FILED: NEW YORK COUNTY CLERK 12/09/ :38 PM INDEX NO /2015 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/09/2015

Transcription

1 FILED: NEW YORK COUNTY CLERK 12/09/ :38 PM INDEX NO /2015 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/09/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BANCO INDUSVAL S.A., X Index No.: Plaintiff, - against - SUMMONS ANTONIO CARLOS GONÇALVES JR., Defendant. X TO THE ABOVE-NAMED DEFENDANT: Antonio Carlos Gonçalves Jr. Rua Eliseu Teixeira Camargo 1,070, House 42, Chácara Gramado District Campinas, São Paulo, Brazil Postcode You are hereby summoned to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the plaintiff at the address stated below within twenty (20) days after the service of this summons, exclusive of the day of service, or within thirty (30) days after service is complete if this summons is not personally delivered to you within the State of New York. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Venue is properly based in this Court as the property that is the subject of the requested order of attachment is in New York County. Dated: New York, New York December 9, 2015 CLEARY GOTTLIEB STEEN & HAMILTON LLP ~ By:, и r; Howard Ѕ. Ze1bo hzelbo@cgsh. com One Liberty Plaza New York, New York T: F: Attorиeys for Plaiиtiff

2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BANCO INDUSVAL S.A., X Index Ni.: Plaintiff, Complaint for a - against - Prejudgment Order of Attachment ANTONIO CARLOS GONÇALVES JR., Defendant. X Plaintiff, Banco Indusval S.A. (`BI&P"), through its undersigned counsel, alleges as follows for its Complaint against Antonio Carlos Gonçalves Jr. ("Antonio Carlos"), the Defendant. INTRODUCTION 1. In this action, BI&P seeks a pre-award Order of Attachment as security for arbitration that it intends to commence against Defendant in Brazil within thirty days of the requested Order of Attachment. 2. Additionally, BI&P seeks a prejudgment Order of Attachment with respect to separate claims for money damages pursuant to the terms of several loan guarantee agreements, executed by the Defendant, which he has breached. 3. These latter claims are already the subject of two Brazilian lawsuits brought by BI&P arising from loans made by BI&P to Defendant's company, Ceagro Agricola Ltda. ("Ceagro"), and guaranteed by Defendant. In one of these lawsuits, the Brazilian Court has already issued a judgment requiring that Defendant pay R$13,114,595.04, or approximately $3,545,638, within three days of BI&P serving Defendant with the judgment. Despite numerous

3 efforts, BI&P has not yet been able to effect service on Defendant. In the second lawsuit, BI&P seeks $17,332,670 in U.S. dollars that Defendant owes pursuant to guarantees signed by Defendant in respect of other loan agreements between BI&P and Ceagro. BI&P expects that the judge in Brazil will soon issue a similar judgment, requiring Defendant to honor these guarantees as well within three days of service. 4. In addition, BI&P intends to commence an arbitration against Defendant seeking substantial damages due to Defendant's fraudulent and other wrongful conduct, as described below. 5. BI&P has received evidence that Defendant has substantial assets in an account at Safra National Bank in New York ("Safra"). б. BI&P seeks an order attaching Defendant's funds held at Safra in New York in aid of its soon to be commenced arbitration and in connection with its separate claims for money damages under the guarantees. BI&P also seeks a TRO enjoining Defendant and any garnishees from disposing of these funds pending issuance of the Order of Attachment. PARTIES 7. Plaintiff BI&P is a Brazilian commercial bank, headquartered in São Paulo. BI&P's business is focused primarily on providing financing for agricultural businesses in Brazil. BI&P is publicly traded on the BM&F Bovespa stock exchange. 8. Defendant Antonio Carlos is an individual who is a citizen and resident of the Federal Republic of Brazil. Upon information and belief, Antonio Carlos and his wife, wholly own Ceagro, a Brazilian company engaged in the import, export, and trading of grains and agricultural products in Brazil and internationally..urisdiсtion AND VENUE 9. The relief sought herein is pursuant to CPLR Articles 62, and 75. 2

4 10. This Court has jurisdiction over this complaint due to the presence of Defendant's assets in the Safra account, which are located in New York. "[J]urisdiction for prejudgment attachment purposes" is permissible "based on nothing more than the presence within the jurisdiction of the assets to be attached." Sojitz Corp. v. Prithvi Info. Sols. Ltd., 921 N.Y.S.2d 14, 18 (2011). 11. The Court also has jurisdiction over an application for an order of attachment in aid of arbitration pursuant to CPLR 7502(c). 12. Venue is proper in that this county is the place where property in which the Defendant has an interest is located. STATEMENT OF FACTS 13. BI&P has engaged in several financial transactions with Antonio Carlos and his company, Ceagro, related to financing the production and exportation of agriculture. Two of the specific types of transactions were Export Credit Notes, or "NCEs," and Advances Against Exchange Contracts, or "ACCs." Both transactions are loans made by BI&P to Ceagro, the repayment of which are personally guaranteed by Antonio Carlos. 14. In particular, on March 20, 2015, BI&P entered into an NCE loan with Ceagro (the "NCE Loan"), guaranteed by Antonio Carlos (the "NCE Guaranty"), for R$11,927, or approximately $3,718,238, based on an exchange rate of R$3.20 per $1 on March 20, Under the terms of the NCE Loan, Ceagro was obligated to repay the íu11 amount of the NCE Loan plus interest within 180 days of the issuance of the NCE Loan. 15. Ceagro defaulted on the NCE Loan. Antonio Carlos failed to honor and defaulted on the NCE Guaranty, despite due demand. The amount due at the time of default was R$13,114, or approximately $3,424,170, based on an exchange rate of R$3.83 per $1 on September 16,

5 16. On seven separate occasions between June 27, 2014 and May 19, 2015, BI&P entered into ACC loans with Ceagro (the "ACC Loans"), guaranteed by Antonio Carlos (the "ACC Guarantees"). The ACC Loans were substantially identical, except as to amount. The total value of the seven ACC Loans, which are advances paid in U.S. Dollars, was $17,332,670. Under the terms of the loan, Ceagro was required to repay the full amount of each ACC Loan on its respective maturity date. 17. Ceagro defaulted on all seven of the ACC Loans. Antonio Carlos failed to honor and defaulted on the ACC Guarantees, despite due demand. 18. On October 27, 2015, BI&P filed a lawsuit related to the NCE Loan and the NCE Guaranty against Ceagro and Antonio Carlos in the Civil Court of the Central District of São Paulo, Brazil (the "NCE Lawsuit"). This action sought R$13,114, or approximately $3,424,170 in money damages. 19. On October 28, 2015, the Brazilian Court in the NCE Lawsuit entered judgment in favor of BI&P and ordered Antonio Carlos to pay the full amount due on the NCE Loan, R$13, l 14,595.04, within three days of service (the "Brazilian NCE Judgment"). If Antonio Carlos fails to pay or secure the ordered amount, a court officer in Brazil will attach any assets belonging to Antonio Carlos in Brazil. 20. Within fifteen days of service, Antonio Carlos can file a motion to stay execution of the judgment, but the defenses he can present are limited and he must first pay or fully secure the amount owed. 21. BI&P has not yet been able to effect service on Antonio Carlos, despite diligent efforts. 4

6 22. On November 13, 2015, BI&P filed а lawsuit related to the ACC Loans and ACC Guarantees against Ceagro and Antonio Carlos in the Civil Court of the Central District of Sao Paulo, Brazil (the "ACC Lawsuit"). This action seeks $17,332,670 in money damages, and is still pending. 23. In addition to the losses BI&P is seeking to recover in the NCE Lawsuit and the ACC Lawsuit, BI&P has suffered losses of R$190 million or approximately $51.3 million due to a separate fraud perpetrated by Antonio Carlos against BI&P in April 2015 related to farm product bonds called Cedulas de Product Rural ("CPRs"), as well as consequential damages of at least R$11.8 million or approximately $3.1 mйllиon due to Antonio Carlos's fraudulent and wrongful conduct. Pursuant to a valid and enforceable arbitration agreement between the parties that covers these claims, BI&P intends to commence an arbitration against Antonio Carlos in Brazil to recover its CPR-related losses (to the extent not recovered from third parties against whom BI&P is also seeking recovery of the CPR-related losses) as well as certain consequential damages stemming from this and other wrongdoing by Antonio Carlos. 24. In particular, in April 2015, and for several years before, BI&P was engaged in a joint venture with Antonio Carlos and his company, Ceagro, for the purpose of investing in CPRs. The name of this entity was C&BI Agropartners S/A ("C&BI"). The joint venture parties' partnership agreement, dated as of December 3, 2012, includes an arbitration agreement. 25. CPRs are issued by farmers to obtain financing for upcoming harvests. In the normal course of the CPR joint venture, Ceagro would purchase CPRs from farmers and eventually sell them to BI&P, making BI&P the lawful owner of the farmer's product (which 5

7 was usually soybeans). One week prior to delivery of the soybeans, Ceagro would buy the CPRs from BI&P and deliver the bonds to the farmer or the re-seller in exchange for the soybeans. 26. However, in April 201.5, Antonio Carlos subverted this normal procedure by requesting that the farmers and re-sellers deliver the soybeans to him without first purchasing the CPRs from BI&P. Antonio Carlos promйsed the farmers and re-sellers that he would deliver the bonds on a later date and, due to their long-term relationship, they apparently trusted him and handed over the product. Antonio Carlos never purchased these CPRs from BI&P and never delivered them to the farmers and re-sellers. He simply seized the soybeans that rightfully belonged to BI&P (as the holder of the CPRs) and sold them to third parties. The value of the soybeans Antonio Carlos stole was R$190 million or approximately $51.3 million. 27. BI&P promptly terminated the joint venture upon discovering this fraud and has initiated enforcement proceedings against the farmers to recover the nй appropriated soybeans. BI&P has also initiated criminal investigations in Brazil against Antonio Carlos for embezzlement. 28. In June 2015, BI&P also learned that Ceagro had overstated its net worth in its September 2014 financial statements by more than R$800 million or approximately $213.3 million. The financial statements declared a positive net worth of R$300 million when in fact Ceagro had a negative net worth of R$500 million. 29. BI&P has obtained an order from the Brazilian Court requiring Antonio Carlos to pay the amounts due and owing under the NCE Guaranty, and it is also highly probable that BI&P will succeed on the merits of both its pending suit in Brazil with respect to the ACC Loans and its anticipated arbitration to recover its CPR-related losses and consequential б

8 damages. However, it is unlikely that Antonio Carlos will voluntarily satisfy the judgments and award against him as evidenced by his fraudulent and evasive conduct to date. 30. In early August 2015, BI&P received in the mail from an anonymous source printed copies of s between Antonio Carlos and an individual at Safra. These s show that Antonio Carlos holds substantial sums in an account managed by Safra in New York. 31. This action seeks an Order of Attachment against Antonio Carlos's account at Safra in New York. BI&P seeks to ensure that any assets that Antonio Carlos holds in New York will be available to satisfy its numerous claims against Antonio Carlos. CLAIMS FOR RELIEF COUNT Against Defendant Antonio Carlos For Pre-Award Order of Attachment Pursuant to NY CPLR 7502(c) and Article Plaintiff repeats and realleges each of the allegations above as if fully set forth herein. 33. BI&P intends to commence an arbitration in Brazil for losses caused by Antonio Carlos's fraudulent conduct in connection with the parties' joint venture and with respect to other consequential damages. 34. It is probable that BI&P will prevail on the merits of its cause of action because there is clear evidence of its losses and of Antonio Carlos's fraudulent conduct. 35. Antonio Carlos is a non-domйcilјary residing without the state. He is a citizen of Brazil, where he has a permanent home. 7

9 36. Without an Order of Attachment, the arbitration award to which BI&P is entitled will likely be rendered ineffectual. York. 37. Antonio Carlos holds substantial sums in an account at Safra in New 38. The Court should issue an Order of Attachment attaching Antonio Carlos's assets at Safra in New York. COUNT II Against Defendant Antonio Carlos For Prejudgment Orders of Attachment Pursuant to NY CPLR Article Plaintiff repeats and realleges each of the allegations above as if fully set forth herein. 40. This is a cause of action against Antonio Carlos seeking money owed by Antonio Carlos under the NCE Guaranty and ACC Guarantees. Plaintiff has also commenced lawsuits seeking recovery of the amounts that Antonio Carlos owes Plaintiff under the NCE Guaranty and the ACC Guarantees. 41. It is probable that BI&P will prevail on the merits of its causes of action because there is clear documentation of both Antonio Carlos's obligation under the NCE Guaranty and ACC Guarantees and of his breaches of those guarantees. The Brazilian Court in the NCE Lawsuit has already issued a judgment in favor of BI&P, and BI&P expects a similar ruling in the ACC Lawsuit soon. 42. Antonio Carlos is a non-domiciliary residing without the state. He is a citizen of Brazil, where he has a permanent home. 8

10 43. Antonio Carlos holds substantial sums in an account at Safrа in New York. 44. There is a need for attachment because Antonio Carlos has repeatedly ignored requests for payment and BI&P has reason to believe he will also fail to pay the judgments and otherwise attempt to frustrate enforcement of the judgments. 45. The Court should issue an Order of Attachment attaching Antonio Carlos's assets at Safra in New York. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests the following relief: A. Issuance of an Order of Attachment for all funds belonging to Antonio Carlos at Safra in the form and substance requested by Plaintiff in a motion brought by Order to Show Cause filed simultaneously herewith; B. Award to Plaintiff of the costs of this action, including reasonable attorneys' fees; C. Such further relief as this Court deems just and proper. 9

11 Dated: New York, New York December 9, 2015 Respectfully submitted, CLEARY GOTTLIEB STEEN & HAMILTON LLP By: Howard S.éó cgsh.óm One Liberty Plaza New York, New York T: F: Attorneys for Plaintiff Banco Indusval S.A. 10