support of the application dismissing the fourth through ninth all claims as to Sandra Piedrabuena ("Sandra"), and all claims against claims, entities" Argentina Real Asset alleged "related Argentina Capital Management LLC, Partners, Aracar Aracar Servicios, S.A., Aracar, LLC, Aracar Group Holdings LP, Financiera, S.A., Aracar SPV I LLC, Aracar SPV II LLC, UY Trading LTD, Titan Corporation, Group Group Capital II LLC, and SEP Consulting, LLC ("Moving Entity Respondents"). Group 1 FILED: NEW YORK COUNTY CLERK 02/24/2023 11:53 PM INDEX NO. 654992/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/24/2023 BACKGROUND 3. The Claimants commenced this arbitration on June 24, 2020. Annexed hereto as "A" is a copy of the Statement of Claim. 4. The crux of this arbitration is an allegation that Russell Car breached a written agreement entitled Memorization" "Purchase dated as of 18, 2016 (the "Agreement"). See exhibit July "A" of the Statement of Claim. 5. Amongst other the "transaction" things, Agreement defines the as total investment amount in the sum of $1,464,234, a note term of seven years and a maturity date of February/March (7) 2023. 6. The "B" Respondents filed an answer dated August 7, 2020. Annexed hereto as Exhibit is a copy of the Respondent's answer. The Purchase Memorialization Agreement 7. I am the founder of the Titan Capital Group which at its peak had assets totaling approximately one billion dollars. 8. Marcus Abrams, my brother, is a lawyer and was formerly employed at Titan Capital Group. 9. In 2015, Marcus and I began discussing an investment opportunity in Russellcar. 10. Russellcar is, and always has been, a taxi fleet company that owns taxi licenses (sometimes referred to as medallions") and a fleet of hundreds of taxis operating in Buenos Aires, Argentina. Russellcar also helps aspiring drivers in Buenos Aires enter the market by setting up bank accounts and helping with recording payments. 11. Russellcar operates through a relatively unsophisticated corporate structure. RusselCar Inversora is the parent company; and operates through its wholly-owned subsidiaries Crosstax, Taxcorp, and RusselCar S.R.L ("RussellCar Entities"). 2 FILED: NEW YORK COUNTY CLERK 02/24/2023 11:53 PM INDEX NO. 654992/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/24/2023 12. Russellcar needed capital to purchase taxi licenses in Argentina. 13. As evidenced by my email to Marcus dated "B" January 22, 2016 (Exhibit of the Statement of Claim), "we have 100 licenses to purchase-we owned the cars already and your investment will be used to purchase the licenses and expenses to convert the car to a registered taxi, about car." $19,000 per 14. Marcus agreed to invest in Russellcar and thereafter wired the sum of $200,000 on February 2, 2016, the sum of $500,000 on February and the sum of $300,000 on April 3, 2016, 6, 2016. 15. On July 19, 2016, Marcus sought to memorialize our agreement a draft and forwarded purchase agreement. Annexed "C" hereto as Exhibit is a copy of the July 19, 2016 email. 16. Thereafter, on or about September Marcus and his were in 8, 2016, family visiting my family our New York City home. 17. Marcus and I went into a separate room and discussed his investment in Russellcar privately as well as other matters. 18. Sandra was not present at the meeting or privy to our conversation. 19. Indeed in 2016, Sandra was not involved in the management of RussellCar. Sandra also was Claimants' not involved in negotiating the investment. 20. In 2016, Jose Villaba managed RussellCar. 21. Thereafter, Stella Piedrabuena (Sandra's sister) managed RussellCar. Sandra was not involved in the management of RussellCar. The company president is Stella Piedrabuena, Sandra's sister. Sandra is also not a signatory to any RussellCar bank accounts. 22. Ultimately, I executed the Agreement on or about September 8, 2016. 23. Sandra was never a party to the Agreement. FILED: NEW YORK COUNTY CLERK 02/24/2023 11:53 PM INDEX NO. 654992/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/24/2023 'Russelcar' 24. When defining the parties, the Agreement states that "[f[or purposes of clarity, the Entity(ies) relating to this transaction have the attached balance sheet at the time of the 1)." investment. (See corresponding exhibit Statement of Claim Ex. A. 25. That Exhibit 1, in turn, shows a balance sheet with company assets before and after the prospective capital infusion, including the number of taxi licenses, cars, car equipment, and cash. 26. That balance sheet could refer to the RussellCar Entities or any future created RussellCar only subsidiaries. This is because it reflects as assets: tax licenses, cars and car equipment. 27. It could not have been to any of the Respondents, because none of referring Moving Entity them are taxi companies, in the taxi business, or own taxi licenses or cars. The Issuance of Aracar Shares 28. Prior to the Summer of 2018, Marcus agreed to accept Aracar shares in lieu of payment under the seven (7) year RussellCar note. 29. Based upon this agreement, Aracar issued a stock certificate to Marcus Abrams dated as of December "D" 17, 2018. Annexed hereto as Exhibit is a copy of the Aracar stock certificate issued to Marcus. 30. The issued stock had a valuation of $1,000.00 per shares based upon sales to other in investors "2" 2018/2019 and mirrors the formula in Article of the 13% of 50,000 Agreement, namely shares of common stock issued by Aracar. 31. The stock certificate was emailed to Marcus in May, 2019. 32. In response, Marcus wrote: "[t]his is just how amazing incredibly sloppy you are with legal documents-the investment into Russellcar was from and me, my children's trust as the terms sheet/contract indicated. Annexed hereto as Exhibit "E" is a copy of the relevant portions of 4 FILED: NEW YORK COUNTY CLERK 02/24/2023 11:53 PM INDEX NO. 654992/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/24/2023 the email chain. 33. Thereafter, Aracar confirmed that the stock is issued to the Claimants. Annexed hereto as "F" Exhibit is a copy of the January 2021 Aracar letter. 25, 34. Notably, Marcus never returned the stock to Aracar. certificate 35. Simply put, Marcus can't undo our deal now. because he needs money The Arbitration Agreement threatened to sue Aracar and 36. Despite the issuance of the Aracar Marcus continually shares, Marcus' demands. Sandra, if I did not agree to settle our dispute pursuant to agreement dated as of 37. Ultimately, the Claimants, RussellCar, and I entered into an arbitration Annexed hereto as Exhibit "G". 20, 2020 (the "Arbitration Agreement"). February 38. the Claimants filed this arbitration. Thereafter, Entities" The Alleged "Related entities"- and therefore parties to the Agreement - a series 39. Marcus attempts to name as "related created to take advantage of Russellcar and do Russellcar subsidiaries of companies that are not to the balance sheet attached to the sheet that bears any relationship not carry a balance are taxi companies. Agreement. None of them LLC and Argentina Real Asset Partners, LP are Capital Management Argentina 40. For instance, shareholders of Argentinian companies. They are not registered to be investment vehicles own or operate any part of Russelcar. subsidiaries and they do not Russellcar Aracar Servicios, S.A., Aracar Group Holdings Financiera, S.A., includes Aracar Marcus also 41. SPV II LLC (the "Aracar Entities") and Aracar Group Aracar SPV I LLC, Corporation, Group Aracar LLC. 5 . FILED: NEW YORK COUNTY CLERK 02/24/2023 11:53 PM INDEX NO. 654992/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/24/2023 42. I am not familiar with Aracar LLC and do not know if it exists. If it does, I do not believe that the Aracar Entities or I have any involvement with it. 43. TheAracar Entities were formed in late 2017, well after theAgreement, and makeupAracar. 44. Aracarisanartificial-intelligence technologyplatformthat helps car dealerships sell more cars by connecting lenders and consumers. 45. In other words, Aracar is Aracar is in the automobile financing technology business; its technology facilitates originating and underwriting car loans in Brazil, UruguayandArgentina. 46. It is not a taxi company; and it has nothing to do with Russelcar's Buenos Aires taxi fleet. 47. Annexed as Exhibits H & I are investor presentations showing Aracar's business: automobile loans. 48. In terms of corporate formation, Aracar Holdings Corporation is a Canadian company and Group ultimate holding company, which operates through its wholly-owned subsidiaries: Aracar Financiera,S.A.(thecompanythatprovidescarloanstoconsumerspurchasing from dealerships) and Aracar S.A. (the technology company that provides the platform for the Financiera Servicios, company). Aracar SPV I LLC is a special purpose investment vehicle for investing into theAracar 49. Group holding company. SPV II LLC is a special purpose vehicle created to purchase notes issues by 50. And Aracar Group the holding company. subsidiaries of, RussellCar. In fact, are not 51. None of these companies are related to, let alone they even in the same business. LTD and Titan Capital II LLC as respondents. This is also 52. Marcus also names UY Trading Group wrong. 6 FILED: NEW YORK COUNTY CLERK 02/24/2023 11:53 PM INDEX NO. 654992/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/24/2023 53. I am the founder of Titan Capital Group, a U.S.-based hedge fund. 54. Titan Capital Group H LLC is the management company of the various funds Titan's comprising portfolio. And UY Trading received money from Titan Capital Group to manage investments. 55. Neither of these companies have anything to do with RussellCar, or any business in South America. 56. Finally, SEP Consulting, LLC is a consulting set up to manage Sandra's investments. company It has nothing to do with Russellcar. FOURTH THROUGH NINTH CLAIMS SHOULD DISMISSED Fourth Claim 57. The fourth claim alleges without support that I breached a fiduciary duty to the Claimants. any 58. At the outset, Marcus conveniently forgets that he received and accepted the Aracar stock in lieu of payment on the note. Thus, there are no damages. 59. Moreover, there is no fiduciary duty. It was an arms-length transaction based upon a contract prepared by Marcus and executed by me. 60. We are both sophisticated investors and entrepreneurs. 61. Marcus relied upon his own sophisticated business acumen in deciding to invest in RussellCar and Aracar. director." Marcus is a lawyer and a "long time investor and former hedge fund It was 62. Indeed, that Marcus "invested in Aracar an asset-backed platform in also reported Group, lending Argentina" he received and accepted the shares as payment under the note. thereby showing that "J" Marcus' as is a copy of a publication venture known Annexed hereto as Exhibit regarding Pollux. 7 FILED: NEW YORK COUNTY CLERK 02/24/2023 11:53 PMINDEX NO. 654992/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/24/2023 Claimants' 63. allege, in conclusory fashion, that Respondents breached a fiduciary duty by "secretly misappropriating assets of RussellCar to themselves to continue their lavish lifestyles and façade of wealth". See paragraph 146 of the Statement of Claim. 64. But nothing could be further from the truth. 65. First, there is no fiduciary duty. Marcus was and is a savvy investor that knew full well of the risks. Indeed, that is why he demanded a guaranty. Claimants' 66. Moreover, the monies were used to acquire taxi licenses and other related expenses as "B" set forth in the email dated January 22, 2016. See exhibit of the Statement of Claim. Claimants' 67. More specifically, the monies were wired into the account of RussellCar Invesora SA on February 18, 2016, February 19, 2016, April 13, 2016, and December 15, 2016. Annexed "K" hereto as Exhibit are copies of the RussellCar Invesora SA bank statements. 68. RussellCar's accountant prepared a ledger confirming the purchase of taxi licenses, equipment, Claimants' and related expenses by RussellCar with investment monies. Annexed hereto as "L" Exhibit is a copy of the accountant's ledger. "M" "N" 69. I have also annexed hereto as Exhibits and are copies of the taxi licenses and a Claimants' certification from the accountant, all confirming that monies were used for the acquisition of tax licenses and related expenses. 70. Regrettably, taxi licenses in Argentina fell due to the pandemic and competing passenger transport companies. Claimants' but a 71. Thus, alleged damages, if any, are not result of a breach of fiduciary duty, collapse in the taxi industry similar to the collapse of yellow cab medallions in New York City. "G" 72. the risk section of the Argentina Real Assets Partners, LP terms of offering (exhibit Finally, of the Statement of Claim, the Risk section not included makes clear that "[A]n by Claimants) 8 FILED: NEW YORK COUNTY CLERK 02/24/2023 11:53 PM INDEX NO. 654992/2022 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/24/2023 Claimants' 63. allege, in conclusory fashion, that Respondents breached a fiduciary duty by "secretly misappropriating assets of RussellCar to themselves to continue their lavish lifestyles and façade of wealth". See paragraph 146 of the Statement of Claim. 64. But nothing could be further from the truth. 65. First, there is no fiduciary duty. Marcus was and is a savvy investor that knew full well of the risks. Indeed, that is why he demanded a guaranty. Claimants' taxi licenses and other related 66. Moreover, the monies were used to acquire expenses as "B" set forth in the email dated January 22, 2016. See exhibit of the Statement of Claim. Claimants' the account of RussellCar Invesora SA 67. More specifically, the monies were wired into on February 18, 2016, 19, 2016, April 13, 2016, and December 15, 2016. Annexed February "K" Invesora SA bank statements. hereto as Exhibit are copies of the RussellCar 68. RussellCar's accountant prepared a ledger confinning the purchase of taxi licenses, equipment, Claimants' and related expenses by RussellCar with investment monies. Annexed hereto as "L" of the accountant's ledger. Exhibit is a copy "M" "N" 69. I have also annexed hereto as Exhibits and are copies of the taxi licenses and a Claimants' certification from the accountant, all confirming that monies were used for the acquisition of tax licenses and related expenses. 70. Regrettably, taxi licenses in Argentina fell due to the pandemic and competing passenger transport companies. Claimants' 71. Thus, alleged damages, if any, are not result of a breach of fiduciary duty, but a collapse in the taxi industry similar to the collapse of yellow cab medallions in New York City. "G" 72. Finally, the risk section of the Argentina Real Assets Partners, LP terms of offering (exhibit of the Statement of Claim, the Risk section not included by Claimants) makes clear that "[A]n 8 FILED: NEW YORK COUNTY CLERK 02/24/2023 11:53 PMINDEX