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PRAVIN BANKER ASSOCS. v. BANCO POPULAR DEL PERU

August 24, 1995

PRAVIN BANKER ASSOCIATES, LTD., Plaintiff, against BANCO POPULAR del PERU and THE REPUBLIC OF PERU, Defendants.

ROBERT W. SWEET, U.S.D.J.


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, J.

 Plaintiff Pravin Banker Associates, Ltd. ("Pravin") has renewed its motion for summary judgment on its claims against defendants Banco Popular del Peru ("Banco Popular") and the Republic of Peru ("Peru") (Banco Popular and Peru are, collectively, the "Defendants") for dishonoring their respective obligations under (1) a letter agreement (the "Letter Agreement"), dated as of May 31, 1983, among Mellon Bank, N.A. ("Mellon"), Banco Popular and Peru, and (2) a Guaranty (the "Guaranty"), dated as of May 31, 1983, made by Peru in favor of Mellon. Pursuant to an Assignment Agreement, dated as of December 12, 1990, Mellon assigned its right, title and interest in the Letter Agreement to Pravin.

 Defendants have renewed their cross-motion for a stay or dismissal of the complaint. For the reasons set forth below, Defendants' motion will be denied, and Pravin's motion for summary judgment will be granted.

 The Parties

 Plaintiff Pravin is a Delaware corporation having its principal place of business in New York, New York.

 Defendant Banco Popular is a Peruvian State entity organized and incorporated under the laws of Peru and is a foreign state instrumentality as defined in 28 U.S.C. § 1603(b).

 Defendant Peru is a foreign state as defined in 28 U.S.C. § 1603(a).

 Prior Proceedings

 This action was commenced on January 7, 1993. By opinion and order dated February 24, 1994, Pravin Banker Assocs., Ltd. v. Banco Popular del Peru and The Republic of Peru, 165 Bankr. 379 (S.D.N.Y. 1994) ("Pravin I"), Defendants were granted a stay of six months by way of an adjournment of Pravin's summary judgment motion. The facts and issues underlying this dispute are set forth in Pravin I, familiarity with which is assumed.

 At the expiration of the six month adjournment, on October 24, 1994, the parties renewed and supplemented their motions. By opinion and order dated March 8, 1995, Pravin Banker Assocs., Ltd. v. Banco Popular del Peru and The Republic of Peru, 1995 WL 102840 (S.D.N.Y. 1995) ("Pravin II"), Defendants were granted a further stay of sixty days to enable the parties to submit responses to the following questions:

 
1. Has the bank Advisory Committee or Peru adopted a plan which would resolve the debts in the category held by Pravin?
 
2. Are there currently actions pending which present claims for debts in the category held by Pravin other than this action? If so, how many and where are they pending?
 
3. Are there tolling agreements in effect for debts in the category held by Pravin? If so, how many?
 
4. Are there currently pending any actions seeking the relief sought by Pravin or any relief which could affect the Peruvian debt restructuring effort?
 
5. What is the amount of the Peruvian debt presently the subject of restructuring which remains unresolved?

 The parties having submitted their responses, and the sixty day adjournment having expired, the motion and cross-motion were renewed and oral argument was heard on May 15, 1995. Pravin submitted further argument and factual allegations by way of a letter dated July 21, 1995, and the defendants submitted a response on August 8 and August 16, 1995. The motion and cross-motion were deemed fully submitted at that time. Although the arithmetical aggregate of the two stays amounts to eight months, the actual effect ...


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