Fidelity Partners v. PHILIPPINE EXPORT & FOR. LOAN

• Decision Date: 02 April 1996
• Docket Number: No. 96 CIV. 0407 (AGS).,96 CIV. 0407 (AGS).
• Citation: 921 F. Supp. 1113
• Parties: FIDELITY PARTNERS, INC., Plaintiff, v. PHILIPPINE EXPORT AND FOREIGN LOAN GUARANTEE CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of New York

921 F. Supp. 1113

FIDELITY PARTNERS, INC., Plaintiff, v. PHILIPPINE EXPORT AND FOREIGN LOAN GUARANTEE CORPORATION, Defendant.

No. 96 CIV. 0407 (AGS).

United States District Court, S.D. New York.

April 2, 1996.

Robert L. Weigel, Gibson, Dunn & Crutcher, New York City, for plaintiff.

Sutton Keany, Steven R. Schindler, Bradley A. Siciliano, Winthrop, Stimson, Putnam & Roberts, New York City, for defendant.

ORDER AND OPINION

SCHWARTZ, District Judge.

Plaintiff Fidelity Partners, Inc. ("Fidelity") moves for a post-judgment order of attachment and execution against certain accounts of defendant Philippine Export and Foreign Loan Guarantee Corporation ("Philguarantee") at the Philippine National Bank and the Federal Reserve Bank. For the reasons set forth below, Fidelity's motion is denied.

BACKGROUND AND FACTS

A. Background

Fidelity is the assignee of a Stipulation and Order for Entry of Judgment Under Seal entered against Philguarantee and in favor of Vincente B. Chuidian ("Chuidian") in the Superior Court of the State of California for the County of Santa Clara on December 5, 1985 ("the California Judgment"). See Stipulation and Order for Entry of Judgment Under Seal, dated December 17, 1985, attached as Exhibit A to Revised Supplemental Declaration of Robert L. Weigel in Support of Plaintiff's Motion for an Order of Attachment and Execution dated March 4, 1996 ("Rev.Supp. Weigel Dec.").

Philguarantee is an agency of the Philippine government, which was created for the purpose of guaranteeing loans in order to foster economic growth within the Philippines. Philippine Export And Foreign Loan Guarantee Corp. v. Chuidian, 218 Cal.App.3d 1058, 267 Cal.Rptr. 457, 460 (1990). In June 1985, Philguarantee commenced an action against Chuidian in the California state courts, alleging that Chuidian had misused loan guarantees obtained from Philguarantee. That action was ultimately settled. The terms were set forth in a Settlement Agreement and Mutual Release, which was incorporated into the California Judgment.¹

In April 1986, Philguarantee sought to vacate the California Judgment. The trial court rebuffed Philguarantee's attempt to vacate the stipulated judgment, and the California Court of Appeals upheld the trial court's decision. See Philippine Export, 267 Cal.Rptr. at 460, 470. However, the appeals court expressly limited the scope of the trial court's orders in aid of execution. Relying on principles of sovereign immunity and the Foreign Sovereign Immunities Act of 1976 ("FSIA"), the appeals court expressly excluded from execution "Philguarantee's assets located in the Philippines," holding that such assets are "immune from execution." Id. 267 Cal.Rptr. at 481. In addition, the Court of Appeals held that the trial court "in aid of execution may order Philguarantee to assign only such assets as Chuidian may legally execute upon in satisfaction of the judgment." As a result, the Court of Appeals held that the trial court's order in aid of execution must be limited to "an order compelling Philguarantee to assign to Chuidian all debts owing or to become owing to Philguarantee from individuals or entities located in the United States." Id.

In 1986, further litigation ensued concerning payment under a letter of credit issued by Philippine National Bank ("PNB") in favor of Chuidian in accordance with the California Judgment. After payment under the letter of credit was "frozen" by order of the Philippine government, Chuidian filed suit in federal district court in California to compel payment. The court held that PNB was not required to make further payment to Chuidian under the letter of credit, and the Ninth Circuit affirmed. Chuidian v. Philippine Nat'l Bank, 734 F.Supp. 415 (C.D.Cal.1990), aff'd, 976 F.2d 561 (9th Cir.1992).

In April 1991, Chuidian filed for bankruptcy. In November 1995, the Chapter 7 trustee of Chuidian's estate sold the California Judgment on an "as is where is" basis to Fidelity. In consideration for the stipulated judgment, Fidelity paid $100 plus a promise to pay 40 percent of the net proceeds collected. See Declaration of Randy Michelson dated January 30, 1996 attached as Exhibit F to Affidavit of Bradley A. Siciliano in Opposition to Plaintiff's Motion for an Order of Attachment and Execution dated March 12, 1996 ("Siciliano Aff.").

In December 1995, Fidelity commenced a proceeding against Philguarantee in the Philippines seeking recognition and enforcement of the California Judgment. That proceeding is still pending. In its petition in the Philippines, Fidelity alleged that Philguarantee had no assets in the State of California, and, as a consequence, Fidelity was seeking enforcement in the Philippines. See Declaration of Jaime A. Sanchez dated January 30, 1996 ("Sanchez Dec."), Exhibit A at ? 14, attached as Exhibit D to Siciliano Aff.

At approximately the same time it commenced the Philippines action, Fidelity also sought to register the California Judgment in New York State Supreme Court for New York County. The Clerk of that court apparently refused to register the California Judgment because its terms were not sufficiently clear. See Transcript of Hearing, January 25, 1996 at 26-27. Fidelity then brought a plenary action on the California Judgment in the same court, moving for summary judgment in lieu of complaint pursuant to New York Civil Practice Law and Rules ("CPLR") ? 3213 on January 2, 1996. Fidelity's motion was brought on by order to show cause returnable January 22, 1996. That order to show cause contained a temporary restraining order ("TRO") "enjoining Philguarantee from making or suffering any sale, assignment, transfer or interference with any property in which it has an interest." Order to Show Cause and Temporary Restraining Order, attached as Exhibit G to Siciliano Aff.

On January 22, 1996, the date Philguarantee's response to Fidelity's motion was due, Philguarantee removed the action to this Court pursuant to 28 U.S.C. ? 1441(d). The Court extended the state court's TRO until the parties could be heard on whether the TRO should remain in effect. After hearing argument on January 25, 1996, the Court extended the TRO until February 5, 1996, and ordered Philguarantee to respond to Fidelity's motion for summary judgment by January 29, 1996.

On February 2, 1996, the Court heard oral argument on Fidelity's summary judgment motion. The Court granted Fidelity's motion, finding no disputed issues of material fact and concluding that the California Judgment was entitled to full faith and credit. See Transcript of Hearing, February 2, 1996 at 7-11. The Court also extended the TRO pending further proceedings on plaintiff's further motion for attachment and execution. On February 5, 1996, the Court issued an order directing that judgment be entered in favor of Fidelity in the amount of $8,532,397.00 plus applicable interest. On February 8, 1996, judgment in the amount of $8,713,275.20 was entered in favor of Fidelity and against Philguarantee.

On February 6, 1996, Fidelity moved by order to show cause for an extension of the TRO then in effect and for a preliminary injunction enjoining disposition of certain assets. On February 7, 1996, the Court heard oral argument on that order to show cause. At the end of the February 7 hearing, the Court issued a new TRO to remain in effect for 10 days pending a further hearing on Fidelity's application for a preliminary injunction on February 14, 1996. At the conclusion of the February 14 hearing, the Court deferred decision on the preliminary injunction motion, but extended the TRO then in effect. On February 20, 1996, the Court extended the TRO until March 5, 1996.

On February 29, Fidelity moved by order to show cause for an order of attachment and execution against certain bank accounts of Philguarantee, pursuant to the FSIA, 28 U.S.C. ? 1610(c), and CPLR ?? 5201, 5222, and 5230, incorporated by Rule 69 of the Federal Rules of Civil Procedure.² Philguarantee, in papers filed March 12, 1996, opposed Fidelity's motion. The Court has extended the TRO in effect in this action pending the Court's consideration of the instant motion.

B. Facts

In support of its motion, Fidelity has submitted public record information relating to PNB's operations and Philguarantee's accounts at both PNB and the Federal Reserve. PNB, which describes itself as the Philippines' first "global bank," maintains branches in New York and Los Angeles. See Polk World Bank Directory (1995-1996 Edition) attached as Exhibit B to Rev.Supp. Weigel Dec. PNB's 1994 annual report discusses the fact that PNB's New York branch is linked to a system allowing money deposited in New York to be immediately withdrawn from automated teller machines located in the Philippines. See 1994 PNB Annual Report at 8, attached as Exhibit C to Rev.Supp. Weigel Dec. The report also states that 154 domestic and overseas branches of PNB were "on-line" and that PNB recently upgraded its IBM computer mainframe. Id. at 12. Fidelity has also submitted a copy of a 1994 audit report on Philguarantee. See Republic of the Phillippines, Commission on Audit's Annual Audit Report on the Philippine Export and Foreign Loan Guarantee Corporation for the Calendar Year 1994, attached as Exhibit D to Rev.Supp. Weigel Dec. The audit report indicates that Philguarantee had substantial amounts on deposit with PNB during 1993 and 1994. According to Fidelity, the report also indicates that Philguarantee had funds on deposit with the Federal Reserve during the same time period. Id. at 13-14.

In opposition to Fidelity's motion, Philguarantee submitted the declarations of Jesus M. Ta?edo, an executive vice president of Philguarantee, and Pedro E. Reyes, the deputy general manager or PNB's New York branch ("PNB-New York"). Mr. Ta?edo states that Philguarantee does not have any assets or bank accounts in the United States, and "does not have any funds or other assets on deposit with the Federal Reserve Bank...