Investor Takahisa Yamamoto will present evidence to justify the arrest of MV Luta, according to his lawyer, George Hasselback who filed a brief in federal court on Tuesday to support probable cause for the arrest of the vessel.
Hasselback said his client’s sworn allegations in his first amended complaint, arguments and all evidence that will be presented at the post-arrest hearing on Feb. 10, 2017 will support a finding that reasonable grounds existed for issuing the arrest warrant for MV Luta.
Hasselback noted that Luta Mermaid’s opening brief was substantially the same document filed previously in support of its motion to cancel the sale of the vessel.
Luta Mermaid LLC — the officers of which are couple Fidel and Abelina Mendiola and their son Derek Mendiola — is the registered owner of MV Luta.
Hasselback said Luta Mermaid’s brief attempted to “pre-judge” the sufficiency of evidence that Yamamoto has not had an opportunity to present to the court.
He said the argument of Luta Mermaid that Yamamoto’s first amended complaint was insufficient for a maritime arrest is premature, adding that the court has allowed the plaintiff to “submit any and as much competent evidence as he wishes, be it through declarations, exhibits or witnesses, to support his burden.”
Hasselback added, “While this case does stand for the proposition that allegations in verified complaints are held to certain standards of pleading, this case did not prioritize one form of sworn statement (in a verified complaint) over another form of sworn statement (in an affidavit). To the extent that it was argued (and will likely be argued) that one type of sworn statement is inherently more ‘believable,’ plaintiff would submit that the vehicle by which evidence is delivered should not be the primary determiner of its inherent credibility.”
He said Luta Mermaid’s “proof” that Yamamoto was a joint-venturer and not a creditor of the vessel relies in large part upon a mechanical interpretation of words used by a lay person.
“Such an analysis should not be undertaken,” Hasselback added.
He said there are many factors that a court should consider other than what the parties called a particular relationship, such as the “parties’ intentions, the degree of joint control or the joint right of control, and whether and to what degree the respective parties share a proprietary interest in the subject matter of the venture, rights to profits and rights to losses.”
Such an analysis should keep in mind that “these elements cannot be applied mechanically, and that no one aspect of the relationship is decisive,” Hasselback said.
The Mendiolas, together with Lt. Gov. Victor Hocog, were sued by Yamamoto in Oct. 2016 for fraud, breach of contract and unjust enrichment. Yamamoto says the defendants owe him over $3 million
Joining the lawsuit as intervenors are the vessel’s crewmembers who are demanding their wages as well as Norton Lilly International, Long Consulting and Rota Terminal & Transfer Co.’s which are trying to collect overdue payments from the ship’s management.
Another intervenor, the Commonwealth Ports Authority, has withdrawn its lawsuit, saying that the vessel’s debt to CPA, amounting to over $20,000, has been resolved.
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Source: Marianas Variety
