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Filing # 51651079 E-Filed 01/26/2017 09:02:59 AM
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
CIVIL ACTION
HARRY BIEBERSTEIN,
Plaintiff,
Case No. 16-CA-5872
GABRIEL KIRCHBERGER, CAROL DEVILLE,
SOUTHERN SHORES ENTERPRISES,
Florida limited liability company, and MOONSTONE
LLC, a 17-917 CA
HOLDINGS, LLC, a Nevada limited liability
company.
Defendants.
/
COMPLAINT
Plaintiff, HARRY BIEBERSTEIN, by and through his undersigned counsel, and in
accordance with the Florida Rules of Civil Procedure, files this Complaint against Defendants,
GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORES ENTERPRISES, LLC
and MOONSTONE HOLDINGS, LLC, and alleges as follows:
JURISDICTION AND VENUE
1 This is an action to avoid fraudulent transfers with respect to real property
located in Sarasota County, Florida and Charlotte County, Florida, and which seeks damages in
excess of Fifteen Thousand Dollars ($15,000), exclusive of interest, costs, and attorneys’ fees.
2. This Court has personal jurisdiction over Defendant, GABRIEL KIRCHBERGER
(hereafter “Kirchberger”) both pursuant to § 48.193(1)(c), Fla. Stat. (the subject matter of this
dispute involves ownership and alleged fraudulent transfer of properties located in the state of
Florida) and Chapter 55, Fla. Stat., as the Foreign Judgment upon which this action is based
was duly recorded in Sarasota County Instrument #2016143668.
3 This Court has personal jurisdiction over Defendant, CAROL DEVILLE (hereafter
“DeVille’) in that she is a resident of the state of Florida.
Filed 01/26/2017 09:07 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
4 This Court has personal jurisdiction over Defendant, SOUTHERN SHORES
ENTERPRISES, LLC (hereafter “Southern Shores”) as it is a Florida limited liability company
transacting business within the state.
5. This Court has personal jurisdiction over Defendant, MOONSTONE HOLDINGS,
LLC (hereafter “Moonstone”) under the Florida Long Arm Jurisdiction Act, § 48.193, Fla. Stat.,
as Moonstone has sufficient minimum contacts with the State of Florida to make it reasonably
foreseeable that it could be sued in Florida.
6 Furthermore, this Court's exercise of personal jurisdiction over Moonstone is
constitutionally sound as demonstrated by the numerous real estate holdings and transactions
underlying this Complaint occurring in Sarasota County.
7 Venue is proper in Sarasota County, Florida. Kirchberger and Deville reside in
Sarasota County.
8. Furthermore, with regard to any properties located in Charlotte County, Florida,
Plaintiff may elect to bring suit in Sarasota County, as either forum is proper under § 47.122,
Fla. Stat.
PARTIES
9. Plaintiff, HARRY BIEBERSTIEN (hereinafter “Plaintiff?) is, and at all times
mentioned herein was, a resident of Toronto, Ontario, Canada. Plaintiff is the holder of an
unsatisfied judgment against Kirchberger, which was recorded in Sarasota County, Florida as
Instrument Number 2016143668. A true and correct copy of which is attached hereto as
Exhibits “A”.
10. Kirchberger is and was, at all times mentioned herein is a foreign national, who
upon information and belief, is currently residing at either 608 Harvard Street, Englewood, FL
34223, Sarasota County, Florida or 15204 Leipzig Circle, Port Charlotte, Florida, 33981.
11. Defendant, DeVille, is believed to be Kirchberger’s longtime girlfriend/business
partner who, upon information and belief, currently resides with Kirchberger at either of the
above addresses. DeVille is also one of the founding (and current) members of Southern
Shores, which help facilitate the fraudulent transfers complained of herein.
12. Defendant, Southern Shores, is a limited liability company duly incorporated and
transacting business in the state of Florida. Kirchberger was a managing member of Southern
Shores prior to transferring the properties described herein. Deville and Kirchberger’s daughters
are members of Southern Shores.
13. Defendant, Moonstone, is a limited liability company authorized to transact
business in the state of Florida, with its state of incorporation being Nevada, its purpose is to
manage, acquire and transfer real estate located in Florida controlled by Kirchberger.
GENERAL ALLEGATIONS
14. Plaintiff brings this action pursuant to § 56.29, Fla. Stat. and the Florida Uniform
Fraudulent Transfer Act, § 726.101, Fla. Stat., in order to void the transfers of Kirchberger’s real
property located in Sarasota and Charlotte County, Florida, that was fraudulently transferred to
DeVille, Southern Shores, and Moonstone, as well as to seek relief from further disposition of
said properties.
15. Plaintiff currently holds an unsatisfied judgment against Kirchberger in the
amount of €7314879.25 ($8,298,580.77).
16. The domesticated Canadian foreign judgment described above stems from a
lawsuit filed by Plaintiff in the Ontario Superior Court of Justice on January 10, 2010, Court File
Nos. CV-10-834-00CL, CV-10-8535-00CL (“Canadian Lawsuit") Plaintiff obtained final judgment
in his favor on September 26, 2016.
17. Plaintiff properly domesticated the Canadian Judgment in accordance with
Section 55.601, Fla. Stat.
Transfer Involving DeVille
18. In the course of Plaintiff's investigation of Kirchberger's assets, Plaintiff
discovered that, on or about November 14, 2011, Kirchberger transferred the real property
described as LOT 36 BLK 3541 SEC 64 PORT CHARLOTTE, Charlotte County, Florida, to
DeVille. The amount of consideration reflected in the deed ($1.00) drastically conflicts with the
amount listed on the Charlotte County Property Appraiser of $97,613.00. A true and correct
copy of the November 14, 2011 deed, as well as the Charlotte County Property Appraiser
information, are attached hereto as Exhibit “B, Composite.”
Transfers Involving Southern Shores
19. Plaintiff has uncovered a total of eleven (11) transfers of real property from
Kirchberger to Southern Shores in Sarasota County, Florida and Charlotte County, Florida, all of
which occurred on July 29, 2011, the day after his deposition was taken in the Canadian
Lawsuit. True and correct copies of the deeds for the transactions described below, all dated
July 29, 2011, are attached hereto as Exhibit “C, Composite.” These include the following:
(1) LOT 49, LASBURY PINEACRES ENGLEWOOD, SUBJ TO 385 SF UTILITY ESMT
TO ENGLEWOOD WATER DISTRICT AS DESC IN ORI 2007051357 ("Lot 49”) for
consideration in the amount of $10.00. The Clerk notes that the amount for purposes of
“Doc Stamp” was $40,300.00;
(2) LOT 26 BLK 1559 32TH ADD PORT CHARLOTTE (“Lot 26”) for consideration in the
amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was
$66,000.00;
(3) LOT 23, BLK 948, 22ND ADD TO PORT CHARLOTTE (“Lot 23”) for consideration in
the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was
$62,100.00;
(4) LOT 17 BLK 1370 28TH ADD TO PORT CHARLOTTE (“Lot 17”) for consideration in
the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was
$70,000.00;
(5) LOT 9 BLK 568 9TH ADD TO PORT CHARLOTTE (“Lot 9.568") for consideration in
the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was
$64,900.00;
(6) LOT 9 BLK 419 18TH ADD TO PORT CHARLOTTE (“Lot 9.419”) for consideration in
the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was
$57,500.00;
(7) LOT 1 BLK 277 TROP G A UNIT 10 (“Lot 1”) for consideration in the amount of
$10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $3,500.00;
(8) LOT 8 BLK 81 TROP G A UNIT 06 (‘Lot 8”) for consideration in the amount of
$10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $3,500.00;
(9) LOT 818 ROTONDA WEST PEBBLE BCH (‘Lot 818”) for consideration in the
amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was
$123,000.00;
(10) LOT 478 ROTONDA WEST LNG MDW (‘Lot 478") for consideration in the amount
of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was
$314,000.00;
(11) LOT 5 BLK 2525 SEC 47 PORT CHARLOTTE (“Lot 5”) (“Lot 9. 419")for
consideration in the amount of $10.00. The Clerk notes that the amount for purposes of
“Doc Stamp” was $4,500.00.
Transfers Involving Moonstone
20. In the course of his investigation Plaintiff discovered that Kirchberger was no
longer the owner of 608 Harvard and that it, along with other properties described as LOT 8
LESS E 15 FT FOR RD RW BLK C PLAT OF ENGLEWOOD (‘Lot 8”) had been transferred to
Moonstone on January 4, 2012 for consideration in the amount of $10.00. A true and correct
copy of the deed dated January 4, 2012 is attached hereto as Exhibit “D.”
21. The investigation further revealed that Lot 8 was subsequently transferred, on or
about December 22, 2014, from Moonstone to Jerry Blake. The amount of consideration
reflected in the deed ($10.00) drastically conflicts with the amount listed on the Sarasota County
Property Appraiser of $340,000.00. A true and correct copy of the December 22, 2014 deed, as
well as the Sarasota County Property Appraiser information, are attached hereto as Exhibit “E,
Composite.”
22. Two (2) days after transferring Lot 8 to Moonstone, on January 6, 2012,
Kirchberger transferred the property described as LOT 2 BLK 763 12TH ADD TO PORT
CHARLOTTE (“Lot 2”) to Moonstone; again for consideration in the amount of $10.00. The
assessed value of Lot 2 at the time of the transfer was $56,500.00. A true and correct copy of
the deed dated January 6, 2012, as well as the Sarasota County Property Appraiser
information, are attached hereto as Exhibit “F, Composite.”
Kirchberger’s Relationship with Co-Defendants
23. As stated above, DeVille is believed to be Kirchberger's longtime girlfriend and
business partner who is a managing member of Southern Shores. The relationship between
Kirchberger and DeVille clearly indicates that she was an “insider” at the time of the transfer,
and the timing of the transfer demonstrates Kirchberger's intent to transfer property out of his
own name in an effort to avoid execution of Plaintiff's inevitable Judgment. § 726.105, Fla. Stat.
24. Southern Shores was incorporated in Florida on or about December 15, 2010.
The first Annual Report, dated February 18, 2011, lists Kirchberger as a managing member.
Kirchberger was removed from having any affiliation with Southern Shores on its next Annual
Report, dated March 8, 2012, leaving DeVille, and his daughter, Christine Frazer, as the lone
members. A true and correct copy of Southern Shores' filings with the Florida Secretary of State
is attached hereto as Exhibit “G, Composite.”
25. Southern Shores is controlled by Kirchberger and is his alter ego. The minute
duration of time between the establishment of Southern Shores and Kirchbergers’ transfers, the
fact that Southern Shores was managed by him initially, the fact that he was removed himself as
a of Southern Shores either just prior to or after the transfers occurred and the fact that Deville
and his daughters remain managers, all demonstrate that Southern Shores was created with the
intent to transfer property out of his own name and he intentionally concealed this affiliation to
avoid execution of Plaintiff's inevitable Judgment and at the same time continues to exercise his
absolute control over the entity and its assets.
26. Kirchberger was the founding member of Moonstone and executed its corporate
filings as an “authorized representative,” when it was domesticated on or about December 19,
2011, just weeks prior to the transfers described herein. Moreover, at the time of the January
2012 transfers, Kirchberger’s daughter, Christine Frazer, was managing member of Moonstone.
A true and correct copy of Moonstone Holdings, LLC filings with the Florida Secretary of State is
attached hereto as Exhibit “H, Composite.”
27. Moonstone’s corporate filing was thereafter amended on March 11, 2014 to
remove Christine Frazer's affiliation, replacing her with another Nevada shell entity, formed
January 22, 2014: Sunshine State Holdings, LLC. Sunshine State Holdings, LLC has never
applied to transact business in the state of Florida, and it shares the address formerly listed as
belonging to Christine Frazer. See Exhibit “1, Composite.”
28. The relationship between Moonstone and Kirchberger clearly indicates that they
always have been and remain one-in-the-same. Furthermore, the minute duration of time
between the establishment of Moonstone and Kirchberger's transactions, fact that Moonstone
was controlled by his daughter, fact that he himself established entity and fact that its property
holdings are being “managed” by someone authorized to accept service on his behalf, all
demonstrate that Moonstone was created with the intent to transfer property out of his own
name in an effort to avoid execution of Plaintiff's inevitable Judgment
29. All of the transfers described above took place after Kirchberger was notified of
his defaulting on monies owed to Plaintiff, after the Canadian lawsuit was filed and prior to the
entry of the Judgment
30. All conditions precedent to the bringing of this action have occurred or been
waived.
COUNT I — FRAUDULENT TRANSFER
{ Defendant DeVille)
31. Plaintiff restates the allegations in paragraphs 1-3, 7-11, 14-18 and 29 and 30
above, as if set forth herein in full.
32. On November 14, 2011, Kirchberger transferred the property described as LOT
36 BLK 3541 SEC 64 PORT CHARLOTTE to DeVille (“Lot 36”). The amount of consideration
reflected in the deed ($1.00) drastically conflicts with the amount listed on the Charlotte County
Property Appraiser of $97,613.00. A true and correct copy of the November 14, 2011 deed, as
well as the Charlotte County Property Appraiser information, are attached hereto as Exhibit “B
”, Composite.”
33. The transfer with respect to Lot 36 violated the Florida Uniform Fraudulent
Transfers Act (“FUFTA”) because it was made with actual intent to hinder, delay and defraud
Plaintiff in an effort to avoid execution of his properties.
34. Section 726.105(1)(a), Fla. Stat. states, in pertinent part, that a transfer made by
a debtor is fraudulent as to a creditor if the debtor made the transfer with actual intent to hinder,
delay, or defraud any creditor of the debtor.
35. Section 726.105(2) sets forth a number of factors that may be considered in
determining whether a debtor had the actual intent required under § 726.105(1)(a), Fla. Stat.
Applicable here is: (1) the transfer was in part to an insider; (2) before the transfer was made,
Plaintiff had filed his lawsuit against Kirchberger; (3) the transfer was a substantial portion of
Kirchberger's assets; (4) Kirchberger no longer holds title to any property in Charlotte County;
(5) Kirchberger received a mere fraction of the value of the assets transferred as consideration.
36. Based on the foregoing, it is clear Kirchberger made the abovementioned
transfer with the actual intent to hinder, delay or defraud his creditors, namely Plaintiff.
Accordingly, the transfer is fraudulent as to Plaintiff pursuant to § 726.105, Fla. Stat.
37. As a result, the transfer is voidable by the Plaintiff pursuant to § 726.108(1)(a),
Fla. Stat.; Plaintiff is entitled to an attachment or other provisional remedy against the funds held
by DeVille pursuant to § 726.108(1)(b), Fla. Stat.; and/or an injunction against further disposition
of the property pursuant to § 726.108(c), Fla. Stat.
38. Plaintiff lacks an adequate remedy at law because, unless the relief sought in this
count is granted, Kirchberger will have succeeded in fraudulently transferring his assets to
insiders.
39. Plaintiff has a high probability of success on the merits in this action.
40. Because subject real property is no longer owned by Kirchberger and
presumably under the control of DeVille, Plaintiff is entitled to:
(1) Avoidance of the transfer to the extent necessary to satisfy Plaintiff's claim;
(2) An injunction against further disposition or assignment of the subject property;
(3) Attorney fees and costs for bringing this action; and
(4) Any other relief the circumstances may require.
WHEREFORE, Plaintiff HARRY BIEBERSTEIN demands judgment against Defendants
GABRIEL KIRCHBERGER and CAROL DEVILLE, as follows:
(1) For an injunction against further disposition or assignment of the subject property;
(2) For an order that the fraudulent transfer is void and that Kirchberger is the record
owner of the subject property;
(3) Should this Court void the transfer from Kirchberger to DeVille and restore record
ownership in Kirchberger for an injunction against further disposition or assignment of
the subject property by Kirchberger;
(4) Costs and reasonable attorney's fees associated with this supplementary
proceeding; and
(5) Any other relief the circumstances may require
COUNT Il - FRAUDULENT TRANSFER
{as to Defendant Southern Shores)
4. Plaintiff restates the allegations in paragraphs 1 through 2, 4, 6, 7, 9, 10, 12, 13-
17, 19, 29 AND 30 above, as if set forth herein in full.
42. On or about December 15, 2010, Kirchberger established Southern Shores so
that he could begin transferring property.
43. On or about July 28, 2011, Kirchberger was deposed in the Canadian lawsuit.
44. The following day, on or about July 29, 2011 Kirchberger, in an effort to hinder,
delay and defraud present and future creditors, including Plaintiff, made the following transfers:
(1) LOT 49, LASBURY PINEACRES ENGLEWOOD, SUBJ TO 385 SF UTILITY ESMT
TO ENGLEWOOD WATER DISTRICT AS DESC IN ORI 2007051357 ("Lot 49") for
consideration in the amount of $10.00. The Clerk notes that the amount for purposes of
“Doc Stamp” was $40,300.00. See Exhibit “C, Composite.”
(2) LOT 26 BLK 1559 32TH ADD PORT CHARLOTTE ("Lot 26") for consideration in the
amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was
$66,000.00. See Exhibit “C, Composite.”
a a
(3) LOT 23, BLK 948, 22ND ADD TO PORT CHARLOTTE (“Lot 23”) for consideration in
the amount of $10.00. The Clerk notes that the amount for purposes of “Doc
Stamp”$62,100.00. See Exhibit “C, Composite.”
(4) LOT 17 BLK 1370 28TH ADD TO PORT CHARLOTTE (‘Lot 17”) for consideration in
the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was
$70,000.00. See Exhibit “C, Composite.”
(5) LOT 9 BLK 568 9TH ADD TO PORT CHARLOTTE (“Lot 9.568”) for consideration in
the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was
$64,900.00. See Exhibit “C, Composite.”
(6) LOT 9 BLK 419 18TH ADD TO PORT CHARLOTTE (‘Lot 9.419”) for consideration in
the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was
$57,500.00. See Exhibit “C, Composite.”
(7) LOT 1 BLK 277 TROP G A UNIT 10 ("Lot 1”) for consideration in the amount of
$10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $3,500.00.
See Exhibit “C, Composite.”
(8) LOT 8 BLK 81 TROP G A UNIT 06 (“Lot 8”) for consideration in the amount of
$10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $3,500.00.
See Exhibit “C, Composite.”
(9) LOT 818 ROTONDA WEST PEBBLE BCH (“Lot 818") for consideration in the
amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was
$123,000.00. See Exhibit “C, Composite.”
(10) LOT 478 ROTONDA WEST LNG MDW (‘Lot 478”) for consideration in the amount
of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was
$314,000.00. See Exhibit “C, Composite.”
(11) LOT 5 BLK 2525 SEC 47 PORT CHARLOTTE (‘Lot 5”) (‘Lot 9. 419") for
consideration in the amount of $10.00. The Clerk notes that the amount for purposes of
“Doc Stamp” was $4,500.00. See Exhibit “C, Composite.”
45. The transfers described above violated Florida Uniform Fraudulent Transfers Act
(‘FUFTA”), (and § 726.105(1)(a), Fla. Stat. as to present creditors) because they were made
with actual intent to hinder, delay and defraud Plaintiff in an effort to avoid execution of his
properties.
46. Southern Shores, likely under the direction and control of Kirchberger, was a
direct participant in this scheme to violate the FUFTA.
10
47. Section 726.105(1)(a), Fla. Stat. states in pertinent part that a transfer made by a
debtor is fraudulent as to a creditor if the debtor made the transfer with actual intent to hinder,
delay, or defraud any creditor of the debtor.
48. Section 726.105(2) sets forth a number of factors that may be considered in
determining whether a debtor had the actual intent required under § 726.105(1)(a), Fla. Stat.
Applicable here is: (1) the transfers were in part to an insider, Southern Shores (either relating
to Kirchberger's direct affiliation or that of his daughters); (2) Kirchberger received a mere
fraction of the value of the assets transferred as consideration; (3) before the transfer was
made, Plaintiff had filed a multi-million dollar lawsuit against Kirchberger (in which he was
deposed the day before the transfers were made); (4) the transfers were a substantial portion of
Kirchberger's assets; (5) Kirchberger no longer holds title to any property in Sarasota or
Charlotte County.
49. Based on the foregoing, it is clear Kirchberger made the abovementioned
transfers with the actual intent to hinder, delay or defraud his creditors, namely Plaintiff.
Accordingly, the transfers are fraudulent as to Plaintiff pursuant to § 726.105, Fla. Stat.
50. As a result, the transfer(s) are avoidable by the Plaintiff pursuant to §
726.108(1)(a), Fla. Stat.; Plaintiff is entitled to an attachment or other provisional remedy
against the funds held by Southern Shores pursuant to § 726.108(1)(b), Fla. Stat.; and/or an
injunction against further disposition of the property pursuant to § 726.108(c), Fla. Stat.
51. Plaintiff lacks an adequate remedy at law because, unless the relief sought in this
count is granted, defendant, Kirchberger, will have succeeded in fraudulently transferring his
assets to insiders.
52. Plaintiff has a high probability of success on the merits in this action.
53. Because the subject real properties are no longer owned by Kirchberger and
presumably under the control of Southern Shores, Plaintiff is entitled to:
(1) Avoidance of the transfer to the extent necessary to satisfy Plaintiff's claim;
11
(2) An injunction against further disposition or assignment of the subject property;
(3) Attorney fees and costs for bringing this action; and
(4) Any other relief the circumstances may require.
WHEREFORE, Plaintiff HARRY BIEBERSTEIN demands judgment against Defendants
GABRIEL KIRCHBERGER and SOUTHERN SHORES ENTERPRISES, LLC, as follows:
(1) For an injunction against further disposition or assignment of the subject properties;
(2) For an order that the fraudulent transfer is void and that Kirchberger is the record
owner of the subject properties;
(3) Should this Court void the transfer from Kirchberger to Southern Shores and restore
record ownership in Kirchberger for an injunction against further disposition or
assignment of the subject properties by Kirchberger;
(4) Costs and reasonable attorney's fees associated with this supplementary
proceeding; and
(5) Any other relief the circumstances may require.
COUNT Ill [ FRAUDULENT TRANSFER
{as to Defendant Moonstone)
54. Plaintiff restates the allegations in paragraphs 1, 2, 5-10, 13-17, 21-22, 26-30
above, as if set forth herein in full.
55. On or about December 19, 2011, Kirchberger established Moonstone so that he
could begin transferring property out of his own name for fear of execution by Plaintiff.
56. On or about January 4, 2012, Kirchberger transferred Lot 8 to Moonstone for
consideration in the amount of $10.00, in an effort to hinder, delay and defraud present and
future creditors. See Exhibit “D.”
87. In a furtherance of this effort, on or about December 22, 2014, Lot 8 was
transferred from Moonstone to Jerry Blake, who had acted as the “Manager” of the property for
Kirchberger, for an amount of consideration that drastically conflicted with the amount listed on
the Sarasota County Property Appraiser of $340,000.00. See Exhibit “D, Composite.”
12
58. On or about January 6, 2012, Kirchberger transferred the Lot 2 to Moonstone; for
consideration in the amount of $10.00, despite the assessed value of Lot 2 at the time of the
transfer being estimated at $56,500.00. See Exhibit “E, Composite.”
59. The transfers with respect to Lot 8 and Lot 2 violated the Florida Uniform
Fraudulent Transfers Act (“FUFTA’), (and § 726.105(1)(a), Fla. Stat. as to present creditors)
because it was made with actual intent to hinder, delay and defraud Plaintiff in an effort to avoid
execution of his properties.
60. Moonstone, likely under the direction and control of Kirchberger was a direct
participant in this scheme to violate the FUFTA.
61. Section 726.105(1)(a), Fla. Stat. states, in pertinent part, that a transfer made by
a debtor is fraudulent as to a creditor if the debtor made the transfer with actual intent to hinder,
delay, or defraud any creditor of the debtor.
62. Section 726.105(2) sets forth a number of factors that may be considered in
determining whether a debtor had the actual intent required under § 726.105(1)(a), Fla. Stat.
Applicable here is: (1) the transfer was in part to an insider, Moonstone (either relating to
Kirchberger’s direct affiliation or that of his daughters); (2) Kirchberger retained possession and
control of Lot 8, as evidenced by his relationship with Jerry Blake, (3) before the transfer was
made, Plaintiff had filed a lawsuit against Kirchberger; (4) the transfer was a substantial portion
of Kirchberger's assets; (5) Kirchberger no longer holds title to any property in Sarasota County;
(6) Kirchberger received a mere fraction of the value of the assets transferred as consideration.
63. Based on the foregoing, it is clear Kirchberger made the abovementioned
transfers with the actual intent to hinder, delay or defraud his creditors, namely Plaintiff.
Accordingly, the transfers are fraudulent as to Plaintiff pursuant to § 726.105, Fla. Stat.
64. As a result, the transfer(s) are voidable by the Plaintiff pursuant to §
726.108(1)(a), Fla. Stat.; Plaintiff is entitled to an attachment or other provisional remedy
13
against the funds held by Moonstone pursuant to § 726.108(1)(b), Fla. Stat; and/or an
injunction against further disposition of the property pursuant to § 726.108(c), Fla. Stat.
65. Plaintiff lacks an adequate remedy at law because, unless the relief sought in this
count is granted, Kirchberger will have succeeded in fraudulently transferring his assets to
insiders.
66. Plaintiff has a high probability of success on the merits in this action.
67. Because subject real property is no longer owned by Kirchberger and
presumably under the control of Moonstone and/or their agents and managers, Plaintiff is
entitled to:
(1) Avoidance of the transfer to the extent necessary to satisfy Plaintiff's claim;
(2) An injunction against further disposition or assignment of the subject property;
(3) Attorney fees and costs for bringing this action; and
(4) Any other relief the circumstances may require.
WHEREFORE, Plaintiff HARRY BIEBERSTEIN demands judgment against Defendants
GABRIEL KIRCHBERGER and MOONSTONE HOLDINGS, LLC, as follows:
(1) For an injunction against further disposition or assignment of the subject property;
(2) For an order that the fraudulent transfer is void and that Kirchberger is the record
owner of the subject property;
(3) Should this Court void the transfer from Kirchberger to Moonstone and restore record
ownership in Kirchberger for an injunction against further disposition or assignment of
the subject property by Kirchberger;
(4) Costs and reasonable attorney’s fees associated with this supplementary
proceeding; and
(5) Any other relief the circumstances may require.
14
Dated this 25" day of January, 2017.
WOODS, WEIDENMILLER, MICHETTI, RUDNICK
& GALBRAITH, PLLC
By: /s/ Mark A_ Slack
Mark A. Slack
Florida Bar No. 394785
9045 Strada Stell Court, Suite 400
Naples, FL 34109
(239) 325-4070 — Telephone
(239) 325-4080 — Facsimile
mslack@wwmrglaw.com(Primary)
idiaz@wwmrglaw.com (Secondary)
Attorneys for Plaintiff
15
> ., RECORD IN OFFI
ED CIAL RECORDS
INSTRUMEN T# 2016143668 6 PGIS)
1111872016 2:16PM
KARE E. RUSH
NING
CLERK OF THE CIRCUIT COURT Court File No. CV-10-8534-00CL and CV-10-8535-00CL
SARASOTA COUNTY, FLORIDA
CIVIL COURTS INTARIO
“SURE COURT OF JUSTICE
COMMERCIAL LIST
THE HONOURABLE ) re 0
MADAM JUSTICE THORBURN ) DAYOF al
BETWEEN: Ole CA 5ETZ NC
(Court Seat
HARRY BIEBERSTEIN
is Plaintiff
and
GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT, NOMEN FITNESS INC.,
487223 ONTARIO LIMITED and 1171852 ONTARIO LIMITED CARRYING ON
BUSINESS ASG.K. YORK MANAGEMENT SERVICE
Defendants
JUDGMENT
THIS ACTION was heard between February 7, 2014 and March 9, 2014 without a
jury at the court house, 330 University Avenue, 8th Floor, Toronto, Ontario, MSG 1R7,
in the presence of the lawyers for all parties,
ON READING THE PLEADINGS AND HEARING THE EVIDENCE
and the
submissions of the lawyers for the parties,
1 THIS COURT DECLARES AND ADJUDGES that Acknowledgments between
Gabriel Kirchberger and Berlin Hypo Bank are enforceable.
EXHIBIT "A"
re
Filed 11/18/2016 01:05 PM - Karen E.
Rushing, Clerk of the Circuit Court, Sara
sota County, FL
2
THIS COURT DECLARES AND ADJUDGES that the Plaintiff is entitled to
enforce against the assets of Gabriel Kirchberger located in Ontario in the manner
and to the extent as if he had obtained judgment against Kirchberger for the
payment of money in the amount of the liability assumed in the
acknowledgments, as quantified in Paragraph 3 below.
THIS COURT DECLARES AND ADJUDGES that the amount of the liability
assumed in the Acknowledgements is €8391,909.49, inclusive of pre-judgment
interest through to the date of this judgment, plus any postjudgment interest
accrued on the unpaid balance of the liability assumed in the Acknowledgements,
which shall accrue at a rateof 3% per year,
THIS COURT DECLARES AND ADJUDGES that the Claim to enforce the
Acknowledgment between Gabriel Kirchberger and Hypo Bank is dismissed.
THIS COURT DECLARES AND ADJUDGES that the claim in fraud and unjust
enrichment against Gabriel Kirchberger is dismissed.
THIS COURT DECLARES AND ADJUDGES that the claim against Susanne
Viktoria Schmidt, Nomen Fitness Inc., 487223 Ontario Limited and 1171852
Ontario Limited carrying on business as GK. York Management Services for
unjust enrichment in relation to the Banks is dismissed.
A
Filed 11/18/2016 01:05 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
3
7. THIS COURT DECLARES AND ADJUDGES that the Defendant Gabriel
Kirchberger pay to the Plaintiff costs and disbursements in the amount of
$56,738.67, inclusive of HST.
THIS COURT DECLARES AND ADJUDGES that the Plaintiff pay to Ms.
Susanne Viktoria Schmidt costs in the amount of $5,000.00.
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Court File No, CV-10-8534-00CL
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Preview
Filing # 51651079 E-Filed 01/26/2017 09:02:59 AM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA CIVIL ACTION HARRY BIEBERSTEIN, Plaintiff, Case No. 16-CA-5872 GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORES ENTERPRISES, Florida limited liability company, and MOONSTONE LLC, a 17-917 CA HOLDINGS, LLC, a Nevada limited liability company. Defendants. / COMPLAINT Plaintiff, HARRY BIEBERSTEIN, by and through his undersigned counsel, and in accordance with the Florida Rules of Civil Procedure, files this Complaint against Defendants, GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORES ENTERPRISES, LLC and MOONSTONE HOLDINGS, LLC, and alleges as follows: JURISDICTION AND VENUE 1 This is an action to avoid fraudulent transfers with respect to real property located in Sarasota County, Florida and Charlotte County, Florida, and which seeks damages in excess of Fifteen Thousand Dollars ($15,000), exclusive of interest, costs, and attorneys’ fees. 2. This Court has personal jurisdiction over Defendant, GABRIEL KIRCHBERGER (hereafter “Kirchberger”) both pursuant to § 48.193(1)(c), Fla. Stat. (the subject matter of this dispute involves ownership and alleged fraudulent transfer of properties located in the state of Florida) and Chapter 55, Fla. Stat., as the Foreign Judgment upon which this action is based was duly recorded in Sarasota County Instrument #2016143668. 3 This Court has personal jurisdiction over Defendant, CAROL DEVILLE (hereafter “DeVille’) in that she is a resident of the state of Florida. Filed 01/26/2017 09:07 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 4 This Court has personal jurisdiction over Defendant, SOUTHERN SHORES ENTERPRISES, LLC (hereafter “Southern Shores”) as it is a Florida limited liability company transacting business within the state. 5. This Court has personal jurisdiction over Defendant, MOONSTONE HOLDINGS, LLC (hereafter “Moonstone”) under the Florida Long Arm Jurisdiction Act, § 48.193, Fla. Stat., as Moonstone has sufficient minimum contacts with the State of Florida to make it reasonably foreseeable that it could be sued in Florida. 6 Furthermore, this Court's exercise of personal jurisdiction over Moonstone is constitutionally sound as demonstrated by the numerous real estate holdings and transactions underlying this Complaint occurring in Sarasota County. 7 Venue is proper in Sarasota County, Florida. Kirchberger and Deville reside in Sarasota County. 8. Furthermore, with regard to any properties located in Charlotte County, Florida, Plaintiff may elect to bring suit in Sarasota County, as either forum is proper under § 47.122, Fla. Stat. PARTIES 9. Plaintiff, HARRY BIEBERSTIEN (hereinafter “Plaintiff?) is, and at all times mentioned herein was, a resident of Toronto, Ontario, Canada. Plaintiff is the holder of an unsatisfied judgment against Kirchberger, which was recorded in Sarasota County, Florida as Instrument Number 2016143668. A true and correct copy of which is attached hereto as Exhibits “A”. 10. Kirchberger is and was, at all times mentioned herein is a foreign national, who upon information and belief, is currently residing at either 608 Harvard Street, Englewood, FL 34223, Sarasota County, Florida or 15204 Leipzig Circle, Port Charlotte, Florida, 33981. 11. Defendant, DeVille, is believed to be Kirchberger’s longtime girlfriend/business partner who, upon information and belief, currently resides with Kirchberger at either of the above addresses. DeVille is also one of the founding (and current) members of Southern Shores, which help facilitate the fraudulent transfers complained of herein. 12. Defendant, Southern Shores, is a limited liability company duly incorporated and transacting business in the state of Florida. Kirchberger was a managing member of Southern Shores prior to transferring the properties described herein. Deville and Kirchberger’s daughters are members of Southern Shores. 13. Defendant, Moonstone, is a limited liability company authorized to transact business in the state of Florida, with its state of incorporation being Nevada, its purpose is to manage, acquire and transfer real estate located in Florida controlled by Kirchberger. GENERAL ALLEGATIONS 14. Plaintiff brings this action pursuant to § 56.29, Fla. Stat. and the Florida Uniform Fraudulent Transfer Act, § 726.101, Fla. Stat., in order to void the transfers of Kirchberger’s real property located in Sarasota and Charlotte County, Florida, that was fraudulently transferred to DeVille, Southern Shores, and Moonstone, as well as to seek relief from further disposition of said properties. 15. Plaintiff currently holds an unsatisfied judgment against Kirchberger in the amount of €7314879.25 ($8,298,580.77). 16. The domesticated Canadian foreign judgment described above stems from a lawsuit filed by Plaintiff in the Ontario Superior Court of Justice on January 10, 2010, Court File Nos. CV-10-834-00CL, CV-10-8535-00CL (“Canadian Lawsuit") Plaintiff obtained final judgment in his favor on September 26, 2016. 17. Plaintiff properly domesticated the Canadian Judgment in accordance with Section 55.601, Fla. Stat. Transfer Involving DeVille 18. In the course of Plaintiff's investigation of Kirchberger's assets, Plaintiff discovered that, on or about November 14, 2011, Kirchberger transferred the real property described as LOT 36 BLK 3541 SEC 64 PORT CHARLOTTE, Charlotte County, Florida, to DeVille. The amount of consideration reflected in the deed ($1.00) drastically conflicts with the amount listed on the Charlotte County Property Appraiser of $97,613.00. A true and correct copy of the November 14, 2011 deed, as well as the Charlotte County Property Appraiser information, are attached hereto as Exhibit “B, Composite.” Transfers Involving Southern Shores 19. Plaintiff has uncovered a total of eleven (11) transfers of real property from Kirchberger to Southern Shores in Sarasota County, Florida and Charlotte County, Florida, all of which occurred on July 29, 2011, the day after his deposition was taken in the Canadian Lawsuit. True and correct copies of the deeds for the transactions described below, all dated July 29, 2011, are attached hereto as Exhibit “C, Composite.” These include the following: (1) LOT 49, LASBURY PINEACRES ENGLEWOOD, SUBJ TO 385 SF UTILITY ESMT TO ENGLEWOOD WATER DISTRICT AS DESC IN ORI 2007051357 ("Lot 49”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $40,300.00; (2) LOT 26 BLK 1559 32TH ADD PORT CHARLOTTE (“Lot 26”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $66,000.00; (3) LOT 23, BLK 948, 22ND ADD TO PORT CHARLOTTE (“Lot 23”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $62,100.00; (4) LOT 17 BLK 1370 28TH ADD TO PORT CHARLOTTE (“Lot 17”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $70,000.00; (5) LOT 9 BLK 568 9TH ADD TO PORT CHARLOTTE (“Lot 9.568") for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $64,900.00; (6) LOT 9 BLK 419 18TH ADD TO PORT CHARLOTTE (“Lot 9.419”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $57,500.00; (7) LOT 1 BLK 277 TROP G A UNIT 10 (“Lot 1”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $3,500.00; (8) LOT 8 BLK 81 TROP G A UNIT 06 (‘Lot 8”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $3,500.00; (9) LOT 818 ROTONDA WEST PEBBLE BCH (‘Lot 818”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $123,000.00; (10) LOT 478 ROTONDA WEST LNG MDW (‘Lot 478") for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $314,000.00; (11) LOT 5 BLK 2525 SEC 47 PORT CHARLOTTE (“Lot 5”) (“Lot 9. 419")for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $4,500.00. Transfers Involving Moonstone 20. In the course of his investigation Plaintiff discovered that Kirchberger was no longer the owner of 608 Harvard and that it, along with other properties described as LOT 8 LESS E 15 FT FOR RD RW BLK C PLAT OF ENGLEWOOD (‘Lot 8”) had been transferred to Moonstone on January 4, 2012 for consideration in the amount of $10.00. A true and correct copy of the deed dated January 4, 2012 is attached hereto as Exhibit “D.” 21. The investigation further revealed that Lot 8 was subsequently transferred, on or about December 22, 2014, from Moonstone to Jerry Blake. The amount of consideration reflected in the deed ($10.00) drastically conflicts with the amount listed on the Sarasota County Property Appraiser of $340,000.00. A true and correct copy of the December 22, 2014 deed, as well as the Sarasota County Property Appraiser information, are attached hereto as Exhibit “E, Composite.” 22. Two (2) days after transferring Lot 8 to Moonstone, on January 6, 2012, Kirchberger transferred the property described as LOT 2 BLK 763 12TH ADD TO PORT CHARLOTTE (“Lot 2”) to Moonstone; again for consideration in the amount of $10.00. The assessed value of Lot 2 at the time of the transfer was $56,500.00. A true and correct copy of the deed dated January 6, 2012, as well as the Sarasota County Property Appraiser information, are attached hereto as Exhibit “F, Composite.” Kirchberger’s Relationship with Co-Defendants 23. As stated above, DeVille is believed to be Kirchberger's longtime girlfriend and business partner who is a managing member of Southern Shores. The relationship between Kirchberger and DeVille clearly indicates that she was an “insider” at the time of the transfer, and the timing of the transfer demonstrates Kirchberger's intent to transfer property out of his own name in an effort to avoid execution of Plaintiff's inevitable Judgment. § 726.105, Fla. Stat. 24. Southern Shores was incorporated in Florida on or about December 15, 2010. The first Annual Report, dated February 18, 2011, lists Kirchberger as a managing member. Kirchberger was removed from having any affiliation with Southern Shores on its next Annual Report, dated March 8, 2012, leaving DeVille, and his daughter, Christine Frazer, as the lone members. A true and correct copy of Southern Shores' filings with the Florida Secretary of State is attached hereto as Exhibit “G, Composite.” 25. Southern Shores is controlled by Kirchberger and is his alter ego. The minute duration of time between the establishment of Southern Shores and Kirchbergers’ transfers, the fact that Southern Shores was managed by him initially, the fact that he was removed himself as a of Southern Shores either just prior to or after the transfers occurred and the fact that Deville and his daughters remain managers, all demonstrate that Southern Shores was created with the intent to transfer property out of his own name and he intentionally concealed this affiliation to avoid execution of Plaintiff's inevitable Judgment and at the same time continues to exercise his absolute control over the entity and its assets. 26. Kirchberger was the founding member of Moonstone and executed its corporate filings as an “authorized representative,” when it was domesticated on or about December 19, 2011, just weeks prior to the transfers described herein. Moreover, at the time of the January 2012 transfers, Kirchberger’s daughter, Christine Frazer, was managing member of Moonstone. A true and correct copy of Moonstone Holdings, LLC filings with the Florida Secretary of State is attached hereto as Exhibit “H, Composite.” 27. Moonstone’s corporate filing was thereafter amended on March 11, 2014 to remove Christine Frazer's affiliation, replacing her with another Nevada shell entity, formed January 22, 2014: Sunshine State Holdings, LLC. Sunshine State Holdings, LLC has never applied to transact business in the state of Florida, and it shares the address formerly listed as belonging to Christine Frazer. See Exhibit “1, Composite.” 28. The relationship between Moonstone and Kirchberger clearly indicates that they always have been and remain one-in-the-same. Furthermore, the minute duration of time between the establishment of Moonstone and Kirchberger's transactions, fact that Moonstone was controlled by his daughter, fact that he himself established entity and fact that its property holdings are being “managed” by someone authorized to accept service on his behalf, all demonstrate that Moonstone was created with the intent to transfer property out of his own name in an effort to avoid execution of Plaintiff's inevitable Judgment 29. All of the transfers described above took place after Kirchberger was notified of his defaulting on monies owed to Plaintiff, after the Canadian lawsuit was filed and prior to the entry of the Judgment 30. All conditions precedent to the bringing of this action have occurred or been waived. COUNT I — FRAUDULENT TRANSFER { Defendant DeVille) 31. Plaintiff restates the allegations in paragraphs 1-3, 7-11, 14-18 and 29 and 30 above, as if set forth herein in full. 32. On November 14, 2011, Kirchberger transferred the property described as LOT 36 BLK 3541 SEC 64 PORT CHARLOTTE to DeVille (“Lot 36”). The amount of consideration reflected in the deed ($1.00) drastically conflicts with the amount listed on the Charlotte County Property Appraiser of $97,613.00. A true and correct copy of the November 14, 2011 deed, as well as the Charlotte County Property Appraiser information, are attached hereto as Exhibit “B ”, Composite.” 33. The transfer with respect to Lot 36 violated the Florida Uniform Fraudulent Transfers Act (“FUFTA”) because it was made with actual intent to hinder, delay and defraud Plaintiff in an effort to avoid execution of his properties. 34. Section 726.105(1)(a), Fla. Stat. states, in pertinent part, that a transfer made by a debtor is fraudulent as to a creditor if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor of the debtor. 35. Section 726.105(2) sets forth a number of factors that may be considered in determining whether a debtor had the actual intent required under § 726.105(1)(a), Fla. Stat. Applicable here is: (1) the transfer was in part to an insider; (2) before the transfer was made, Plaintiff had filed his lawsuit against Kirchberger; (3) the transfer was a substantial portion of Kirchberger's assets; (4) Kirchberger no longer holds title to any property in Charlotte County; (5) Kirchberger received a mere fraction of the value of the assets transferred as consideration. 36. Based on the foregoing, it is clear Kirchberger made the abovementioned transfer with the actual intent to hinder, delay or defraud his creditors, namely Plaintiff. Accordingly, the transfer is fraudulent as to Plaintiff pursuant to § 726.105, Fla. Stat. 37. As a result, the transfer is voidable by the Plaintiff pursuant to § 726.108(1)(a), Fla. Stat.; Plaintiff is entitled to an attachment or other provisional remedy against the funds held by DeVille pursuant to § 726.108(1)(b), Fla. Stat.; and/or an injunction against further disposition of the property pursuant to § 726.108(c), Fla. Stat. 38. Plaintiff lacks an adequate remedy at law because, unless the relief sought in this count is granted, Kirchberger will have succeeded in fraudulently transferring his assets to insiders. 39. Plaintiff has a high probability of success on the merits in this action. 40. Because subject real property is no longer owned by Kirchberger and presumably under the control of DeVille, Plaintiff is entitled to: (1) Avoidance of the transfer to the extent necessary to satisfy Plaintiff's claim; (2) An injunction against further disposition or assignment of the subject property; (3) Attorney fees and costs for bringing this action; and (4) Any other relief the circumstances may require. WHEREFORE, Plaintiff HARRY BIEBERSTEIN demands judgment against Defendants GABRIEL KIRCHBERGER and CAROL DEVILLE, as follows: (1) For an injunction against further disposition or assignment of the subject property; (2) For an order that the fraudulent transfer is void and that Kirchberger is the record owner of the subject property; (3) Should this Court void the transfer from Kirchberger to DeVille and restore record ownership in Kirchberger for an injunction against further disposition or assignment of the subject property by Kirchberger; (4) Costs and reasonable attorney's fees associated with this supplementary proceeding; and (5) Any other relief the circumstances may require COUNT Il - FRAUDULENT TRANSFER {as to Defendant Southern Shores) 4. Plaintiff restates the allegations in paragraphs 1 through 2, 4, 6, 7, 9, 10, 12, 13- 17, 19, 29 AND 30 above, as if set forth herein in full. 42. On or about December 15, 2010, Kirchberger established Southern Shores so that he could begin transferring property. 43. On or about July 28, 2011, Kirchberger was deposed in the Canadian lawsuit. 44. The following day, on or about July 29, 2011 Kirchberger, in an effort to hinder, delay and defraud present and future creditors, including Plaintiff, made the following transfers: (1) LOT 49, LASBURY PINEACRES ENGLEWOOD, SUBJ TO 385 SF UTILITY ESMT TO ENGLEWOOD WATER DISTRICT AS DESC IN ORI 2007051357 ("Lot 49") for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $40,300.00. See Exhibit “C, Composite.” (2) LOT 26 BLK 1559 32TH ADD PORT CHARLOTTE ("Lot 26") for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $66,000.00. See Exhibit “C, Composite.” a a (3) LOT 23, BLK 948, 22ND ADD TO PORT CHARLOTTE (“Lot 23”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp”$62,100.00. See Exhibit “C, Composite.” (4) LOT 17 BLK 1370 28TH ADD TO PORT CHARLOTTE (‘Lot 17”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $70,000.00. See Exhibit “C, Composite.” (5) LOT 9 BLK 568 9TH ADD TO PORT CHARLOTTE (“Lot 9.568”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $64,900.00. See Exhibit “C, Composite.” (6) LOT 9 BLK 419 18TH ADD TO PORT CHARLOTTE (‘Lot 9.419”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $57,500.00. See Exhibit “C, Composite.” (7) LOT 1 BLK 277 TROP G A UNIT 10 ("Lot 1”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $3,500.00. See Exhibit “C, Composite.” (8) LOT 8 BLK 81 TROP G A UNIT 06 (“Lot 8”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $3,500.00. See Exhibit “C, Composite.” (9) LOT 818 ROTONDA WEST PEBBLE BCH (“Lot 818") for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $123,000.00. See Exhibit “C, Composite.” (10) LOT 478 ROTONDA WEST LNG MDW (‘Lot 478”) for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $314,000.00. See Exhibit “C, Composite.” (11) LOT 5 BLK 2525 SEC 47 PORT CHARLOTTE (‘Lot 5”) (‘Lot 9. 419") for consideration in the amount of $10.00. The Clerk notes that the amount for purposes of “Doc Stamp” was $4,500.00. See Exhibit “C, Composite.” 45. The transfers described above violated Florida Uniform Fraudulent Transfers Act (‘FUFTA”), (and § 726.105(1)(a), Fla. Stat. as to present creditors) because they were made with actual intent to hinder, delay and defraud Plaintiff in an effort to avoid execution of his properties. 46. Southern Shores, likely under the direction and control of Kirchberger, was a direct participant in this scheme to violate the FUFTA. 10 47. Section 726.105(1)(a), Fla. Stat. states in pertinent part that a transfer made by a debtor is fraudulent as to a creditor if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor of the debtor. 48. Section 726.105(2) sets forth a number of factors that may be considered in determining whether a debtor had the actual intent required under § 726.105(1)(a), Fla. Stat. Applicable here is: (1) the transfers were in part to an insider, Southern Shores (either relating to Kirchberger's direct affiliation or that of his daughters); (2) Kirchberger received a mere fraction of the value of the assets transferred as consideration; (3) before the transfer was made, Plaintiff had filed a multi-million dollar lawsuit against Kirchberger (in which he was deposed the day before the transfers were made); (4) the transfers were a substantial portion of Kirchberger's assets; (5) Kirchberger no longer holds title to any property in Sarasota or Charlotte County. 49. Based on the foregoing, it is clear Kirchberger made the abovementioned transfers with the actual intent to hinder, delay or defraud his creditors, namely Plaintiff. Accordingly, the transfers are fraudulent as to Plaintiff pursuant to § 726.105, Fla. Stat. 50. As a result, the transfer(s) are avoidable by the Plaintiff pursuant to § 726.108(1)(a), Fla. Stat.; Plaintiff is entitled to an attachment or other provisional remedy against the funds held by Southern Shores pursuant to § 726.108(1)(b), Fla. Stat.; and/or an injunction against further disposition of the property pursuant to § 726.108(c), Fla. Stat. 51. Plaintiff lacks an adequate remedy at law because, unless the relief sought in this count is granted, defendant, Kirchberger, will have succeeded in fraudulently transferring his assets to insiders. 52. Plaintiff has a high probability of success on the merits in this action. 53. Because the subject real properties are no longer owned by Kirchberger and presumably under the control of Southern Shores, Plaintiff is entitled to: (1) Avoidance of the transfer to the extent necessary to satisfy Plaintiff's claim; 11 (2) An injunction against further disposition or assignment of the subject property; (3) Attorney fees and costs for bringing this action; and (4) Any other relief the circumstances may require. WHEREFORE, Plaintiff HARRY BIEBERSTEIN demands judgment against Defendants GABRIEL KIRCHBERGER and SOUTHERN SHORES ENTERPRISES, LLC, as follows: (1) For an injunction against further disposition or assignment of the subject properties; (2) For an order that the fraudulent transfer is void and that Kirchberger is the record owner of the subject properties; (3) Should this Court void the transfer from Kirchberger to Southern Shores and restore record ownership in Kirchberger for an injunction against further disposition or assignment of the subject properties by Kirchberger; (4) Costs and reasonable attorney's fees associated with this supplementary proceeding; and (5) Any other relief the circumstances may require. COUNT Ill [ FRAUDULENT TRANSFER {as to Defendant Moonstone) 54. Plaintiff restates the allegations in paragraphs 1, 2, 5-10, 13-17, 21-22, 26-30 above, as if set forth herein in full. 55. On or about December 19, 2011, Kirchberger established Moonstone so that he could begin transferring property out of his own name for fear of execution by Plaintiff. 56. On or about January 4, 2012, Kirchberger transferred Lot 8 to Moonstone for consideration in the amount of $10.00, in an effort to hinder, delay and defraud present and future creditors. See Exhibit “D.” 87. In a furtherance of this effort, on or about December 22, 2014, Lot 8 was transferred from Moonstone to Jerry Blake, who had acted as the “Manager” of the property for Kirchberger, for an amount of consideration that drastically conflicted with the amount listed on the Sarasota County Property Appraiser of $340,000.00. See Exhibit “D, Composite.” 12 58. On or about January 6, 2012, Kirchberger transferred the Lot 2 to Moonstone; for consideration in the amount of $10.00, despite the assessed value of Lot 2 at the time of the transfer being estimated at $56,500.00. See Exhibit “E, Composite.” 59. The transfers with respect to Lot 8 and Lot 2 violated the Florida Uniform Fraudulent Transfers Act (“FUFTA’), (and § 726.105(1)(a), Fla. Stat. as to present creditors) because it was made with actual intent to hinder, delay and defraud Plaintiff in an effort to avoid execution of his properties. 60. Moonstone, likely under the direction and control of Kirchberger was a direct participant in this scheme to violate the FUFTA. 61. Section 726.105(1)(a), Fla. Stat. states, in pertinent part, that a transfer made by a debtor is fraudulent as to a creditor if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor of the debtor. 62. Section 726.105(2) sets forth a number of factors that may be considered in determining whether a debtor had the actual intent required under § 726.105(1)(a), Fla. Stat. Applicable here is: (1) the transfer was in part to an insider, Moonstone (either relating to Kirchberger’s direct affiliation or that of his daughters); (2) Kirchberger retained possession and control of Lot 8, as evidenced by his relationship with Jerry Blake, (3) before the transfer was made, Plaintiff had filed a lawsuit against Kirchberger; (4) the transfer was a substantial portion of Kirchberger's assets; (5) Kirchberger no longer holds title to any property in Sarasota County; (6) Kirchberger received a mere fraction of the value of the assets transferred as consideration. 63. Based on the foregoing, it is clear Kirchberger made the abovementioned transfers with the actual intent to hinder, delay or defraud his creditors, namely Plaintiff. Accordingly, the transfers are fraudulent as to Plaintiff pursuant to § 726.105, Fla. Stat. 64. As a result, the transfer(s) are voidable by the Plaintiff pursuant to § 726.108(1)(a), Fla. Stat.; Plaintiff is entitled to an attachment or other provisional remedy 13 against the funds held by Moonstone pursuant to § 726.108(1)(b), Fla. Stat; and/or an injunction against further disposition of the property pursuant to § 726.108(c), Fla. Stat. 65. Plaintiff lacks an adequate remedy at law because, unless the relief sought in this count is granted, Kirchberger will have succeeded in fraudulently transferring his assets to insiders. 66. Plaintiff has a high probability of success on the merits in this action. 67. Because subject real property is no longer owned by Kirchberger and presumably under the control of Moonstone and/or their agents and managers, Plaintiff is entitled to: (1) Avoidance of the transfer to the extent necessary to satisfy Plaintiff's claim; (2) An injunction against further disposition or assignment of the subject property; (3) Attorney fees and costs for bringing this action; and (4) Any other relief the circumstances may require. WHEREFORE, Plaintiff HARRY BIEBERSTEIN demands judgment against Defendants GABRIEL KIRCHBERGER and MOONSTONE HOLDINGS, LLC, as follows: (1) For an injunction against further disposition or assignment of the subject property; (2) For an order that the fraudulent transfer is void and that Kirchberger is the record owner of the subject property; (3) Should this Court void the transfer from Kirchberger to Moonstone and restore record ownership in Kirchberger for an injunction against further disposition or assignment of the subject property by Kirchberger; (4) Costs and reasonable attorney’s fees associated with this supplementary proceeding; and (5) Any other relief the circumstances may require. 14 Dated this 25" day of January, 2017. WOODS, WEIDENMILLER, MICHETTI, RUDNICK & GALBRAITH, PLLC By: /s/ Mark A_ Slack Mark A. Slack Florida Bar No. 394785 9045 Strada Stell Court, Suite 400 Naples, FL 34109 (239) 325-4070 — Telephone (239) 325-4080 — Facsimile mslack@wwmrglaw.com(Primary) idiaz@wwmrglaw.com (Secondary) Attorneys for Plaintiff 15 > ., RECORD IN OFFI ED CIAL RECORDS INSTRUMEN T# 2016143668 6 PGIS) 1111872016 2:16PM KARE E. RUSH NING CLERK OF THE CIRCUIT COURT Court File No. CV-10-8534-00CL and CV-10-8535-00CL SARASOTA COUNTY, FLORIDA CIVIL COURTS INTARIO “SURE COURT OF JUSTICE COMMERCIAL LIST THE HONOURABLE ) re 0 MADAM JUSTICE THORBURN ) DAYOF al BETWEEN: Ole CA 5ETZ NC (Court Seat HARRY BIEBERSTEIN is Plaintiff and GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT, NOMEN FITNESS INC., 487223 ONTARIO LIMITED and 1171852 ONTARIO LIMITED CARRYING ON BUSINESS ASG.K. YORK MANAGEMENT SERVICE Defendants JUDGMENT THIS ACTION was heard between February 7, 2014 and March 9, 2014 without a jury at the court house, 330 University Avenue, 8th Floor, Toronto, Ontario, MSG 1R7, in the presence of the lawyers for all parties, ON READING THE PLEADINGS AND HEARING THE EVIDENCE and the submissions of the lawyers for the parties, 1 THIS COURT DECLARES AND ADJUDGES that Acknowledgments between Gabriel Kirchberger and Berlin Hypo Bank are enforceable. EXHIBIT "A" re Filed 11/18/2016 01:05 PM - Karen E. Rushing, Clerk of the Circuit Court, Sara sota County, FL 2 THIS COURT DECLARES AND ADJUDGES that the Plaintiff is entitled to enforce against the assets of Gabriel Kirchberger located in Ontario in the manner and to the extent as if he had obtained judgment against Kirchberger for the payment of money in the amount of the liability assumed in the acknowledgments, as quantified in Paragraph 3 below. THIS COURT DECLARES AND ADJUDGES that the amount of the liability assumed in the Acknowledgements is €8391,909.49, inclusive of pre-judgment interest through to the date of this judgment, plus any postjudgment interest accrued on the unpaid balance of the liability assumed in the Acknowledgements, which shall accrue at a rateof 3% per year, THIS COURT DECLARES AND ADJUDGES that the Claim to enforce the Acknowledgment between Gabriel Kirchberger and Hypo Bank is dismissed. THIS COURT DECLARES AND ADJUDGES that the claim in fraud and unjust enrichment against Gabriel Kirchberger is dismissed. THIS COURT DECLARES AND ADJUDGES that the claim against Susanne Viktoria Schmidt, Nomen Fitness Inc., 487223 Ontario Limited and 1171852 Ontario Limited carrying on business as GK. York Management Services for unjust enrichment in relation to the Banks is dismissed. A Filed 11/18/2016 01:05 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 3 7. THIS COURT DECLARES AND ADJUDGES that the Defendant Gabriel Kirchberger pay to the Plaintiff costs and disbursements in the amount of $56,738.67, inclusive of HST. THIS COURT DECLARES AND ADJUDGES that the Plaintiff pay to Ms. Susanne Viktoria Schmidt costs in the amount of $5,000.00. Qa | ENTEREDAT JINSCRIT ATORONTO ‘ON te} ANS LE REGISTRENO: ep 2.8 2016 pera LT Filed 11/18/2016 01:05 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL ae a + HARRY BIBBERSTEIN sand» GABRIEL KIRCHBERGER et al, Defendants Court File No, CV-10-8534-00CL and CV-10-8535-00CL ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST PROCEEDING COMMENCED AT TORONTO 2 JUDGMENT FALCONERS LLP 10 Alcorn Ave, Suite 204 Toronto, ON MaV 3A9 Julian N. Falconer LSUC# 29465R Tel: (416) 964-0495 Fax (416) 929.8179 Lawyers for the Plaintiff Filing # 43367027 E-Filed 06/29/2016 11:49:36 AM ween ne eeeene eee ate eee SUE we: ween eee sen -1947 1 pg(s) INSTR # 2065044 Doc Type D, Recorded 01/04/2012 at 08:41 AM Deed Doc $0.70 Rec. Fee: $10.00 Cashier By Qe ole es it This instrument prepared br! Lori Wellbaum Euety wa maar. BAA. $06 HM. Indiana Avenve Englewood, FL 34223 n ‘SO2t Gare pep vara gorr aayof zeit, by GAmRIRL arty of the first part, Ssnpet Foat Office address io whenever vecd the second part, jude aingular ond plural, angie, legen representatis |. and acsigne of Andividuale cation, eo edaits or requires). thue the safd first party, for In Conoideration of the sua of One tna Wo/i60 1.00) pga. Bote. ia ‘hand paid by the ou joe, releace and quit chain rave the said "rasan. parey pe tererery ail fy 2 title, saterest, claia watch 5 said trac party he ta and to the Piece or parcel of Beste of Florida, eovit te, and Coun of chacl cy oste, Lot 36; Block 25¢2, FoaT, ms a to the Plat theraof, recorded Sook S. Dages 26h eure V6P, OF eke Piblie Records oF chartoeee County, Florivs. sua7ucE yo cawee tor the yaar 2010 ond allsubsequent years, restriptiona, reservations ‘Tax 1 Dumber: 432021200007 RIS pomp 1a ragranep Wit¥OOT 1EE SEAAITT OF h TITLE OEARCHE O nn ganeron HEREIN COVRAANES THAT SUBYECT PROPERTY XB MOT NI HOMESTEAD OR CONTIGUODS TO HTB ROGKSTEAD, _72_EVE mb 20 aD cane thee with all and a! in anyvise appertaining, ali etate, Fight, title incersace tien: oquity and cluis thacectver ef the gaia rat part ’' ther in law or equity, ‘ta the only proper use, benefit of the said scooad party forever. + fe, onld Estee party presanta Che day and pear firet above WEL bes sigmd and sealed these ¢ persons} described tn and who excvied the! -ecuted the same fo a purposes therele contained, mtaheniemssylormene ny bad and ociat vest inthe StatoKGunty let alocesald tis, diye dey Tei be ne exe atthe ST GWEv CrhOLES FHaliy— eto te GGuensk, Solute, Hots Oak Date, Qi Sa. 1 1 Oeste, Rois SATE 7 IMAGING MEMO THE WRITING/TYPING & PRINTING WAS UNSATISFACTORY FOR REPRODUCTION AT THE TIME OF IMAGING CHARLOTTE COUNTY CLERK OF THR CIRCUIT COURT OR BOOK 3591, PGS 1467-1467 1 Pg{s) INSTR § 2037271 Doc Type D, Recorded 08/18/2011 at 09:02 AM Deed Doc: $24.50 Rec. Fee: $10.00 Cashier By: KRYSTLEC ws ps ar a e RacacunsrtematonZ? ey 8 Sty, 2011, ty Gabriel Seco ii set Psat ott Canada (restora Sonhern Shore | Tt Pte tbaed ay ‘serous 8 €341 Bawden Wey, Whdernere, FL 108 (Ceaatee’ MITMESSEIN oat Gav, ts estan of Tea mdm i and oes ad ot wets cored tu Ursa bower Tectia ent Gur baod (Bs centr escied bad bag ts Conaty of Charo, Sinks at Lat, ach 27, Tool Ol ares Ue 1, prt eal nee Pt Bosh games70a PAN, puts crt Charla County. Rosia. Tax PareatL.Wa: ‘To Hove and to Held the 01 teaener won 4 sed sigue Rarefiomeals and urenences or ey bate ang ‘esalgna forever. Grantor nied wel sere {Me honed eu cote fo (hs homentend he resten 21199 MeO Road, ML Ptareaet OO X03 1 10, ENWITHESS WHEREOP, he prastr has her onto ect hls hand and atallha dey and yous eal above wten ‘Signed, seated and dedvered hk — ia