A Documentacion Capeco

Case 3:04-cv-01300-CCC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO COASTAL FUELS OF PUERTO RICO, INC. Plaintiff vs

CIVIL 04-1300CCC

GAD ZEEVI Defendant

OPINION AND ORDER This is an action for collection of monies filed by plaintiff Coastal Fuels of Puerto Rico, Inc. (Coastal) against defendant Gad Zeevi (Zeevi). Before the Court now are the Motion for Summary Judgment filed by plaintiff Coastal on July 8, 2005 (docket entry 23) and the Cross-Motion for Summary Judgment filed by defendant Zeevi on September 26, 2005 (docket entry 39). The essential facts are undisputed. Coastal is a corporation organized and existing under the laws of Delaware, with its principal place of business in Houston, Texas. Zeevi is the President of Caribbean Petroleum Corporation (CPC), a corporation organized and existing under the laws of Delaware which maintains its principal place of business within the Commonwealth of Puerto Rico. On June 23, 2000, and in order to settle a litigation then pending before this Court, Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 921584(HL), Coastal and CPC entered into a Confidential Settlement Agreement With Releases (Settlement Agreement). Under its terms, CPC agreed to pay Coastal the sum of $7.8 million in six annual installments of $1.3 million due on July 14, 2000 through July 14, 2005. These payments, in turn, were personally guaranteed by Zeevi through a Guarantee executed on that same date, through which he “unconditionally” and “irrevocably” assured, jointly and severally with CPC, their punctual satisfaction whether at stated maturity or by acceleration. The

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Settlement Agreement further provided that if any payment was not made by either CPC or Zeevi within the periods provided to each, the entire settlement amount would then become due and payable with interest. CPC made the first two $1.3 million payments required under the Settlement Agreement in July 2000 and July 2001. On December 17, 2001, it filed for bankruptcy under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware, where Coastal filed a Proof of Claim on June 25, 2002 for the amount of $5.2 million still due at the time under the Settlement Agreement. Not surprisingly, CPC failed to make the third installment payment of $1.3 million due on July 14, 2002 under the Settlement Agreement, an event which activated the Guarantee offered by Zeevi. Under the terms of the Settlement Agreement and of Zeevi’s Guarantee, once Coastal gave Zeevi written notice on August 14, 2002 of CPC’s failure to make the installment payment due on July 14, 2002, Zeevi then had a term of thirty (30) days to make the unpaid payment. Coastal and Zeevi, however, entered into a Forbearance Agreement dated September 24, 2002, by which Coastal agreed to grant Zeevi a modified payment schedule for him to satisfy CPC’s missed payment of $1.3 million due in July 2002 in exchange for his payment of interest. Thus, under the terms of the Forbearance Agreement, Zeevi agreed to pay 5% simple interest on the missed payment of $1.3 million dollars, i.e. $65,000.00, in four installments of $16,250.00 due on September 14, 2002, January 14, 2003, March 14, 2003 and June 14, 2003. Zeevi also agreed to pay the $1.3 million missed payment on or before July 14, 2003, together with the next installment payment of $1.3 million which would be due then by CPC under the Settlement Agreement. While Zeevi acknowledged the combination of the July 14, 2002 and July 14, 2003 payments, Coastal agreed to offset any monies paid by CPC before July 14, 2003 from the amount owed by Zeevi, with the exception of interest. The Forbearance Agreement expressly provided that all obligations under the Guaranty and the Settlement Agreement continued to remain in full force and effect, except as modified therein.

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Meanwhile, CPC’s bankruptcy action continued, and on March 13, 2003 the Delaware Bankruptcy Court confirmed the Fourth Amended Plan of Reorganization of Caribbean Petroleum LP, Caribbean Oil LP, Caribbean Petroleum Refining LP, Gulf Petroleum (Puerto Rico) Corporation and Caribbean Petroleum Corporation Under Chapter 11 of the Bankruptcy Code (Plan). Under the terms of this Plan, Coastal’s claim of $5.2 million was to be paid in full, and in cash, as follows: (1) on the initial distribution date, 20% of the claim, (2) on each of the next five (5) consecutive anniversaries of the initial distribution date, 15% of the claim, and (3) on the sixth anniversary of the initial distribution date, 5% of the claim. The Plan provided further that nothing contained in it was “intended to, nor shall effect any discharge, release or waiver of any obligations of Gad Zeevi to Coastal Fuels of Puerto Rico, Inc. under or in connection with, either the Guarantee of Settlement Agreement Obligations dated as of June 23, 2000 or the Forbearance Agreement dated September 24, 2002.” Plan, at §4.18(d), p. 28. In accordance with the Plan, on the initial distribution date of May 23, 2003 CPC made payment of 20% of the claim, or $1,040,000.00. It also paid the first installment of 15%, or $780,000.00, which was due on May 23, 2004 as well as the second installment of $780,000.00 due on May 23, 2005. Zeevi, in turn, made the first two installment payments of $16,250.00 corresponding to interest as required and within the deadlines imposed in the Forbearance Agreement. He missed the next two installments due on March and June 2003, although a sum which would serve to cover those two missed interest payments was deposited in Court on August 12, 2005 (see docket entry 29), after this action had been filed. Zeevi also failed to make the payment of $2.6 million which under the Forbearance Agreement was due on July 14, 2003. Coastal’s request for brevis disposition is mostly based on the interplay between the terms and obligations of the Settlement Agreement, Zeevi’s Guarantee, and the Forbearance Agreement. In sum, Coastal avers that Zeevi failed to comply with those agreements, and that he now owes it the balance of the original debt of CPC which remains unsatisfied by it, i.e. $2.6

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million, plus interest. In his cross-motion for summary judgment Zeevi contends, instead, that the action should be dismissed as premature, claiming that since the confirmation of the Plan by the Delaware Bankruptcy Court CPC has not been in default of its payment obligations to Coastal and, as a result, he is not in default under his Guarantee. Summary judgment is proper when, drawing all reasonable inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We must scrutinize the record in the light most favorable to the non-movant and draw all reasonable inferences therefrom to that party's behoof. Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999). This standard is not affected by the presence of cross-motions for summary judgment. See Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.1996). Having painstakingly reviewed all the relevant documents, we agree with Coastal’s request for the entry of summary judgment in its favor. This conclusion is but a logical consequence of the various agreements entered into by Coastal, CPC, and Zeevi. Pursuant to the Forbearance Agreement Zeevi had to make four payments corresponding to interest and a principal payment, of which it is undisputed that he only made two timely installment payments corresponding to interest. His non-compliance with that payment schedule, of course, placed him in default of the Forbearance Agreement. Under the terms of said document, such default had declared consequences: Coastal would no longer forbear pursuing legal remedies or accelerating the maturity of the debt recognized by CPC in the Settlement Agreement and guaranteed by Zeevi through his Guaranty. Thus, the unpaid settlement amount, or $5.6 million, became due and payable, with interest at an annual rate of 8.5%. However, since CPC had already paid Coastal, as part of its compliance with the Plan, the sum of $2.6 million, only the balance of $2.6 million may be collected from Zeevi, plus the stipulated interest.

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Zeevi’s contention that he is not in default as guarantor of CPC’s obligations because at the time of the filing of the complaint and its subsequent amendments CPC had complied with the scheduled payments of the Plan confirmed by the Bankruptcy Court ignores the fact of his own non-compliance with the terms and conditions of the Forbearance Agreement. It is undisputed that he failed to timely make the interest payments corresponding to April 14, 2003 and July 14, 2003. These, in fact, were eventually deposited with the Court on August 12, 2005 (docket entry 29), after this litigation had commenced. It is also uncontested that the Plan specifically provided that nothing contained in it would discharge, release or waive any of Zeevi’s obligations under his Guarantee or the Forbearance Agreement. Thus, the fact that CPC complied with the schedule of payments established for it in the Plan does not relieve Zeevi from complying with the schedule of payments established for him in the Forbearance Agreement, and of the consequences flowing from a default. We need go no further. Defendant Zeevi having defaulted on the payment schedule of the Forbearance Agreement, said default having triggered that CPC’s debt as recognized in the Settlement Agreement be accelerated, payment of said debt having been guaranteed by him, and the amount of said debt being today $2.6 million, plus 8.5% annual interest, Coastal’s Motion for Summary (docket entry 23) is GRANTED and Zeevi’s Cross-Motion for Summary Judgment (docket entry 39) is DENIED. Accordingly, judgment will be entered by separate Order granting the Second Amended Complaint (docket entry 27) and ordering that defendant Gad Zeevi pay plaintiff Coastal Fuels of Puerto Rico, Inc. the amount of $2.6 million plus interest at the annual rate of 8.5% from April 15, 2003. SO ORDERED. At San Juan, Puerto Rico, on February 7, 2006. S/CARMEN CONSUELO CEREZO United States District Judge

CLAIMS RESOLUTION TRIBUNAL In re Holocaust Victim Assets Litigation Case No. CV96-4849 Certified Award to Claimant [REDACTED] in re Accounts of Michael Flörsheim, Irene Elisabeth Stern, and Martha Recha Flörsheim Claim Number: 207323/SJ Award Amount: 514,250.00 Swiss Francs

This Certified Award is based upon the claim of [REDACTED] (the Claimant ) to the published accounts of Michael Flörsheim, Martha Recha Flörsheim and of the Martha-Stiftung, and to the unpublished accounts of Carl Alexander Flörsheim and Ruth A. Flörsheim.1 This Award is to the published accounts of Michael Flörsheim ( Account Owner Michael Flörsheim ), Martha Recha Flörsheim ( Account Owner Martha Flörsheim ) and to the unpublished account of Irene Elisabeth Stern ( Account Owner Stern ) (together, the Account Owners ) at the Basel branch of the [REDACTED] (the Bank ). Furthermore, this Award addresses two published accounts owned by Alfred Wiener ( Account Owner Wiener ) to which Carl Alexander Flörsheim is listed as a Power of Attorney Holder ( Power of Attorney Holder Flörsheim ), also held at the Bank. All awards are published, but where a claimant has requested confidentiality, as in this case, the names of the claimant, any relatives of the claimant other than the account owner, and the bank have been redacted.

Information Provided by the Claimant The Claimant submitted a Claim Form identifying Account Owner Michael Flörsheim as his paternal great-grandfather, Michael Flörsheim, and Account Owner Martha Flörsheim as his paternal great-grandmother, Martha Recha Flörsheim, née Philipp. In his Claim Form, the Claimant stated that Michael and Martha Flörsheim, who were Jewish, were the parents of Carl Alexander Flörsheim (the Claimant s paternal grandfather) and Ruth Flörsheim. In a telephone conversation with the CRT on 1 November 2002, the Claimant identified Account Owner Stern as his great-aunt, Irene Elisabeth Stern, née Flörsheim, the third child of Michael and Martha Flörsheim, and stated that she was married to [REDACTED]. 1

The names of Carl Alexander Flörsheim and Ruth A. Flörsheim were published on the February 2001 list of accounts determined by the Independent Committee of Eminent Persons ( ICEP ) to be probably those of Victims of Nazi persecution (the ICEP List ) as Power of Attorney Holders to the accounts of Martha Recha Flörsheim and of the Martha-Stiftung.

The Claimant stated that his grandfather, Carl Alexander Flörsheim, was born in 1909 in Hamburg, Germany. The Claimant indicated that his grandfather, who was also Jewish, was a lawyer and a businessman who resided in Hamburg until 1937, when he fled to Amsterdam, The Netherlands. The Claimant indicated that his grandfather was married to [REDACTED], née [REDACTED]. The Claimant stated that he believed that his grandfather opened an account in a Swiss bank under the name MarthaStiftung ( Martha Foundation ) in honor of his mother, Martha Flörsheim. The Claimant further indicated that Carl and [REDACTED] Flörsheim had one son, [REDACTED] (the Claimant s father), who was born on 19 May 1938 in Amsterdam. The Claimant indicated that his grandfather died in Amsterdam in 1941 and that his grandmother died in 1997. The Claimant stated his father, [REDACTED], died in Zurich, Switzerland, on 22 September 1992. In a telephone conversation with the CRT on 12 July 2001, the Claimant stated that his great-grandmother, Martha Flörsheim, fled Germany after the Nazis came to power, and that she died in Israel sometime between 1986 and 1991. The Claimant was unable to provide information regarding the fate of his great-aunts, Ruth Flörsheim and Irene Elisabeth Stern, née Flörsheim. The Claimant indicated that he was born on 26 December 1928 in Santa Monica, California, the United States.

Information Available in the Bank s Records The Bank s records consist of power of attorney forms, instructions concerning the mailing of bank correspondence, a certificate from the Ticino cantonal authorities, correspondence, and printouts from the Bank s database. Account Owner Michael Flörsheim The Bank s records indicate that one of the Account Owners was Michael Flörsheim, who resided at Beneckestrasse 13 in Hamburg, Germany. According to these records, Account Owner Michael Flörsheim held a demand deposit account, numbered 32687, which was opened on 22 August 1927. The Power of Attorney Holder to this account was Martha Flörsheim, née Philipp. The Bank s records show that this account was closed, but do not indicate the closure date. The amount in the account on the date of its closure is unknown. There is no evidence in the Bank s records that Account Owner Michael Flörsheim, the Power of Attorney Holder or their heirs closed the account and received the proceeds themselves. Account Owner Martha Flörsheim The Bank s records indicate that Martha Flörsheim, née Phillip, held two custody accounts, numbered 34058 and 34496. The Bank s records indicate that Account Owner Martha Flörsheim resided in Lugano-Crocifisso, Switzerland, in the early 1930s, and that she used addresses in Hamburg, at Parkallee 15 and Klosterallee 24. Furthermore, the Bank s records show that Account Owner Martha Flörsheim used temporary addresses in Berlin, Germany, and in Basel, Switzerland. With regard to custody account 34058, the Bank s records indicate that the account was opened no later than 8 January 1930, and was initially owned by the Martha-

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Stiftung ( Martha Foundation ), which was represented by Martha Flörsheim and cand. iur. (law student) Carl A. Flörsheim. The Bank s records indicate that this custody account was later transferred to the ownership of Martha Flörsheim on an unknown date. The Bank s records indicate that Account Owner Martha Flörsheim ordered the Bank to direct the bank correspondence to Fräulein (Miss) Ruth Flörsheim, who resided in Amsterdam, The Netherlands, at Hacquartstraat 3 and later at Minervalaan 24. The Bank s records indicate that the Power of Attorney Holder to custody account 34058 was originally M. Flörsheim. The Bank s records indicate that on 22 September 1931, Martha Flörsheim granted power of attorney to custody account 34058 to Michael Flörsheim and Carl A. Flörsheim. According to the Bank s records, Power of Attorney Holder Carl A. Flörsheim used addresses in Hamburg at Parkallee 15 and Klosterallee 24, and in Freiburg im Breisgau, Germany, at Talstrasse 54. Furthermore, the power of attorney forms in which Account Owner Martha Flörsheim granted powers of attorney to M. Flörsheim and Carl A. Flörsheim contain handwritten, undated notations indicating that those power of attorney holders were deceased. With regard to custody account number 34496, the Bank s records indicate that the account was opened no later than 15 January 1929. The records indicate that the Power of Attorney Holders to this account were Account Owner Martha Flörsheim s husband, M. Flörsheim, and Carl A. Flörsheim. The Bank s records do not show when custody accounts numbered 34058 and 34496 were closed, or to whom they were paid, nor do these records indicate the value of these accounts. The auditors who carried out the investigation of this bank to identify accounts of Victims of Nazi Persecution pursuant to instructions of the Independent Committee of Eminent Persons ( ICEP or the ICEP Investigation ) did not find these accounts in the Bank s system of open accounts, and they therefore presumed that they were closed. These auditors indicated that there was no evidence of activity on these accounts after 1945. There is no evidence in the Bank s records that Account Owner Martha Flörsheim or her heirs closed the accounts and received the proceeds themselves. Finally, the Bank s records also contain correspondence from 1938 between Carl A. Flörsheim and [REDACTED] of the Bank. This correspondence indicates that Carl A. Flörsheim resided in Amsterdam at Zuider Amstel Laan 209 during 1938. The letters show that Carl A. Flörsheim bought and sold securities from and to the Bank on a regular basis. These transactions were executed on Carl A. Flörsheim s own behalf. These letters, however, do not indicate whether Carl A. Flörsheim held an account with the Bank. These letters also contain personal information about Carl A. Flörsheim, including information about his ailing health and news of the birth of his son on 19 May 1938. Account Owner Stern The Bank s records indicate that Irene Elisabeth Stern held a custody account, numbered 38836, that was opened in December 1934. The Bank s records indicate that the Power of Attorney Holders to this account were [REDACTED] and Carl A.

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Flörsheim. The Bank s records further indicate that Carl A. Flörsheim resided in Amsterdam at Minervalaan 24 and that Account Owner Stern ordered the Bank to direct all correspondence to Carl A. Flörsheim. The Bank s records show that the account was closed, but do not indicate the closure date. The amount in the account on the date of its closure is unknown. There is no evidence in the Bank s records that Account Owner Stern, the Power of Attorney Holders or their heirs closed the account and received the proceeds themselves. Account Owner Wiener The Bank s records indicate that Alfred Wiener, who resided in Berlin, Germany, held two accounts and indicate the types of accounts he held. Furthermore, the Bank s records indicate that Carl Alexander Flörsheim and Frau (Mrs.) Käte Wiener (also known as Frl. (Fräulein or Miss) Kate Guttman) each held a power of attorney to these accounts. The Bank s records also indicate the profession of Account Owner Wiener and the city of residence, country of residence and street address for each of the three individuals listed in the Bank s records. Finally, the Bank s records contain the dates that the power of attorney forms were signed, as well as signature samples of Account Owner Wiener, [REDACTED], and Power of Attorney Holder Flörsheim.

The CRT s Analysis Identification of the Account Owners The Claimant has plausibly identified Account Owner Michael Flörsheim as his greatgrandfather. His great-grandfather s name matches the published name of Account Owner Michael Flörsheim, and his great-grandmother s name matches the published name of the Power of Attorney Holder. The Claimant identified his greatgrandfather s place of residence as Hamburg, which matches published information about Account Owner Michael Flörsheim contained in the Bank s records. Furthermore, the Claimant has plausibly identified Account Owner Stern as his greataunt, the sister of his grandfather. His great-aunt s name matches the unpublished name of Account Owner Stern and the name of his grandfather, Carl Alexander Flörsheim, matches the name of one of the Power of Attorney Holders. Additionally, the second Power of Attorney Holder, [REDACTED], was identified by the Claimant as Account Owner Stern s husband. Additionally, the Claimant has plausibly identified Account Owner Martha Flörsheim as his great-grandmother, and the Martha-Stiftung as a foundation created by her and his grandfather Carl A. Flörsheim. His great-grandmother s name matches the published name of Account Owner Martha Flörsheim and his great-grandfather s name, Michael Flörsheim, matches the published name of one of the Power of Attorney Holders. Additionally, the Claimant identified the remaining Power of Attorney Holders as his grandfather, Carl A. Flörsheim, and his grandfather s sister, Ruth Flörsheim. Furthermore, the Claimant identified his great-grandmother s maiden name as Phillip, which also matches published information contained in the Bank s records. Moreover, the Claimant identified his grandfather as a lawyer and a businessman, which matches unpublished information contained in the Bank s

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records. The Claimant also identified the birthday of his father, [REDACTED], as 19 May 1938, which matches unpublished information contained in the Bank s records. Finally, in regards to the accounts held by Account Owner Wiener, the Claimant has plausibly identified Power of Attorney Holder Flörsheim as his grandfather, Carl Alexander Flörsheim. The Claimant did not, however, identify Account Owner Wiener or the second individual who held a power of attorney to these accounts. The CRT notes that under Swiss law, a power of attorney holder is not considered to be the owner of an account. Furthermore, after a power of attorney holder dies, his or her powers in an account no longer exist, and they do not pass to his or her heirs. In support of his claim, the Claimant submitted documents, including a family tree detailing his relationship to the Account Owners and the Power of Attorney Holders. The CRT notes that the other claims to these accounts were disconfirmed because the information provided by those claimants contained different names, different genders, and/or different cities of residence than the information about the Account Owners contained in the Bank s records. Status of the Account Owners as Victims of Nazi Persecution The Claimant has made a plausible showing that the Account Owners were Victims of Nazi Persecution. The Claimant stated that the Account Owners were Jewish, and that they were forced to flee Germany. The Claimant s Relationship to the Account Owners The Claimant has plausibly demonstrated that he is related to the Account Owners by submitting documents demonstrating that the Account Owners are his greatgrandmother, his great-grandfather and his great-aunt. There is no information to indicate that the Account Owners have other surviving heirs. The Claimant has not indicated that he is related to Account Owner Wiener, although he has plausibly demonstrated that Power of Attorney Holder Flörsheim is his grandfather, Carl Alexander Flörsheim. As noted above, under Swiss law, a power of attorney holder is not considered to be the owner of an account. After a power of attorney holder dies, his or her powers in an account no longer exist, and they do not pass to his or her heirs. Therefore, although the Claimant has plausibly identified Power of Attorney Holder Flörsheim, since he has not identified Account Owner Wiener as his relative, and there is no evidence in the Bank s records that Power of Attorney Holder Flörsheim and Account Owner Wiener were related, the Claimant is not entitled to these accounts. The Issue of Who Received the Proceeds Given that in 1933 the Nazis embarked on a campaign to seize the domestic and foreign assets of Jewish nationals in Germany through the enforcement of flight taxes and other confiscatory measures including confiscation of assets held in Swiss banks; that there is no record of the payment of the Account Owners accounts to them; that the accounts are marked closed, but with unknown closure dates; that the Account Owners and their heirs would not have been able to obtain information about their

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accounts after the Second World War from the Bank due to the Swiss banks practice of withholding or misstating account information in their responses to inquiries by account owners because of the banks concern regarding double liability; and given the application of Presumptions (h) and (j) as provided in Article 28 of the Rules Governing the Claims Resolution Process, as amended (the Rules ) (see Appendix A), the CRT concludes that it is plausible that the account proceeds were not paid to the Account Owners, the Power of Attorney Holders, or their heirs. Based on its precedent and the Rules, the CRT applies presumptions to assist in the determination of whether or not Account Owners or their heirs received the proceeds of their accounts. Basis for the Award The CRT has determined that an Award may be made in favor of the Claimant. First, the claim is admissible in accordance with the criteria contained in Article 18 of the Rules. Second, the Claimant has plausibly demonstrated that the Account Owners were members of his family, as described above, and those relationships justify an Award. Third, the CRT has determined that it is plausible that neither the Account Owners, the Power of Attorney Holders nor their heirs received the proceeds of the claimed accounts. Amount of the Award In this case, the Claimant is entitled to the demand deposit account held by Account Owner Michael Flörsheim, the two custody accounts held by Account Owner Martha Flörsheim, and the custody account held by Account Owner Stern. Pursuant to Article 29 of the Rules, when the value of an account is unknown, as is the case here, the average value of the same or a similar type of account in 1945 is used to calculate the current value of the account being awarded. Based on the ICEP Investigation, in 1945 the average value of a demand deposit account was 2,140.00 Swiss Francs, and the average value of a custody account was 13,000.00 Swiss Francs. Given that the Account Owners held one demand deposit account and three custody accounts among them, the total 1945 average value of the accounts at issue is 41,140.00 Swiss Francs. The current value of this amount is calculated by multiplying it by a factor of 12.5, in accordance with Article 31(1) of the Rules, to produce a total award amount of 514,250.00 Swiss Francs.

Scope of the Award The Claimant should be aware that, pursuant to Article 20 of the Rules, the CRT will carry out further research on his claim to determine whether there are additional Swiss bank accounts to which he might be entitled, including research of the Total Accounts Database (consisting of records of 4.1 million Swiss bank accounts which existed between 1933 and 1945).

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Certification of the Award The CRT certifies this Award for approval by the Court and payment by the Special Masters. Claims Resolution Tribunal 28 May 2004

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