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April 9, 2003


The opinion of the court was delivered by: John S. Martin, Jr., United States District Judge


Plaintiff Nacional Financiera, S.N.C. ("Nafin") commenced this suit against The Chase Manhattan Bank ("Chase") and Bank of America ("BofA") as the result of an errant wire transfer.

In 1999, Nafin, a Mexican bank, loaned $10 million worth of credit to Grupo Tribasa, S.A. de C.V. ("Tribasa"), a Mexican construction corporation. In order to satisfy this debt, on December 7, 1999, Tribasa ordered Chase in writing to wire-transfer $9,775,701.95 from Tribasa's Chase account in New York to Nafin's account at Deutsche Bank, also located in New York. Chase inadvertently transferred the funds to Tribasa's account at BofA, which was located in California. Chase promptly informed BofA of the error. BofA proceeded to deposit the funds into its own account in order to off-set a debt that was owed to it by Tribasa. The BofA debt resulted from a loan transaction that SofA's Mexican lending unit had entered into with Tribasa, in which it, along with banks Deutsche Bank and Societe Generale, extended $100 million worth of credit to Tribasa. BofA subsequently refused to return the mis-wired funds to Tribasa or Nafin, and Chase refused to refund them for its negligent transfer. Accordingly, in February 2000, Nafin brought this action against Chase for breach of contract and negligence on the theory that Nafin was a third party beneficiary to the wire agreement, and against BofA for unjust enrichment and conversion.

On or about October 27, 2000, a group of plaintiffs (hereinafter the "Smith Parties") filed suit against Chase and Tribasa in New York State Supreme Court. The Smith Parties, who consist of judgment creditors of Tribasa and its related companies, claim a right to the mis-wired funds on the theory that they stand in Tribasa's shoes and can therefore recover the funds in order to satisfy their outstanding money judgments. In addition, in November 2000, Societe Generale served levies upon Chase and BofA claiming a right to the funds.

Thereafter, as a result of a motion by Chase, the Court ruled that the Smith Parties and Societe General were necessary parties and they were brought in to this action.

Presently before the Court is a motion by the Smith Parties to amend their pleadings to assert counterclaims against Nafin for breach of contract and unjust enrichment. They allege that they own $9.5 million in notes issued by Tribasa under its Global Medium Term Note Program (the "MTN Program") which was governed by a Fiscal Agency Agreement (the "FAA") between Tribasa, Triturades Basoltices y Derivades, S.A. de C.V. as the notes' guarantor and Chemical Bank (now JPMorgan Chase) as Fiscal Agent. They allege further that after Tribasa defaulted on their notes it issued short-term notes to Nafin under the MTN program and thereafter made payments on those notes to Nafin and provided it security that was not provided to other note holders. They contend that these actions were in violation of the FAA which provides:

Ranking of the Notes and Guarantees. The Notes will be general unsecured and unsubordinated obligations of the Company and will rank pari passu with each other and with all other present and future unsecured and unsubordinated indebtedness of the Company . . .
The problem with the Smith Parties' argument is that the above quoted provision did not create contractual rights and obligations between Nafin and the other holders of Tribasa's unsecured notes. The above provision does no more than guarantee that in any insolvency proceedings, all of the MTN creditors will share pari passu in the unencumbered assets of the estate. There is nothing in the language of the provision that would suggest that before accepting payment from Tribasa, Nafin had an obligation to ensure itself that other note holders were receiving similar payments.

It may be that the FAA would have given the Smith Parties the right to obtain an injunction to bar Tribasa from making preferential payments to some of its note holders and that another note holder with notice of that injunction could be liable to Tribasa if it thereafter accepted preferential payments. See Elliot Assocs., L.P. v. Banco de la Nacion, General Docket No. 2000/QR/92 (Court of Appeals of Brussels, 8th Chamber, Sept. 26, 2000). But absent such an injunction, the FAA created no obligation on any note holder to refuse payment of money that it was owed until it had received assurances that other note holders were receiving proportionate payments.


Since Nafin owed no duty to the Smith Parties to refuse to accept payment from Tribasa unless similar payments were made to them, there is no basis for either the breach of contract or unjust enrichment claims set forth in the proposed amended pleadings. Therefore, the motion to amend the pleadings is denied.



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