Preview
Filing # 108617310 E-Filed 06/09/2020 04:54:50 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, CAROL DEVILLE,
SOUTHERN SHORES ENTERPRISES, LLC,
a Florida limited liability company, and
MOONSTONE HOLDINGS, LLC, a Nevada
limited liability company,
Defendants.
/
MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT ADDING
ADDITIONAL DEFENDANT
Plaintiff, HARRY BIEBERSTEIN, by and through his undersigned counsel, and in
accordance with Rule 1.190(a) of the Florida Rules of Civil Procedure, moves this Court for leave
to file the Third Amended Complaint attached hereto as Exhibit “A” and in support thereof states:
1 Through discovery conducted since the filing of the Revised Second Amended
Complaint, Plaintiff has discovered the bases for additional causes of action as well as a cause of
action which accrued subsequent to the filing of the Revised Second Amended Complaint.
2 Since an amended complaint needed be filed anyway, Plaintiff desires to amend in
order to address certain arguments that were raised by Defendants in their motions to dismiss the
Revised Second Amended Complaint as well as update certain information that has come to light
through discovery and was previously pled only upon information and belief.
3 Additionally, due to the fact that Plaintiff is unwilling to post a bond in a sufficient
amount to secure the lis pendens against the real property owned by Defendant, Golden Key
60689809-1
Properties, LLC, Plaintiff has decided to drop its claim that Golden Key Properties, LLC is Gabriel
Kirchberger’s alter ego.
4 No party will be unfairly prejudiced as a result of the requested amendment.
5 This action is not at issue and the amendment will not delay this matter.
6. The amendment is not sought for purposes of delay.
7
Pursuant to Rule 1.190(e) of the Florida Rules of Civil Procedure, “[a]t any time in
furtherance of justice, upon such terms as may be just, the court may permit any ... pleading ... to
be amended or supplemental pleading.
8 “Although granting leave to amend rests with the sound discretion of the trial court,
all doubts should be resolved in favor of allowing amendment. It is the public policy of this state
to freely allow amendments to pleadings so that cases may be resolved upon their merits.” Adams
vy. Knabb Turpentine Co., Inc., 435 So. 2d 944, 946 (Fla. Ist DCA 1983).
WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, respectfully requests that this Court
enter an Order Granting Leave to File the Third Amended Complaint attached hereto, deeming the
Third Amended Complaint filed as of the date of filing this motion for leave, directing the Clerk
of Court to issue summonses upon the Third Amended Complaint to the additional defendant, Blue
Breeze, LLC added, and for such other relief as this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing document on June 9, 2020
with the Clerk of Court using the Florida Courts E-Filing Portal, which will send a notice of
electronic filing to: Glenn N. Siegel, Esquire, 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, Esquire, David K. Oaks, P.A., 407 East Marion Avenue, Suite 101,
60689809-1
Punta Gorda, Florida 33950, at doaksesq@comeast.net, Counsel for Carol DeVille and Southern
Shore Enterprises, LLC, Robert W. Segur, Esquire, Robert W. Segur P.A., 2828 S. McCall Road
PMB 56, Englewood, Florida 34224, at legal@segurlaw.net, Counsel for Moonstone Holdings,
LLC, Niclas Kirchberger, and Christine Frazer; Christopher J. Klein, Esquire, Baur & Klein,
P.A., New World Tower, Suite 2100, 100 North Biscayne Boulevard, Miami, Florida 33132, at
Cklein@worldwidelaw.com and QOcardonne@worldwidelaw.com, Counsel for Defendants
Andreas Kirchberger and Golden Key Properties, LLC.
ADAMS AND REESE LLP
1515 Ringling Boulevard, Suite 700
Sarasota, Florida 34236
Primary: ryan.owen@arlaw.cor
Primary: drew.chesanek@arlaw.com
Secondary: deborah.woodson@arlaw.com
Telephone: (941) 316-7600
Counsel for Plaintiff
By:_/s/ Ryan W. Owen
Ryan W. Owen
Florida Bar No.: 0029355
Drew F. Chesanek
Florida Bar No.: 0115933
60689809-1
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.
/
THIRD 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, GOLDEN KEY PROPERTIES, LLC, and BLUE BREEZE, LLC and alleges:
GENERAL ALLEGATIONS
Jurisdiction and Venue
1 This is a multi-count action that seeks damages in excess of $30,000, seeks to
avoid fraudulent transfers, and seeks to have certain corporate entities declared to be alter egos of
the debtor. 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.
EXHIBIT
56156644-1
"A"
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
KIRCHBERGER (“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.
60689196-1
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 November 15, 2016,
Gabriel was the sole member of Moonstone. On November 15, 2016, Gabriel transferred 100%
of the membership interest in Moonstone to Niclas. See “Share Sale Agreement” attached hereto
as Exhibit “1-A.” Pursuant to the Share Sale Agreement, Gabriel transferred 100% of the
“shares” in Moonstone in exchange for Niclas’ promise to pay $800,000 (USD) over three (3)
years and Niclas’ promise to pay $10,000 (USD) monthly from the month after the $800,000 had
been paid in full until Gabriel’s death. Niclas also agreed to “assume” all mortgage guarantees
from Gabriel. Although the purported transfer occurred in November 2016, an Assignment of
Membership Interest was filed with the Florida Secretary of State on May 6, 2019 stating that the
transfer was effective on May 1, 2019. See Exhibit “1-B.”
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. At the time of its
formation, Gabriel owned 47% of the membership interest in Southern. Gabriel transferred his
60689196-1
membership interest to DeVille in either 2011 or 2012. Plaintiff could not have reasonably
discovered this transfer until he did so in December 2019.
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.
21. Golden was formed pursuant to the Electronic Articles of Organization for Florida
Limited Liability Company on March 1, 2013. Prior thereto, Gabriel, individually, did business
under the name Golden Key Real Estate Trust.
22. On or about March 1, 2013, Gabriel transferred the assets and his ownership of
those assets to Golden Key and Andreas.
23. In February 2013, Gabriel and Andreas entered into an agreement pursuant to
which Andreas holds Gabriel’s ownership interest in Golden Key in trust.
24. Gabriel’s ownership of Golden Key has been disguised in annual reports filed
with Florida’s Secretary of State listing others as members in order to disguise its true ownership
and prevented Bieberstein from discovering the transfer from Gabriel to Andreas and Golden
Key under December 2019.
25. 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
60689196-1
management service for residential properties and am glad they are moving into commercial.
They already have one steady customer... me.” 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.”
26. Defendant, BLUE BREEZE, LLC (“Blue Breeze”), is a Florida limited liability
company with its principal place of business at 1810 El Jobean Road, Port Charlotte, Florida
33948, which is the same business address as Moonstone. Its electronically filed Articles of
Organization list Tristan Lefler and Austen Jones as its managers. Lefler and Jones are friends
of Niclas with whom he grew up in Brantford, Ontario, Canada.
Gabriel’s Debt to Bieberstein
27. Between 1992 and 1998, Gabriel borrowed certain sums from Berlin Hypo Bank,
a German banking corporation. In connection with the borrowing, Gabriel executed the seven
(7) notarized “Debt Acknowledgements” attached hereto as Exhibit “6-A” through “6-G.”
Under German law, these Acknowledgements are enforceable against any and all of Gabriel’s
assets wherever located.
28. 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
“7
29. 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.”
60689196-1
Gabriel’s Transfers to DeVille, Southern, and Moonstone
30. While the Plaintiff's action in Ontario, Canada was pending, Gabriel began
transferring Florida assets to DeVille, Southern, and Moonstone.
31. 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.”
32. 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
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.”
60689196-1
As of the filing of this Third 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 Third Amended Complaint, Southern still owns its one-
half interest in this property.
28 Lime Street, Englewood, Florida 34223, which is legally described as:
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.
60689196-1
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 328? 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:
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.
60689196-1
See Exhibit “20.” As of the filing of this Third Amended Complaint,
Southern 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.
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
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,
60689196-1
2011. See Exhibit “24.” As of the filing of this Third 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:
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,
60689196-1 10
2008. See Exhibit “28.” As of the filing of this Third 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.
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
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.
60689196-1 11
I 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 common
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:
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 % 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
right-of-way 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
60689196-1 12
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 Plat
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.
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 Third 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:
60689196-1 13
Unit 424, Building 4, of Bellasol Condominium, 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.
33. 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
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.
60689196-1 14
b. 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 Third 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 North, SOUTH WILMA,
according to the map or plat thereof recorded in Plat Book 19,
Page 11, of the Public Records of Hillsborough County, Florida
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.
60689196-1 15
34. 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
(As to Defendant Gabriel, only, for Collection of the Debt Obligations)
35. This is an action to collect indebtedness in an amount in excess of $30,000 from
Defendant Gabriel.
36. Plaintiff re-alleges the allegations of paragraphs 1-6 and 27-29 as though fully set
forth herein.
37. 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 issues 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.
38. 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.
39. 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
60689196-1 16
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.
40. All conditions precedent to bringing this action have been met, performed or
otherwise waived by Gabriel.
41. 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
Defendant, 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 (ACTUAL INTENT)
(as to Defendant Southern re: 2699 Seville Blvd, #602, Clearwater, Florida 33764)
42. This is an action for relief pursuant to § 726.105(1)(a), Fla. Stat. against
Defendant DeVille.
43, Plaintiff re-alleges the allegations of paragraphs 1-6, 18-19, 27-29, 32(1), 34, and
37-39 as though fully set forth herein.
44. 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(1)(a),
60689196-1 17
Fla. Stat., as the transfer was made with the actual intent to hinder, delay or defraud any of
Gabriel’s creditors.
45. Facts establishing that the transfer was made with the actual intent to hinder,
delay, or defraud Gabriel’s creditors include: (a) that the transfer was an insider; (b) Gabriel
had been sued by Plaintiff in Ontario, Canada prior to the transfer; and (c) that the value
received in exchange for the transfer was not reasonably equivalent.
46. 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.
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 Ill — UNIFORM FRAUDULENT TRANSFER ACT (CONSTRUCTIVE INTENT)
(as to Defendant Southern re: 2699 Seville Blvd, #602, Clearwater, Florida 33764)
47. This is an action for relief pursuant to § 726.106(1), Fla. Stat. against Defendant
DeVille.
48. Plaintiff re-alleges the allegations of paragraphs 1-6, 18-19, 27-29, 32(1), 34, and
37-39 as though fully set forth herein.
49, The June 2, 2015 transfer of 2699 Seville Blvd, #602, Clearwater, Florida 33764
from Gabriel to Southern violated the FUFTA because Gabriel did not receive reasonably
equivalent value in exchange for the transfer of the property and Gabriel was insolvent as of June
2, 2015 based upon his indebtedness to Plaintiff and various German banks.
60689196-1 18
50. In December 2014, Gabriel purchased 2699 Seville Blvd, #602, Clearwater,
Florida 33764 for $84,262.50.
Sl. Less than six months later, on June 2, 2015, Gabriel transferred 2699 Seville
Blvd, #602, Clearwater, Florida 33764 to Southern for $100.00
52. Southern sold 2699 Seville Blvd, #602, Clearwater, Florida 33764 for
$120,000.00 on March 11, 2016.
53. As of June 2, 2015, Gabriel was insolvent based upon his indebtedness to Plaintiff
and various German banks.
54. 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.
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 IV — UNIFORM FRAUDULENT TRANSFER ACT (ACTUAL INTENT)
(as to Defendants Niclas and Moonstone re: Membership Interest in Moonstone)
55. This is an action for relief pursuant to § 726.105(1)(a), Fla. Stat. against
Defendants Niclas and Moonstone.
56. Plaintiff re-alleges the allegations of paragraphs 1-6, 18-19, 27-29, and 37-39 as
though fully set forth herein.
57. The November 15, 2016 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 Plaintiffs efforts to collect the amounts owed under the Debt
60689196-1 19
Acknowledgments in violation of § 726.105(1)(a), Fla. Stat. Facts establishing that the transfer
was made with the actual intent to hinder, delay, or defraud Gabriel’s creditors include: (a) that
the transfer was to Gabriel’s son, an insider; (b) Gabriel had been sued by Plaintiff in Ontario,
Canada prior to the transfer and reasons for entry of judgment establishing Gabriel owed
Plaintiff €7,314,892.25 plus pre-judgment and post-judgment interest were entered by the
Canadian Court less than two (2) months before the transfer; (c) that there was no
contemporaneous value received in exchange for the transfer; and (d) any value purportedly
received was not reasonably equivalent.
58. 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 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
Defendants NICLAS X. KIRCHBERGER and MOONSTONE HOLDINGS, LLC, setting
aside the transfer, attachment against the membership interest in Moonstone or Niclas’ other
property, an injunction against further disposition of the membership interest in Moonstone,
appointment of a receiver to take charge of Moonstone, execution on the membership interest,
and such other relief as this Court deems just and proper.
COUNT V — UNIFORM FRAUDULENT TRANSFER ACT (CONSTRUCTIVE INTENT)
(as to Defendants Niclas and Moonstone re: Membership Interest in Moonstone)
59. This is an action for relief pursuant to § 726.106(1), Fla. Stat. against Defendants,
Niclas and Moonstone.
60689196-1 20
60. Plaintiff re-alleges the allegations of paragraphs 1-6, 18-19, 27-29, and 37-39 as
though fully set forth herein.
61. The November 15, 2016 transfer of 100% of the membership interest in
Moonstone from Gabriel to Niclas violated FUFTA because Gabriel did not receive reasonably
equivalent value in exchange for the transfer of the property and Gabriel was insolvent as of
November 15, 2016.
62. Any promise to pay in the future was not present value and therefore cannot be
considered value under FUFTA.
63. As of November 15, 2016, Gabriel was insolvent based upon his indebtedness to
Plaintiff and various German banks.
64. 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 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
Defendants NICLAS X. KIRCHBERGER and MOONSTONE HOLDINGS, LLC, setting
aside the transfer, attachment against the membership interest in Moonstone or Niclas’ other
property, an injunction against further disposition of the membership intere
Preview
Filing # 108617310 E-Filed 06/09/2020 04:54:50 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, CAROL DEVILLE, SOUTHERN SHORES ENTERPRISES, LLC, a Florida limited liability company, and MOONSTONE HOLDINGS, LLC, a Nevada limited liability company, Defendants. / MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT ADDING ADDITIONAL DEFENDANT Plaintiff, HARRY BIEBERSTEIN, by and through his undersigned counsel, and in accordance with Rule 1.190(a) of the Florida Rules of Civil Procedure, moves this Court for leave to file the Third Amended Complaint attached hereto as Exhibit “A” and in support thereof states: 1 Through discovery conducted since the filing of the Revised Second Amended Complaint, Plaintiff has discovered the bases for additional causes of action as well as a cause of action which accrued subsequent to the filing of the Revised Second Amended Complaint. 2 Since an amended complaint needed be filed anyway, Plaintiff desires to amend in order to address certain arguments that were raised by Defendants in their motions to dismiss the Revised Second Amended Complaint as well as update certain information that has come to light through discovery and was previously pled only upon information and belief. 3 Additionally, due to the fact that Plaintiff is unwilling to post a bond in a sufficient amount to secure the lis pendens against the real property owned by Defendant, Golden Key 60689809-1 Properties, LLC, Plaintiff has decided to drop its claim that Golden Key Properties, LLC is Gabriel Kirchberger’s alter ego. 4 No party will be unfairly prejudiced as a result of the requested amendment. 5 This action is not at issue and the amendment will not delay this matter. 6. The amendment is not sought for purposes of delay. 7 Pursuant to Rule 1.190(e) of the Florida Rules of Civil Procedure, “[a]t any time in furtherance of justice, upon such terms as may be just, the court may permit any ... pleading ... to be amended or supplemental pleading. 8 “Although granting leave to amend rests with the sound discretion of the trial court, all doubts should be resolved in favor of allowing amendment. It is the public policy of this state to freely allow amendments to pleadings so that cases may be resolved upon their merits.” Adams vy. Knabb Turpentine Co., Inc., 435 So. 2d 944, 946 (Fla. Ist DCA 1983). WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, respectfully requests that this Court enter an Order Granting Leave to File the Third Amended Complaint attached hereto, deeming the Third Amended Complaint filed as of the date of filing this motion for leave, directing the Clerk of Court to issue summonses upon the Third Amended Complaint to the additional defendant, Blue Breeze, LLC added, and for such other relief as this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing document on June 9, 2020 with the Clerk of Court using the Florida Courts E-Filing Portal, which will send a notice of electronic filing to: Glenn N. Siegel, Esquire, 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, Esquire, David K. Oaks, P.A., 407 East Marion Avenue, Suite 101, 60689809-1 Punta Gorda, Florida 33950, at doaksesq@comeast.net, Counsel for Carol DeVille and Southern Shore Enterprises, LLC, Robert W. Segur, Esquire, Robert W. Segur P.A., 2828 S. McCall Road PMB 56, Englewood, Florida 34224, at legal@segurlaw.net, Counsel for Moonstone Holdings, LLC, Niclas Kirchberger, and Christine Frazer; Christopher J. Klein, Esquire, Baur & Klein, P.A., New World Tower, Suite 2100, 100 North Biscayne Boulevard, Miami, Florida 33132, at Cklein@worldwidelaw.com and QOcardonne@worldwidelaw.com, Counsel for Defendants Andreas Kirchberger and Golden Key Properties, LLC. ADAMS AND REESE LLP 1515 Ringling Boulevard, Suite 700 Sarasota, Florida 34236 Primary: ryan.owen@arlaw.cor Primary: drew.chesanek@arlaw.com Secondary: deborah.woodson@arlaw.com Telephone: (941) 316-7600 Counsel for Plaintiff By:_/s/ Ryan W. Owen Ryan W. Owen Florida Bar No.: 0029355 Drew F. Chesanek Florida Bar No.: 0115933 60689809-1 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. / THIRD 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, GOLDEN KEY PROPERTIES, LLC, and BLUE BREEZE, LLC and alleges: GENERAL ALLEGATIONS Jurisdiction and Venue 1 This is a multi-count action that seeks damages in excess of $30,000, seeks to avoid fraudulent transfers, and seeks to have certain corporate entities declared to be alter egos of the debtor. 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. EXHIBIT 56156644-1 "A" 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 KIRCHBERGER (“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. 60689196-1 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 November 15, 2016, Gabriel was the sole member of Moonstone. On November 15, 2016, Gabriel transferred 100% of the membership interest in Moonstone to Niclas. See “Share Sale Agreement” attached hereto as Exhibit “1-A.” Pursuant to the Share Sale Agreement, Gabriel transferred 100% of the “shares” in Moonstone in exchange for Niclas’ promise to pay $800,000 (USD) over three (3) years and Niclas’ promise to pay $10,000 (USD) monthly from the month after the $800,000 had been paid in full until Gabriel’s death. Niclas also agreed to “assume” all mortgage guarantees from Gabriel. Although the purported transfer occurred in November 2016, an Assignment of Membership Interest was filed with the Florida Secretary of State on May 6, 2019 stating that the transfer was effective on May 1, 2019. See Exhibit “1-B.” 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. At the time of its formation, Gabriel owned 47% of the membership interest in Southern. Gabriel transferred his 60689196-1 membership interest to DeVille in either 2011 or 2012. Plaintiff could not have reasonably discovered this transfer until he did so in December 2019. 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. 21. Golden was formed pursuant to the Electronic Articles of Organization for Florida Limited Liability Company on March 1, 2013. Prior thereto, Gabriel, individually, did business under the name Golden Key Real Estate Trust. 22. On or about March 1, 2013, Gabriel transferred the assets and his ownership of those assets to Golden Key and Andreas. 23. In February 2013, Gabriel and Andreas entered into an agreement pursuant to which Andreas holds Gabriel’s ownership interest in Golden Key in trust. 24. Gabriel’s ownership of Golden Key has been disguised in annual reports filed with Florida’s Secretary of State listing others as members in order to disguise its true ownership and prevented Bieberstein from discovering the transfer from Gabriel to Andreas and Golden Key under December 2019. 25. 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 60689196-1 management service for residential properties and am glad they are moving into commercial. They already have one steady customer... me.” 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.” 26. Defendant, BLUE BREEZE, LLC (“Blue Breeze”), is a Florida limited liability company with its principal place of business at 1810 El Jobean Road, Port Charlotte, Florida 33948, which is the same business address as Moonstone. Its electronically filed Articles of Organization list Tristan Lefler and Austen Jones as its managers. Lefler and Jones are friends of Niclas with whom he grew up in Brantford, Ontario, Canada. Gabriel’s Debt to Bieberstein 27. Between 1992 and 1998, Gabriel borrowed certain sums from Berlin Hypo Bank, a German banking corporation. In connection with the borrowing, Gabriel executed the seven (7) notarized “Debt Acknowledgements” attached hereto as Exhibit “6-A” through “6-G.” Under German law, these Acknowledgements are enforceable against any and all of Gabriel’s assets wherever located. 28. 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 “7 29. 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.” 60689196-1 Gabriel’s Transfers to DeVille, Southern, and Moonstone 30. While the Plaintiff's action in Ontario, Canada was pending, Gabriel began transferring Florida assets to DeVille, Southern, and Moonstone. 31. 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.” 32. 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 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.” 60689196-1 As of the filing of this Third 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 Third Amended Complaint, Southern still owns its one- half interest in this property. 28 Lime Street, Englewood, Florida 34223, which is legally described as: 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. 60689196-1 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 328? 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: 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. 60689196-1 See Exhibit “20.” As of the filing of this Third Amended Complaint, Southern 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. 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 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, 60689196-1 2011. See Exhibit “24.” As of the filing of this Third 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: 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, 60689196-1 10 2008. See Exhibit “28.” As of the filing of this Third 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. 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 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. 60689196-1 11 I 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 common 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: 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 % 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 right-of-way 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 60689196-1 12 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 Plat 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. 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 Third 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: 60689196-1 13 Unit 424, Building 4, of Bellasol Condominium, 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. 33. 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 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. 60689196-1 14 b. 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 Third 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 North, SOUTH WILMA, according to the map or plat thereof recorded in Plat Book 19, Page 11, of the Public Records of Hillsborough County, Florida 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. 60689196-1 15 34. 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 (As to Defendant Gabriel, only, for Collection of the Debt Obligations) 35. This is an action to collect indebtedness in an amount in excess of $30,000 from Defendant Gabriel. 36. Plaintiff re-alleges the allegations of paragraphs 1-6 and 27-29 as though fully set forth herein. 37. 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 issues 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. 38. 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. 39. 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 60689196-1 16 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. 40. All conditions precedent to bringing this action have been met, performed or otherwise waived by Gabriel. 41. 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 Defendant, 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 (ACTUAL INTENT) (as to Defendant Southern re: 2699 Seville Blvd, #602, Clearwater, Florida 33764) 42. This is an action for relief pursuant to § 726.105(1)(a), Fla. Stat. against Defendant DeVille. 43, Plaintiff re-alleges the allegations of paragraphs 1-6, 18-19, 27-29, 32(1), 34, and 37-39 as though fully set forth herein. 44. 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(1)(a), 60689196-1 17 Fla. Stat., as the transfer was made with the actual intent to hinder, delay or defraud any of Gabriel’s creditors. 45. Facts establishing that the transfer was made with the actual intent to hinder, delay, or defraud Gabriel’s creditors include: (a) that the transfer was an insider; (b) Gabriel had been sued by Plaintiff in Ontario, Canada prior to the transfer; and (c) that the value received in exchange for the transfer was not reasonably equivalent. 46. 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. 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 Ill — UNIFORM FRAUDULENT TRANSFER ACT (CONSTRUCTIVE INTENT) (as to Defendant Southern re: 2699 Seville Blvd, #602, Clearwater, Florida 33764) 47. This is an action for relief pursuant to § 726.106(1), Fla. Stat. against Defendant DeVille. 48. Plaintiff re-alleges the allegations of paragraphs 1-6, 18-19, 27-29, 32(1), 34, and 37-39 as though fully set forth herein. 49, The June 2, 2015 transfer of 2699 Seville Blvd, #602, Clearwater, Florida 33764 from Gabriel to Southern violated the FUFTA because Gabriel did not receive reasonably equivalent value in exchange for the transfer of the property and Gabriel was insolvent as of June 2, 2015 based upon his indebtedness to Plaintiff and various German banks. 60689196-1 18 50. In December 2014, Gabriel purchased 2699 Seville Blvd, #602, Clearwater, Florida 33764 for $84,262.50. Sl. Less than six months later, on June 2, 2015, Gabriel transferred 2699 Seville Blvd, #602, Clearwater, Florida 33764 to Southern for $100.00 52. Southern sold 2699 Seville Blvd, #602, Clearwater, Florida 33764 for $120,000.00 on March 11, 2016. 53. As of June 2, 2015, Gabriel was insolvent based upon his indebtedness to Plaintiff and various German banks. 54. 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. 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 IV — UNIFORM FRAUDULENT TRANSFER ACT (ACTUAL INTENT) (as to Defendants Niclas and Moonstone re: Membership Interest in Moonstone) 55. This is an action for relief pursuant to § 726.105(1)(a), Fla. Stat. against Defendants Niclas and Moonstone. 56. Plaintiff re-alleges the allegations of paragraphs 1-6, 18-19, 27-29, and 37-39 as though fully set forth herein. 57. The November 15, 2016 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 Plaintiffs efforts to collect the amounts owed under the Debt 60689196-1 19 Acknowledgments in violation of § 726.105(1)(a), Fla. Stat. Facts establishing that the transfer was made with the actual intent to hinder, delay, or defraud Gabriel’s creditors include: (a) that the transfer was to Gabriel’s son, an insider; (b) Gabriel had been sued by Plaintiff in Ontario, Canada prior to the transfer and reasons for entry of judgment establishing Gabriel owed Plaintiff €7,314,892.25 plus pre-judgment and post-judgment interest were entered by the Canadian Court less than two (2) months before the transfer; (c) that there was no contemporaneous value received in exchange for the transfer; and (d) any value purportedly received was not reasonably equivalent. 58. 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 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 Defendants NICLAS X. KIRCHBERGER and MOONSTONE HOLDINGS, LLC, setting aside the transfer, attachment against the membership interest in Moonstone or Niclas’ other property, an injunction against further disposition of the membership interest in Moonstone, appointment of a receiver to take charge of Moonstone, execution on the membership interest, and such other relief as this Court deems just and proper. COUNT V — UNIFORM FRAUDULENT TRANSFER ACT (CONSTRUCTIVE INTENT) (as to Defendants Niclas and Moonstone re: Membership Interest in Moonstone) 59. This is an action for relief pursuant to § 726.106(1), Fla. Stat. against Defendants, Niclas and Moonstone. 60689196-1 20 60. Plaintiff re-alleges the allegations of paragraphs 1-6, 18-19, 27-29, and 37-39 as though fully set forth herein. 61. The November 15, 2016 transfer of 100% of the membership interest in Moonstone from Gabriel to Niclas violated FUFTA because Gabriel did not receive reasonably equivalent value in exchange for the transfer of the property and Gabriel was insolvent as of November 15, 2016. 62. Any promise to pay in the future was not present value and therefore cannot be considered value under FUFTA. 63. As of November 15, 2016, Gabriel was insolvent based upon his indebtedness to Plaintiff and various German banks. 64. 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 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 Defendants NICLAS X. KIRCHBERGER and MOONSTONE HOLDINGS, LLC, setting aside the transfer, attachment against the membership interest in Moonstone or Niclas’ other property, an injunction against further disposition of the membership intere