Complaint Review: Kevin Fleming

March 16, 2016

No.165789
New Westminster Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

BEFORE A REGISTRAR

DEFAULT JUDGMENT

The Plaintiff having filed and served a Notice of Civil Claim on the Defendants, EDWARD ALBERT COLE a.k.a. TED COLE, TAYLOR A. COLLINGS, DAVID CROWE, DARRELL BUSHNELL, RIPED OFF AT SEASIDE MARIANA, SEASIDE MARIANA INVESTORS UNION, ISLA MARIANA INVESTORS UNION, NICAHEAT, CYPRESS, LOBO, KELVIN, FRANK, SMART INVESTOR, CONCERNED INVESTOR, JOHN SHEPARD, RON, BILLY BUDSOCKET, MIKE, CARLOS, KRIS, BILL CUMMINGS, PEDRO, SEASIDEMARIANASCAM@GMAIL.COM, SCAMORG, FRANK BENTALL, GARY BUTLER, GEORGIA, ADAH, OBSERVER, KEN, CRAIGSLIST POST ID 4789282622 and USER942352 and those Defendants having failed to file and serve a Response to Civil Claim within the time allowed:

THIS COURT ORDERS that the Defendants, EDWARD ALBERT COLE a.k.a. TED COLE, TAYLOR A. COLLINGS, DAVID CROWE, DARRELL BUSHNELL, RIPED OFF AT SEASIDE MARIANA, SEASIDE MARIANA INVESTORS UNION, ISLA MARIANA INVESTORS UNION, NICAHEAT, CYPRESS, LOBO, KELVIN, FRANK, SMART INVESTOR, CONCERNED INVESTOR, JOHN SHEPARD, RON, BILLY BUDSOCKET, “MIKE”, CARLOS, KRIS, BILL CUMMINGS, PEDRO, SEASIDEMARIANASCAM@GMAIL.COM, SCAMORG, FRANK BENTALL, GARY BUTLER, GEORGIA, ADAH, OBSERVER, KEN, CRAIGSLIST POST ID 4789282622 and USER942352 pay to the Plaintiff damages to be assessed.

THE COURT FURTHER ORDERS that the Defendants EDWARD ALBERT COLE a.k.a. TED COLE, TAYLOR A. COLLINGS, DAVID CROWE, DARRELL BUSHNELL, RIPED OFF AT SEASIDE MARIANA, SEASIDE MARIANA INVESTORS UNION, ISLA MARIANA INVESTORS UNION, NICAHEAT, CYPRESS, LOBO, KELVIN, FRANK, SMART INVESTOR, CONCERNED INVESTOR, JOHN SHEPARD, RON, BILLY BUDSOCKET, “MIKE”, CARLOS, KRIS, BILL CUMMINGS, PEDRO, SEASIDEMARIANASCAM@GMAIL.COM, SCAMORG, FRANK BENTALL, GARY BUTLER, GEORGIA, ADAH, OBSERVER, KEN, CRAIGSLIST POST ID 4789282622 and USER942352 pay to the Plaintiff costs to be assessed.

On Tuesday, December 16, 2014, the Plaintiff Kevin Fleming made an application for alternative method of service brought without notice to the presiding master at the courthouse at The Law Courts at 651 Carnarvan Street in the City of New Westminster, in the Province of British Columbia to serve the notice of civil claim filed on November 4, 2014 in the Supreme Court of British Columbia on the Defendants Geoff Bramwell, John Bramwell, Nica Projects Ltd. and Brammy Bros. Painting & Restoration Ltd., collectively referred below as the (“Bramwell Defendants”).

The Fleming lawsuit alleges defamation against Geoff Bramwell, John Bramwell, Nica Projects Ltd., Brammy Bros. Painting & Restoration Ltd., Edward Albert Cole, Taylor Collings, David Crowe, Darrell Bushnell, Federico Gurdian Sacasa and 26 John Doe individuals who have published lies over email and the Internet, following the termination of Agreements with Wyndham Hotel Group and Golf Design Agreement with Nicklaus Design.

In an Affidavit of Attempted Service filed in the Supreme Court of British Columbia, the process server from Rapid Taggers attended the work address of the Bramwell Defendants on November 6, 2014 and left a message with the receptionist. On the same day, the process server received a message from Geoff Bramwell stating he was out of town and to return the next week.

On November 10th and 12th, 2014, the process server returned to the work address of the Bramwell Defendants and was only able to leave a message on the intercom. On November 12th, 2014, the process server left a voice mail message for John Bramwell. On November 18, 2014, the process server attempted to serve John Bramwell at a known residential address but was unsuccessful. As of December 1, 2014, no return phone calls from the Bramwell Defendants were received from the process server and it’s the process servers belief that the Bramwell Defendants are evading service.

Rule 4-4 in the Supreme Court of British Columbia permits substituted service in two distinct circumstances: 1) where it is impracticable to serve the person by personal service; and b) where the person to be served cannot be found after a diligent search or is evading service.

Upon hearing Fleming, and on the reading the sworn Affidavits #3, #4 and #5 of Kevin Fleming, the court ordered that Fleming may serve the notice of civil claim by alternative method upon the Bramwell Defendants by posting a copy of the notice of civil claim and the court order at the Bramwell Defendants work address on the rear entrance door of 1332 Franklin Street, Vancouver, British Columbia, and such service shall be deemed to be good service upon the Bramwell Defendants.

In addition, the time within the Bramwell Defendants may file a response to the notice of civil claim be 21 days after the completion of service. Fleming says, “the alternative service message proposed offers a clear statement of the significance of the notice of civil claim”.

“I will continue to defend my reputation and hold the Defendants to account for their irresponsible publishing of defamatory statements that has deeply hurt me and my family and I welcome the opportunity to meet the Defendants in the courtroom to address their negligent behavior”, says Kevin Fleming.

On December 15, 2014, the Supreme Court of British Columbia allowed legal notice to be served by private messages on online forums and sent via email to 26 anonymous individuals advising them that they are being sued in the Kevin Fleming defamation case.

Fleming, who filed a defamation lawsuit seeking damages on November 4, 2014, says in the lawsuit that online comments that imply he was acting in fraudulent manner and unethical are untrue.
 
Fleming does not know who the John Doe Defendants are or where they are located, and there is no cost-effective means of discovering this information. The only readily apparent means of finding out would be to seek production orders against the various Internet service providers.

Even if such orders were granted and obeyed, they would only yield e-mail addresses, service on which would essentially be no different than that under the proposed order. A court permits alternative (“substituted”) forms of legal service when the usual method of hiring a detective or a process server is “impracticable” or when a defendant is evading service.

With the success of the recent motion, defendants such as “Seaside Mariana Investors Union”, “Isla Mariana Investors Union” and “NicaHeat” will be forced into a tricky choice between fighting the lawsuit, and thus exposing themselves to a verdict, or laying low and allowing a default judgment to be entered against them, thus exposing themselves to the risk of being identified and penalized later without any chance of a defense.

Under most circumstances, when a person does not file a statement of defense within a given time, the suing party is entitled to a default judgment, which can result in the collecting of compensation from the defendants.

Fleming believes being able to serve legal notice over the Internet is a way for the law to catch up to social media and the judgment means he does not have to serve the defendants in person. This is not unprecedented; there are other cases of hard-to-identify people being notified through Facebook and Twitter that they have been sued.

According to Fleming, "it is important that this defamation lawsuit is seen to the end where judgment is granted in order that individuals would not have to endure these types of hate-filled campaigns, personal attacks and vicious lies."

Service Message to Riped Off at Seaside Mariana

The Plaintiff, KEVIN FLEMING has named you as a Defendant in a Notice of Civil Claim filed in the British Columbia Supreme Court on November 4, 2014. On December 16, 2014, the British Columbia Supreme Court authorized service of the Notice of Civil Claim by private message to you at this message board.

A copy of the Notice of Civil Claim and Affidavits can be access on the website of Grupo Mariana, S.A. at http://blog.grupomariana.com/notice-of-civil-claim.   

You will be deemed to have been served with a Notice of Civil Claim 5 days after the date this message was sent. A copy of the Order permitting service by this private message can also be accessed on the website of Grupo Mariana, S.A. at http://blog.grupomariana.com/notice-of-civil-claim.  

JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to file a response to the civil claim within 28 days from the date of service of the Notice of Civil Claim, as ordered by the British Columbia Supreme Court of the above-noted Order.

The purpose of this message is to inform you that I filed an action on November 4, 2014 in the Supreme Court of British Columbia, alleging defamation against Geoff Bramwell, John Bramwell, Nica Projects Ltd., Brammy Bros. Painting & Restoration Ltd., Edward Albert Cole, Taylor Collings, Federico Gurdian, David Crowe and Darrell Bushnell for publishing lies over email and the Internet, following the termination of Agreements with Wyndham Hotel Group and Golf Design Agreement with Nicklaus Design.

There are lies being spread on the Internet that I have committed a fraud. These lies have harmed my family and Owners and Promissory Purchasers in the beachfront communities of Isla Mariana and Seaside Mariana in Nicaragua. I'm not going to simply accept it and move on.

I'm pursuing them in court and will obtain orders compelling them to pay damages for their illegal actions. I will force everyone who has failed to take down these lies from their websites to do so and to pay damages for not taking them down when I asked them to.

Sincerely,

Kevin I. Fleming
Chairman | Grupo Mariana S.A.
Managua, Nicaragua
(888) 484-4425 North America Toll Free
www.grupomariana.com
kevin.fleming@grupomariana.com

In the past months you have been informed on the updates regarding our efforts to solve the legal issues we have faced. Be forewarned, this message contains a great amount of detailed information that will help to understand both clients and our position at Seaside Mariana Oceanfront Community in Nicaragua.

Franklin Delano Roosevelt once said, “The only thing we have to fear is fear itself.” The famous axiom has no better relevance than in present day Nicaragua at Seaside Mariana.

If you believed Edward Albert Cole (aka. Ted Cole and Seaside Mariana Investor Union) media, the invalid lawsuit against Seaside Mariana Spa & Golf Resort, S.A., Kevin Fleming and Maria Rueda should have had negative consequences such as a complete loss of client's investment and Cole taking over the property at Seaside Mariana. This was false along with other representations and accusations made by Cole that have been rebutted.

The truth is there has never been Arbitration, a valid lien on the property, a valid registered lawsuit and clients were never at risk of losing their investment. All legal matters have been resolved and in reality however, it may turn out to be one of the more positive things that could have happened. Clearing out ghosts of "lawsuits" creates new opportunity for growth.

An investor realizes the distinction between real danger and the perception of danger.  While real danger should be avoided, the perception of danger can be an investor’s best friend. The well-educated investor can find great deals while others remain timid and watchful. By the time the more reticent stick their toes in the water the opportunity may have passed.

The reality is that sensationalism sells and may also cause fear. If you have any doubt of this just turn on your nightly news. The deluge is virtually endless. But think of all the big scares that came to naught. How about the Y2K scare? It was widely believed that the world’s computers were not adapted to adjust for the year 2000.  The new millennium was to be met with widespread computer systems failure, leading to untold global economic catastrophes. What ended up happening? Virtually nothing.

And what about the infamous anthrax scare? It was headline news for months. Supposedly, vast amounts of mail could be contaminated, leading to a virtual shut down of the US Postal system. And anthrax was supposed to emerge from the air vents of the NY subway system, leading to chaos and calamity in Manhattan. In the end what did it amount to? Virtually nothing.

If you believed the international media, the election of Daniel Ortega in 2006 should have had immediate negative consequences on the emerging development of Nicaragua. Despite the sensationalistic media spin on Ortega, what has really come to pass in Nicaragua since the election? Again, the answer is virtually nothing. There has been no run on the banks. Investors have not fled the country. Nicaragua is still reported as the safest country in the Americas. Tourism arrivals continue to increase and foreign investment is on the rise.

Despite the Cole and Seaside Mariana Investor Union media spin, what has really come to pass with the invalid and irregular civil lawsuit and baseless criminal charges against Kevin Fleming? Again, the answer is nothing. No one has been found guilty. No one has been jailed. Seaside Mariana has not been lost.  There has been no run on the land. Investors have not fled Seaside Mariana. Public Deeds are being issued. Design plans are complete. Permits are approved. There is no secured debt. Construction can resume immediately.

The real estate market is getting stronger and this is a prime opportunity for Seaside Mariana to continue where it left off under construction in November 2012. As an investor, you need to determine whether lawsuits are a real threat to Seaside Mariana or just a perceived threat. Could Seaside Mariana return to the same legal challenges put forward by Cole?

Consider these facts: Cole claimed he made repeated requests to meet but we failed to respond. He said he had no choice but to file a lawsuit, which he called Arbitration. This is false. We were in regular contact with Ted Cole and maintained frequent contact over a period of six years. In fact, we attempted to contact Mr. Cole on June 5th, 2012 but received no answer. A month later we were notified that he had filed a lawsuit against Seaside Mariana Spa & Golf Resort, S.A., Kevin Fleming and Maria Rueda.

On September 18, 2012 we once again attempted to contact Mr. Cole but were met with no response. Shortly thereafter a letter containing multiple accusations and multiple falsehoods was posted on the Ripoff Report and distributed to clients and others not directly involved with Grupo Mariana developments. We invited Cole to provide documentation that he filed Arbitration proceedings in either jurisdiction of Miami, Florida or Managua, Nicaragua—or anywhere for that matter. Our request went unanswered. And Cole, while extremely vocal, was more a purveyor of hot air rhetoric than a bona fide threat to Seaside Mariana’s stability.

On April 8, 2013, the criminal accusation of Defamation filed by Cole and his wife Carmen Elizondo on February 6, 2013 was dropped with no retraction, penalty, fine, jail time or guilty finding against Kevin Fleming.  The January 31, 2013 immigration restriction against Kevin Fleming was lifted on April 9, 2013.

On May 20, 2013, the civil lawsuit filed on July 5, 2013 by Cole was dropped with no guilty finding. In addition, the criminal accusation of Fraud by Cole and Michael Edmonds was dropped and there was no penalty, fine, jail time or guilty finding against Kevin Fleming. The February 20, 2013 immigration restriction against Kevin Fleming was lifted on May 21, 2013.

More important than what’s occurring at Seaside Mariana are the development maneuverings taking place inside Seaside Mariana. Developmentally speaking, Cole does not hold a majority of land. Cole does not own any common roads. Cole has no access to power, water and communications. Cole has no authority to change bylaws of the horizontal property regime unilaterally, even if he so desired.  And there’s no evidence that Cole has any approved plans, permits or financing to start a development of his own within Seaside Mariana.

Instead of Cole moving on after his attempt to take over the lands at Seaside Mariana ended unsuccessfully, he is continuing with his media relations with negative and false statements about Seaside Mariana and now Isla Mariana causing more damages to clients investment.

Recently, Cole has reached out to clients identifying himself as the leader of the anonymous group called the Seaside Mariana Investor Union and has vowed to continue causing difficulty for Seaside Mariana and Isla Mariana encouraging clients to bring further legal action that will result in damage to clients investment and possible delay in development at Seaside Mariana and Isla Mariana.

The reality is communication distributed by Cole reveals he was financially challenged between 2009-2012, and to put it bluntly—he’s not rich in land now. Engaging in further litigation would only hit clients in their pocketbook – hardly in their best interests. Cole would have you believe if more litigation begins you could lose everything. Unfortunately, common sense doesn’t always present itself and fear spreads quickly.

Another wise man once said, “Be fearful when others are greedy and greedy when others are fearful.”  Who put forth these words? It was none other than the “Oracle of Omaha,” Warren Edward Buffett.

How does this apply to Cole? Quite simply, while others might remain fearful of the “Lawsuit Factor,” this is the clients opportunity to close on properties and protect themselves from any third party creditors.

Since September 7, 2009, Seaside Mariana has notified clients with 190 properties under contract that have been ready to close, to complete their power of attorney and submit their closing cost to their attorney. We encourage clients to stop delaying the closing process and in the next 90 days, execute a Public Deed and continue with the registration process. The time is NOW is Nicaragua.

Steps to Close on Properties in Nicaragua

Summary of the process of purchasing property in Nicaragua:

1.    Public Deed of Promise of Sale is prepared.
2.    Public Deed of Promise of Sale is recorded.
3.    Public Deed of Sale is prepared.
4.    Public Deed of Sale is recorded.

The required documents to issue a Public Deed of Promise of Sale in Nicaragua are:

1.    Copy of private agreement and any applicable.
2.    Confirmation from both seller and buyer in writing (e-mail will be ok).
3.    Power of Attorney from Seaside Mariana
4.    Power of Attorney from the Client.
5.    Updated approved survey. Originals are only valid for one year.
6.    Certificate of Lack of Liens and annotations. Valid for only 30 days.
7.    Certificate of the Municipal Solvency. Valid for only 30 days.
8.    Funds for Closing Cost are sent to the attorney on record issuing the Promise of Sale Deed or Public Deed.

Despite what you’ve heard in the media, the emergence of Cole may be one of the best things that could have happened for Seaside Mariana. People can no longer say, “I would invest, but what if there is a lawsuit or more lawsuits start?”

The so-called worst-case litigious scenario for real estate investors came to pass. And guess what? Seaside Mariana will thrive and prosper in the near future. The ghosts of "lawsuits" have been exorcised. Nothing happened.

Status of Seaside Mariana

Coincidentally as the emergence of the Seaside Mariana Investor Union (aka. Ted Cole), we received anonymous death threats and harassing email messages, resulting in the cancellation of the much anticipated Discovery Event at the end of November 2012. In the light of the current economic and legal climate, the development is pretty much back to where it was in November 2012 when construction was halted in light of the negative publicity of Cole and the Seaside Mariana Investor Union.

Currently, avenues are being explored for bigger ticket funding (either equity or debt), but this is a time-consuming and costly exercise. The Wyndham Hotel Group agreements have been terminated and the Jack Nicklaus Signature Golf Course has been cancelled, these are major developments at Seaside Mariana. The development was well positioned to steal a march on the more mature developments such as Gran Pacifica, Monte Cristo, Milagro del Mar and Rancho Santana but the loss of these major development brands has been a critical blow.

Given that the Cole lawsuit was cited as the main factor for the Termination of the Agreements with Wyndham Hotel Group at Seaside Mariana, we believe you deserve to know the truth. The primary rationale provided by Wyndham for the Agreements termination was failure to disclose the “Cole lawsuit.” It is crucial to note that the Agreements were between Wyndham Hotels and Resorts, LLC and Grupo Mariana S.A. (“Franchisee”), and Seaside Mariana Property Management S.A. (“SMPM”). The lawsuit was against Kevin Fleming, Maria Rueda and Seaside Mariana Spa & Golf Resort S.A., not Grupo Mariana S.A. and SMPM.

It is clear that Grupo Mariana S.A. and SMPM were not involved in any litigation requiring disclosures when Wyndham issued their Termination Letter. This fact alone is sufficient to demonstrate that the termination of the Agreements was unwarranted.

The development of Seaside Mariana requires issuance of a variety of permits and approvals from various government departments and municipalities. Many of these permits and approvals have been obtained. In addition, development permits have been obtained from the two local municipalities, as have the required water and cultural permits.

At this time, the entire project is zoned and registered for mix-use development, all studies have been completed and infrastructure is ready to install to individual freehold titled home sites with three-phase power and fresh water from wells capable of delivering 700 gallons per minute, that’s over 1 millions gallons of water per day. Also, the first phase of a two phase process for environmental permits from the department of MARENA has been completed. The extensive work has been completed to finalize the final application for the environmental permit and will be submitted shortly.

The individual land lots surveys (380) were submitted to the public registries of two municipalities in August 2008 and approved in the municipality of Carazo on November 8, 2008 and in Managua on September 7, 2009, which resulted in registered Catastral Survey Maps and reference numbers along with the Horizontal Property Regimes (HPR) of all land lots within the HPR and approved for sale and ready to be transferred with individual registered titles to clients.

Seaside Mariana Property Owner Association S.A. (“SMPOA”) has been formed and serves as the property owners association for the development.  Investors have embraced the project since 2007, as witnessed by the fact that over 247 home sites have been under contract with 50+ home sites closed in the past  years with Public Deeds being issued and registered either provisionally or completely in the client’s name. Again, we encourage those 190+ home site owners who are 4 years late completing their power of attorney and submitting closing cost to do in the next 90 days and receive your Public Deed.

In 2011, pre-construction begun with land clearing and extensive site staking of all roads and home sites of Phase 1 Mariana del Norte neighborhood. To facilitate progress and make the construction more focused and effective, Seaside Mariana completed the design civil engineering plans; communication plans, combining it with the two beachfront condo buildings and Laya Hotel with 14 beachfront bungalows in the Mariana del Norte neighboring on the north side of the property.

As mentioned previously, construction commenced in June 2012 on the two sold bungalow structures (4 units) at the Laya Hotel and the front entrance. Currently, the front entrance is 40% complete with the roof ready to be put on and the bungalows are 25% complete with the foundations finished. Construction can continue upon new sales, raising equity/debt for construction or progress payments by clients with deposits under contract for condominiums and bungalows.

Another aspect we are still very proud of is our commitment to reinvest five percent of each real estate transaction at SM into the economic development of the surrounding area though our 5% for Futures Program. It’s a win-win to help drive economic growth and sustainability, which enhances the lives of local citizens and makes the entire area more attractive to investors and visitors. Stay connected to learn more about the launch of Fundación Grupo Mariana’s first social housing development neighboring Seaside Mariana under this flagship program.

Because of the delay in financing, termination of brand relationships and unresolved legal matters at the time, on March 18, 2013, all clients of Seaside Mariana were notified about the cancellation of construction at Seaside Mariana as per the terms in their signed Promise of Sale Agreements and Settlement Agreements were delivered to all clients. We have been working diligently with individual clients exploring different settlement options and ways to regroup and move Seaside Mariana forward.

Looking after our Oceanfront Community

In summary, construction can continue forward immediately and new sales are on the horizon. The first phase of construction consist of plans for infrastructure of roads, water, power and communication to the edge of the lands in the Mariana del Norte neighborhood that will service over 100 home sites, 224 condominiums, Laya boutique Hotel with 14 rooms, 9 holes of golf and retail village center with amenities for residents. That being said, real costs are associated with such progress.

With our combined efforts and contribution, Seaside Mariana could soon become the dream community that we have envisioned. Much has been done to enhance your investment. We are proud of what has been accomplished thus far, and the future is even brighter. We also anticipate seeking another brand hotel that will be a wonderful lifestyle addition for the residents and will further boost the value of your investment.

In our next communication, you will learn about the project status of Isla Mariana Beachfront Retreat and plans to move this project forward with infrastructure permitted according to MARENA, the environmental department in Nicaragua. In addition, we will clarify the past and recent false statements made by Geoff and John Bramwell, the founders of Tamarindo Beach and Ocean Estates that borders Isla Mariana to the south, the Undivided 275 Manzana Agrarian Title and the Bramwells  association supporting the efforts of Cole.

We will continue to set the record straight at the Nicaragua Brief so we can turn our attention to the most important thing: The still beautiful beachfront properties of Isla Mariana Beachfront Retreat and Seaside Mariana Oceanfront Community and how we regroup and move forward.

We want to thank each and every one of you for your words of encouragement and continued support during this trying period. There is light at the end of the tunnel.

We believe that providing accurate, current and compelling information is the most important thing we can do. It’s no secret we believe strongly in the future of Nicaragua, and that this future can pay remarkable dividends for adventurous, intelligent individuals who know how to collect the facts, analyze them and make decisions.

As responsible developers, we have hired the best professionals in the country to analyze the different situations and to overcome the obstacles that we have found on the way. We have had to walk a thin line. On the one hand, we do not want to respond to negativity with negativity. On the other hand, it is not prudent to ignore distortions and falsehoods that attempt to besmirch our character and alarm our stakeholders.

Because the civil lawsuit filed by Edward Albert Cole (Cole), the criminal accusations by Cole, Carmen Elizondo and Michael Edmonds, anonymous emails and postings of the Seaside Mariana Investor Union and Geoff and John Bramwell have had such a detrimental impact on our projects, Kevin Fleming and Maria Rueda, it merits further discussion. It affects everyone’s investment; you deserve to know the truth. Read the Nicaragua Brief.

On April 8, 2013, the criminal accusation of Defamation filed by Cole and his wife Carmen Elizondo on February 6, 2013 was dropped with no retraction, penalty, fine, jail time or guilty finding against Kevin Fleming.  The January 31, 2013 immigration restriction against Kevin Fleming was lifted on April 9, 2013.

On May 20, 2013, the civil lawsuit filed on July 5, 2013 by Cole was closed with no guilty finding. In addition, the criminal accusation of Fraud by Cole and Michael Edmonds was dropped and there was no penalty, fine, jail time or guilty finding against Kevin Fleming. The February 20, 2013 immigration restriction against Kevin Fleming was lifted on May 21, 2013.

We have a clear and compelling case for continuing with the developments of Isla Mariana and Seaside Mariana with the necessary plans and construction permits obtained and we are working hard toward achieving the goal of bringing our projects to reality.

The situation amongst us is not grave and we wish to reassure everyone that we are on top of every detail of our developments. The bottom line is that a solution is at hand that puts the needs of our owners exactly where they should be—first and foremost.

No credibility should be given to unknown individuals with postings online or disguised identities such as Cole, Geoff and John Bramwell and the Seaside Mariana Investor Union making wild and false accusations causing untold damages to your investment and related companies of Grupo Mariana, Kevin Fleming and Maria Rueda.

We look forward to setting the record straight so we can turn our attention to the most important thing: The still beautiful beachfront properties of Isla Mariana Beachfront Retreat and Seaside Mariana Oceanfront Community and how we regroup and move forward.

Dear Seaside Mariana Owners,

As most of you are undoubtedly aware, Seaside Mariana suffered a significant setback recently. As the result of a single illegal lawsuit, Wyndham Hotels Group terminated the relationship with Seaside Mariana. On December 10, 2012, Nicklaus Design followed suit.

Because the lawsuit has had such a detrimental impact on our project, it merits further discussion. It affects everyones investment; you deserve to know the truth.

There have been many falsehoods circulated. We look forward to setting the record straight so we can turn our attention to the most important thing: The still beautiful oceanfront property of Seaside Mariana and how we regroup and move forward.
 
Truth About the Lawsuit:

The Claim: Mr. Cole claimed he made repeated requests to meet but we failed to respond. He said he had no choice but to file a lawsuit, which he calls Arbitration.

The Truth: This is false. We were in regular contact with Ted Cole and maintained frequent contact over a period of six years. In fact, we attempted to contact Mr. Cole on June 5th, 2012 but received no answer. A month later we were notified that he had filed a lawsuit against us.

On September 18, 2012 we once again attempted to contact Mr. Cole but were met with no response. Shortly thereafter on November 6, 2012 a letter containing multiple accusations and multiple falsehoods was posted on the Ripoff Report and distributed to Grupo Mariana Owners and others not directly involved with our company.
 
The Claim: Mr. Cole claims that Seaside Mariana failed to show up for Arbitration.

The Truth: This is false.  Mr. Cole attempted to treat and call the lawsuit and arbitration as if they were one and the same. Lawsuits and Arbitration proceedings are entirely different.

The contract Mr. Cole signed specifies that Arbitration on the seven lots must be filed in Miami, Florida. Arbitration on the condos must be filed in Managua. We invite Mr. Cole to provide documentation that he filed Arbitration proceedings in either jurisdictionor anywhere for that matter.

ARBITRATION SEQUENCE:

There is a 4-week advance notice to all parties involved that Arbitration will take place. Each party must provide funds to cover arbitration costs (center + arbitrators). Estimate US $18,000.00; which is divided equally between the parties.  

(http://www.cmanicaragua.com.ni/es/calculadora/arbitraje/).

Once the arbitrator is appointed they call the parties for a meeting to see if an agreement may be reached to avoid the rest of the process. If you are not in country a representative may appear on your behalf.

If an agreement is not reached, the arbitrator will establish the number of days the plaintiff has to present the claim (7-15 days) and the number of days the defendant has to reply (equal number of days).

The process may last 6-12 months until a decision and award is made.

LAWSUIT SEQUENCE:

The first resolution is admitting the lawsuit, calling the parties to a mediation hearing and possibly a Judge instructing the Public Registrar to record or cancel the lawsuit . The first actions subsequent to Mr. Coles lawsuit were nullified on August 16, 2012.

However, in the same resolution that upheld Seaside Marianas challenge, the Judge issued an amended resolution containing the same mistakes and irregularities that nullified the first one.

A second motion to nullify was filed on August 17, 2012. The second motion has not been decided. Despite this new challenge, the Judge sent the copy of the lawsuit to the Public Registrar for its recordation. Seaside Mariana was not notified that the lawsuit was recorded on August 20, 2012; nor were we given the chance to appear before a Judge prior to the recordation. 
 
The Claim: Ted Cole claims he has $250,000 of his own funds invested in seven lots.

The Truth: Seven of the lots Mr. Cole sued over do not belong to him 100%. The seven lots are also owned by two other people, Richard Foster and Michael Edmonds, neither of which are listed on the lawsuit.  Mr. Cole is also suing for interest on seven lots that are not exclusively his.
 
The Claim: Mr. Cole claims he is entitled to $423,009 to account for lost interest from his thriving real estate business in Canada.

The Truth: We have written confirmation from Mr. Cole himself and his wife Carmen Elizondo that his business in Canada was struggling. The claim for $423,009 in lost interest from his thriving business appears to be a fabrication.

Keep in mind that some of the money for the seven lots was put up by two other people yet Mr. Cole is suing as if the entire amount were his own. That would presuppose that had the other two people not invested in Seaside Mariana they would have given Mr. Cole their money to invest in his Canada business instead. That also presupposes that had they invested with him they would not have asked for the interest generated on their money but (for some unknown reason) given the money to Mr. Cole instead.
 
The Claim: Mr. Cole claims that his lawsuit puts a lien on the property of Seaside Mariana.       

The Truth: This is false. The lawsuit is not a lien because it does not dispute ownership rights at Seaside Mariana. It is not an embargo either because Mr. Cole has not paid the bond equivalent to $2,073,010.50 and there has been no physical execution. In addition,  in order to physically execute an embargo over the assets of another, a payment of 2% must be made to the Supreme Court of Justice. In Coles lawsuit that would amount to a payment of over $40,000. Cole has not paid this fee and no embargo has been issued or executed.

Even though there was a provisional recordation, it does not qualify as a lien. According to Article 112: The immovable assets or real rights over which a provisional recordation has been made may be transferred or encumbered without prejudice of the persons right in favor of whom the recordation was made.

According to Nicaraguan attorney's Mr. Ernesto Rizo  and Mr. Rolando Zambrana from the firm of NUNEZ RIZO ZAMBRANA,  The Provisional Recordation of the Damages Lawsuit does NOT grant Mr. Edward Albert Cole any priority, privilege or right over the Corporations assets.

The Claim:  Mr. Cole claims that if he wins only 26 lots will retain title. The rest will likely face 100% losses.

The Truth: This is not true but it is quite revealing in regards to Mr. Coles motives as well as concern for his fellow investors, or lack thereof.

The bottom line is that Mr. Cole ignored our attempts to contact him, ignored the required Arbitration clause and proceeded to file a recklessly negligent lawsuit that adversely affects all investors.

We hope this answers the main questions you may have regarding the lawsuit that set the current circumstances in motion. Our goal is to get the truth out and then move forward. There have been falsehoods circulated in regards to the termination of the Wyndham Hotel Group relationship as well. Our next communication will address those issues specifically.

On November 5, 2012 Grupo Mariana received notice that Wyndham Hotel Group would be terminating the Condo Marketing Licensing Agreement, Trademark License Agreement and Franchise Agreement, which commenced in April 29, 2010. The reason given for the termination was failure to inform Wyndham Hotel Group of a lawsuit filed by attorney Mr. Jacinto Obregn on behalf Mr. Edward Albert Cole on July 5, 2012 and recorded before the Seventh Civil District Court of Managua on August 15th, 2012.

The lawsuit was deemed illegal by sources in Nicaragua intricately familiar with Nicaraguan property law and Nicaraguan contractual law. The first resolution issued on July 6, 2012, admitting the lawsuit, calling the parties to mediation hearing and instructing the Public Registrar to record the lawsuit was annulled on August 16, 2012, after Seaside Mariana challenged its legality. 

On December 10, 2012 Grupo Mariana was informed that Nicklaus Design would also be withdrawing from its longstanding role as the golf course designer for Seaside Mariana as a consequence of the lawsuit.

In his lawsuit, Mr. Cole requested reimbursement of $250,000 USD for 7 lots purchased at Seaside Mariana. The lots Cole sued for were fully transferred and registered into his name, Michael Edmonds and Richard Foster. Among the irregularities of the lawsuit, Ted Cole has not listed the other owners as Plaintiffs in the lawsuit.

Cole also requested $400,000 USD for condos purchased at Seaside Mariana. Under the arbitration clause of the agreement Cole signed, one must request arbitration proceedings at the Arbitration Center of the Nicaraguan Chamber of Commerce. The parties must then appoint one arbitrator to decide the case within the following 60 days. Cole did not initiate arbitration proceedings in Miami, Florida; the country of Nicaragua, or any other jurisdiction.

Cole further requested a sum of $423,009 USD for interest Cole claimed was lost on the lots transferred to him and condos, which were not arbitrated as per the signed contract. Cole claimed that the sum of $423,009 USD was warranted due to the lost opportunity to invest the capital in his thriving real estate business in Calgary, Alberta, Canada.

Cole also requested one million dollars for emotional distress.

In addition to the aforementioned irregularities, the lawsuit is absurd and contradictory due to factors that supersede the irregularities.

The first actions subsequent to the lawsuit were nullified on August 16, 2012. However, in the same resolution that upheld Seaside Marianas challenge, the Judge issued an amended resolution containing the same mistakes and irregularities that nullified the first one. A second motion to nullify was filed on August 17, 2012. The second motion has not been decided. Despite this new challenge, the Judge sent the copy of the lawsuit to the Public Registrar for its recordation. Seaside Mariana was not notified that the lawsuit was recorded on August 20, 2012.

According to Nicaraguan law, the recordation of a lawsuit is only available if the plaintiff is challenging the ownership rights of an immovable property. Thus the recordation serves to warn third parties that ownership of the property is under dispute.

Recordation of a lawsuit is available only to those disputing ownership rights. It is not allowed in personal actions that seek money or performance of an obligation. Coles lawsuit does not dispute ownership rights of Seaside Mariana. Coles lawsuit seeks casha total sum of $2,073,010.50.
For those seeking cash or alleged damages, Nicaraguan law allows the plaintiff to place an embargo over the assets of the defendant during the proceedings. Cole has neither requested an embargo over Seaside Mariana nor obtained one.

Had Cole followed Nicaraguan law he would have filed for an embargo, which is the proper procedure for one seeking a cash settlement. To receive an embargo both parties have the opportunity to appear before the judge. Seaside Mariana was not allowed to appear before the judge before the recordation of the lawsuit.

Secondly, in order to secure an embargo, the petitioner must put up a bond in favor of the defendant. This serves to secure the other party in the case of incurred damages. When filing his lawsuit, Cole did not put up a bond for $2,073,010.50 in favor of Seaside Mariana.

Thirdly, in order to physically execute an embargo over the assets of another, a payment of 2% must be made to the Supreme Court of Justice. In Coles lawsuit that would amount to a payment of over $40,000. Cole has not paid this fee and no embargo has been issued or executed.

It is illegal for a judge to order the recordation of a lawsuit in order to obtain cash settlement if it pertains to an immovable property and ownership rights are not under dispute. This maneuver has created a no bond, no fee de-facto precautionary measure in favor of Mr. Cole.

Wyndham Hotels and Resorts terminated a two and a half year partnership with Grupo Mariana over an illegally recorded lawsuit. The case is to go before the Supreme Court and the lawsuit should be nullified for a second time, as the recordation was contrary to Nicaraguan law.

Over the past three years Seaside Mariana committed substantial resources toward obtaining the Condo Marketing Licensing Agreement, Trademark License Agreement and Franchise Agreement, meetings and conferences, architectural plans, land designs, main hotel designs, hotel wing designs, bungalow plans, duplex designs, casita designs, construction plans, environmental studies, permits, and pool, restaurant, gaming and spa designs.

Nicklaus Design has now terminated its six-year design and promotional agreement with Grupo Mariana as a consequence of the same illegal lawsuit.

Over the past six years Seaside Mariana committed substantial resources toward obtaining the Golf Design Agreement and Promotional Agreement, meetings and site visits, golf course design plans, routing designs, grading designs, canopy studies, environmental studies and permits.

Grupo Mariana has suffered untold damages as a result of a single lawsuita suit that was improperly filed, illegally recorded and previously nullified.

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Sincerely,

Kevin I. Fleming | Chairman

Grupo Mariana S.A.
Segunda Entrada a las Colinas
de la Iglesia 1c al Norte
1 1/2c al Este, Calle Prado Ecuestre
Casa No. 325.
Managua, Nicaragua
(888) 484-4425         Toll Free
(505) 2276-2028       Nicaragua Office Tel.
www.grupomariana.com

Grupo Mariana is facing severe challenges. Numerous accusations have been made; all lack substance.  However, Grupo Mariana regards the situation as serious as the implications are disturbing. It should be noted that all allegations are being investigated and will be responded to in due course.

In the meantime, two issues should be touched upon briefly. The first is the accusation that delays are tantamount to fraud and the second is the motive and credibility of the accusers.  

A delay is something that is postponed or moved to a date later than expected. Fraud is deliberate  deceit or cheating intended to gain an advantage. To equate the two is irrational.  

From the start, Grupo Mariana set out to raise the bar in Nicaragua. Grupo Mariana achieved unparalleled success in that endeavor, bringing brands like KemperSports, Nicklaus Design and Wyndham Hotels & Resorts to the region. When taking a project to a new level, time and patience are required. It is imperative to ensure that everything is done correctly. There are numerous stories throughout Latin America of investors purchasing real estate only to find later that permits are not in place, title is not as represented, etc.

For our organization, taking things to a new level (a level not yet seen in Nicaragua) has required extra time in planning, due diligence and proper permitting. We could have cut corners in order to move faster but that is not the development we set out to create, nor the development our investors deserve.

The hard truth of the matter is that things can get done very quickly if someone does them the wrong way.  If things are done the right way the process is much longer and patience is required.  We are a company that looks to the long term rather than the short term.  We are interested in quality, not quick fixes. Sometimes getting the best takes time but it is undeniably worth it.

Lately our efforts have been hindered and undermined by a small group of people who appear to have an agenda. The accusations put forth are ostensibly to protect investors. However, the motivation of the accusers warrants consideration.  Motive can be revealing.  Credibility is crucial as well; we will elaborate in future communications.

As always, our investors come first. We have overcome challenges in the past and will overcome the new challenges as well.  Those who bet against us in the past have been disappointed. The current situation, while formidable, will prove no different. We will not allow a small group of people (with questionable motives) to undermine the progress we have achieved and hurt investors who have placed their trust in our hands.

Grupo Mariana currently has meetings scheduled with Pro Nicaragua, attorneys both domestic and international and other parties, which will remain confidential for the time being. Please be assured that we will be taking appropriate action in all facets of the situation as well as pursuing matters to the fullest extent of the law.

Sincerely,

Kevin I. Fleming | Chairman

Grupo Mariana S.A.
Segunda Entrada a las Colinas
de la Iglesia 1c al Norte
1 1/2c al Este, Calle Prado Ecuestre
Casa No. 325.
Managua, Nicaragua
(888) 484-4425         Toll Free North America
(505) 2276-2028       Nicaragua Office Tel.
(505) 2276-0291       Nicaragua Office Fax
www.grupomariana.com
info@grupomariana.com