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Filing # 90695966 E-Filed 06/06/2019 02:35:19 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
HARRY BIEBERSTEIN,
Plaintiff,
Vv. Case No. 17-CA-917
GABRIEL KIRCHBERGER, et al.,
Defendants.
/
NOTICE OF FILING REVISED SECOND AMENDED COMPLAINT
NOTICE IS HEREBY GIVEN that Plaintiff's Revised Second Amended Complaint has
been filed for record this 6" day of June 2019 in the above-styled cause.
ADAMS AND REESE LLP
1515 Ringling Boulevard, Suite 700
Sarasota, Florida 34236
Primary: ryan.owen@arlaw.com
Primary: drew.chesanek@arlaw.com
Secondary: deborah. woodson@arlaw.com
Telephone: (941) 316-7600
Co-Counsel for Plaintiff
By:_/s/ Ryan W. Owen
Ryan W. Owen
Florida Bar No.: 0029355
Drew F. Chesanek
Florida Bar No.: 0115933
56189243v1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing document on June 6, 2019
with the Clerk of Court using the Florida Courts E-Filing Portal, which will send a notice of
electronic filing to: Mark Slack, Woods, Weidenmiller, Michetti & Rudnick, LLP, 9045 Strada
Stell Court, Suite 400, Naples, Florida 34109 at mslack@lawfirmnaples.com,
msilvestri@lawfirmnaples.com. and service@lawfirmnaples.com, Co-Counsel for Plaintiff,
Glenn N. Siegel, Glenn N. Siegel, P.A., 17825 Murdock Circle, Suite A, Port Charlotte, Florida
33948 at kim@glennsiegellaw.com, Counsel for Gabriel Kirchberger, David K. Oaks, Esq.,
David K. Oaks, P.A., 407 East Marion Avenue, Suite 101, Punta Gorda, Florida 33950 at
doaksesgq@comeast.net, Counsel for Carol DeVille and Southern Shore Enterprises, LLC,
Robert W. Segur, Robert W. Segur P.A., 2828 S. McCall Road PMB 56, Englewood, Florida
34224 at legal@segurlaw.net, Counsel
for Moonstone Holdings, LLC.
By:_/s/ Ryan W. Owen
Ryan W. Owen
Florida Bar No.: 0029355
Drew F. Chesanek
Florida Bar No.: 0115933
56189243v1
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
HARRY BIEBERSTEIN,
Plaintiff,
Vv. Case No. 17-CA-917
GABRIEL KIRCHBERGER, CAROL DEVILLE,
SOUTHERN SHORES ENTERPRISES, LLC,
a Florida limited liability company, and
MOONSTONE HOLDINGS, LLC, a Nevada
limited liability company,
Defendants.
/
REVISED SECOND AMENDED COMPLAINT
Plaintiff, HARRY BIEBERSTEIN, sues Defendants, GABRIEL KIRCHBERGER,
CAROL DEVILLE, CHRISTINE FRAZER, ANDREAS KIRCHBERGER, NICLAS X.
KIRCHBERGER, MOONSTONE HOLDINGS, LLC, SOUTHERN SHORES ENTERPRISES,
LLC, and GOLDEN KEY PROPERTIES, LLC, and alleges:
GENERAL ALLEGATIONS
Jurisdiction and Venue
1 This is a multi-count action that seeks damages in excess of $15,000, seeks to
avoid fraudulent transfers, and seeks to have certain corporate entities declared to be alter egos of
the debtor, and seeks to establish and set aside secret trusts in which assets of the debtor are held.
Accordingly, this Court has subject matter jurisdiction.
2. Venue is proper in Charlotte County, Florida.
3 This Court has personal jurisdiction over each of the Defendants based upon their
residence in Florida and/or their substantial business activities in Florida.
56156644-1
Parties
4 Plaintiff HARRY BIEBERSTEIN (“Bieberstein’”) is, and at all times mentioned
herein, was a resident of Toronto, Ontario, Canada. Bieberstein also owns real property in Collier
County, Florida.
5 Bieberstein is the assignee of certain debt obligations from Berlin-Hannoversche
Hypothekenbank (“Berlin Hypo Bank”) representing monies owed by Defendant GABRIEL
KIRSHBERGER (“Gabriel”).
6 Defendant Gabriel is an individual who resides, or at the time of filing the initial
complaint in this action resided, at 15204 Leipzig Circle, Port Charlotte, Florida 33981.
7 Defendant CAROL DEVILLE (“DeVille”) is an individual who resides or at the
time of filing the initial complaint in this action resided at 15204 Leipzig Circle, Port Charlotte,
Florida 33981.
8 DeVille is Gabriel’s longtime fiancée.
9 Defendant CHRISTINE FRAZER (“Frazer”) is an individual who, upon
information and belief, resides in Pinellas County, Florida.
10. Frazer is the daughter of Gabriel.
11. Defendant ANDREAS KIRCHBERGER (“Andreas”) is an individual who, upon
information and belief, resides in Sarasota County, Florida.
12. Andreas is the son of Gabriel.
13. Defendant NICLAS X. KIRCHBERGER (“Niclas”) is an individual who, upon
information and belief, resides in Charlotte County, Florida.
14. Niclas is also the son of Gabriel.
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15. Defendant MOONSTONE HOLDINGS, LLC (“Moonstone”) is a Nevada limited.
liability company which is authorized and does business in Charlotte County, Florida.
16. From the time of its formation on December 9, 2011 until May 1, 2019, Gabriel
was the sole member of Moonstone. On May 1, 2019, Gabriel transferred 100% of the
membership interest in Moonstone to Niclas. See Assignment of Membership Interest attached
hereto as Exhibit “1.”
17. Despite the fact that Gabriel was the sole member of Moonstone, he has never
been listed as a member or manager on its Articles of Organization or its Annual Reports filed
with Nevada’s Secretary of State. See Certified Copies of Records attached hereto as Exhibit
“2.” Instead, Gabriel’s daughter, Frazer, Gabriel’s son, Niclas, and others have been listed on
such reports in order to disguise Moonstone’s true ownership.
18. Defendant SOUTHERN SHORES ENTERPRISES, LLC (“Southern”) is a
Florida limited liability company which is authorized and does business in Charlotte County,
Florida.
19, Southern was formed by an attorney, Thomas C. Nash, II, in 2010. When it filed
its first annual report in 2011, Gabriel was listed as a managing member. Upon information and
belief, Gabriel is and has been a member, if not the sole member of Southern, from the time of its
formation until the present. However, its annual reports filed with Florida’s Secretary of State
list others as members in order to disguise its true ownership.
20. Defendant GOLDEN KEY PROPERTIES, LLC (“Golden”) is a Florida limited
liability company which is authorized and does business in Charlotte County, Florida. Its annual
report filed with the Florida Secretary of State currently lists Gabriel’s son, Andreas, as its
manager.
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21. Upon information and belief, Gabriel is and has been a member, if not the sole
member of Golden, from the time of its formation until the present. However, its annual reports
filed with Florida’s Secretary of State list others as members in order to disguise its true
ownership.
22. Tellingly, an endorsement of “The Lot Guy” by Gabriel formerly appeared on the
website www.thelotguy.com/testimonials wherein Gabriel was said to be affiliated with “Golden
Key Real Estate Trust.” See Exhibit “3.” Additionally, in a January 17, 2013 press release,
Gabriel was described as an investor in single family homes who has made a couple commercial
investments for cash flow. He was quoted as saying “I am glad to know [HG Real Estate
Services] is dealing with commercial properties now. They provide very good property
management service for residential properties and am glad they are moving into commercial.
They already have one steady customer.. e.” See Exhibit “4.” At that time, Gabriel had no
commercial real estate holdings in his individual name. However, Southern was investing in
residential properties and Golden was investing in commercial properties. See Exhibits “5-A”
through “5-E.”
Gabriel’s Debt to Bieberstein
23. Between 1992 and 1998, Gabriel borrowed certain sums from Berlin Hypo Bank,
a German banking corporation, that specializes in loans for the acquisition and improvement of
real property in Germany in elsewhere. In connection with the borrowing, Gabriel executed the
seven (7) notarized “Debt Acknowledgements” attached hereto as Exhibit “6-A” through “6-
a” Under German law, these Acknowledgement are enforceable against any and all of
Gabriel’s assets wherever located.
56022583-1
24. Plaintiff is the assignee of the civil and commercial debt owed by Gabriel to
Berlin Hypo Bank and all choses in action with respect to the actionable wrongs committed by
Gabriel against Berlin Hypo Bank. The Declaration of Assignment is attached hereto as Exhibit
“79
25. Plaintiff has previously brought suit against Gabriel in Ontario, Canada and has
obtained a judgment declaring that the Debt Acknowledgments are enforceable and that Plaintiff
is entitled to enforce them. A copy of said judgment is attached hereto as Exhibit “8.”
Gabriel’s Transfers to DeVille, Southern, and Moonstone
26. While the Plaintiffs action in Ontario, Canada was pending, Gabriel began
transferring Florida assets to DeVille, Southern, and Moonstone.
27. Specifically, via a quit claim deed that was purportedly executed on November
14, 2011 and was not recorded until January 4, 2012, Gabriel transferred the real property
located at 7135 Beardsley Street, Englewood, Florida 34224 and legally described as
Lot 36, Block 3541, PORT CHARLOTTE SUBDIVISION, SECTION 64, a
subdivision according to the Plat thereof, recorded in Plat Book 5, Pages 78A
through 78F, of the Public Records of Charlotte County, Florida
to DeVille purportedly in exchange for $10.00. See Exhibit “9.” Gabriel purchased this
property on November 16, 2011 for $70,000.00. See Exhibit “10.”
28. Additionally, Gabriel transferred his interest in the following fifteen (15)
properties to Southern:
a. 368 Bonsell Lane, Port Charlotte, Florida 33953, which is legally described
as:
Lot 5, Block 2525 PORT CHARLOTTE SUBDIVISION,
SECTION 47, as per plat thereof recorded in Plat Book 5, page
61A, Public Records of Charlotte County, Florida
56022583-1
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Book 3591, Page 1464 of the Public Records of Charlotte
County, Florida on August 8, 2011, a copy of which is attached hereto as
Exhibit “11,” purportedly in exchange for payment in the amount of
$4,500.00. This was the transfer of Gabriel’s one-half interest in the property
which he previously owned jointly with DeVille. Gabriel and DeVille
purchased the property for $9,800.00 on August 11, 2008. See Exhibit “12.”
As of the filing of this Second Amended Complaint, Southern still owns its
one-half interest in this property.
12038 Green Gulf Blvd., Port Charlotte, Florida 33955, which is legally
described as:
Lot 8, Block 81, TROPICAL GULF ACRES, UNIT 6, as per plat
thereof recorded in Plat Book 3, pages 67A through 67F, Public
Records of Charlotte County, Florida
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Book 3591, Page 1463 of the Public Records of Charlotte
County, Florida on August 18, 2011, a copy of which is attached hereto as
Exhibit “13,” purportedly in exchange for payment in the amount of
$3,500.00. This was the transfer of Gabriel’s one-half interest in the property
which he previously owned jointly with DeVille. Gabriel and DeVille
purchased the property for $8,300.00 on August 28, 2008. See Exhibit “14.”
As of the filing of this Second Amended Complaint, Southern still owns its
one-half interest in this property.
c. 28 Lime Street, Englewood, Florida 34223, which is legally described as:
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Lot 49, LASBURY PINEACRES ENGLEWOOD, according to
the map or plat thereof recorded in Plat Book 5, page 81, of the
Public Records of Sarasota County, Florida
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Instrument Number 2011090861 of the Public Records of
Sarasota County, Florida on August 4, 2011, a copy of which is attached
hereto as Exhibit “15,” purportedly in exchange for payment in the amount of
$40,300.00. Gabriel purchased the property for $30,000.00 on April 15, 2011.
See Exhibit “16.” Southern sold this property for $150,000.00 on July 24,
2018.
2141 Longworthy Road, North Port, Florida 34288, which is legally described
as:
Lot 26, Block 1559 of 32“ ADDITION TO PORT CHARLOTTE
SUBDIVISION, a subdivision according to the map or plat thereof
recorded in Plat Book 15, Page 16, of the Public Records of
Sarasota County, Florida
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Instrument Number 2011090860 of the Public Records of
Sarasota County, Florida on August 4, 2011, a copy of which is attached
hereto as Exhibit “17,” purportedly in exchange for payment in the amount of
$66,000.00. Gabriel purchased the property for $68,000.00 on March 18,
2011. See Exhibit “18.” Southern sold this property for $118,000.00 on
December 6, 2012.
4868 England Avenue, North Port, Florida 34288, which is legally described
as:
56022583-1
Lot 23, Block 948 of 22N? ADDITION TO PORT CHARLOTTE
SUBDIVISION, a subdivision according to the map or plat thereof
recorded in Plat Book 14, Page 10, of the Public Records of
Sarasota County, Florida
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Instrument Number 2011080865 of the Public Records of
Sarasota County, Florida on August 4, 2011, a copy of which is attached
hereto as Exhibit “19,” purportedly in exchange for payment in the amount of
$62,100.00. Gabriel purchased the property for $70,000.00 on May 3, 2011.
See Exhibit “20.” As of the filing of this Second Amended Complaint,
Souther still owns this property.
5765 N. Biscayne Drive, North Port, Florida 34291, which is legally described
as:
Lot 17, Block 1370 of 28TH ADDITION TO PORT
CHARLOTTE SUBDIVISION, a subdivision according to the
map or plat thereof recorded in Plat Book 15, Page 12, 12A
through 12K, inclusive, of the Public Records of Sarasota County,
Florida
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Instrument Number 2011090864 of the Public Records of
Sarasota County, Florida on August 4, 2011, a copy of which is attached
hereto as Exhibit “21,” purportedly in exchange for payment in the amount of
$70,000.00. Gabriel purchased the property for $70,000.00 on March 23,
2011. See Exhibit “22.” Southern sold this property for $125,000.00 on
January 1, 2014.
g. 2276 Yancy Street, North Port, Florida 34291, which is legally described as:
56022583-1
Lot 9, Block 568 of 16TH ADDITION TO PORT CHARLOTTE
SUBDIVISION, a subdivision according to the map or plat thereof
recorded in Plat Book 14, Pages 6, 6A through 6V, inclusive, of
the Public Records of Sarasota County, Florida
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Instrument Number 2011090862 of the Public Records of
Sarasota County, Florida on August 4, 2011, a copy of which is attached
hereto as Exhibit “23,” purportedly in exchange for payment in the amount of
$64,900.00. Gabriel purchased the property for $60,000.00 on February 11,
2011. See Exhibit “24.” As of the filing of this Second Amended
Complaint, Southern still owns this property.
3188 Tupelo Avenue, North Port, Florida 34286, which is legally described
as:
Lot 9, Block 419 of 9TH ADDITION TO PORT CHARLOTTE
SUBDIVISION, a subdivision according to the map or plat thereof
recorded in Plat Book 12, Page 21 of the Public Records of
Sarasota County, Florida
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Instrument Number 2011090863 of the Public Records of
Sarasota County, Florida on August 4, 2011, a copy of which is attached
hereto as Exhibit “25,” purportedly in exchange for payment in the amount of
$57,500.00. Gabriel purchased the property for $55,000.00 on April 25, 2011.
See Exhibit “26.” Southern sold this property for $150,000.00 on October
10, 2018.
27209 Sandrala Drive, Punta Gorda, Florida 33955, which is legally described
as:
56022583-1
Lot 1, Block 277 TROPICAL GULF ACRES, UNIT 10, as per plat
thereof recorded in Plat Book 4, Pages 76A through 76N, of the
Public Records of Charlotte County, Florida
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Instrument Book 3591, Page 1467 of the Public Records of
Charlotte County, Florida on August 18, 2011, a copy of which is attached
hereto as Exhibit “27,” purportedly in exchange for payment in the amount of
$3,500.00. Gabriel purchased the property for $7,800.00 on November 6,
2008. See Exhibit “28.” As of the filing of this Second Amended
Complaint, Southern still owns this property.
40 Bunker Road, Rotunda West, Florida 33947, which is legally described as:
Lot 818, ROTUNDA WEST PEBBLE BEACH, according to the
map or plat thereof as recorded in Plat Book 8, Pages 13A through
13L, of the Public Records of Charlotte County, Florida
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Instrument Book 3591, Page 1465 of the Public Records of
Charlotte County, Florida on August 18, 2011, a copy of which is attached
hereto as Exhibit “29,” purportedly in exchange for payment in the amount of
$123,000.00. Gabriel purchased the property for $50,000.00 on November 5,
2010. See Exhibit “30.” Southern sold this property for $132,000.00 on
November 30, 2016.
k. 37 Marker Road, Rotunda West, Florida 33947, which is legally described as:
Lot 478, ROTUNDA WEST LONG MEADOW, according to the
map or plat thereof as recorded in Plat Book 8, Page 19A of the
Public Records of Charlotte County, Florida
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was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Instrument Book 3591, Page 1466 of the Public Records of
Charlotte County, Florida on August 18, 2011, a copy of which is attached
hereto as Exhibit “31,” purportedly in exchange for payment in the amount of
$314,600.00. Gabriel purchased the property for $145,000.00 on January 31,
2011. See Exhibit “32.” Southern sold this property for $230,000.00 on May
18, 2016.
2699 Seville Blvd, #602, Clearwater, Florida 33764, which is legally
described as:
Condominium Unit 602, Building B, Seville Condominium 12, a
Condominium, according to the Declaration of Condominium
thereof, as recorded in Official Records Book 4410, Page 1745,
and all amendments thereof, as recorded in Official Records Book
4410, Page 1745, and all amendments thereto and Condominium
Plat Book 22, Page 97 of the Public Records of Pinellas County,
Florida, together with an undivided interest in the comment
elements appurtenant thereto.
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Book 18799, Page 2218 of the Public Records of Pinellas
County, Florida on June 2, 2015, a copy of which is attached hereto as
Exhibit “33,” purportedly in exchange for payment in the amount of $100.00.
Gabriel purchased the property for $84,262.50 on December 12, 2014. See
Exhibit “34.” Southern sold this property for $120,000.00 on March 11,
2016.
10662 Woods Circle, Bonita Springs, Florida 34135, which is legally
described as:
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Lot 13, Woods Estates (unrecorded) according to the plat thereof,
as contained in the deed recorded in Official Records Book 39,
Page 472, of the Public Records of Lee County, Florida, more
particularly described as follows:
Commencing at the Southeast corner of the North % of the
Southwest “4 of the Southeast % of Section 26, Township 47
South, Range 25 East, thence North 89°59°00” West, a distance of
558.64 feet to the Point of Beginning of said Lot 13, Woods
Estates; thence continue North 89°59°00” West a distance of 70.00
feet; thence North 00°00’00” East, a distance of 114.80 feet to the
South right-of-way line of Woods Drive; thence along the South
righ to fway North 90°00’00” East, a distance of 70.00 fee; thence
leaving said right-of-way line South 00°00’00” West, a distance of
114.82 feet to the point of beginning
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Instrument Number 2011000177859 of the Public Records of
Lee County, Florida on August 9, 2011, a copy of which is attached hereto as
Exhibit “35,” purportedly in exchange for payment in the amount of
$84,000.00. Gabriel purchased the property for $69,900.00 on August 18,
2009. See Exhibit “36.” Southern sold this property for $80,000.00 on
September 24, 2012.
2814 69" Street West, Lehigh Acres, Florida 33971, which is legally
described as:
Lot 18, Block 59, Unit 6, Section 1, Lehigh Acres, Township 44
South, Range 26 East, according to the map or plat thereof on file
in the Office of the Clerk of the Circuit Court, recorded in Pat
Book 15, Page 58 of the Public Records of Lee County, Florida.
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Instrument Number 2011000177861 of the Public Records of
Lee County, Florida on August 9, 2011, a copy of which is attached hereto as
Exhibit “37,” purportedly in exchange for payment in the amount of $100.00.
56022583-1 12
This was the transfer of Gabriel’s one-half interest in the property which he
previously owned jointly with DeVille. Gabriel and DeVille purchased the
property for $100.00 on August 11, 2008. See Exhibit “38.” As of the filing
of this Second Amended Complaint, Southern still owns its one-half interest
in this property.
4141 Bellasol Circle, #424, Fort Myers, Florida 33916, which is legally
described as:
Unit 424, Building 4, of Bellasol Condominium3, Phase I, a
Condominium according to the Declaration of Condominium
thereof, recorded in Official Records Instrument No.
2005000010599, of the Public Records of Lee County, Florida,
together with its undivided share in the common elements, and any
amendments thereto.
was transferred from Gabriel to Southern via Quit Claim Deed recorded at
Official Records Instrument Number 2011000177860 of the Public Records of
Lee County, Florida on August 9, 2011, a copy of which is attached hereto as
Exhibit “39,” purportedly in exchange for payment in the amount of
$36,800.00. Gabriel purchased the property for $91,100.00 on September 23,
2008. See Exhibit “40.” Southern sold this property for $100,000.00 on
February 13, 2017.
29. Finally, Gabriel transferred at least (3) properties to Moonstone
a. 602, 608, 612, 618, and 622 Harvard Street, Englewood, Florida 34223, which
is legally described as:
Lot 8, Block C, PLAT OF ENGLEWOOD, according to the plat
thereof recorded in Plat Book A, Page 29, of the Public Records of
Sarasota County, Florida, LESS the East 15 feet for Road Right-of-
Way
56022583-1 13
was transferred from Gabriel to Moonstone via Warranty Deed recorded at
Official Records Instrument Number 2012022856 of the Public Records of
Sarasota County, Florida on February 23, 2012, a copy of which is attached
hereto as Exhibit “41,” purportedly in exchange for payment in the amount of
$100.00. Gabriel purchased the property for $170,000.00 on November 16,
2011. See Exhibit “42.” Moonstone sold this property for $340,000.00 on
December 22, 2014.
3417 Junction Street, North Port, Florida 34288, which is legally described as:
Lot 2, Block 763, 12™ ADDITION TO PORT CHARLOTTE
SUBDIVISION, according to the map or plat thereof recorded in
Plat Book 8, Pages 8, 8A through 8V, inclusive, of the Public
Records of Sarasota County, Florida
was transferred from Gabriel to Moonstone via Warranty Deed recorded at
Official Records Instrument Number 2012022856 of the Public Records of
Sarasota County, Florida on February 23, 2012, a copy of which is attached
hereto as Exhibit “43,” purportedly in exchange for payment in the amount of
$100.00. Gabriel purchased the property for $52,500.00 on August 17, 2011.
See Exhibit “44.” As of the filing of this Second Amended Complaint,
Moonstone still owns this property.
1517 West Clinton Street, Tampa, Florida 33604, which is legally described
as:
Lot 209 and the West 30.40 feet of Lot 210, together with the
South % vacated alley abutting on the Nort, SOUTH WILMA,
according to the map or plat thereof recorded in Plat Book 19,
Page 11, of the Public Records of Hillsborough County, Florida
56022583-1 14
was transferred from Gabriel to Moonstone via Warranty Deed recorded at
Official Records Book 21392, Page 274 of the Public Records of Hillsborough
County, Florida on September 27, 2012, a copy of which is attached hereto as
Exhibit “45,” purportedly in exchange for payment in the amount of $100.00.
Gabriel purchased the property for $35,000.00 on October 27, 2011. See
Exhibit “46.” Moonstone sold this property for $70,000.00 on March 31,
2017.
30. Although the foregoing properties were transferred from Gabriel to DeVille,
Moonstone, and Southern, Gabriel continues to control ownership and/or receive the benefits of
ownership. For purposes of ownership of the properties Moonstone and Southern are nothing
more than Gabriel’s alter ego.
COUNT I~ COLLECTION OF INDEBTEDNESS
(Collection of the Debt Obligations from Gabriel)
31. This is an action to collect indebtedness in an amount in excess of $15,000.
32. Plaintiff re-alleges the allegations of paragraphs 1-6 and 23-25 as though fully set
forth herein.
33. As provided for by German law, the Debt Acknowledgments constitute a
continuing collateral security on all of Gabriel’s real and personal property that is enforceable as
if it were a judgment by a German court and has the same legal effect as a judgment of a court
for which execution issue without further legal requirements. The original amount of the debt
owed by Gabriel to Berlin Hypo Bank which was subsequently assigned to Plaintiff was
7,314,892.25 Euros as of December 31, 2009 which has been accumulating interest at the rate of
14% per annum from that date.
56022583-1 15
34, Under German law, Berlin Hypo Bank and Plaintiff, as assignee of Berlin Hypo
Bank as holder of the Notarized Debt Acknowledgement of Kirchberger is permitted to seize all
of Kirchberger’s real and personal property on demand without further recourse.
35. The Debt Acknowledgments are in default and the principal amount, accumulated
interest and costs due on each of those loans as of August 31, 2018 is as follows:
a. Exhibit “6-A” - €793,415.06
b Exhibit “6-B” & Exhibit “6-C” — €2,435,372.83
Exhibit “6-D” - €396,774.52
Exhibit “6-E” - €388,887.63
€. Exhibit “6-F” - €2,019,571.15
f, Exhibit “6-G” - €3,095,569.25.
36. All conditions precedent to bringing this action have been met, performed or
otherwise waived by Gabriel.
37. Plaintiff has retained the undersigned attorneys to represent him in this action and
has agreed to pay them a reasonable fee for their services. Pursuant to the Debt
Acknowledgements, Plaintiff is entitled to an award in his favor and against Gabriel in the
amount of his reasonable attorneys’ fees.
WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, demands judgment against
GABRIEL KIRCHBERGER for damages, prejudgment interest, reasonable attorneys’ fees,
costs, and such other relief as this Court deems just and proper.
COUNT II —- UNIFORM FRAUDULENT TRANSFER ACT
(as to Defendant Southern re: 2699 Seville Blvd, #602, Clearwater, Florida 33764)
38. This is an action for relief pursuant to Chapter 726 of the Florida Statutes.
56022583-1 16
39, Plaintiff re-alleges the allegations of paragraphs 1-6, 18-19, 23-25, 28(1), 30, and
33-35 as though fully set forth herein.
40. The June 2, 2015 transfer of 2699 Seville Blvd, #602, Clearwater, Florida 33764
from Gabriel to Southern violated the Florida Uniform Fraudulent Transfers Act (“FUFTA”)
because it was made with actual intent to hinder, delay and defraud Plaintiffs efforts to
collect the amounts owed under the Debt Acknowledgments in violation of § 726.105, Fla.
Stat., as the transfer was either made (a) with the actual intent to hinder, delay or defraud any
of Gabriel’s creditors; or (b) without receiving reasonably equivalent value at a time when
Gabriel had incurred debts which were beyond his ability to pay as they became due. Facts
establishing that the transfer was made with the actual intent to hinder, delay, or defraud
Gabriel’s creditors include: (x) that the transfer was an insider; (y) Gabriel had been sued by
Plaintiff in Ontario, Canada prior to the transfer; and (z) that the value of received in exchange
for the transfer was not reasonably equivalent.
41. Alternatively, the June 2, 2015 transfer of 2699 Seville Blvd, #602, Clearwater,
Florida 33764 from Gabriel to Southern violated FUFTA because it was made with
constructive intent to hinder, delay and defraud Plaintiffs efforts to collect the amounts owed
under the Debt Acknowledgments in violation of § 726.106(1), Fla. Stat., as the transfer was
made without Gabriel receiving reasonably equivalent value in exchange for the transfer and
Gabriel was insolvent at the time of the transfer.
42. As a result, the transfer is voidable by the Plaintiff pursuant to § 726.108, Fla.
Stat. and Plaintiff is entitled to judgment against Southern in an amount equal to the difference
between the value of 2699 Seville Blvd, #602, Clearwater, Florida 33764 as of June 2, 2015 and
the consideration paid by Southern.
56022583-1 17
WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, demands judgment against
Defendant SOUTHERN SHORE ENTERPRISES, LLC, for damages, prejudgment interest,
costs, and such other relief as this Court deems just and proper.
COUNT III — UNIFORM FRAUDULENT TRANSFER ACT
(as to Defendant Niclas re: Membership Interest in Moonstone)
43. This is an action for relief pursuant to Chapter 726 of the Florida Statutes.
44, Plaintiff re-alleges the allegations of paragraphs 1-6, 18-19, 23-25, and 33-35 as
though fully set forth herein.
45. The May 1, 2019 transfer of 100% of the membership interest in Moonstone from
Gabriel to Niclas violated FUFTA because it was made with actual intent to hinder, delay and
defraud Plaintiff's efforts to collect the amounts owed under the Debt Acknowledgments in
violation of § 726.105, Fla. Stat., as the transfer was either made (a) with the actual intent to
hinder, delay or defraud any of Gabriel’s creditors; or (b) without receiving reasonably
equivalent value at a time when Gabriel had incurred debts which were beyond his ability to
pay as they became due. Facts establishing that the transfer was made with the actual intent to
hinder, delay, or defraud Gabriel’s creditors include: (x) that the transfer was to Gabriel’s son,
an insider; (y) Gabriel had been sued by Plaintiff in Ontario, Canada prior to the transfer; and
(z) that the value of received in exchange for the transfer was not reasonably equivalent.
46. Alternatively, the May 1, 2019 transfer of 100% of the membership interest in
Moonstone from Gabriel to Niclas violated the Florida Uniform Fraudulent Transfers Act
(“FUFTA”) because it was made with constructive intent to hinder, delay and defraud
Plaintiff's efforts to collect the amounts owed under the Debt Acknowledgments in violation of
§ 726.106(1), Fla. Stat., as the transfer was made without Gabriel receiving reasonably
56022583-1 18
equivalent value in exchange for the transfer and Gabriel was insolvent at the time of the
transfer.
47. As a result, the transfer is voidable by the Plaintiff pursuant to § 726.108, Fla.
Stat. and Plaintiff is entitled to judgment setting aside the transfer, attachment against the
membership interest in Moonstone or other Niclas’ other property, an injunction against further
disposition against Gabriel and Niclas, appointment of a receiver to take charge of the
membership interest, and, once judgment upon Count I is obtained, execution on the membership
interest.
WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, demands judgment against
Defendant NICLAS X. KIRCHBERGER, judgment setting aside the transfer, attachment
against the membership interest in Moonstone or other Niclas’ other property, an injunction
against further disposition against Gabriel and Niclas, appointment of a receiver to take charge
of the membership interest, once judgment upon Count I is obtained, execution on the
membership interest, and such other relief as this Court deems just and proper.
COUNT IV — DECLARATORY RELIEF
(Declaration that Southern is Gabriel’s Alter Ego)
48. This is an action for declaratory relief pursuant to Chapter 86 of the Florida
Statutes which seeks a declaration that Gabriel is the de facto owner of Southern, that Southern
is Gabriel’s alter ego, and that Southern and its assets are otherwise amenable to execution in
connection with Gabriel’s indebtedness to Plaintiff.
49. Plaintiff re-alleges the allegations of paragraphs 1-30 and 33-35 as though fully
set forth herein.
56022583-1 19
50. Plaintiff has an interest in the outcome of this matter because, should this Court
determine that Southern is Gabriel’s alter ego, then Southern and its assets will be available to
satisfy Gabriel’s indebtedness to Plaintiff.
51. Southern owns the following real property as Gabriel’s alter ego:
a. 2276 Yancy Street, North Port, Florida 34291, which is legally described as:
Lot 9, Block 568 of 16TH ADDITION TO PORT CHARLOTTE
SUBDIVISION, a subdivision according to the map or plat thereof
recorded in Plat Book 14, Pages 6, 6A through 6V, inclusive, of
the Public Records of Sarasota County, Florida
13035 South Tamiami Trail, North Port, Florida 34287, which is legally
described as:
Lots 17 and 18, Block 933, Fifteenth Addition to Port Charlotte
Subdivision, according to the Plat thereof as recorded in Plat Book 13,
Pages 14, 14A through 14B, of the Public Records of Sarasota County,
Florida
13075 South Tamiami Trail, North Port, Florida 34287, which is legally
described as:
Lot 19, Block 933, Fifteenth Addition to Port Charlotte Subdivision,
according to the Plat thereof as recorded in Plat Book 13, Pages 14, 14A
through 14B, of the Public Records of Sarasota County, Florida
4868 England Avenue, North Port, Florida 34288, which is legally described
as:
Lot 23, Block 948 of 22N? ADDITION TO PORT CHARLOTTE
SUBDIVISION, a subdivision according to the map or plat thereof
recorded in Plat Book 14, Page 10, of the Public Records of Sarasota
County, Florida
368 Bonsell Lane, Port Charlotte, Florida 33953, which is legally described
as:
56022583-1 20
Lot 5, Block 2525 PORT CHARLOTTE SUBDIVISION,
SECTION 47, as per plat thereof recorded in Plat Book 5, page
61A, Public Records of Charlotte County, Florida
12038 Green Gulf Blvd., Port Charlotte, Florida 33955', which is legally
described as:
Lot 8, Block 81, TROPICAL GULF ACRES, UNIT 6, as per plat thereof
recorded in Plat Book 3, pages 67A through 67F, Public Records of
Charlotte County, Florida
1810 and 1814 El Jobean Road and 1933 Royalview Drive, Port Charlotte,
Florida 33948, which is legally described as:
Lots 9, 65, and 66, Block 655, PORT CHARLOTTE SUBDIVISION,
SECTION 41, as per plat thereof recorded in Plat Book 5, pages 51, 51A.
through 51K, Public Records of Charlotte County, Florida
1435 Collingwood Blvd, Units A-G Port Charlotte, Florida 33948, which is
legally described as:
Lots 23 and 24, Block 658, PORT CHARLOTTE SUBDIVISION,
SECTION 41, as per plat thereof recorded in Plat Book 5, pages 51, 51A
through 51K, Public Records of Charlotte County, Florida
4169 Electric Way, Port Charlotte, Florida 33980, which is legally described
as:
Lot 3, HARBOR EXECUTIVE PARK, according to the plat thereof
recorded in Plat Book 15 Pages 30A through 30B, Public Records of
Charlotte County, Florida
10508 Gulfstream Boulevard, Englewood, Florida 34224, which is legally
described as:
Lot 17, Block 3664, PORT CHARLOTTE SUBDIVISION, SECTION
64, as per plat thereof recorded in Plat Book 5, Pages 78A through 78F,
Public Records of Charlotte County, Florida
' One-half interest with DeVille.
56022583-1 21
27209 Sandrala Drive, Punta Gorda, Florida 33955, which is legally described
as:
Lot 1, Block 277 TROPICAL GULF ACRES, UNIT 10, as per plat
thereof recorded in Plat Book 4, Pages 76A through 76N, of the
Public Records of Charlotte County, Florida
2814 69" Street West, Lehigh Acres, Florida 339717, which is legally
described as:
Lot 18, Block 59, Unit 6, Section 1, Lehigh Acres, Township 44
South, Range 26 East, according to the map or plat thereof on file
in the Office of the Clerk of the Circuit Court, recorded in Pat
Book 15, Page 58 of the Public Records of Lee County, Florida.
52. Upon information and belief, any members or managers who appear as the
members or managers of Southern in the records of the Secretary of State are solely agents or
nominees of Gabriel who serve in order to disguise the true ownership of Southern. In fact,
Southern is owned and controlled by Gabriel who receives the benefits of its ownership and,
directly or indirectly, receives its income. The belief is based upon:
a. The discrepancies in the amounts Gabriel paid for the properties described in
Preview
Filing # 90695966 E-Filed 06/06/2019 02:35:19 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION HARRY BIEBERSTEIN, Plaintiff, Vv. Case No. 17-CA-917 GABRIEL KIRCHBERGER, et al., Defendants. / NOTICE OF FILING REVISED SECOND AMENDED COMPLAINT NOTICE IS HEREBY GIVEN that Plaintiff's Revised Second Amended Complaint has been filed for record this 6" day of June 2019 in the above-styled cause. ADAMS AND REESE LLP 1515 Ringling Boulevard, Suite 700 Sarasota, Florida 34236 Primary: ryan.owen@arlaw.com Primary: drew.chesanek@arlaw.com Secondary: deborah. woodson@arlaw.com Telephone: (941) 316-7600 Co-Counsel for Plaintiff By:_/s/ Ryan W. Owen Ryan W. Owen Florida Bar No.: 0029355 Drew F. Chesanek Florida Bar No.: 0115933 56189243v1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing document on June 6, 2019 with the Clerk of Court using the Florida Courts E-Filing Portal, which will send a notice of electronic filing to: Mark Slack, Woods, Weidenmiller, Michetti & Rudnick, LLP, 9045 Strada Stell Court, Suite 400, Naples, Florida 34109 at mslack@lawfirmnaples.com, msilvestri@lawfirmnaples.com. and service@lawfirmnaples.com, Co-Counsel for Plaintiff, Glenn N. Siegel, Glenn N. Siegel, P.A., 17825 Murdock Circle, Suite A, Port Charlotte, Florida 33948 at kim@glennsiegellaw.com, Counsel for Gabriel Kirchberger, David K. Oaks, Esq., David K. Oaks, P.A., 407 East Marion Avenue, Suite 101, Punta Gorda, Florida 33950 at doaksesgq@comeast.net, Counsel for Carol DeVille and Southern Shore Enterprises, LLC, Robert W. Segur, Robert W. Segur P.A., 2828 S. McCall Road PMB 56, Englewood, Florida 34224 at legal@segurlaw.net, Counsel for Moonstone Holdings, LLC. By:_/s/ Ryan W. Owen Ryan W. Owen Florida Bar No.: 0029355 Drew F. Chesanek Florida Bar No.: 0115933 56189243v1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION HARRY BIEBERSTEIN, Plaintiff, Vv. Case No. 17-CA-917 GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORES ENTERPRISES, LLC, a Florida limited liability company, and MOONSTONE HOLDINGS, LLC, a Nevada limited liability company, Defendants. / REVISED SECOND AMENDED COMPLAINT Plaintiff, HARRY BIEBERSTEIN, sues Defendants, GABRIEL KIRCHBERGER, CAROL DEVILLE, CHRISTINE FRAZER, ANDREAS KIRCHBERGER, NICLAS X. KIRCHBERGER, MOONSTONE HOLDINGS, LLC, SOUTHERN SHORES ENTERPRISES, LLC, and GOLDEN KEY PROPERTIES, LLC, and alleges: GENERAL ALLEGATIONS Jurisdiction and Venue 1 This is a multi-count action that seeks damages in excess of $15,000, seeks to avoid fraudulent transfers, and seeks to have certain corporate entities declared to be alter egos of the debtor, and seeks to establish and set aside secret trusts in which assets of the debtor are held. Accordingly, this Court has subject matter jurisdiction. 2. Venue is proper in Charlotte County, Florida. 3 This Court has personal jurisdiction over each of the Defendants based upon their residence in Florida and/or their substantial business activities in Florida. 56156644-1 Parties 4 Plaintiff HARRY BIEBERSTEIN (“Bieberstein’”) is, and at all times mentioned herein, was a resident of Toronto, Ontario, Canada. Bieberstein also owns real property in Collier County, Florida. 5 Bieberstein is the assignee of certain debt obligations from Berlin-Hannoversche Hypothekenbank (“Berlin Hypo Bank”) representing monies owed by Defendant GABRIEL KIRSHBERGER (“Gabriel”). 6 Defendant Gabriel is an individual who resides, or at the time of filing the initial complaint in this action resided, at 15204 Leipzig Circle, Port Charlotte, Florida 33981. 7 Defendant CAROL DEVILLE (“DeVille”) is an individual who resides or at the time of filing the initial complaint in this action resided at 15204 Leipzig Circle, Port Charlotte, Florida 33981. 8 DeVille is Gabriel’s longtime fiancée. 9 Defendant CHRISTINE FRAZER (“Frazer”) is an individual who, upon information and belief, resides in Pinellas County, Florida. 10. Frazer is the daughter of Gabriel. 11. Defendant ANDREAS KIRCHBERGER (“Andreas”) is an individual who, upon information and belief, resides in Sarasota County, Florida. 12. Andreas is the son of Gabriel. 13. Defendant NICLAS X. KIRCHBERGER (“Niclas”) is an individual who, upon information and belief, resides in Charlotte County, Florida. 14. Niclas is also the son of Gabriel. 56022583-1 15. Defendant MOONSTONE HOLDINGS, LLC (“Moonstone”) is a Nevada limited. liability company which is authorized and does business in Charlotte County, Florida. 16. From the time of its formation on December 9, 2011 until May 1, 2019, Gabriel was the sole member of Moonstone. On May 1, 2019, Gabriel transferred 100% of the membership interest in Moonstone to Niclas. See Assignment of Membership Interest attached hereto as Exhibit “1.” 17. Despite the fact that Gabriel was the sole member of Moonstone, he has never been listed as a member or manager on its Articles of Organization or its Annual Reports filed with Nevada’s Secretary of State. See Certified Copies of Records attached hereto as Exhibit “2.” Instead, Gabriel’s daughter, Frazer, Gabriel’s son, Niclas, and others have been listed on such reports in order to disguise Moonstone’s true ownership. 18. Defendant SOUTHERN SHORES ENTERPRISES, LLC (“Southern”) is a Florida limited liability company which is authorized and does business in Charlotte County, Florida. 19, Southern was formed by an attorney, Thomas C. Nash, II, in 2010. When it filed its first annual report in 2011, Gabriel was listed as a managing member. Upon information and belief, Gabriel is and has been a member, if not the sole member of Southern, from the time of its formation until the present. However, its annual reports filed with Florida’s Secretary of State list others as members in order to disguise its true ownership. 20. Defendant GOLDEN KEY PROPERTIES, LLC (“Golden”) is a Florida limited liability company which is authorized and does business in Charlotte County, Florida. Its annual report filed with the Florida Secretary of State currently lists Gabriel’s son, Andreas, as its manager. 56022583-1 21. Upon information and belief, Gabriel is and has been a member, if not the sole member of Golden, from the time of its formation until the present. However, its annual reports filed with Florida’s Secretary of State list others as members in order to disguise its true ownership. 22. Tellingly, an endorsement of “The Lot Guy” by Gabriel formerly appeared on the website www.thelotguy.com/testimonials wherein Gabriel was said to be affiliated with “Golden Key Real Estate Trust.” See Exhibit “3.” Additionally, in a January 17, 2013 press release, Gabriel was described as an investor in single family homes who has made a couple commercial investments for cash flow. He was quoted as saying “I am glad to know [HG Real Estate Services] is dealing with commercial properties now. They provide very good property management service for residential properties and am glad they are moving into commercial. They already have one steady customer.. e.” See Exhibit “4.” At that time, Gabriel had no commercial real estate holdings in his individual name. However, Southern was investing in residential properties and Golden was investing in commercial properties. See Exhibits “5-A” through “5-E.” Gabriel’s Debt to Bieberstein 23. Between 1992 and 1998, Gabriel borrowed certain sums from Berlin Hypo Bank, a German banking corporation, that specializes in loans for the acquisition and improvement of real property in Germany in elsewhere. In connection with the borrowing, Gabriel executed the seven (7) notarized “Debt Acknowledgements” attached hereto as Exhibit “6-A” through “6- a” Under German law, these Acknowledgement are enforceable against any and all of Gabriel’s assets wherever located. 56022583-1 24. Plaintiff is the assignee of the civil and commercial debt owed by Gabriel to Berlin Hypo Bank and all choses in action with respect to the actionable wrongs committed by Gabriel against Berlin Hypo Bank. The Declaration of Assignment is attached hereto as Exhibit “79 25. Plaintiff has previously brought suit against Gabriel in Ontario, Canada and has obtained a judgment declaring that the Debt Acknowledgments are enforceable and that Plaintiff is entitled to enforce them. A copy of said judgment is attached hereto as Exhibit “8.” Gabriel’s Transfers to DeVille, Southern, and Moonstone 26. While the Plaintiffs action in Ontario, Canada was pending, Gabriel began transferring Florida assets to DeVille, Southern, and Moonstone. 27. Specifically, via a quit claim deed that was purportedly executed on November 14, 2011 and was not recorded until January 4, 2012, Gabriel transferred the real property located at 7135 Beardsley Street, Englewood, Florida 34224 and legally described as Lot 36, Block 3541, PORT CHARLOTTE SUBDIVISION, SECTION 64, a subdivision according to the Plat thereof, recorded in Plat Book 5, Pages 78A through 78F, of the Public Records of Charlotte County, Florida to DeVille purportedly in exchange for $10.00. See Exhibit “9.” Gabriel purchased this property on November 16, 2011 for $70,000.00. See Exhibit “10.” 28. Additionally, Gabriel transferred his interest in the following fifteen (15) properties to Southern: a. 368 Bonsell Lane, Port Charlotte, Florida 33953, which is legally described as: Lot 5, Block 2525 PORT CHARLOTTE SUBDIVISION, SECTION 47, as per plat thereof recorded in Plat Book 5, page 61A, Public Records of Charlotte County, Florida 56022583-1 was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Book 3591, Page 1464 of the Public Records of Charlotte County, Florida on August 8, 2011, a copy of which is attached hereto as Exhibit “11,” purportedly in exchange for payment in the amount of $4,500.00. This was the transfer of Gabriel’s one-half interest in the property which he previously owned jointly with DeVille. Gabriel and DeVille purchased the property for $9,800.00 on August 11, 2008. See Exhibit “12.” As of the filing of this Second Amended Complaint, Southern still owns its one-half interest in this property. 12038 Green Gulf Blvd., Port Charlotte, Florida 33955, which is legally described as: Lot 8, Block 81, TROPICAL GULF ACRES, UNIT 6, as per plat thereof recorded in Plat Book 3, pages 67A through 67F, Public Records of Charlotte County, Florida was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Book 3591, Page 1463 of the Public Records of Charlotte County, Florida on August 18, 2011, a copy of which is attached hereto as Exhibit “13,” purportedly in exchange for payment in the amount of $3,500.00. This was the transfer of Gabriel’s one-half interest in the property which he previously owned jointly with DeVille. Gabriel and DeVille purchased the property for $8,300.00 on August 28, 2008. See Exhibit “14.” As of the filing of this Second Amended Complaint, Southern still owns its one-half interest in this property. c. 28 Lime Street, Englewood, Florida 34223, which is legally described as: 56022583-1 Lot 49, LASBURY PINEACRES ENGLEWOOD, according to the map or plat thereof recorded in Plat Book 5, page 81, of the Public Records of Sarasota County, Florida was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Instrument Number 2011090861 of the Public Records of Sarasota County, Florida on August 4, 2011, a copy of which is attached hereto as Exhibit “15,” purportedly in exchange for payment in the amount of $40,300.00. Gabriel purchased the property for $30,000.00 on April 15, 2011. See Exhibit “16.” Southern sold this property for $150,000.00 on July 24, 2018. 2141 Longworthy Road, North Port, Florida 34288, which is legally described as: Lot 26, Block 1559 of 32“ ADDITION TO PORT CHARLOTTE SUBDIVISION, a subdivision according to the map or plat thereof recorded in Plat Book 15, Page 16, of the Public Records of Sarasota County, Florida was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Instrument Number 2011090860 of the Public Records of Sarasota County, Florida on August 4, 2011, a copy of which is attached hereto as Exhibit “17,” purportedly in exchange for payment in the amount of $66,000.00. Gabriel purchased the property for $68,000.00 on March 18, 2011. See Exhibit “18.” Southern sold this property for $118,000.00 on December 6, 2012. 4868 England Avenue, North Port, Florida 34288, which is legally described as: 56022583-1 Lot 23, Block 948 of 22N? ADDITION TO PORT CHARLOTTE SUBDIVISION, a subdivision according to the map or plat thereof recorded in Plat Book 14, Page 10, of the Public Records of Sarasota County, Florida was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Instrument Number 2011080865 of the Public Records of Sarasota County, Florida on August 4, 2011, a copy of which is attached hereto as Exhibit “19,” purportedly in exchange for payment in the amount of $62,100.00. Gabriel purchased the property for $70,000.00 on May 3, 2011. See Exhibit “20.” As of the filing of this Second Amended Complaint, Souther still owns this property. 5765 N. Biscayne Drive, North Port, Florida 34291, which is legally described as: Lot 17, Block 1370 of 28TH ADDITION TO PORT CHARLOTTE SUBDIVISION, a subdivision according to the map or plat thereof recorded in Plat Book 15, Page 12, 12A through 12K, inclusive, of the Public Records of Sarasota County, Florida was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Instrument Number 2011090864 of the Public Records of Sarasota County, Florida on August 4, 2011, a copy of which is attached hereto as Exhibit “21,” purportedly in exchange for payment in the amount of $70,000.00. Gabriel purchased the property for $70,000.00 on March 23, 2011. See Exhibit “22.” Southern sold this property for $125,000.00 on January 1, 2014. g. 2276 Yancy Street, North Port, Florida 34291, which is legally described as: 56022583-1 Lot 9, Block 568 of 16TH ADDITION TO PORT CHARLOTTE SUBDIVISION, a subdivision according to the map or plat thereof recorded in Plat Book 14, Pages 6, 6A through 6V, inclusive, of the Public Records of Sarasota County, Florida was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Instrument Number 2011090862 of the Public Records of Sarasota County, Florida on August 4, 2011, a copy of which is attached hereto as Exhibit “23,” purportedly in exchange for payment in the amount of $64,900.00. Gabriel purchased the property for $60,000.00 on February 11, 2011. See Exhibit “24.” As of the filing of this Second Amended Complaint, Southern still owns this property. 3188 Tupelo Avenue, North Port, Florida 34286, which is legally described as: Lot 9, Block 419 of 9TH ADDITION TO PORT CHARLOTTE SUBDIVISION, a subdivision according to the map or plat thereof recorded in Plat Book 12, Page 21 of the Public Records of Sarasota County, Florida was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Instrument Number 2011090863 of the Public Records of Sarasota County, Florida on August 4, 2011, a copy of which is attached hereto as Exhibit “25,” purportedly in exchange for payment in the amount of $57,500.00. Gabriel purchased the property for $55,000.00 on April 25, 2011. See Exhibit “26.” Southern sold this property for $150,000.00 on October 10, 2018. 27209 Sandrala Drive, Punta Gorda, Florida 33955, which is legally described as: 56022583-1 Lot 1, Block 277 TROPICAL GULF ACRES, UNIT 10, as per plat thereof recorded in Plat Book 4, Pages 76A through 76N, of the Public Records of Charlotte County, Florida was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Instrument Book 3591, Page 1467 of the Public Records of Charlotte County, Florida on August 18, 2011, a copy of which is attached hereto as Exhibit “27,” purportedly in exchange for payment in the amount of $3,500.00. Gabriel purchased the property for $7,800.00 on November 6, 2008. See Exhibit “28.” As of the filing of this Second Amended Complaint, Southern still owns this property. 40 Bunker Road, Rotunda West, Florida 33947, which is legally described as: Lot 818, ROTUNDA WEST PEBBLE BEACH, according to the map or plat thereof as recorded in Plat Book 8, Pages 13A through 13L, of the Public Records of Charlotte County, Florida was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Instrument Book 3591, Page 1465 of the Public Records of Charlotte County, Florida on August 18, 2011, a copy of which is attached hereto as Exhibit “29,” purportedly in exchange for payment in the amount of $123,000.00. Gabriel purchased the property for $50,000.00 on November 5, 2010. See Exhibit “30.” Southern sold this property for $132,000.00 on November 30, 2016. k. 37 Marker Road, Rotunda West, Florida 33947, which is legally described as: Lot 478, ROTUNDA WEST LONG MEADOW, according to the map or plat thereof as recorded in Plat Book 8, Page 19A of the Public Records of Charlotte County, Florida 56022583-1 10 was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Instrument Book 3591, Page 1466 of the Public Records of Charlotte County, Florida on August 18, 2011, a copy of which is attached hereto as Exhibit “31,” purportedly in exchange for payment in the amount of $314,600.00. Gabriel purchased the property for $145,000.00 on January 31, 2011. See Exhibit “32.” Southern sold this property for $230,000.00 on May 18, 2016. 2699 Seville Blvd, #602, Clearwater, Florida 33764, which is legally described as: Condominium Unit 602, Building B, Seville Condominium 12, a Condominium, according to the Declaration of Condominium thereof, as recorded in Official Records Book 4410, Page 1745, and all amendments thereof, as recorded in Official Records Book 4410, Page 1745, and all amendments thereto and Condominium Plat Book 22, Page 97 of the Public Records of Pinellas County, Florida, together with an undivided interest in the comment elements appurtenant thereto. was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Book 18799, Page 2218 of the Public Records of Pinellas County, Florida on June 2, 2015, a copy of which is attached hereto as Exhibit “33,” purportedly in exchange for payment in the amount of $100.00. Gabriel purchased the property for $84,262.50 on December 12, 2014. See Exhibit “34.” Southern sold this property for $120,000.00 on March 11, 2016. 10662 Woods Circle, Bonita Springs, Florida 34135, which is legally described as: 56022583-1 11 Lot 13, Woods Estates (unrecorded) according to the plat thereof, as contained in the deed recorded in Official Records Book 39, Page 472, of the Public Records of Lee County, Florida, more particularly described as follows: Commencing at the Southeast corner of the North % of the Southwest “4 of the Southeast % of Section 26, Township 47 South, Range 25 East, thence North 89°59°00” West, a distance of 558.64 feet to the Point of Beginning of said Lot 13, Woods Estates; thence continue North 89°59°00” West a distance of 70.00 feet; thence North 00°00’00” East, a distance of 114.80 feet to the South right-of-way line of Woods Drive; thence along the South righ to fway North 90°00’00” East, a distance of 70.00 fee; thence leaving said right-of-way line South 00°00’00” West, a distance of 114.82 feet to the point of beginning was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Instrument Number 2011000177859 of the Public Records of Lee County, Florida on August 9, 2011, a copy of which is attached hereto as Exhibit “35,” purportedly in exchange for payment in the amount of $84,000.00. Gabriel purchased the property for $69,900.00 on August 18, 2009. See Exhibit “36.” Southern sold this property for $80,000.00 on September 24, 2012. 2814 69" Street West, Lehigh Acres, Florida 33971, which is legally described as: Lot 18, Block 59, Unit 6, Section 1, Lehigh Acres, Township 44 South, Range 26 East, according to the map or plat thereof on file in the Office of the Clerk of the Circuit Court, recorded in Pat Book 15, Page 58 of the Public Records of Lee County, Florida. was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Instrument Number 2011000177861 of the Public Records of Lee County, Florida on August 9, 2011, a copy of which is attached hereto as Exhibit “37,” purportedly in exchange for payment in the amount of $100.00. 56022583-1 12 This was the transfer of Gabriel’s one-half interest in the property which he previously owned jointly with DeVille. Gabriel and DeVille purchased the property for $100.00 on August 11, 2008. See Exhibit “38.” As of the filing of this Second Amended Complaint, Southern still owns its one-half interest in this property. 4141 Bellasol Circle, #424, Fort Myers, Florida 33916, which is legally described as: Unit 424, Building 4, of Bellasol Condominium3, Phase I, a Condominium according to the Declaration of Condominium thereof, recorded in Official Records Instrument No. 2005000010599, of the Public Records of Lee County, Florida, together with its undivided share in the common elements, and any amendments thereto. was transferred from Gabriel to Southern via Quit Claim Deed recorded at Official Records Instrument Number 2011000177860 of the Public Records of Lee County, Florida on August 9, 2011, a copy of which is attached hereto as Exhibit “39,” purportedly in exchange for payment in the amount of $36,800.00. Gabriel purchased the property for $91,100.00 on September 23, 2008. See Exhibit “40.” Southern sold this property for $100,000.00 on February 13, 2017. 29. Finally, Gabriel transferred at least (3) properties to Moonstone a. 602, 608, 612, 618, and 622 Harvard Street, Englewood, Florida 34223, which is legally described as: Lot 8, Block C, PLAT OF ENGLEWOOD, according to the plat thereof recorded in Plat Book A, Page 29, of the Public Records of Sarasota County, Florida, LESS the East 15 feet for Road Right-of- Way 56022583-1 13 was transferred from Gabriel to Moonstone via Warranty Deed recorded at Official Records Instrument Number 2012022856 of the Public Records of Sarasota County, Florida on February 23, 2012, a copy of which is attached hereto as Exhibit “41,” purportedly in exchange for payment in the amount of $100.00. Gabriel purchased the property for $170,000.00 on November 16, 2011. See Exhibit “42.” Moonstone sold this property for $340,000.00 on December 22, 2014. 3417 Junction Street, North Port, Florida 34288, which is legally described as: Lot 2, Block 763, 12™ ADDITION TO PORT CHARLOTTE SUBDIVISION, according to the map or plat thereof recorded in Plat Book 8, Pages 8, 8A through 8V, inclusive, of the Public Records of Sarasota County, Florida was transferred from Gabriel to Moonstone via Warranty Deed recorded at Official Records Instrument Number 2012022856 of the Public Records of Sarasota County, Florida on February 23, 2012, a copy of which is attached hereto as Exhibit “43,” purportedly in exchange for payment in the amount of $100.00. Gabriel purchased the property for $52,500.00 on August 17, 2011. See Exhibit “44.” As of the filing of this Second Amended Complaint, Moonstone still owns this property. 1517 West Clinton Street, Tampa, Florida 33604, which is legally described as: Lot 209 and the West 30.40 feet of Lot 210, together with the South % vacated alley abutting on the Nort, SOUTH WILMA, according to the map or plat thereof recorded in Plat Book 19, Page 11, of the Public Records of Hillsborough County, Florida 56022583-1 14 was transferred from Gabriel to Moonstone via Warranty Deed recorded at Official Records Book 21392, Page 274 of the Public Records of Hillsborough County, Florida on September 27, 2012, a copy of which is attached hereto as Exhibit “45,” purportedly in exchange for payment in the amount of $100.00. Gabriel purchased the property for $35,000.00 on October 27, 2011. See Exhibit “46.” Moonstone sold this property for $70,000.00 on March 31, 2017. 30. Although the foregoing properties were transferred from Gabriel to DeVille, Moonstone, and Southern, Gabriel continues to control ownership and/or receive the benefits of ownership. For purposes of ownership of the properties Moonstone and Southern are nothing more than Gabriel’s alter ego. COUNT I~ COLLECTION OF INDEBTEDNESS (Collection of the Debt Obligations from Gabriel) 31. This is an action to collect indebtedness in an amount in excess of $15,000. 32. Plaintiff re-alleges the allegations of paragraphs 1-6 and 23-25 as though fully set forth herein. 33. As provided for by German law, the Debt Acknowledgments constitute a continuing collateral security on all of Gabriel’s real and personal property that is enforceable as if it were a judgment by a German court and has the same legal effect as a judgment of a court for which execution issue without further legal requirements. The original amount of the debt owed by Gabriel to Berlin Hypo Bank which was subsequently assigned to Plaintiff was 7,314,892.25 Euros as of December 31, 2009 which has been accumulating interest at the rate of 14% per annum from that date. 56022583-1 15 34, Under German law, Berlin Hypo Bank and Plaintiff, as assignee of Berlin Hypo Bank as holder of the Notarized Debt Acknowledgement of Kirchberger is permitted to seize all of Kirchberger’s real and personal property on demand without further recourse. 35. The Debt Acknowledgments are in default and the principal amount, accumulated interest and costs due on each of those loans as of August 31, 2018 is as follows: a. Exhibit “6-A” - €793,415.06 b Exhibit “6-B” & Exhibit “6-C” — €2,435,372.83 Exhibit “6-D” - €396,774.52 Exhibit “6-E” - €388,887.63 €. Exhibit “6-F” - €2,019,571.15 f, Exhibit “6-G” - €3,095,569.25. 36. All conditions precedent to bringing this action have been met, performed or otherwise waived by Gabriel. 37. Plaintiff has retained the undersigned attorneys to represent him in this action and has agreed to pay them a reasonable fee for their services. Pursuant to the Debt Acknowledgements, Plaintiff is entitled to an award in his favor and against Gabriel in the amount of his reasonable attorneys’ fees. WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, demands judgment against GABRIEL KIRCHBERGER for damages, prejudgment interest, reasonable attorneys’ fees, costs, and such other relief as this Court deems just and proper. COUNT II —- UNIFORM FRAUDULENT TRANSFER ACT (as to Defendant Southern re: 2699 Seville Blvd, #602, Clearwater, Florida 33764) 38. This is an action for relief pursuant to Chapter 726 of the Florida Statutes. 56022583-1 16 39, Plaintiff re-alleges the allegations of paragraphs 1-6, 18-19, 23-25, 28(1), 30, and 33-35 as though fully set forth herein. 40. The June 2, 2015 transfer of 2699 Seville Blvd, #602, Clearwater, Florida 33764 from Gabriel to Southern violated the Florida Uniform Fraudulent Transfers Act (“FUFTA”) because it was made with actual intent to hinder, delay and defraud Plaintiffs efforts to collect the amounts owed under the Debt Acknowledgments in violation of § 726.105, Fla. Stat., as the transfer was either made (a) with the actual intent to hinder, delay or defraud any of Gabriel’s creditors; or (b) without receiving reasonably equivalent value at a time when Gabriel had incurred debts which were beyond his ability to pay as they became due. Facts establishing that the transfer was made with the actual intent to hinder, delay, or defraud Gabriel’s creditors include: (x) that the transfer was an insider; (y) Gabriel had been sued by Plaintiff in Ontario, Canada prior to the transfer; and (z) that the value of received in exchange for the transfer was not reasonably equivalent. 41. Alternatively, the June 2, 2015 transfer of 2699 Seville Blvd, #602, Clearwater, Florida 33764 from Gabriel to Southern violated FUFTA because it was made with constructive intent to hinder, delay and defraud Plaintiffs efforts to collect the amounts owed under the Debt Acknowledgments in violation of § 726.106(1), Fla. Stat., as the transfer was made without Gabriel receiving reasonably equivalent value in exchange for the transfer and Gabriel was insolvent at the time of the transfer. 42. As a result, the transfer is voidable by the Plaintiff pursuant to § 726.108, Fla. Stat. and Plaintiff is entitled to judgment against Southern in an amount equal to the difference between the value of 2699 Seville Blvd, #602, Clearwater, Florida 33764 as of June 2, 2015 and the consideration paid by Southern. 56022583-1 17 WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, demands judgment against Defendant SOUTHERN SHORE ENTERPRISES, LLC, for damages, prejudgment interest, costs, and such other relief as this Court deems just and proper. COUNT III — UNIFORM FRAUDULENT TRANSFER ACT (as to Defendant Niclas re: Membership Interest in Moonstone) 43. This is an action for relief pursuant to Chapter 726 of the Florida Statutes. 44, Plaintiff re-alleges the allegations of paragraphs 1-6, 18-19, 23-25, and 33-35 as though fully set forth herein. 45. The May 1, 2019 transfer of 100% of the membership interest in Moonstone from Gabriel to Niclas violated FUFTA because it was made with actual intent to hinder, delay and defraud Plaintiff's efforts to collect the amounts owed under the Debt Acknowledgments in violation of § 726.105, Fla. Stat., as the transfer was either made (a) with the actual intent to hinder, delay or defraud any of Gabriel’s creditors; or (b) without receiving reasonably equivalent value at a time when Gabriel had incurred debts which were beyond his ability to pay as they became due. Facts establishing that the transfer was made with the actual intent to hinder, delay, or defraud Gabriel’s creditors include: (x) that the transfer was to Gabriel’s son, an insider; (y) Gabriel had been sued by Plaintiff in Ontario, Canada prior to the transfer; and (z) that the value of received in exchange for the transfer was not reasonably equivalent. 46. Alternatively, the May 1, 2019 transfer of 100% of the membership interest in Moonstone from Gabriel to Niclas violated the Florida Uniform Fraudulent Transfers Act (“FUFTA”) because it was made with constructive intent to hinder, delay and defraud Plaintiff's efforts to collect the amounts owed under the Debt Acknowledgments in violation of § 726.106(1), Fla. Stat., as the transfer was made without Gabriel receiving reasonably 56022583-1 18 equivalent value in exchange for the transfer and Gabriel was insolvent at the time of the transfer. 47. As a result, the transfer is voidable by the Plaintiff pursuant to § 726.108, Fla. Stat. and Plaintiff is entitled to judgment setting aside the transfer, attachment against the membership interest in Moonstone or other Niclas’ other property, an injunction against further disposition against Gabriel and Niclas, appointment of a receiver to take charge of the membership interest, and, once judgment upon Count I is obtained, execution on the membership interest. WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, demands judgment against Defendant NICLAS X. KIRCHBERGER, judgment setting aside the transfer, attachment against the membership interest in Moonstone or other Niclas’ other property, an injunction against further disposition against Gabriel and Niclas, appointment of a receiver to take charge of the membership interest, once judgment upon Count I is obtained, execution on the membership interest, and such other relief as this Court deems just and proper. COUNT IV — DECLARATORY RELIEF (Declaration that Southern is Gabriel’s Alter Ego) 48. This is an action for declaratory relief pursuant to Chapter 86 of the Florida Statutes which seeks a declaration that Gabriel is the de facto owner of Southern, that Southern is Gabriel’s alter ego, and that Southern and its assets are otherwise amenable to execution in connection with Gabriel’s indebtedness to Plaintiff. 49. Plaintiff re-alleges the allegations of paragraphs 1-30 and 33-35 as though fully set forth herein. 56022583-1 19 50. Plaintiff has an interest in the outcome of this matter because, should this Court determine that Southern is Gabriel’s alter ego, then Southern and its assets will be available to satisfy Gabriel’s indebtedness to Plaintiff. 51. Southern owns the following real property as Gabriel’s alter ego: a. 2276 Yancy Street, North Port, Florida 34291, which is legally described as: Lot 9, Block 568 of 16TH ADDITION TO PORT CHARLOTTE SUBDIVISION, a subdivision according to the map or plat thereof recorded in Plat Book 14, Pages 6, 6A through 6V, inclusive, of the Public Records of Sarasota County, Florida 13035 South Tamiami Trail, North Port, Florida 34287, which is legally described as: Lots 17 and 18, Block 933, Fifteenth Addition to Port Charlotte Subdivision, according to the Plat thereof as recorded in Plat Book 13, Pages 14, 14A through 14B, of the Public Records of Sarasota County, Florida 13075 South Tamiami Trail, North Port, Florida 34287, which is legally described as: Lot 19, Block 933, Fifteenth Addition to Port Charlotte Subdivision, according to the Plat thereof as recorded in Plat Book 13, Pages 14, 14A through 14B, of the Public Records of Sarasota County, Florida 4868 England Avenue, North Port, Florida 34288, which is legally described as: Lot 23, Block 948 of 22N? ADDITION TO PORT CHARLOTTE SUBDIVISION, a subdivision according to the map or plat thereof recorded in Plat Book 14, Page 10, of the Public Records of Sarasota County, Florida 368 Bonsell Lane, Port Charlotte, Florida 33953, which is legally described as: 56022583-1 20 Lot 5, Block 2525 PORT CHARLOTTE SUBDIVISION, SECTION 47, as per plat thereof recorded in Plat Book 5, page 61A, Public Records of Charlotte County, Florida 12038 Green Gulf Blvd., Port Charlotte, Florida 33955', which is legally described as: Lot 8, Block 81, TROPICAL GULF ACRES, UNIT 6, as per plat thereof recorded in Plat Book 3, pages 67A through 67F, Public Records of Charlotte County, Florida 1810 and 1814 El Jobean Road and 1933 Royalview Drive, Port Charlotte, Florida 33948, which is legally described as: Lots 9, 65, and 66, Block 655, PORT CHARLOTTE SUBDIVISION, SECTION 41, as per plat thereof recorded in Plat Book 5, pages 51, 51A. through 51K, Public Records of Charlotte County, Florida 1435 Collingwood Blvd, Units A-G Port Charlotte, Florida 33948, which is legally described as: Lots 23 and 24, Block 658, PORT CHARLOTTE SUBDIVISION, SECTION 41, as per plat thereof recorded in Plat Book 5, pages 51, 51A through 51K, Public Records of Charlotte County, Florida 4169 Electric Way, Port Charlotte, Florida 33980, which is legally described as: Lot 3, HARBOR EXECUTIVE PARK, according to the plat thereof recorded in Plat Book 15 Pages 30A through 30B, Public Records of Charlotte County, Florida 10508 Gulfstream Boulevard, Englewood, Florida 34224, which is legally described as: Lot 17, Block 3664, PORT CHARLOTTE SUBDIVISION, SECTION 64, as per plat thereof recorded in Plat Book 5, Pages 78A through 78F, Public Records of Charlotte County, Florida ' One-half interest with DeVille. 56022583-1 21 27209 Sandrala Drive, Punta Gorda, Florida 33955, which is legally described as: Lot 1, Block 277 TROPICAL GULF ACRES, UNIT 10, as per plat thereof recorded in Plat Book 4, Pages 76A through 76N, of the Public Records of Charlotte County, Florida 2814 69" Street West, Lehigh Acres, Florida 339717, which is legally described as: Lot 18, Block 59, Unit 6, Section 1, Lehigh Acres, Township 44 South, Range 26 East, according to the map or plat thereof on file in the Office of the Clerk of the Circuit Court, recorded in Pat Book 15, Page 58 of the Public Records of Lee County, Florida. 52. Upon information and belief, any members or managers who appear as the members or managers of Southern in the records of the Secretary of State are solely agents or nominees of Gabriel who serve in order to disguise the true ownership of Southern. In fact, Southern is owned and controlled by Gabriel who receives the benefits of its ownership and, directly or indirectly, receives its income. The belief is based upon: a. The discrepancies in the amounts Gabriel paid for the properties described in