Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FOREIGN EXCH. TRADE ASSOCS. v. ONCETUR

August 13, 1984

FOREIGN EXCHANGE TRADE ASSOCIATES, INC., Plaintiff,
v.
ONCETUR, S.A., a corporation of Argentina, SAMUEL MERKIN, HERNAN BOHER, OSCAR EDUARDO NAVARRO AND BENEDITO DIAZ MACEDO, Defendant.



The opinion of the court was delivered by: EDELSTEIN

MEMORANDUM OPINION AND ORDER

EDELSTEIN, District Judge:

 The court has before it several motions by the parties in this case concerning an attachment of $500,000. The issues raised by these motions are all related. The court held a hearing on all these issues and will dispose of them together in this opinion.

 FACTUAL BACKGROUND

 The plaintiff, Foreign Exchange Trade Associates, Inc. ("FETA"), is a New York corporation that carries concerns a business principally involving transmissions of money in commercial transactions. The defendants are: Oncetur, S.A. ("Oncetur"), a South American corporation, Samuel Merkin ("Merkin"), a foreign citizen and principal of Oncetur, Hernan Boher ("Boher"), a foreign citizen, Oscar Eduardo Navarro ("Navarro"), a foreign citizen, and Benedicto Diaz Macedo ("Macedo"), also a foreign citizen.

 The plaintiff filed a suit against these parties on August 13, 1982. Jurisdiction was based on diversity of citizenship. 28 U.S.C. § 1332. The plaintiff alleged that all the parties were involved in a financial transaction in which FETA was defrauded of $500,000, which was paid into an account jointly held by the three defendants, Boher, Navarro and Macedo, at Banesto Banking Corporation ("the bank").

 On the same day the plaintiff applied for an ex parte order to attach the $500,000 in the defendants' account with the bank. The Part I judge of this court, the Honorable Constance Baker Motley, C.J., signed the ex parte order of attachment on that day. The order required an undertaking in the amount of $25,000-$20,000 to pay the defendants' costs if they prevailed and $5,000 to pay the Sheriff's or Marshal's fees. It also required the plaintiffs to move for confirmation of the ex parte order of attachment within five days "on such notice as the court directs." According to the affidavit of plaintiff's counsel, Judge Motley directed that notice be served on the garnishee, the bank, who would presumably give notice to the defendants whose funds were attached. See Reply Affidavit in Support of the Plaintiff's Motion to Confirm Ex Parte Order of Attachment sworn to by Marc Joseph, September 20, 1982 at 2-3; Reply Affidavit of Eric J. Weiss in Support of Plaintiff's Motion to Confirm Ex Parte Order of Attachment sworn to September 20, 1982 at 2. The plaintiff asserts that it still does not know the whereabouts of the defendants Boher, Navarro and Macedo and has not served them with a complaint.

 The plaintiff complied with all the requirements of Judge Motley's order, and apparently the defendants received timely notice of the attachment because they submitted papers in opposition to the motion to confirm the attachment. On September 23, 1982, this court granted plaintiff's motion to confirm the attachment.

 On October 1, 1982 the plaintiff presented an order to show cause why an order should not issue: 1) extending for sixty days the time for the plaintiff to serve the complaint on the defendants to December 13, 1982; 2) directing the bank to turn over the attached funds to an appropriate escrow agent appointed by the court as a stakeholder until further order of the court. The court directed the plaintiffs to serve the order to show cause.

 The plaintiff followed the court's direction, and counsel for the defendants, by letter dated October 6, 1982, opposed the sixty day extension of time to serve and the turnover of the attached funds. The defendants raised for the first time the argument that the funds were not in fact in New York, but lay in the bank's Grand Cayman branch. After due consideration of the defendants' objections the court found no exigency and rejected the order to show cause. The plaintiff was instructed to proceed by notice of motion. To avoid any possible conflict with the New York procedure for attachment, *fn3" the court by order dated October 7, 1982 extended the plaintiff's time to serve the complaint upon the defendants until December 11, 1982.

 On October 14, 1982, plaintiff moved, by serving a notice of motion on the defendants' counsel and on the bank, for the same turnover of funds requested in the order to show cause and in the alternative for an extension of the order of attachment until January 13, 1983. *fn4"

 The defendants argued that the plaintiffs should have commenced a separate proceeding as required by the New York attachment law and that, even assuming the procedure adopted by the plaintiffs was adequate, most of the funds were situated in the bank's Grand Cayman branch and therefore not subject to the attachment jurisdiction of the court. The bank submitted papers contending that international law complications would ensue if the court ordered an attachment of funds situated in a garnishee's foreign branch.

 On November 12, 1982, the court ordered the attachment extended to January 13, 1983.

 In a letter dated December 17, 1982, defendants conttended that the time under New York CPLR § 6213 for service of the complaint had expired and that the attachment should therefore be vacated. Oral argument was held in January 12, 1983. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.