1

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

In re )

)

CARLOS R. WEISSENBERG, ) Case No. 20-17132-LMI

) Chapter 7

Debtor. )

___________________________________ )

)

DENMARK PROPERTIES LIMITED, )

)

Plaintiff, )

)

vs. ) Adv. Pro. No. 20-01257-LMI

)

CARLOS R. WEISSENBERG, )

)

Defendant. )

___________________________________ )

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR LEAVE TO AMEND

DEFENDANT’S ANSWER & AFFIRMATIVE DEFENSES

Plaintiff Denmark Properties Limited (“Denmark”), by its undersigned counsel, submits 

this response in opposition to Defendant Carlos R. Weissenberg’s (“Weissenberg”) Motion for 

Leave to Amend Defendant’s Answer & Affirmative Defenses to Plaintiff’s Second Amended 

Complaint [ECF No. 40], and states as follows:

ARGUMENT

I. Legal Standard

A defendant seeking to amend its answer to add affirmative defenses must first obtain leave 

of court. Fed. R. Civ. P. 15(a)(2). ae Court should generally “freely give leave when justice so 

requires.” Id. ae Court need not, however, allow amendment “(1) where there has been undue 

delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously 

allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or 

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 1 of 15
2

(3) where amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).

II. Defendant’s proposed Affirmative Defenses are futile.

Defendant states that “upon counsel’s review of the file [it] determined that it can allege 

additional Affirmative Defenses.” [ECF No. 40, p.2]. However, all the proposed Affirmative Defenses are insufficient as a matter of law and subject to being stricken. See Fed. R. Civ. P. 12(f) 

(“ae court may strike from a pleading an insufficient defense.”). aerefore, granting leave to add 

these Affirmative Defenses would be futile. Accordingly, the Court should deny leave to amend.

a. First, Second, Nird, Fourth, and Fifth Affirmative Defenses – Failure to State a 

Cause of Action

In his proposed First, Second, aird, Fourth, and Fifth Affirmative Defenses, Defendant 

alleges that Plaintiff has failed to state a cause of action. “An affirmative defense is one that admits 

to the complaint, but avoids liability, wholly or partly, by new allegations of excuse, justification, 

or other negating matters.” Adams v. Jumpstart Wireless Corp., 294 F.R.D. 668, 671 (S.D. Fla. 

2013). “A defense which points out a defect in the plaintiff’s prima facie case is not an affirmative 

defense.” Flav-O-Rich, Inc. v. Rawson Food Serv., Inc. (In re Rawson Food Serv., Inc.), 846 F.2d

1343, 1349 (11th Cir. 1988). “Failure to state a claim is a defect in the plaintiff’s claim; it is not an 

additional set of facts that bars recovery notwithstanding the plaintiff’s valid prima facie case.”

Boldstar Tech., LLC v. Home Depot, Inc., 517 F. Supp. 2d 1283, 1292 (S.D. Fla. 2007). aerefore, 

it is not a proper affirmative defense. Even if it were, the proposed Affirmative Defenses are subject 

to being stricken because they “fail to recite more than bare-bones conclusory allegations.” Rubinstein v. Keshet Inter Vivos Tr., 2019 U.S. Dist. LEXIS 99428, at *12 (S.D. Fla. June 13, 2019).

i. First Affirmative Defense

In his First Affirmative Defense, Defendant alleges that “Plaintiff fails to meet the pleading 

requirements of Rule 9(b).” [ECF No. 40, p.9]. Defendant claims that “Plaintiff fails to plead any 

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 2 of 15
3

[sic] what the Defendant obtained as a consequence of the alleged fraud.” Id., at p.10. However, 

in his Second Amended Complaint (“SAC”), Plaintiff has alleged that “Weissenberg stood to make 

substantial commissions by selling the Leveraged and Inverse ETFs.” SAC, ¶ 47. Defendant denies 

this, saying he “never made a commission because the account lost over $175,000.” [ECF No. 40, 

p.10]. ais is patently false, however, as Defendant earned a commission whenever a transaction 

was made, and the securities were not initially sold for a loss. See SAC, ¶ 34 (“On January 2016, 

these shares were sold for a gain of approximately $14,417.51.”).

ii. Second Affirmative Defense

In his Second Affirmative Defense, Defendant alleges that “Plaintiff fails to state a cause 

of action for 10(b)(5).” [ECF No. 40, p.10]. Defendant claims that “10(b)(5) is inapplicable to the

case at hand because the parties and actions reside wholly outside the United States of America.”

Id. First, it should be noted that nothing in Section 10(b) of the Securities Exchange Act requires 

that the parties reside in the United States to bring a claim under the statute, and the undersigned 

has found no case law imposing such a requirement. In any case, the parties did have a connection 

to the United States. Defendant falsely alleges that “Plaintiff is not registered with the State of 

Florida to transact business.” However, Plaintiff is a registered limited liability company with the 

State of Florida. See Sunbiz records, at Exhibit A. Defendant also states that “at all relevant times, 

Defendant was a resident of the country of Ecuador and did not reside in the United States of 

America.” [ECF No. 40, p.10]. However, GTA Advisors LLC—which Defendant used to manage 

Plaintiff’s funds—operated through a clearing house out of Miami, Florida. See Brokerage Statement, at Exhibit B.

Defendant also attempts to obfuscate the issues by selectively quoting inapplicable law. 

Defendant alleges “Plaintiff’s claim fails to take into account Rule 10b5-1.” [ECF No. 40, p.11]. 

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 3 of 15
4

ais rule cited by Defendant “defines when a purchase or sale constitutes trading ‘on the basis of’

material nonpublic information” in insider trading cases. 17 C.F.R. § 240.10b5-1. However, it does 

not mean—as Defendant improperly implies—that cases under Section 10(b)(5) and Rule 10b-5

must involve insider trading. Defendant also claims that “Plaintiff fails to allege any scheme where 

the Defendant misstated or omitted information regarding to [sic] the price of stocks, a time trading 

scheme, [or] the failure to correct a corporate stock report.” [ECF No. 40, pp.11-12]. However, 

those are not elements of a violation of Section 10(b)(5) and Rule 10b-5, and therefore, Plaintiff is 

not required to plead them.

iii. Lird Affirmative Defense

In his aird Affirmative Defense, Defendant alleges that “Plaintiff fails to state a cause of 

action pursuant to Florida Securities and Investor Protection Act.” [ECF No. 40, p.12]. Defendant 

again alleges that “Plaintiff is not a registered Florida business entity and at all relevant times 

Defendant was a resident of Ecuador.” Id. Defendant complains that “Florida law should not apply 

simply because Defendant has now filed for bankruptcy in Florida.” Id. aese arguments are meritless for the reasons stated above. See Exs. A, B.

Defendant claims that “Plaintiff fails to state a cause of action because the alleged fraudulent activities are not within the purview of FISPA [sic].” [ECF No. 40, p.12]. Defendant again 

wrongly implies that the scope of the statute is much narrower than it is, alleging “[f]raudulent 

claims for FISPA [sic] involve undercapitalization of projections, misstatements as omissions on 

financial statements, and the artificial increasing of commissions.” Id. (internal citations omitted). 

Notably, none of the cases cited by Defendant stands for the proposition that other claims, such as 

the one brought by Plaintiff, are not allowed under the statute. Defendant alludes to “Black” for 

the idea that an “investment in ‘risky stocks’ is not enough to violate FISPA [sic].” Id. However, 

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 4 of 15
5

Defendant has failed to provide a citation to said case, so it is not possible to corroborate this 

statement.

iv. Fourth Affirmative Defense

In his Fourth Affirmative Defense, Defendant alleges that “Plaintiff fails to state a cause of 

action pursuant to Florida Deceptive and Unfair Trade Practices Act.” [ECF No. 40, p.13]. Once 

more, Defendant alleges that “Plaintiff is not a registered Florida business entity and at all relevant 

times Defendant was a resident of Ecuador.” Id. Defendant again protests that “Florida law should 

not apply simply because Defendant has now filed for bankruptcy in Florida.” Id. aese arguments 

are meritless for the reasons stated above. See Exs. A, B.

Defendant next argues that FDUTPA does not apply to claims arising from securities transactions. Defendant cites an opinion where this Court “believe[d] that the Florida Supreme Court, 

if confronted with the question whether [FDUTPA] applies to claims arising from securities transactions, would hold that it does not.” Crowell v. Morgan Stanley Dean Witter Servs. Co., 87 F. 

Supp. 2d 1287, 1295 (S.D. Fla. 2000). However, the fact of the matter remains that the Florida 

Supreme Court, as the ultimate arbiter on Florida law, has never ruled on this issue and could read 

FDUTPA more expansively than this Court did twenty-one years ago. Defendant also cites other 

out-of-state decisions. However,

[t]he majority of these cases are securities fraud cases in which the security transaction itself was the basis of the plaintiff’s complaint. In this case, [Defendant’s]

misrepresentative financial advice form[s] the basis of Plaintiff’s complaint. Defendants cite no authority that financial advisors are exempt from consumer protection statutes.

Maese v. Garrett, 329 P.3d 713, 721 (N.M. Ct. App. 2014) (internal citations omitted). Courts in 

other states have indeed found that consumer protection statutes apply to securities transactions. 

See, e.g., Scalp & Blade, Inc. v. Advest, Inc., 722 N.Y.S.2d 639, 641 (App. Div. 4th Dept. 2001)

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 5 of 15
6

(“we see no basis for invoking any blanket exception under the statute for securities transactions”); 

McCullough v. Shearson Lehman Bros., Inc., 1988 U.S. Dist. LEXIS 1563, at *11 (W.D. Pa. Feb. 

18, 1988) (“Although the investment field is not mentioned in this Law, we must interpret this act 

liberally to cover generally all unfair and deceptive acts or practices in the conduct of trade or 

commerce.”). ais Court should likewise find—as Defendant unwittingly admits—that FDUTPA 

“does apply to claims arising from securities transactions.” [ECF No. 40, p.13].

v. Fifth Affirmative Defense

In his Fifth Affirmative Defense, Defendant claims “Plaintiff’s Count IV is barred because 

the [sic] any alleged debt is dischargeable.” [ECF No. 40, p.14]. Defendant alleges that “[b]ecause 

Plaintiff fails to state a cause of action for each of its claims in the Second Amended Complaint 

and a violation of Federal or State Securities law does not exist, the debt is dischargeable.” Id. As 

seen above, however, Plaintiff does have viable claims against Defendant for violations of federal 

and Florida law, which make the debt non-dischargeable. See 11 U.S.C. §523(a)(19)(A)(i).

Defendant provides no facts to support this affirmative defense, simply “incorporat[ing] its 

First, Second, aird, and Fourth Affirmative Defenses herein.” [ECF No. 40, p.14]. Moreover, the 

Fifth Affirmative Defense is based on the same theory as Defendant’s Eighth Affirmative Defense. 

aerefore, it is not only facially insufficient but redundant as well, and subject to strike. See Fed. 

R. Civ. P. 12(f) (“ae court may strike from a pleading an insufficient defense or any redundant, 

immaterial, impertinent, or scandalous matter.”).

b. Sixth Affirmative Defense – Assumption of Risk

In his Sixth Affirmative Defense, Defendant alleges that “Mr. Ubieto was advised by Defendants of potential risks and he made the final decision to continue with the Exchange traded 

funds.” [ECF No. 40, p.14]. “Assumption of risk bars recovery when a plaintiff freely chooses a 

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 6 of 15
7

course of action with full knowledge of its danger.” Erchul v. Starbucks Corp., 750 F. App’x 836, 

840 (11th Cir. 2018). To assert this defense, Defendant must establish that Plaintiff “(1) had actual 

knowledge of the danger; (2) understood and appreciated the risks associated with such danger; 

and (3) voluntarily exposed himself to those risks.” Id. Defendant has not sufficiently established 

these elements. Moreover, Defendant’s statements are at odds with the fact that “Mr. Ubieto had

a conservative risk profile as an investor and was relying on Weissenberg to place him in investments that were suitable for his goals and risk tolerance.” SAC, ¶ 9. Defendant’s bare-bones allegations are nothing more than a denial of Plaintiff’s Second Amended Complaint, which is not the 

function of an affirmative defense.

c. Seventh Affirmative Defense – Failure to Join an Indispensable Party

In his Seventh Affirmative Defense, Defendant alleges the Second Amended Complaint is 

“barred because the Plaintiff fails to join an indispensable party, Mr. Agustin Ubieto.” [ECF No. 

40, p.14]. A party is “indispensable” when “in that person’s absence, the court cannot accord complete relief among existing parties.” Fed. R. Civ. P. 19(a)(1)(A). Defendant states that “Plaintiff’s 

entire claims are centered on either communications or lack of communication between the Defendant and Ubieto, yet Ubieto is not joined a member to this action.” [ECF No. 40, p.15]. While 

many—although certainly not all—of the communications in this case were between Mr. Ubieto 

and Defendant, the funds mismanaged by Defendant belonged to Plaintiff. See SAC, ¶ 6.

Defendant’s real complaint seems to be that “Plaintiff will be unable to present its case 

absent hearsay and third-party testimony.” [ECF No. 40, p.15]. As Defendant acknowledges, Mr. 

Ubieto has sadly passed away. While Mr. Ubieto’s testimony would be invaluable, that does not 

make him (or his estate) an indispensable party. Defendant does not explain why the Court cannot 

afford complete relief among the existing parties, making this defense insufficient. See Pujals ex 

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 7 of 15
8

rel. El Rey de los Habanos, Inc. v. Garcia, 777 F. Supp. 2d 1322, 1331-32 (S.D. Fla. 2011) (finding 

allegation that wrong plaintiff is bringing suit to be a denial, not an affirmative defense).

d. Eighth Affirmative Defense – Debt Is Dischargeable

In his Eighth Affirmative Defense, Defendant alleges “Plaintiff’s Count IV is barred because the [sic] any alleged debt is dischargeable.” [ECF No. 40, p.15]. Defendant’s conclusory 

statements are nothing more than a repetition of his Fifth Affirmative Defense. aerefore, this 

affirmative defense is not only facially insufficient but redundant as well, and subject to strike. See

Fed. R. Civ. P. 12(f).

e. Ninth Affirmative Defense – Forum Non Conveniens

In his Ninth Affirmative Defense, Defendant argues that “the action should be dismissed 

pursuant to the doctrine of forum non conveniens.” [ECF No. 40, p.15]. For the doctrine to apply, 

Defendant must show that “(1) an adequate alternative forum is available, (2) the public and private 

factors weigh in favor of dismissal, and (3) the plaintiff can reinstate [its] suit in the alternative 

forum without undue inconvenience or prejudice.” Link & Assocs. v. Ivany (In re Schonfeld, Inc.), 

806 F. App’x 743, 745 (11th Cir. 2020). Defendant only addresses the first element, alleging “Florida state circuit courts would be a better forum for the instant action.”1 Id. Defendant fails to note, 

however, that the parties were already part of a lawsuit in state court that was automatically stayed 

after Defendant filed for bankruptcy.

It should be noted that “there is a strong presumption in favor of maintaining the venue of 

an adversary proceeding where the bankruptcy is pending.” Bavaria Yachts USA, LLLP v. Bavaria 

Yachtbau GmbH (In re Bavaria Yachts USA, LLLP), 575 B.R. 540, 558 (Bankr. N.D. Ga. 2017).

1 Defendant then goes on to say: “ae contract requires the forum...” [ECF No. 40, p.15]. It seems 

part of the Ninth Affirmative Defense is missing, making it impossible to address whatever forum 

selection issues Defendant seems to allude to in this incomplete sentence.

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 8 of 15
9

Defendant chose this forum to bring his bankruptcy petition. Plaintiff then brought this adversary 

proceeding to determine the dischargeability of a debt, as permitted by Fed. R. Bankr. P. 7001(6). 

Defendant offers no explanation as to what makes this forum inconvenient now, eight months after 

Plaintiff began this adversary proceeding. In fact, it seems Defendant’s arguments are driven by 

nothing more than bad faith. Plaintiff would be extremely prejudiced if Defendant is permitted to 

maintain this defense, especially after admitting at his Rule 2004 examination that his reason for 

filing bankruptcy was to stay Plaintiff’s lawsuit in state court and discharge the debt owed to Plaintiff. See Adversary Complaint, ¶ 54, at Exhibit C.

f. Tenth Affirmative Defense – Standing

In his Tenth Affirmative Defense, Defendant alleges that Plaintiff has no standing because 

“Juan Carlos Ubieto does not have authority to bring the instant action.” [ECF No. 40, p.15]. First, 

it should be noted that “lack of standing is not an affirmative defense.” Denova v. Ocwen Loan 

Servicing, LLC, 2018 U.S. Dist. LEXIS 66956, at *6 (M.D. Fla. Jan. 25, 2018). In any case, Juan 

Carlos Ubieto in one of Plaintiff’s managers and can cause Plaintiff to bring suit. See Ex. A. In 

Florida, “a matter relating to the activities and affairs of the company is decided exclusively by the 

manager.” Fla. Stat. § 605.0407(3).

Defendant then goes on to give confusing and contradictory statements. For example, Defendant states “Mr. Ubieto was simply a director of the company.” [ECF No. 40, p.16]. In the very 

next sentence, however, Defendant claims “Plaintiff has failed to prove how ownership transferred 

in the midst of Mr. Ubieto’s passing,” i.e., from Mr. Ubieto to Juan Carlos Ubieto. Id.

Defendant further attacks standing claiming that “although Denmark entered into the alleged contract, the funds that were to be managed by GTA Advisors were meant to provide Mr. 

Ubieto with support for his retirement.” Id. Defendant argues that, if this is true, “Denmark did not 

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 9 of 15
10

have an interest in an arrangement between GTA Advisors and Mr. Ubieto and any contract should 

have been between Mr. Ubieto and GTA.” Id. Regardless of Defendant’s speculation as to what 

should have happened, the reality is that Defendant—through GTA Advisors—was managing 

Plaintiff’s money. See Ex. B. Although this was done for the benefit of Mr. Ubieto, Plaintiff still 

had an interest in the arrangement. In Florida, a limited liability company has the power to “[p]ay 

pensions and establish pension plans, pension trusts, profit-sharing plans, bonus plans, option 

plans, and benefit or incentive plans for any or all of its current or former managers, members, 

officers, agents, and employees.” Fla. Stat. § 605.0109(10).

Clearly, Defendant’s arguments as to standing have no merit. Plaintiff suffered an injury in 

that Defendant fraudulently mismanaged its funds. Defendant finally argues that “there is an issue 

with privity and the proper parties who are required for this action.” [ECF No. 40, p.16]. ais is 

just a rehash of the arguments raised in the Seventh Affirmative Defense for failure to join an 

indispensable party and can thus be stricken for being redundant as well. See Fed. R. Civ. P. 12(f).

g. Eleventh Affirmative Defense – Statute of Limitations

Defendant’s Eleventh Affirmative Defense is based on the supposed “expiration of the statute of limitation.” [ECF No. 40, p.16]. Defendant then lists three statutes of limitation, ranging 

from two to four years. Id. Defendant does not elucidate, however, which claims are time barred 

or when they became so. “An affirmative defense simply stating that a plaintiff’s claims are barred 

by the statute of limitations is insufficiently pled.” Aidone v. Nationwide Auto Guard, L.L.C., 295 

F.R.D. 658, 662 (S.D. Fla. 2013).

In fact, none of Plaintiff’s claims are time barred. Plaintiff only discovered Defendant’s 

mismanagement after he liquidated all of Plaintiff’s shares in February 2019. See SAC, ¶ 37. ais 

adversary proceeding began on July 9, 2020, well within the two-year statutes of limitations for 

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 10 of 15
11

securities violations and the four-year statute of limitations for FDUTPA violations.

h. Twelfth and Nirteenth Affirmative Defenses – Unclean Hands

In his proposed Twelfth and airteenth Affirmative Defenses, Defendant alleges that Plaintiff comes to the Court with unclean hands. However, for Defendant to avail himself of the unclean 

hands doctrine, he must satisfy two requirements. See Calloway v. Partners Nat’l Health Plans, 

986 F.2d 446, 450-51 (11th Cir. 1993). First, he must “demonstrate that the plaintiff’s wrongdoing 

is directly related to the claim against which it is asserted.” Id. Second, “even if directly related, 

the plaintiff’s wrongdoing does not bar relief unless the defendant can show that it was personally 

injured by her conduct.” Id.

In his Twelfth Affirmative Defense, Defendant alleges that “Plaintiff continuously misrepresents its business structure and incorporation, masking its identity and now comes before this 

Court for relief.” [ECF No. 40, p.17]. Defendant once again states that Plaintiff “is not registered 

to do business in the State of Florida or listed on Sunbiz.” As mentioned before, this is patently 

false. See Ex. A. Moreover, Defendant has shown no link between Plaintiff’s alleged wrongdoing 

and the claims that are supposedly barred by this defense.

In his airteenth Affirmative Defense, Defendant alleges without basis that “Juan Carlos 

Ubieto is indebted to Denmark Properties for amounts in excess of $500,000.00.” [ECF No. 40, 

p.17]. According to Defendant’s unsubstantiated allegations, “Juan Carlos Ubieto now attempts to 

bring forth this suit in order to satisfy his debt to Denmark, however Juan Carlos Ubieto does not 

have the authority to bring this action.” Id. As mentioned above, Juan Carlos Ubieto is one of 

Plaintiff’s managers, and has the authority to cause Plaintiff to bring suit. See Ex. A. In any case, 

this affirmative defense plainly fails as Defendant has not alleged any wrongdoing on Plaintiff’s 

part, let alone one that would bar recovery on any of Plaintiff’s claims.

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 11 of 15
12

i. Fourteenth Affirmative Defense – Waiver

In his Fourteenth Affirmative Defense, Defendant amazingly alleges that “Augustine [sic] 

Ubieto waived any claims against Defendant as they had a fiduciary duty to respect the wishes of 

their client.” [ECF No. 40, p.18]. Defendant seems to repeat the arguments made in his Sixth Affirmative Defense, that Mr. Ubieto assumed the risk of investing in leveraged and inverse ETFs. It 

is true that Defendant owed a fiduciary duty to his clients. However, Mr. Ubieto’s wishes were for 

“Weissenberg to place him in investments that were suitable for his goals and risk tolerance.” SAC, 

¶ 9. Defendant failed to do that.

ae elements of waiver are: “(1) the existence at the time of the waiver of a right, privilege, 

advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right; 

and (3) the intention to relinquish the right.” Dantzler, Inc. v. PNC Bank, 946 F. Supp. 2d 1344, 

1367 (S.D. Fla. 2013). Defendant has made no allegations establishing these elements, and this 

affirmative defense should therefore be stricken as insufficiently pleaded.

j. Fifteenth and Eighteenth Affirmative Defenses – Misstating Facts

Defendant’s Fifteenth and Eighteenth “Affirmative Defenses” are the clearest example of 

what is not an affirmative defense. As mentioned supra, “[a] defense which points out a defect in 

the plaintiff’s prima facie case is not an affirmative defense.” In re Rawson Food Serv., 846 F.2d 

at 1349. However, that is exactly what Defendant does here.

Defendant’s Fifteenth “Affirmative Defense” alleges “[t]he specific quote used by Plaintiff 

from the Financial Industry Regulatory Authority does not cite any law or regulation against leveraged ETFs, rather they are a warning for them.” [ECF No. 40, p.18]. However, throughout its 

Second Amended Complaint, Plaintiff refers to these statements as warnings. See SAC, ¶¶ 21-30. 

aerefore, it is not clear where Plaintiff “misstated” any facts.

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 12 of 15
13

Defendant’s Eighteenth “Affirmative Defense” alleges Plaintiff is incorporated “under the 

laws of the country of Nevis,2 not Panama.” [ECF No. 40, p.19]. Even if true (which it is not), this 

alleged defect in the Second Amended Complaint is not a proper affirmative defense. Defendant 

also accuses Plaintiff once again of not being “registered to conduct business in Miami-Dade 

County.” As mentioned, many times above, this is not true. See Ex. A.

k. Sixteenth Affirmative Defense – Unjust Enrichment

In his Sixteenth Affirmative Defense, Defendant again for no reason slanders Juan Carlos 

Ubieto, claiming he is “bringing these false claims as a method to recover monies unjustly to make 

up for his own failed ventures.” [ECF No. 40, pp.18-19]. Defendant’s allegations are not only 

scandalous but demonstrate an utter lack of understanding of what unjust enrichment is. Unjust 

enrichment is not an affirmative defense but an independent cause of action. A claim for unjust 

enrichment has three elements: “(1) the plaintiff has conferred a benefit on the defendant; (2) the 

defendant voluntarily accepted and retained that benefit; and (3) the circumstances are such that it 

would be inequitable for the defendants to retain it without paying the value thereof.” Virgilio v. 

Ryland Grp., Inc., 680 F.3d 1329, 1337 (11th Cir. 2012). Here, Defendant has not alleged he has 

conferred any benefit on Plaintiff, making his claim for unjust enrichment fail.

l. Seventeenth Affirmative Defense – Laches

In his Seventeenth Affirmative Defense, Defendant alleges “Plaintiff’s claims are barred 

pursuant to the doctrine of laches.” [ECF No. 40, p.19]. ae elements of laches are: “(1) a delay in 

asserting a right or a claim; (2) that the delay was not excusable; and (3) that there was undue 

prejudice to the party against whom the claim is asserted.” Venus Lines Agency, Inc. v. CVG Int’l 

2 It should be noted that Nevis is not a country. Nevis is an island which forms part of the country 

of Saint Kitts and Nevis.

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 13 of 15
14

Am., Inc., 234 F.3d 1225, 1230 (11th Cir. 2000). Defendant claims “Mr. Ubieto died on October

10, 2018, however Denmark Properties Limited did not bring an action until this adversary action

instituted on July 9, 2020, nearly two years later and only after Defendant filed for bankruptcy.” 

[ECF No. 40, p.19]. aat is false. First, Plaintiff did not discover Defendant’s wrongdoings until 

Defendant sold Plaintiff’s investments around February 2019. Plaintiff first sued Defendant in state 

court in September 2019 and was forced to institute this adversary proceeding due to Defendant’s 

bad faith petition for bankruptcy. Defendant cannot seriously argue that Plaintiff delayed filing suit 

for an unreasonable and inexcusable length of time.

WHEREFORE, Plaintiff Denmark Properties Limited requests the Court to enter an Order 

denying Defendant Carlos R. Weissenberg’s Motion for Leave to Amend Defendant’s Answer & 

Affirmative Defenses to Plaintiff’s Second Amended Complaint in its entirety and grant all other 

relief this Honorable Court deems just, proper, and equitable.

Dated: March 9, 2021

Respectfully submitted,

Eduardo A. Maura, Esq.

Ayala Law, P.A.

2490 Coral Way, Ste 401

Miami, FL 33145

Phone: 305-570-2208

Email: eayala@ayalalawpa.com

By: /s/ Eduardo A. Maura

Eduardo A. Maura

Florida Bar No. 91303

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 14 of 15
15

CERTIFICATE OF SERVICE

I hereby certify that a copy of this document was served via the Court’s CM/ECF system on March 

9, 2021, upon counsel for Defendant.

By: /s/ Eduardo A. Maura

Eduardo A. Maura

Florida Bar No. 91303

Case 20-01257-LMI Doc 43 Filed 03/09/21 Page 15 of 15