Case 3:09-cv-02053-JP Document 10 Filed 12/04/2009 Page 1 of 9

UNITED STATES DISTRICT COURT

DISTRICT OF PUERTO RICO

HEPTAGON ASSET MANAGEMENT,

C.V.
Zadelmakerstraat 98
Velserbroek,
Noor-Holland Netherlands 1991,

and

HEPTAGON SOCIEDAD DE
CORRETAJE DE VALORES, C.A. CIVIL NO. 09-2053 (JB)
Torre Provinsial A, Piso 12
Avenida Francisco de Miranda,
Caracas, Venezuela

Plaintiff,

v.

CARACAS INTERNATIONAL BANKING

CORPORATION

Defendant

ANSWER TO COMPLAINT

TO THE HONORABLE COURT:

COMES NOW defendant, Caracas International Banking Corporation (hereinafter

referred to as “CIBC”) and respectfully answers the captioned Complaint as follows:

1. Paragraph 1 is admitted.

2. Paragraph 2 is admitted.

3. Paragraph 3 is denied for lack of information or belief.

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4. Paragraph 4 is admitted.

5. Paragraph 5 does not require a responsive pleading. Should one be required, it is

denied.

6. Paragraph 6 does not require a responsive pleading. Should one be required, it is

denied.

7. Paragraph 7 is denied as drafted

8. Paragraph 8 is denied.

9. Paragraph 9 is denied.

10. Paragraph 10 is denied as drafted.

11. Paragraph 11 is denied as drafted.

12. Paragraph 12 is denied for lack of information or belief.

13. Paragraph 13 is denied as drafted.

14. Paragraph 14 is denied as drafted.

15. Paragraph 15 is admitted.

16. Paragraph 16 is denied.

17. Paragraph 17 is denied.

18. Paragraph 18 is denied.

19. Paragraph 19 is denied.

20. Paragraph 20 is denied.

21. Paragraph 21 is denied as drafted.

22. Paragraph 22 is admitted.

23. Paragraph 23 is denied.

24. Paragraph 24 is admitted.

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25. Paragraph 25 is denied as drafted.

26. Paragraph 26 is admitted as to the receipt of the letter. The rest of paragraph 26 is

denied as drafted. It is affirmatively alleged that the correct date of the letter sent by

HAM to CIBC was September 16, 2009.

27. Paragraph 27 is denied.

28. CIBC incorporates herein by reference all its responses to paragraphs 1 through 27

as if fully set forth herein.

29. Paragraph 29 is denied.

30. Paragraph 30 is denied.

31. Paragraph 31 is denied for lack of information or belief.

32. Paragraph 32 is denied.

33. Paragraph 33 is denied.

34. Paragraph 34 is denied.

35. Paragraph 35 is denied.

36. Paragraph 36 is a matter of law and requires no response.

37. Paragraph 37 is denied.

38. CIBC incorporates herein by reference all its responses to paragraphs 1 through 37

as if fully set forth herein.

39. Paragraph 39 is denied.

40. Paragraph 40 is denied as drafted.

41. Paragraph 41 is denied.

42. Paragraph 42 is denied.

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43. CIBC incorporates herein by reference all its responses to paragraphs 1 through 42

as if fully set forth herein.

44. Paragraph 44 is denied.

45. Paragraph 45 is denied.

46. Paragraph 46 is denied.

47. Paragraph 47 is denied.

48. Paragraph 48 is denied.

49. Paragraph 49 is denied.

50. Paragraph 50 is denied.

51. CIBC incorporates herein by reference all its responses to paragraphs 1 through 50

as if fully set forth herein.

52. Paragraph 52 is denied.

53. Paragraph 53 is denied.

54. Paragraph 54 is denied.

55. Paragraph 55 is denied.

56. Paragraph 56 is denied.

57. CIBC incorporates herein by reference all its responses to paragraphs 1 through 56

as if fully set forth herein.

58. Paragraph 58 is denied.

59. Paragraph 59 is denied.

60. Paragraph 60 is denied.

61. Paragraph 61 is denied.

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62. Paragraph 62 is denied.

AFFIRMATIVE DEFENSES

1. Plaintiff, Heptagon Asset Management and Heptagon Sociedad de Corretaje de

Valores, C.A. (hereinafter referred to collectively as “Heptagon”) fails to state a

claim upon which relief may be granted under federal law.

2. The allegations in the Complaint must be dismissed as a matter of law.

3. All material facts necessary for CIBC to be awarded a judgment as a matter of law

are undisputed.

4. On January 16, 2009, the United States District Court for the District of Puerto Rico

issued a Seizure Warrant under Case No. 09-57 (M). This warrant was signed by

Magistrate Judge Camille L. Velez-Rive.

5. The Seizure Warrant provided for the seizure of:

$3,173,000.00 CONTAINED WITHIN ACCOUNT NUMBER #200001350,

BELONGING TO HEPTAGON ASSET MANAGEMENT C.V. FROM
CARACAS INTERNATIONAL BANKING CORP., LOCATED AT 221 PONCE
DE LEON AVENUE, SUITE 701 SAN JUAN, PUERTO RICO.

6. The referred Seizure Warrant was executed on Defendant CIBC on January 16,

2009.

7. On March 17, 2009, the United States District Court for the District of Puerto Rico

issued a Seizure Warrant under Case No. 09-243 (M). This warrant was signed by

Magistrate Judge Bruce J. McGivern.

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8. The Seizure Warrant provided for the seizure of:

ALL FUNDS CONTAINED WITHIN ACCOUNT NUMBER #200001350,

BELONGING TO HEPTAGON ASSET MANAGEMENT C.V. FROM
CARACAS INTERNATIONAL BANKING CORP., LOCATED AT 221 PONCE
DE LEON AVENUE, SUITE 701 SAN JUAN, PUERTO RICO.

9. The referred Seizure Warrant was executed on Defendant CIBC on March 17,

2009.

10. CIBC was legally required to fully comply with the Seizure Warrants.

11. Heptagon’s funds and monies at CIBC were clearly within the scope of the Seizure

Warrants.

12. Plaintiffs’ claims are barred, in whole or in part, by Plaintiffs own fault, negligence,

unclean hands, laches, undue delay, waiver, and/or estoppel.

13. Plaintiffs’ claims are barred, in whole or in part, to the extent that Plaintiffs seek to

hold CIBC liable for statements made or actions taken by persons or entities other

than CIBC, who were not acting as authorized agents of CIBC or to further CIBC’s

interest.

14. Plaintiffs’ claims against CIBC are barred, in whole or in part, because no act or

omission of CIBC was a cause in fact of the proximate cause of any damage or loss

to Plaintiffs.

15. Plaintiffs’ claims against CIBC are barred, in whole or in part, because no act or

omission by CIBC was the sole or partial cause of any damage or loss that Plaintiffs

allegedly suffered.
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16. Plaintiffs’ claims against CIBC are barred, in whole or in part, because the injuries,

if any, sustained by them as alleged in the Complaint were not caused by CIBC, but

were instead caused by the actions or inactions of other persons, entities or

agencies over whom CIBC had no control. These actions, inactions and events

were intervening or superseding causes of the alleged injuries.

17. Plaintiffs’ claims against CIBC are barred, in whole or in part, because Plaintiffs did

not rely on the misrepresentations or misleading statements alleged.

18. Plaintiffs’ claims against CIBC are barred, in whole or in part, because the alleged

actions or inactions of CIBC were not the sole or partial cause of any decision by

any Plaintiffs to enter into the “permuta” transaction.

19. Plaintiffs’ claims against CIBC are barred, in whole or in part, because Plaintiffs did

not exercise reasonable care to discover the facts relating to the alleged

misstatements or omissions.

20. Plaintiffs’ claims against the CIBC are barred, in whole or in part, because they

failed to exercise due care with respect to the transactions on which there claims

are premised.

21. Plaintiffs’ claims against CIBC are barred, in whole or in part, because Plaintiffs

have failed to mitigate their damages, if any, and failed to exercise due diligence in

an effort to mitigate their alleged damages.

22. Plaintiffs’ claims against CIBC are barred, in whole or in part, because Plaintiffs are

not entitled to attorney’s fees or interest under any act or theory on which

Plaintiffs’ claims are based.

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23. CIBC had no legal or contractual obligation to provide to Heptagon any information

as to source of funds, the originator and/or beneficiary of the “permuta” transaction.

24. No written agreement was executed nor required by Heptagon to be executed in

order to perform the “permuta” transaction.

25. Heptagon did not make any requirements or inquiries to CIBC, nor made any due

diligence about the source of funds, the parties involved and/or the purpose of the

“permuta” transaction.

26. CIBC complied with all its legal obligations pursuant to the Bank Secrecy Act, and

the regulation adopted thereunder, including but not limited to, recordkeeping

requirements of the source of funds and purpose of the transactions, among others,

executed by or on behalf of its clients.

27. It was Heptagon’s account activity, transactions and relationship with RamaVyasulu

and the multiple entities known as “Rosemont Corporations” that resulted in the

issuance and execution of the various seizure warrants to account #XXXXX1350,

including the most recent being Seizure Warrant Case No. 09-778(m) issued on

October 30, 2009 by U.S. Judge Magistrate, Bruce J. McGivern, and executed on

November 2, 2009.

28. Heptagon may only challenge the Seizure Warrant through the corresponding and

appropriate action pursuant to Crim. Proc.R. 41(g) or by filing the corresponding

claims in the forfeiture proceedings filed by the U.S. Government regarding the

funds in question.

29. CIBC may not provide Heptagon any relief for the seizure of its monies.
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30. Heptagon filed action against the U.S. Government in Civil Case No. 09-1159 (JAF)

claiming it had been the victim of an unlawful seizure.

31. Heptagon filed action against the U.S. Government in Civil Case No. 09-1543 (JAF)

claiming it had been the victim of an unlawful seizure

32. Pursuant to section 31 U.S.C. §5318(g) CIBC is immune from any and all liability for

the disclosure of information regarding Multitrade and Multinvest and the delivery

funds all in accordance with the Seizure Warrant.

33. CIBC reserves the right to raise any additional defenses and third-party claims not

asserted herein of which may become aware through discovery or otherwise.

RESPECTFULLY SUBMITTED.

CERTIFICATE OF SERVICE: I hereby certify that copy of this motion has been

electronically filed on this date with the Clerk of the Court using the CM/ECF system, which

will send notification to Sonia Torres-Pabón, Esq., McConnel Valdés, LLC.

In San Juan, Puerto Rico, this 4th day of December, 2009.

s/ Harry Anduze Montaño

Harry Anduze Montaño - 114910
1454 Fernández Juncos Avenue
San Juan, Puerto Rico 00909
Tel. (787) 723-7171
Fax. (787) 723-7278
E-mail: handuze@microjuris.com
srp

F/HAM/Motions/1910-Heptagon – Answer to Complaint.doc