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United States Bankruptcy Court

Southern District of Florida

Case Number: 20-17132-LMI Adversary Number: 20-01257-LMI

In re:

Name of Debtor(s): Carlos R. Weissenberg

______________________________________/

Denmark Properties Limited

Plaintiff(s)

v. 

Carlos R. Weissenberg

Defendant(s)

______________________________________/ 

MOTION FOR LEAVE TO AMEND DEFENDANT’S ANSWER & AFFIRMATIVE 

DEFENSES TO PLAINTIFF’S 2ND AMENDED COMPLAINT

Defendant, CARLOS WEISSENBERG (“Mr. Weissenberg” or “Defendant”), by and 

through its undersigned counsel, pursuant to Federal Rules of Civil Procedure Rule 15, files this 

Motion for Leave to Amend Defendant’s Answer & Affirmative Defenses To Plaintiff’s 2nd 

Amended Complaint, and states as follows:

Introduction

MEMORANDUM OF LAW

a. Legal Standard

Pursuant to Federal Rules of Civil Procedure Rule 15, “a party may amend its pleading 

only with the opposing party’s written consent or the court’s leave. The court should freely give 

leave when justice so requires.” Leave sough should be freely given so long as a party does not 

cause undue delay, bad faith, have a dilatory motive, or abuse the privilege of amending. Forman 

v. Davis, 371 U.S. 178, 182 (Fla. 1962); See also Douberley v. Burger King Corp., No. 8:06-cv1844-T-17 EAJ, 2007 U.S. Dist. LEXIS 29302, at *3 (M.D. Fla. Apr. 20, 2007) (Federal Rule of 

Civil Procedure 15 has a “low threshold); Unum Life Ins. Co. of Am. v. Flannery (In re Flannery), 

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Nos. 04-02865-B7, 05-90265-B7, 2006 Bankr. LEXIS 4736, at *27 (Bankr. S.D. Cal. Sep. 13, 

2006) (holding “when justice requires” has such a low threshold” “that in the absence of undue 

prejudice, undue delay, or affirmative bad faith, leave must be freely given.”)

b. Defendant’s Motion for Leave to Amend should be granted because the Plaintiff will 

not be prejudiced and justice so requires. 

Defendant’s Motion to Amend should be granted because justice so requires the 

amendment to allow the Defendant to properly plead its Answer and Affirmative Defenses.

Defendant has recently obtained new counsel and upon counsel’s review of the file determined 

that it can allege additional Affirmative Defenses to ensure the Defendant is adequately protected 

in the action. The amendment will not delay the case or prejudice the Plaintiff as the instant action 

has not yet been set for trial. Furthermore, Defendant, not Plaintiff, will suffer prejudice if 

Defendants Motion for Leave is denied. Defendant would be denied the ability to fully set forth its 

affirmative defenses and supporting facts to those defenses. This Court should grant Defendant’s 

Motion to Amend in the interest of judicial economy, justice so requires, and because amendments 

should be liberally granted. 

WHEREFORE, Defendant, CARLOS WEISSENBERG, respectfully requests this Court 

to enter an order (1) granting Defendant’s Motion for Leave to Amend; (2) deem Exhibit A, 

Plaintiff’s Proposed Amended Answer & Affirmative Defenses To Plaintiff’s 2nd Amended 

Complaint. 

DATED: March 2nd, 2021

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I am admitted to the Bar of the United States District Court 

for the Southern District of Florida and I am qualified to practice in this Court as set forth in 

Local Rule 2091-1(A), and a true and correct copy of the foregoing was served via the Court’s 

CM/ECF system upon all parties registered to receive electronic notice in this case as reflected 

on the attached Electronic Mail Notice List on this 2nd day of March 2021. 

/s/ Giacomo Bossa

GIACOMO BOSSA, Esq. 

Florida Bar No.: 97817 

BARAKAT + BOSSA 

2701 Ponce de Leon Blvd., Suite 202

Coral Gables, Florida 33134

Tel: (305) 444-3114

Fax: (305) 444-3115 

Email: gbossa@b2b.legal

service@b2b.legal

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United States Bankruptcy Court

Southern District of Florida

Case Number: 20-17132-LMI Adversary Number: 20-01257-LMI

In re:

Name of Debtor(s): Carlos R. Weissenberg

______________________________________/

Denmark Properties Limited

Plaintiff(s)

v. 

Carlos R. Weissenberg

Defendant(s)

______________________________________/ 

DEFENDANT’S AMENDED ANSWER & AFFIRMATIVE DEFENSES TO 

PLAINTIFF’S 2ND AMENDED COMPLAINT

Defendant, CARLOS WEISSENBERG (“Mr. Weissenberg” or “Defendant”), by and

through its undersigned counsel, files this Amended Answer & Affirmative Defenses To Plaintiff, 

DENMARK PROPERTIES LIMITED’s (“Denmark”), 2nd Amended Complaint, and states as 

follows:

ANSWER

PRELIMINARY STATEMENT

1. Admitted for jurisdictional purposes only.

PARTIES

2. Without sufficient knowledge, therefore denied.

3. Defendant admits he is a resident of Miami-Dade County, Florida, otherwise

denied.

4. Admitted for jurisdictional purposes only.

5. Admitted for jurisdictional purposes only.

EXHIBIT A 

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FACTS

Plaintiff Becomes Client of Weissenberg

6. Without sufficient knowledge, therefore denied.

7. Denied.

8. Denied.

9. Without sufficient knowledge, therefore denied.

10. Denied.

11. Denied.

12. Denied.

Leveraged and Inverse ETFs

13. Without sufficient knowledge, therefore denied.

14. Without sufficient knowledge, therefore denied.

15. Without sufficient knowledge, therefore denied.

16. Without sufficient knowledge, therefore denied.

17. Without sufficient knowledge, therefore denied.

18. Without sufficient knowledge, therefore denied.

FINRA’S Warnings to Industry Professionals About Leveraged and Inverse ETFs

19. Without sufficient knowledge, therefore denied.

20. Without sufficient knowledge, therefore denied.

21. Without sufficient knowledge, therefore denied.

22. Without sufficient knowledge, therefore denied.

23. Without sufficient knowledge, therefore denied.

24. Without sufficient knowledge, therefore denied.

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25. Without sufficient knowledge, therefore denied.

26. Without sufficient knowledge, therefore denied.

27. Without sufficient knowledge, therefore denied.

28. Without sufficient knowledge, therefore denied.

29. Without sufficient knowledge, therefore denied.

30. Without sufficient knowledge, therefore denied.

31. Without sufficient knowledge, therefore denied.

a. Denied.

b. Denied.

c. Denied.

d. Denied.

e. Denied.

Weissenberg’s Investments

32. Denied.

a. Denied.

b. Denied.

c. Denied. 

d. Denied.

e. Denied.

f. Denied.

33. Denied.

a. Denied.

b. Denied.

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c. Denied.

d. Denied.

34. Without sufficient knowledge, therefore denied.

35. Denied.

36. Denied.

37. Denied.

38. Denied.

39. Without sufficient knowledge, therefore denied.

40. Denied.

Count I – Violation of Section 10(b)(5) of the Securities Exchange Act of 1934

41. No allegation to admit or deny.

42. No allegation to admit or deny.

43. Denied.

44. No allegation to admit or deny.

45. Denied.

46. Denied.

47. Denied.

48. Denied.

49. Denied.

50. Denied.

51. Denied.

52. Denied.

53. Denied.

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Denied that Plaintiff is entitled to any relief in the Wherefore clause.

Count II – Violation of the Florida Securities and Investor Protection Act

54. No allegation to admit or deny.

55. No allegation to admit or deny.

56. No allegation to admit or deny.

57. Denied.

58. Denied.

59. Denied.

60. Denied.

61. Denied.

62. Denied.

63. Denied.

64. Denied.

65. Denied.

Denied that Plaintiff is entitled to any relief in the Wherefore clause.

Count III – Violation of the Florida Deceptive and Unfair Trade Practices Act

66. No allegation to admit or deny.

67. No allegation to admit or deny.

68. Denied.

69. Denied.

70. Denied.

71. Denied.

72. Denied.

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73. Denied.

74. Denied.

75. Denied.

76. Denied.

77. Denied.

Denied that Plaintiff is entitled to any relief in the Wherefore clause.

Count IV – Objection to Dischargeability of Debt pursuant to 11 U.S.C. §523(a)(19)

78. No allegation to admit or deny.

79. No allegation to admit or deny.

80. Denied.

81. Denied.

82. Denied.

83. No allegation to admit or deny.

Denied that Plaintiff is entitled to any relief in the Wherefore clause. 

CLAIM FOR ATTORNEY’S FEES AND COSTS

Defendant hereby claims an entitlement to attorney’s fees and costs under any contract, 

statute, and any other basis relied upon by the Plaintiff in its Second Amended Complaint. 

DEFENDANT’S AFFIRMATIVE DEFENSE

FIRST AFFIRMATIVE DEFENSE

FAILURE TO STATE A CAUSE OF ACTION – ALL COUNTS

Plaintiff’s Count I is barred because first Plaintiff fails to meet the pleading requirements 

of Rule 9(b). In assessing whether an alleged omission withstands Federal Rule of Civil Procedure 

9(b), the Plaintiff must allege (1) precisely what omissions were made, (2) the person responsible 

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for the omission, (3) the content of the statements and the manner in which they misled, and (4) 

“what the defendants obtained as a consequence of the fraud.” Ziemba v. Cascade Int’l, Inc., 256 

F.3d 1194, 1202 (11th Cir. 2001); Anwar v. Fairfiled Greenwich Ltd., 826 F. Supp. 2d 578, 586 

(S.D.N.Y. 2011) (holding that when the Plaintiff pleads the Defendant received a fee for securing 

an investment, the Plaintiff has satisfied the omission pleading requirement of pleading the 

consequence of the fraud). Here, Plaintiff fails to plead any what the Defendant obtained as a 

consequence of the alleged fraud. Instead, Plaintiff alleges the Defendant “stood to make 

substantial commissions” however, Defendant never made a commission because the account lost 

over $175,000. Therefore, Plaintiff fails to state a cause of action for each Count of the Second 

Amended Complaint. 

SECOND AFFIRMATIVE DEFENSE 

FAILURE TO STATE A CAUSE OF ACTION – COUNT I

Plaintiff fails to state a cause of action for 10(b)(5). First, 10(b)(5) is inapplicable to the 

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

First, the Plaintiff has admitted it is a Panama company and although alleges it conducts business 

in Miami-Dade County, the Plaintiff is not registered with the State of Florida to transact business. 

Importantly, at no point does the Plaintiff allege that any of the alleged “omissions” occurred in 

the United States. Moreover, at all relevant times, Defendant was a resident of the country of 

Ecuador and did not reside in the United States of America. As such, 10(b)(5) cannot apply to an 

investment advisor who is advising a foreign corporation because a United States interest does 

not exists. 

Second, Plaintiff attempts to read Section 10(b) in isolation without consulting caselaw, 

statutory supporting documentation or preliminary notices enacted. Plaintiff restates Section 

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10(b) of the Securities and Exchange Act of 1934, which “makes it unlawful ‘to use or employ, 

in connection with the purchase or sale of any security . . . any manipulative or deceptive device 

or contrivance in contravention of such rules and regulations as the [Securities Exchange] 

Commission may prescribe as necessary or appropriate in the public interest or for the protection 

of investors.’” Plaintiff’s 2nd Complaint ¶ 42; 15 U.S.C. § 78j. However, Plaintiff’s claim fails 

to take into account Rule 10b5-1 defining “manipulative and deceptive devices” as “the purchase 

or sale of a security of any issuer, on the basis of material nonpublic information about that 

security or issuer, in breach of a duty of trust or confidence that is owed directly, indirectly, or 

derivatively, to the issuer of that security or shareholders of that issuer, or to any other person 

who is the source of the material nonpublic information. 17 C.F.R. § 240.10b5-1. Furthermore, a 

purchase or sale of a security of an issuer is “on the basis of” material nonpublic information “if 

the person making the purchase or sale was aware of the material nonpublic information when 

the person made the purchase or sale. However, as Plaintiff alleges, all information regarding 

ETFs was public information, made available by the Financial Industry Regulatory Authority 

(“FIRNA”). In fact, omissions in 10(b) typically include misstatements or omissions in revenue 

forecasts or knowledge of the amount invested in a company. Moreover, fraudulent schemes 

under the purview of 10(b) are often schemes “to affect the price of stocks,” In re Glob. Crossing,

Ltd., Sec. Litig., 2005 U.S. Dist. LEXIS 16228, at *16 (S.D.N.Y. Aug. 5, 2005), “late trading” 

schemes, In Re Mut. Funds Inv. Litg., 384 F. Supp. 2d 845 (D. Md. 2005), or misstatements or 

omissions that a price charged by a company did not reasonably reflect the prevailing market 

price, Hodge v. Hodge, 216 B.R. 932, 934 (Bankr. S.D. Ohio 1998). However, in the instant case, 

Plaintiff fails to allege any scheme where the Defendant misstated or omitted information 

regarding to the price of stocks, a time trading scheme, the failure to correct a corporate stock 

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report, ect. Plaintiff has attempted to fit its alleged facts into Rule 10(b) where a violation does 

not exist. In fact, the Defendant has no influence over the ETFs mentioned, nor was nonpublic 

information alleged to have been used to disadvantage the Plaintiff. 

THIRD AFFIRMATIVE DEFENSE

FAILURE TO STATE A CAUSE OF ACTION – COUNT II

Plaintiff’s Count II is barred because Plaintiff fails to state a cause of action pursuant to 

Florida Securities and Investor Protection Act (“FSIPA”). First, Plaintiff is not a registered 

Florida business entity and at all relevant times Defendant was a resident of Ecuador. Plaintiff 

fails to allege at any point that the allegations occurred in the State of Florida. As such, Florida 

law should not apply simply because Defendant has now filed for bankruptcy in Florida. 

Second, Plaintiff fails to state a cause of action because the alleged fraudulent activities 

are not within the purview of FISPA. Fraudulent claims for FISPA involve undercapitalization of 

projections, Butts v. State, 418 So. 2d 468, 471 (Fla. 4th DCA 1982), misstatements as omissions 

on financial statements, J.P. Morgan Sec., LLC v. Geveran Invs. Ltd., 42 Fla. L. Weekly D1347 

(Fla. 5th DCA June 9, 2017), and the artificial increasing of commissions. Importantly, in Black, 

the Defendant sold CMOs to the Plaintiff, which were deemed risky investments, at 

excessive/inflated prices. Id. However, the sole fact that CMOs were risky investments and the 

Plaintiff had a policy against investing in risky policies was not the issue for the court. Instead, 

the Court found the practice was violative of FISPA because the Defendant artificially increased 

his commissions through a process called “rolling” and “churning.” Id. Therefore, the sole 

investment in “risky stocks” is not enough to violate FISPA. As such, Plaintiff has failed to state 

a cause of action for Count II. 

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FOURTH AFFIRMATIVE DEFENSE

FAILURE TO STATE A CAUSE OF ACTION – COUNT III

Plaintiff’s Count II is barred because Plaintiff fails to state a cause of action pursuant to 

Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). First, Plaintiff is not a registered 

Florida business entity and at all relevant times Defendant was a resident of Ecuador. Plaintiff 

fails to allege at any point that the allegations occurred in the State of Florida. As such, Florida 

law should not apply simply because Defendant has now filed for bankruptcy in Florida.

Second, FDUPTA specifically provides that in construing its provisions, due 

considerations and great weight shall be given to the interpretations of the Federal Trade 

Commission and the federal courts relating to the FTC Act. Fla. Stat. § 501.204(2).

Importantly, the FTC Act “has been consistently interpreted to preclude coverage of 

securities claims in the overwhelming majority of state and federal courts addressing the issue.” 

Crowell v. Morgan Stanely Dean Witter Servs. Co., 87 F. Supp 2d 1287, 1294 (S.D. Fla. 2000). 

Moreover, numerous federal courts have declined to apply similar consumer protection statutes 

of other states to securities fraud claims. Id., see e.g. See e.g., Nichols v. Merrill Lynch, Pierce,

Fenner & Smith, 706 F. Supp. 1309, 1337-38 (M.D. Tenn. 1989)("almost all state and federal 

courts construing similar statutes have held that consumer protection laws do not apply to 

security transactions"); Mercer v. Jaffe, Snider, Raitt & Heuer, P.C., 713 F. Supp. 1019, 1030 

(W.D. Mich. 1989), aff'd 933 F.2d 1008 (6th Cir. 1991)(noting that "overwhelming" majority of 

decisions decline to apply general state consumer protection statute to the securities field). Lastly, 

securities is already heavily regulated through various other Florida State Statutes. See Cromwell,

87 F. Supp. at 1295. As such various courts, including this Court, have concluded that FDUPTA 

does apply to claims arising from securities transactions. Id.; see also Rogers v. Nacchio, No. 05-

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60667-CIV-COHN/S, 2006 U.S. Dist. LEXIS 101855, at *45 (S.D. Fla. June 5, 2006) (“FDUPTA 

does not apply to securities claims). 

Here, Plaintiff readily admits that the instant action involves a security transaction. A 

claim for a security transaction cannot arise under FDUPTA. Therefore, Plaintiff has failed to 

state a cause of action pursuant to FDUPTA. 

FIFTH AFFIRMATIVE DEFENSE

FAILURE TO STATE A CAUSE OF ACTION – COUNT IV

Plaintiff’s Count IV is barred because the any alleged debt is dischargeable. Defendant 

incorporates its First, Second, Third, and Fourth Affirmative Defenses herein. Because 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. 

SIXTH AFFIRMATIVE DEFENSE

ASSUMPTION OF RISK

By their very nature, investments have inherent risks of failure. In the present case Agustin 

Ubieto was in contact with Defendants and had the final say in whether to move forward with 

ANY investment. Mr. Ubieto was advised by Defendants of potential risks and he made the final 

decision to continue with the Exchange traded funds. 

SEVENTH AFFIRMATIVE DEFENSE

FAILURE TO JOIN AN INDISPENSABLE PARTY 

Plaintiff’s Second Amended Complaint is barred because the Plaintiff fails to join an 

indispensable party, Mr. Agustin Ubieto (“Ubieto”). Federal Rule of Civil Procedure Rule 19

requires joinder if “in that person’s absence, the court cannot accord complete relief among the 

existing parties.” Importantly, “in determining whether a party is indispensable, a district court 

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may base its findings ‘on stated pragmatic considerations, especially the effect on parties and on 

litigation.’” Lyons v. O’Quinn, 607 F. App’x 931, 934 (11th Cir. 2015). 

In the present case, the 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. In fact, Plaintiff is unable to join Ubieto as a party because he has since passed away, 

yet Plaintiff failed to join the estate of Ubieto, which is alleged to be the real alleged “victim” of 

any fraudulent scheme. Importantly, Plaintiff will be unable to present its case absent hearsay and

third-party testimony. Defendant will suffer substantial prejudice if this action is to proceed. 

EIGHTH AFFIRMATIVE DEFENSE

DEBT IS DISCHARGEABLE

Plaintiff’s Count IV is barred because the any alleged debt is dischargeable. Plaintiff’s 

claims for fraud and violation of various federal and state law fail to state a cause of action. As 

such, Defendant’s debt is dischargeable. 

NINETH AFFIRMATIVE DEFENSE

FORUM NON CONVENIENS

Defendant asserts that the action should be dismissed pursuant to the doctrine of forum 

non conveniens. Although Defendant maintains that FDUPTA and FISPA do not apply, Florida 

state circuit courts would be a better forum for the instant action. The contract requires the forum 

______________

TENTH AFFIRMATIVE DEFENSE

STANDING

Upon information and belief this action is being brough by Juan Carlos Ubieto. However, 

Juan Carlos Ubieto does not have authority to bring the instant action, nor does the Estate of his 

father, Mr. Ubieto. Denmark Properties Limited is a incorporated pursuant to the laws of the 

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Country of Nevis. The original incorporator of Denmark Properties Limited is Wendy Webbe. 

Mr. Ubieto was simply elected as a director and secretary “until his successor has been elected, 

appointed, and qualified.” Moreover, Denmark Properties Limited issued shares in the name of 

Fundacion Los Volcanes. As such, Mr. Ubieto was simply a director of the company. Moreover,

Plaintiff has failed to prove how ownership transferred in the midst of Mr. Ubieto’s passing. 

Moreover, the issue of standing becomes muddled even further upon examination of 

Plaintiff’s allegations in the Second Amended Complaint. First Plaintiff’s allege that Plaintiff 

itself entered into an agreement with GTA Advisors LLC – not Carlos Weissenberg individually. 

Then, Plaintiff alleges 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.” If this is true, Denmark did not have an interest in an arrangement between GTA 

Advisors and Mr. Ubieto and any contract should have been between Mr. Ubieto and GTA. 

As alleged, Plaintiff attempts to allege a hodge-podge the background facts which do not 

reflect a valid contract in existence between Plaintiff and Defendant, individually. Instead, 

Plaintiff attempts to allege Plaintiff and Defendant entered into a contract where Defendant would 

manage the retirement fund of one of Plaintiff’s directors. In any sense, there is an issue with 

privity and the proper parties who are required for this action. Importantly, Mr. Ubieto, who is 

allegedly the party whom the funds were managed and meant to provide for, is not a member of 

the party – albeit deceased, his estate is not a member to the action as well. 

ELEVENTH AFFIRMATIVE DEFENSE

STATUTE OF LIMITATIONS – COUNT I (10b-5)

Defendant asserts the affirmative defense of expiration of the statute of limitation. 

Pursuant to 28 U.S.C.S. § 1658(b), “a private right of action that involves a claim of fraud, deceit, 

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manipulation . . . may be brought not later than the earlier of (1) 2 years after the discovery of the 

facts constituting the violation; or (2) 5 years after such violation.” Claims under FDUPTA are 

subject to a four-year statute of limitations pursuant to Florida Law. Fla. Stat. § 95.11(3)(f). The 

statute of limitations for securities crimes in Florida is two years within the period running from 

the time facts giving rise to the cause of action were discovered or should have been discovered, 

but not more than five years. Fla. Stat. § 95.11(4)(e).

TWELFTH AFFIRMATIVE DEFENSE

UNCLEAN HANDS – PLAINTIFF IS NOT REGISTERED TO DO BUSINESS IN 

FLORIDA 

Plaintiff’s claims are barred pursuant to the doctrine of unclean hands. Plaintiff brings this 

action as an alleged Panama corporation, yet is incorporated in Nevis. Moreover, Plaintiff also 

alleges it conducts business in Miami-Dade County, however, is not registered to do business in 

the State of Florida or listed on Sunbiz. Plaintiff continuously misrepresents its business structure 

and incorporation, masking its identity and now comes before this Court for relief. As such, 

Plaintiff has unclean hands and should be barred from relief. 

THIRTEENTH AFFIRMATIVE DEFENSE 

UNCLEAN HANDS - PARTIES

The individual bringing-suit on behalf of the Plaintiff is Juan Carlos Ubieto, Augustin 

Ubieto’s son. Juan Carlos Ubieto is indebted to Denmark Properties for amounts in excess of 

$500,000.00. These were funds that Juan Carlos Ubieto borrowed from Denmark and never repaid.

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. Juan Carlos Ubieto is 

misrepresenting himself as the manager/director/sole owner of Denmark, which he is not. 

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FOURTEENTH AFFIRMATIVE DEFENSE

WAIVER

Augustine Ubieto waived any claims against Defendant as they had a fiduciary duty to 

respect the wishes of their client. If financial planners could be sued every time an investment 

went south, it would defeat the very essence of investing and turn the system on its head.

FIFTEENTH AFFIRMATIVE DEFENSE

MISTATING FACTS

The 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. 

According to the Financial Industry Regulatory Authority:

This Notice reminds firms of their sales practice obligations in

connection with leveraged and inverse ETFs. In particular

recommendations to customers must be suitable and based on a full 

understanding of the terms and features of the product recommended; 

sales materials related to leveraged and inverse ETFs must be fair and 

accurate; and firms must have adequate supervisory procedures in 

place to ensure that these obligations are met.

As you can see in this regulatory notice, all that is stated is that GTA Advisors had to 

advise Denmark Properties of the risk associated with leveraged ETFs, which GTA Advisors had 

done on multiple occasions. The SEC and the Financial Industry Regulatory Authority simply 

state that it is recommended that leveraged ETFs should be held daily, not stating that leveraged 

ETFs should only be held daily. Further, the ETFs in question yielded a return for Denmark and 

those returns led Ubieto to continue to participate.

SIXTEENTH AFFIRMATIVE DEFENSE

UNJUST ENRICHMENT

These claims are being brought by Juan Carlos Ubieto to unjustly recover monies from 

Defendant that are not deserved. Juan Carlos is bringing these false claims as a method to recover 

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monies unjustly to make up for his own failed ventures. Thus, it would be unjust to reward Juan 

Carlos Ubieto for actions that were taken at the Direction of his father Augustine Ubieto.

SEVENTHEETH AFFIRMATIVE DEFENSE

LACHES

Plaintiff’s claims are barred pursuant to the doctrine of laches. 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. 

Moreover, Plaintiff continued to allow Mr. Ubieto’s investment to stay in the market and did not 

sell the ETFs until February 11, 2019, fourth months after Mr. Ubieto’s death, despite Plaintiff’s 

repeated allegations that “ETFs are held at most for no longer than two or three weeks.” 

EIGHTEENTH AFFIRMATIVE DEFENSE

MISTATING FACTS

Plaintiff alleges it is a “Panama corporation conducting business in Miami-Dade County, 

Florida.” Second Amended Complaint ¶ 2. However, Plaintiff is actually incorporated under 

the laws of the country of Nevis, not Panama. Moreover, Plaintiff is not registered to conduct 

business in Miami-Dade County. 

DATED: March 2nd, 2021

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2701 Ponce de Leon Blvd. Suite 202, Coral Gables, FL 33134 • Tel: 305-444-3114 • service@b2b.legal

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I am admitted to the Bar of the United States District Court for 

the Southern District of Florida and I am qualified to practice in this Court as set forth in Local 

Rule 2091-1(A), and a true and correct copy of the foregoing was served via the Court’s CM/ECF 

system upon all parties registered to receive electronic notice in this case as reflected on the 

attached Electronic Mail Notice List on this March 2nd, 2021. 

/s/ Giacomo Bossa

GIACOMO BOSSA, Esq. 

Florida Bar No.: 97817 

BARAKAT + BOSSA 

2701 Ponce de Leon Blvd., Suite 202

Coral Gables, Florida 33134

Tel: (305) 444-3114

Fax: (305) 444-3115 

Email: gbossa@b2b.legal

service@b2b.legal

Case 20-01257-LMI Doc 40 Filed 03/02/21 Page 20 of 20