The opinion of the court was delivered by: Wood, U.S.D.J.
Petitioner Dorchester Financial Securities ("Dorchester") seeks a turnover order, pursuant to Federal Rule of Civil Procedure 69(a) and New York Civil Practice Law and Rules § 5225(b), directing Respondent, sued herein as Banco Bilbao Viscaya ("Banco Vizcaya"),*fn1 to pay Dorchester the cash value of two cashier's checks, which were allegedly issued by Banco Vizcaya, in partial satisfaction of a default judgment Dorchester obtained against Banco B.R.J., S.A. ("BRJ"), the alleged true owner of the checks.
As set forth below, the evidence before the Court is overwhelming that the cashier's checks at issue are counterfeit, and therefore, unenforceable. Accordingly, the Court DENIES Dorchester's petition with prejudice. (D.E. 29.)
I. Dorchester's Alleged Role in Locating the Cashier's Checks
On November 25, 2003, the Court entered a default judgment against BRJ in favor of Dorchester in the amount of $112,279,252.05. (See Order, 11/25/03, D.E. 24.)
Dorchester alleges that, in the course of an investigation to locate BRJ assets for collection, it located two cashier's checks totaling approximately $108,511,169.42 U.S. dollars.
Dorchester alleges that BRJ purchased these checks from Banco Vizcaya in 2000 and 2001, and that BRJ had these checks made payable to a "fake payee," called the "Tesoreira de la Federacion." (Pet. Mem. at 5.) Dorchester then alleges that an unnamed official at BRJ instructed a purported business associate, Mr. Victor Manuel Aguirre Garcia, to take delivery of the two checks as an "agent of BRJ" and to hold them for the purpose of hiding the funds from creditors. (Id. at 5-6.)
On or about February 25, 2009, some eight years later, Dorchester's counsel, T.J. Morrow, allegedly convinced Mr. Garcia to deliver the cashier's checks to Dorchester for collection against the BRJ judgment. Mr. Garcia apparently agreed to deliver the checks in exchange for a fifty percent share of the proceeds. (Garcia Aff. ¶¶ 21, 23; Sanchez Decl. ¶9.)
Then, Mr. Morrow, along with Mr. Garcia and a third person, allegedly formed what Petitioner describes as a "common law trust" in the name of the fake payee on the checks to "test" whether funds were currently available for collection. Mr. Morrow then endorsed one of the checks (check numbered 730) in the name of the trust and presented the check to J.P. Morgan Chase for payment. On April 21, 2009, Dorchester was informed by J.P. Morgan Chase that Banco Vizcaya, the purported issuing bank, had stopped payment on the check.*fn2 (Pet. Mem. at 6).
On April 28, 2009, Dorchester commenced the instant special proceeding, seeking a turnover order against Banco Vizcaya for the cash value of the two cashier's checks.*fn3
II. Banco Vizcaya's Investigation into the Checks
The checks at issue, which were purportedly issued by Banco Bilbao Vizcaya-Mexico, S.A. ("BBVA-Mexico"), had been the subject of a previous internal investigation at BBVA Bancomer, S.A. ("BBVA Bancomer"), as BBVA-Mexico is now known.*fn4
Banco Vizcaya asserts that, during March and April 2008 (almost a year prior to the alleged acquisition of the checks by Dorchester) two individuals, on two separate occasions, presented to BBVA Bancomer for payment photocopies of the cashier's checks at issue in this case: (1) check No. 730, dated November 16, 2000, in the amount of $690,039,000 Mexican pesos, and (2) check No. 831, dated ...