Chapter 15: Court Permits Foreign Debtors to Access and Transfer Funds in a US Account
By Leslie A. Berkoff, Moritt Hock & Hamroff LLP
On 29 January 2019, Judge Martin Glenn, of the Southern District of New York (SDNY) Bankruptcy Court, in the case of ENNIA Caribe Holding, NY, issued a decision regarding a case pending in Curaçao involving the largest insurance company in Curaçao and St. Maarten. The underlying case was originally filed in 2018 by the Central Bank of Curaçao and St. Marten in Curaçao.
Thereafter, a Chapter 15 petition was filed in the SDNY and Judge Glenn granted the foreign representatives’ request for recognition as a foreign main proceeding. At issue in the current dispute were frozen investment accounts owned by the Debtors, held in Merrill Lynch’s US offices. The Debtors filed a motion in the Bankruptcy Court seeking permission to access and transfer the funds in the accounts to Curaçao for the benefit of its creditors.
A significant shareholder of the Debtors objected and asserted that its rights were not protected by such a transfer. The Court ruled that such alleged harm was “dwarfed by the benefits such a transfer would provide to ENNIA and the harm the [d]ebtors would suffer without access to the funds…” 2019 Bankr. LEXIS 200, *16. The Court found that it was undisputed that the funds belonged to the Debtors and that the transfer of the funds was in furtherance of the goals of Chapter 15, noting that releasing “[t]hese accounts will allow the [d]ebtors to resolve their liquidity issues and remain in operation” 2019 Bankr. LEXIS 200, at *13–14. In rendering this determination, the Court focused its analysis upon the discretionary relief provisions contained in Section 11521(a) (5) and 1521(b) of the Bankruptcy Code, which permit a foreign representative to carry out the distribution of assets in the United States.
Leslie A. BerkoffMoritt Hock & Hamroff LLP, Garden City (NY), New York (NY), USA
T: +1 516 873 2000
Moritt Hock & Hamroff is a full-service commercial law firm providing a wide range of legal services to businesses, corporations and individuals worldwide. The firm has 19 practice areas and offices in Garden City, NY, and New York City, NY, USA.
Leslie A. Berkoff is a Partner with the firm and Chair of its Bankruptcy Practice Group. She concentrates her practice in the area of bankruptcy representing a variety of corporate debtors, trustees, creditors and creditors’ committees, both nationally and locally.
Published: Debt Collection, Restructuring & Insolvency, No. 10, Spring 2019 l Photo: TTstudio - stock.adobe.com