May 26, 2020

May 26, 2020

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New York Limits Access to Assets Held at Foreign Bank Branches

On October 23, 2014, the New York Court of Appeals in Motorola Credit Corp. v. Standard Chartered Bank, 2014 NY Slip Op 07199, decided whether the "separate entity" rule serves to prevent a judgment creditor from ordering a garnishee bank operating branches in New York to restrain a judgment debtor's assets held in foreign branches of that bank. There, the plaintiff served a restraining order on the New York branch of Standard Chartered Bank, which froze funds at Standard's UAE branch. The district court found that under New York's separate entity rule a court: "must treat 'each branch of a bank [as] a separate entity, in no way concerned with accounts maintained by depositors in other branches or at the home office.'" As such, service of the restraining order on Standard's New York branch, where defendants did not maintain assets, did not require Standard to freeze defendants' assets located outside the U.S. The Court of Appeals affirmed the ruling. The Court of Appeals held that "abolition of the separate entity rule would result in serious consequences in the realm of international banking."

This decision now provides creditors a framework for determining when a court may exercise authority over assets located offshore or when a freeze of non-US assets can occur in New York.

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About this Author

Rick Rein, Creditor's Rights Attorney, Horwood Marcus & Berk Law Firm

RICK REIN is chair of Horwood Marcus & Berk's Litigation Group and focuses his practice on creditor's rights, loan enforcement and creditor bankruptcy representation. He regularly advises secured creditors in workout and restructuring transactions, including forbearance agreements. He also assists secured creditors in recovering pledged collateral through Uniform Commercial Code sales and commercial mortgage foreclosures, in prosecuting claims based on fraud, non-performing loans, intercreditor disputes and loan commitment litigation and in defending creditors...