MountainWest Resources Inc. C.MWR

CMN's Contestation of C 11777-2020

[MTStack]

Jaime Andres Cruzat Sega, attorney in representation of CMN … C 11777-2020, to this Court I respectfully state:
 
Whereas, within the deadline, I come to file contestation to the lawsuit filed by Mr. Jorge Lopehandia Cortes against CMN, requesting that it be rejected in all its parts, with express condemnation of costs, by virtue of the background of fact and law that I will explain:
 

1. Summary of the lawsuit.

 

1. Mr. Juan Guillermo Torres Fuentealba, on behalf of Mr. Jorge Lopehandia Cortes, has been allowed to file a lawsuit for absolute nullity, for alleged simulation, of the public document of accountability signed between CMN and Mr. Hector Unda Llanos on March 9, 2019 (sic), … through which the latter transferred to CMN the mining concessions called “Tesoro” …, whose constitutive judgments and survey are registered in the Property Registry of the Conservator of Mines of Vallenar in 2001.

 

2. In the plaintiff’s opinion, the Rendition of Accounts would constitute a simulated act, basing this imaginary thesis on a statement made by the lawyer of Mr. Hector Unda Llanos – Mr. Francisco Valle Pensa -, who would have indicated in a document 20 years ago that the Tesoro Concessions would have been constituted by and for Mr. Unda Llanos.

 

3. The plaintiff adds that what would have been appropriate to conduct between CMN and Mr. Unda Llanos was a purchase and sale of the aforementioned mining concessions and not a rendering of accountability, and that there would be evidence that would allow him to presume that the Rendering of Accounts had been signed with the “desire to deprive, ultimately my client [Mr. Lopehandia] of the exercise of his actions and rights over the Pascua Lama project, in consideration of his Amarillo Norte and Amarillo Sur mining claims of 1996, without detailing or explaining any of these alleged antecedents.

 

4. He concludes the suit by requesting that the Accountability be annulled and the registrations of domain of the Tesoro concessions made in the name of CMN under that instrument be revoked, so that these mining concessions are again registered in the name of Mr. Unda Llanos.

 

2. The facts.

 

5. Beyond the lack of seriousness and foundation of the action attempted, we are obliged to inform this Court that this lawsuit is part of a series of other reckless legal actions filed by the plaintiff against my client, which in this case is aggravated by the circumstance that both the plaintiff and his lawyer are fully aware that the facts invoked are not true, this lawsuit was transformed into an action contrary to procedural good faith and the plaintiff’s own act, which obliges this Court to reject the claim and order and exemplary condemnation of costs.

 

6. It is a fact acknowledged by the plaintiff – and therefore not disputed – that the Tesoro concessions were processed and constituted by Mr. Hector Unda Llanos.  These proceedings were carried out between 1999 and 2001 in the courts of the city of Vallenar.

 

7. It is an undisputable fact, judicially reaffirmed and fully known by the plaintiff and his lawyer – although he stubbornly tries to deny it in the record – that in the course of processing and constitution of the Tesoro concessions, Mr. Hector Unda Llanos acted on behalf of CMN, who was his employer.

 

8. The existence of such a mandate consists of a number of authentic instruments, including the following:

 

1. On October 25, 2000, Mr. Unda Llanos’ lawyer, Mr. Gonzalo Plaza, informed the court in the judicial files of the constitution of the Tesoros mining concessions that Mr. Unda “has acted in these proceedings at the request of CMN, which is his employer, and into whose name he will transfer these concessions once they are constituted.”

 

1. In the judicial testimony of Mr. Unda Llanos made in the proceedings of absolution of positions held almost 15 years ago in the same trial that the plaintiff cites in his lawsuit to supposedly prove the imaginary simulation, in which, when asked about the Tesoro Concessions, the absolvent stated verbatim: “contractually everything belongs to CMN.”

 

1.  In the final enforceable judgment issued on November 18, 2015, case C 719-2011 of the Second Court of First Instance of Vallenar, entitled “Cristobal Lopehandia v. CMN”, whose Consideration #26 states:

 
“Twenty Sixth:  Whereas, as has been argued, it is a fact of the existence of a mandate occurring between the defendant company and Mr. Hector Unda Llanos for this, for the account and risk of the former, requested - as finally happened - the concessions of exploitation called "Tesoro One 1/30" to "Tesoro Twelve 1/5" in the same court, which would be transferred when they were constituted, but that this has not been possible having been initiated and registered a precautionary measure of prohibition to conduct acts or contracts in their respect in the case Rol C -1912-2001 the 14th Civil Court of Santiago, as can be seen from the respective marginal annotations, confirming everything that has been said, in the notarial affidavit provided by Mr. Unda Llanos himself recorded in folio 154 and following of the case.”
 

1.  In the final enforceable judgment handed down in C 560-5012 of the First Court of First Instance of Vallenar, in a trial entitled “Jorge Lopehandia v. CMN”, confirmed by the First Court of Appeals of Copiapo on October 11, 2023, and rejecting the appeal filed against it, by judgment of January 30, 2015 of the Supreme Court, Consideration #2, which states:

 
“2. Whereas the adjudicators of the merits established in what is relevant as the fact of the case, that the defendant CMN entrusted to HUL, in his capacity of trusted employee, the constitution of the concessions named “Tesoro Uno to Tesoro Doce”, whose management was carried out on behalf and at the risk of the principal; and that HUL before the Second Court of Letters of Vallenar processed the aforementioned concessions in his own name, obliging the transfer to the principal once they were constituted;”
 

9. Finally, the aforementioned mandate is contained in the public document DECLARATION AND RENDERING OF ACCOUNTS granted March 9, 2018, … whose nullity due to simulation is claimed, in which, fulfilling his legal obligation as representative, HUL was accountable for this assignment and transferred the Tesoro concessions to CMN.

 

10. From the simple and brief facts related above, Your Honor can easily conclude that there is no simulation in the celebration of the Rendition of Accounts between my client and Mr. Unda Llanos. We are not surprised that the plaintiff has concealed from this Court the accumulation of previous information, but we emphasize that this will allow the Court to notice the way the plaintiff conducts himself and the serious attack on procedural good faith that constitutes this unfounded claim, which causes an unnecessary wear and tear on the judicial system and a serious waste of the valuable time of the Court.

 

3. Allegations and defenses.

 

11. My client categorically disputes the version of facts set forth in the lawsuit and the legal consequences that the plaintiff seeks from them, adding that the Rendition of Accountability does not suffer from absolute nullity.  It will be the plaintiff who will have the burden of proving the existence of the elements of the alleged simulation.

 
c.2) Lack of ownership of the action and legal standing.
 

12. It is a basic principal in our law that “where there is no interest, there is no action”, which means that only those who have an interest in it can bring an action.  In the case of an action for absolute nullity – such as the one attempted in the present case – the requirement of interest is expressly provided for in Article 1683 of the Civil Code, which states:

 
“Absolute nullity can and must be declared by the judge, even without a request from a party, when it is manifest in the act or contract; it may be invoked by anyone who has an interest in it, except the one who has executed the act or concluded the contract knowing or should have know of the defect that rendered it invalid; it may also be requested by the Public Prosecutor’s Office in the interest of morality or the law; and it may not be sanctioned by the ratification of the parties, nor for a period of time not exceeding ten years.”
 

13. Our doctrine and jurisprudence have indicated that the interest referred to in the law is a monetary interest. Thus:

 
“Normally, and most frequently, the judge declares the absolute nullity of an act or contract at the request of the person who has an interest in that declaration.
 
Although the law omits to qualify the interest required by the provision in the petitioner, doctrine and jurisprudence agree that it must be monetary, that is, capable of being valued in money, and that it must exist at the time of requesting the declaration of nullity.Therefore, it is not enough with a merely moral or affective interest or a mere expectation.The interest is to obtain the invalidity of the act that produces effects that are detrimental to the petitioner.
 
However, if one wonders which persons have the interest required by law to seek a declaration of absolute nullity, the holders of that interest naturally arise as the author of the unilateral legal act or any of the parties to the convention, who are persons in respect of whom the voidable act produces effects.
 
But these persons are not the only ones, since the law does not limit the power to request the declaration of absolute nullity of an act from the perpetrator or the parties. Likewise, the interest required by law may have any third party who, even without being a party to the annulable act or contract, could extract from the declaration of nullity consequences that are economically beneficial to him.”
 

14. In this case, the plaintiff does not have any legally protected interest that would enable him to claim the absolute nullity of the Rendition of Accountability by simulation.  He has no monetary interest and, therefore, lacks ownership of the action and legal standing to sue.

 

15. As Your Honor is well aware, legal standing refers to a certain relationship between the active person and the substantial legal situation that he files in the trial. This relationship is usually expressed in the alleged ownership of the action by the plaintiff. In fact, the ownership of the substantive right allegedly affected and the individual interest confer the basis of the active standing position, so that, in this case, since the plaintiff lacks a substantive subjective right affected and lacks interest in the results of the trial, he clearly lacks legal standing to sue.

 

16. So clear in this case is the absence of an affected right and the absence of interest, that, if the request is observed, it is noted that the plaintiff requests to cancel the registration of the Tesoro property in the name of CMN, so that “the domain registrations in the name of HUL regain their full validity”.  In other words, even in the hypothetical and theoretical case that the present lawsuit could be accepted, the plaintiff does not obtain any monetary benefit – in fact, he obtains absolutely nothing – from the nullity of the Rendition of Accountability, since, as he indicates and requests in his lawsuit, the Tesoro concessions would be registered again in the name of HUL and, as he also maintains in the lawsuit, they should be transferred to CMN through a sale and not a surrender.

 

17. We ask, again, what is the plaintiff’s interest?  Could it be his mere intension that the transfer of the Tesoro concessions be made to my client in a different manner than that already done, by means of a sale instead of a rendering to accounts? The truth, Your Honor, is that the plaintiff has NO INTEREST IN THIS TRIAL, since the consequences of it do not harm nor benefit him.  This obliges this Court to reject the claim due to lack of ownership of the action and the legal standing of the plaintiff.

 

18. Just for the sake of completeness, we add that the need for interest becomes even more relevant in the simulation action, as we will see below.

 
c.3) Inadmissibility of the simulation action.
 

19. Our doctrine has understood that simulation consists of a “declaration of a non-real content of will, issued consciously and in agreement between parties, to produce for the purpose of deception the appearance of a legal transaction that does not exist or is different from the one that has actually been carried out.” Therefore, the simulated act is one that has an appearance contrary to reality:  either because it doesn’t exist at all, or because it is different from the one that appears.

 

20. In order for simulation to exist, the following linked conditions must necessarily be satisfied, none of which are satisfied in the present case.

 

1. Whereas there is a deliberately different manifestation of will than what is really wanted by the parties in the act.  In the present case, there is no intention different from that expressed in the Rendition of Accounts, which was always intended for the representative to account for his management by transferring the Tesoro concessions, still less a deliberate will to appear to perform an act other than the one performed.
2. Whereas there is an agreement between the parties for the performance of the simulated act.  This means that the parties, in addition to agreeing on the simulated act, must agree on the act they actually want to conclude.  In this case, there is only one act – Rendition of Accountability by virtue of the mandate referred to above – and there is no concert for the performance of a different act.  In fact, paradoxically, it is the plaintiff himself who suggests that my client should have agreed to the signing of a different act, “a sale” instead of the Rendition of Accountability.
3. The purpose of a simulated act is to deceive third parties, that is to say, to make third parties to believe that an act was performed, in circumstances where it was not performed or that a different act was performed.  This requirement is fundamental to consider an act simulated or not, since the deception of third parties must produce damage that can be repaired by means of the corresponding simulation declaration.  In this case, Your Honor, there is no deception or harm to third parties.

 

21. While the plaintiff is at pains to invent that “[…] inevitably lead to the presumption that the contract was entered into with the sole intention of depriving, ultimately, my client of the exercise of his actions and rights in the Pascua Lama project, in consideration of his mining claims Amarillos Norte and Amarillos Sur (sic) of 1996.”, the concrete thing is that it does not indicate, detail or explain how the Accountability would affect the exercise of those actions or rights, much less what the deception would be, how such alleged deception would affect it and how it could be repaired.

 

22. From a procedural point of view, then, the exercise of the simulation action has two limitations: (i) it can only be brought by a third party who is the holder of a subjective right or legal position threatened or hampered by the apparent contract, which as we have seen, the plaintiff does not have; and, (ii) the plaintiff must prove the damage suffered as a result of the uncertainty caused by the simulated act, damage that determines the need to invoke legal protection, which in this case will be impossible, since there is no damage caused to the plaintiff.

 

23. These requirements, which are nothing more than the concrete manifestation of the need to hold a legal interest as we saw in the previous paragraph, are not fulfilled in kind.  So much so, that the plaintiff’s request confirms that he has not suffered damage from the alleged simulated act, since the effects of the sought nullity would simply be to return things to the previous state, that is, to revive the registrations of the Tesoro concession in favor of Mr. Hector Unda, to, in his opinion, conduct a sale instead of accountability, without there being any claim in favor of the plaintiff.

 

24. In short, and as this Court can easily notice, there was no other will from what was really intended by the parties, there is no agreement between the defendants, much less was there deception of prejudice to the plaintiff, so it is unquestionable that there is no simulation in this case and that the action must be rejected.

 
THEREFORE, in accordance with the provisions of Article 309 and following of the Code of Civil Procedure and other relevant rules,
 
I REQUEST THIS COURT to consider the lawsuit contested within the deadline, so that it may be ultimately rejected in all its parts, with an express order for condemnation of costs.