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PRAVIN BANKER ASSOCS. v. BANCO POPULAR DEL PERU

January 19, 1996

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


The opinion of the court was delivered by: SWEET

 Sweet, J.

 Plaintiff Pravin Banker Associates, Ltd. ("Pravin") has filed a Notice to Settle Judgment, which is opposed by the defendants, Banco Popular del Peru ("Banco Popular") and the Republic of Peru ("Peru"). (Banco Popular and Peru are, collectively, the "Defendants").

 For the reasons set forth below, judgment will be entered for Pravin in the amount of $ 2,161,539.78; plus pre-judgment simple interest accrued from October 26, 1995, through the date of judgment; plus post-judgment interest calculated pursuant to 28 U.S.C. § 1961.

 The Parties

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

 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).

 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, 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.

 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, 1995 U.S. Dist. LEXIS 2730, 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 certain questions.

 The parties submitted their responses, and, the sixty-day adjournment having expired, the motion and cross-motion were renewed. By opinion and order dated August 24, 1995, Pravin Banker Assocs., Ltd. v. Banco Popular del Peru, 895 F. Supp. 660 (S.D.N.Y. 1995) ("Pravin III"), Defendants' motion to dismiss or stay the action was denied, and Pravin's motion for summary judgment in its favor regarding the enforcement of Defendants' obligations under the 1983 Financing Plan (the "Letter Agreement") and the Guaranty underlying the debt was granted. On September 5, 1995, the Clerk of Court entered the Judgment of August 31, 1995, pursuant to Pravin III that it was "Ordered Adjudged and Decreed that Plaintiff's motion for summary judgment is granted regarding the enforcement of the defendants' obligations under the Letter Agreement and the Guaranty . . . ."

 On September 14, 1995, Defendants moved, pursuant to Rule 58, Fed. R. Civ. P., by Order to Show Cause to vacate the Judgment on the grounds that the Judgment was not for a sum certain. Also on September 15, 1995, Defendants filed a notice of motion for an order extending their time to reargue Pravin III. Oral argument was held on September 18, 1995.

 On October 12, 1995, an Order was issued granting both of Defendants' motions. The Order also provided that Pravin's memorandum and supporting affidavit in opposition to the motion to vacate the Judgment and in support of its supplementation of that Judgment would be treated as a Notice of Settlement of Judgment, returnable October 25. Defendants did not move for reargument.

 Both sides submitted further papers on the Notice to Settle Judgment, and the matter was deemed fully submitted and heard on October 25, 1995. Subsequent to oral argument, Pravin Banker submitted a supplementary letter to the Court on October 26, 1995, and Defendants and Pravin each submitted a supplementary memorandum.

 The facts and issues underlying this dispute are set forth in Pravin I, Pravin II, and Pravin III, familiarity with which is assumed.

 Discussion

 In their Notice to Settle Judgment, Plaintiffs seek $ 2,121,605.43. They calculate this amount as follows. First, they request past-due principal of $ 1,425,000.00. Second, they request simple interest through October 25, 1995, of $ 466,806.00. Third, they seek interest on overdue interest payments through October 25, 1995, amounting to $ 78,315.07. Fourth, they seek attorneys' fees and costs they incurred as a result of the defaults in the amount of $ 191,428.71.

 
I. Principal

 Pravin seeks $ 1,425,000.00 in past-due principal, the amount sought in the Complaint. Defendants protest that Pravin has failed to deduct from the principal amount its "anticipated profits" as required by the Letter Agreement. Because anticipated profits, as meant by the Letter Agreement, are not included in this amount, the full past-due principal, $ 1,425,000.00, will be awarded to Pravin.

 The $ 1,425,000 figure represents the entire principal of the working capital obligations set forth in the Letter Agreement. Pravin acquired this portion of the obligation on December 12, 1990, by acting as the broker in an assignment of $ 9,429,710.38 of Banco Popular's obligation from Mellon Bank to Swiss Bank and Banker's Trust. As a commission for its services, Pravin retained $ 1,425,000 of the obligation represented by the Letter Agreement. Pravin did not invest any funds of its own to obtain this portion of the obligation. Because Banco Popular had not ...


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