Asset recovery column: Euromepa and Gorsoan, oh my

Sequor Law shareholder Leyza Blanco and attorney Christopher Noel discuss the evolving standard to obtain Section 1782 assistance in the US Court of Appeals for the Second Circuit and beyond.

The US Court of Appeals for the Second Circuit, which includes the states of Connecticut, New York, and Vermont within its jurisdiction, is currently tasked with addressing and deciding how far to extend an ever narrowing standard applied to proceedings brought pursuant to Section 1782 of the United States Code.

In In re: Application of Gorsoan out of the US District Court for the Southern District of New York, the Second Circuit has been asked to decide whether an application for judicial assistance to obtain discovery for use in aid of a foreign judgment meets the statutory requirements for relief to be granted pursuant to Section 1782. The ramifications of the Second Circuit’s decision are certain to resonate globally, as New York remains a hotbed for seeking US judicial assistance for foreign tribunals, both because of its geographic proximity to Europe and because of the myriad of global businesses that identify New York as their principal places of business.

As many global restructuring and insolvency practitioners are aware, Section 1782 is the product of more than 150 years of effort from the US Congress to provide federal-level court assistance in gathering evidence in the US for use in a foreign tribunal. Generally, whether to grant this assistance is determined by a two-part inquiry: (1) whether a US District Court is authorised to grant relief pursuant to Section 1782; and (2) whether a US District Court should grant relief in its broad discretion.

At issue before the Second Circuit is one of the statutory prongs examined when a US District Court is deciding whether it is authorised to grant relief –to wit, that the evidence sought must be “for use in a proceeding in a foreign or international tribunal.”

The Gorsoan case began with an alleged US$25 million fraud, which caused a Cypriot court to issue a worldwide freezing injunction and asset disclosure order against dozens of defendants, including the Belarusian born, Florida-based socialite Janna Bullock. After Bullock refused to comply with the Cypriot court’s order, Gorsoan, a Cyprus company and fraud victim, sought assistance in the US District Court for the Southern District of New York, pursuant to Section 1782. Upon challenge in the Second Circuit, the appellate court affirmed the order granting judicial assistance and Bullock was required to produce the requested discovery. Much to the dismay of Gorsoan, and fellow fraud victim Gazprombank, Bullock failed to produce substantive discovery in response to Gorsoan’s requests. As a result, Gorsoan obtainedleave of court and a court order to take a second deposition of Bullock. At this second, court-supervised deposition, Bullock refused to answer questions by invoking her Fifth Amendment right against self-incrimination.

Thereafter, Gorsoan led its second application for judicial assistance pursuant to Section 1782, seeking authorisation to subpoena Bullock’s children, mother, and other related persons. The District Court granted that application and Gorsoan’s subsequent motion to compel, which led to Bullock’s intervention and a motion to quash the subpoenas. In January of this year, the Southern District of New York denied Bullock’s defensive motions and granted Gorsoan’s motion to compel related to its subpoenas. Atpresent, the Southern District of New York’s decision remains on appeal at the Second Circuit. However, based upon its own prior precedent in Euromepa, SA v R Esmerian, Inc, which broadly held that enforcement of a foreign judgment does not meet the “for use” prong required for Section 1782 relief, the Second Circuit may well further limit Section 1782’s use for obtaining discovery in the United States for use in foreign tribunals.

In Euromepa, the dispute stemmed from an insurance claim for approximately US$20 million in lost or stolen diamonds and other precious jewelry owned by jeweler Esmerian, Inc. and insured by Euromepa. Underlying the Section 1782 proceedings in the United States was a French action wherein the French trial court issued a judgment of approximately US$10 million in favor of Esmerian, which resulted from a finding of equal fault between Esmerian and Euromepa in the loss of the jewelry. Following the French trial court’s ruling, and after perfecting an appeal, Euromepa filed its Section 1782 petition in the Southern District of New York, seeking discovery of Esmerian regarding, among other items, proof of the jewelry’s ownership, proof of the jewelry’s insurance, and proof of the jewelry lost. Ultimately, Euromepa sought this discovery for use in its appeal of the French trial court’s ruling of equal fault among the parties. Upon review, the Southern District of New York denied Euromepa’s application, resulting in an appeal to the Second Circuit.

In between appellate argument and the Second Circuit’s decision, the French appellate court favorably amended the French trial court’s judgment in Esmerian’s favor, holding Euromepa wholly liable for the US$20 million loss. As a result, Euromepa immediately sought protection in the French bankruptcy court. The Second Circuit, without addressing the decision of the French appellate court, reversed and remanded the case for further proceedings. Contemporaneously, Euromepa sought review of the French appellate court’s decision with the French Supreme Court, which resulted in an affirmance of the lower appellate court’s opinion. Immediately following the French Supreme Court’s decision, the Southern District of New York dismissed Euromepa’s Section 1782 petition as moot because that decision effectively eliminated all pending proceedings in which Euromepa could use the discovery sought in the United States.

Thereafter, Euromepa’s second appeal followed, arguing that the Southern District of New York failed to consider the pending French bankruptcy proceeding and a potential motion to reopen the judgment of the French appellate court, as bases to avoid the Court’s finding of mootness. Upon examination, the Second Circuit found that the French bankruptcy proceeding is not adjudicative within the meaning of Section 1782 because the merits of the dispute between Esmerian and Euromepa have already been adjudicated and would not be considered in the French bankruptcy proceeding, based upon French law. Further, the Second Circuit held that Euromepa’s argument concerning the potential motion to reopen the judgment of the French appellate court was meritless, because its conceded that such a petition was unlikely to be made absent newly discovered evidence. Accordingly, the Second Circuit held that the Southern District of New York did not abuse its discretion in dismissing Euromepa’s Section 1782 petition as moot.

Applying this precedent to the Gorsoan appeal, it is entirely possible that theSecond Circuit will again hold that, because the adjudicative function of the foreign tribunal is complete, there is no basis under Statute 1782 to grant relief, thereby foreclosing Gorsoan’s ability to obtain discovery in the United States.

All hope is not lost for obtaining discovery in the US, however. While the Second Circuit appears to be gradually narrowing the door for discovery pursuant to Section 1782, the Southern District of New York specifically recognised that “[n]one of the decisions [cited by Bullock in Gorsoan] established a broad rule that asset discovery can never be adjudicative and is thus always impermissible under § 1782.” (435 F.Supp.3d at 598). Ultimately, the nuance lies in whether the discovery sought pursuant to Section 1782 could have an effect on the merits of the dispute being decided in the foreign tribunal.

Moreover, District Courts around the US have sought to further clarify the holding in Euromepa. For example, in In re: Stati, the US District Court for the District of Massachusetts held that “the Euromepa court did not universally bar discovery in all bankruptcy proceedings, particularly where issues are being adjudicated.” Further, in JSC MCC EuroChem v. Chauhan, the US District Court for the Middle District of Tennessee held that “Euromepa had not held that ‘all post-judgment proceedings are not adjudicative’.” Finally, even within theSouthern District of New York, there remains some dispute regarding how far the Euromepa decision extends: in In re: Galaxy Energy & Res Co, the court cited Euromepa for the limited proposition that Section 1782 discovery “is inappropriate where the merits of a controversy have already been decided by the foreign tribunal.”

Ultimately, according to the Southern District of New York in In re: Gorsoan Limited, “adopting the proposed far-reaching rule against asset discovery would be incongruent with § 1782’s ‘underlying policy’ that, ‘[a]bsent specific directions to the contrary from a foreign forum, . . . district courts [should] provide some form of discovery assistance’.” (435 F.Supp.3d 589, 599).

At some point later this year, the Second Circuit will likely decide whether Gorsoan will be permitted to obtain the discovery it seeks related to Bullock’s alleged involvement in the US$25 million fraud. At present, proceedings in the Southern District of New York have been stayed by court order, pending resolution of the appeal. Until resolution, and further clarity from the Second Circuit, practitioners should not wait to file their respective applications for judicial assistance pursuant to Section 1782. Instead, non-US practitioners should carefully consider the various jurisdictions where an application for Section 1782 assistance could be filed in the US (any district where the person from whom discovery is sought resides or is found), especially if that location is outside of the Second Circuit’s jurisdiction.

Further, there are other litigation tools that counsel in the US may use to otherwise obtain the discovery needed for use in a foreign tribunal when there is already a judgment – one example is domestication of a foreign judgment pursuant to a variety of state laws allowing the enforcement of foreign judgments in the US. Although differing somewhat from state to state, most states have already adopted the Uniform Foreign Money-Judgments Recognition Act (UFMJRA) and have common law decisions that reinforce a foreign party’s ability to both domesticate and enforce foreign judgments within the US.

Case references

In re: Application of Gorsoan (2d Cir. Case No. 20-680, Filed 21 February 2020)

Euromepa, SA v. R Esmerian, Inc, 154 F.3d 24 (2d Cir. 1998)

In re: Stati, No. 15-mc-91509, 2018 WL 474999, at *4 (D. Mass. 2018)

JSC MCC EuroChem v. Chauhan, No. 17-mc-5, 2018 WL 3872197, at *12 (M.D. Tenn. Aug. 15,2019)

In re: Galaxy Energy & Res. Co., 190mc-287 (LIS), 2019 WL 2743205, at *1 (S.D.N.Y. July 1,2019)


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Happy Holidays and Warm Wishes for 2021

This holiday season we wish you good health, hope, prosperity and success. Click to view in English, Spanish and Portuguese.

Community roundup: IWIRC gets its first Hispanic chair amid new year hires and promotions

The International Women’s Insolvency and Restructuring Confederation (IWIRC) will have its first Hispanic chair come 1 January, as a Dutch firm hires from Loyens & Loeff, and Vinson & Elkins and Cooley promote in New York.

Leyza Blanco, a shareholder at Miami-based cross-border insolvency and asset recovery boutique Sequor Law, will become the first Hispanic chair of IWIRC’s board at the start of next year, after serving as vice-chair in 2020 under the outgoing chair, PwC partner Michelle Pickett in Ontario.

Blanco’s new vice-chair is Lowenstein Sandler counsel Jennifer Kimble in New York, who is currently IWIRC’s secretary. Kimble will be replaced in the secretary role by Boston-based Marjorie Kaufman of management consulting firm Getzler Henrich & Associates, who is currently finance director.

The current vice finance director, Karen Fellowes QC at Stikeman Elliott in Vancouver, will also now graduate into the directors’ role, while a new member of IWIRC’s executive board, Troutman Pepper partner Evelyn Meltzer in Wilmington, Delaware, will be appointed vice finance director.

Fellowes joined Stikeman Elliott in July from DLA Piper, and is a former winner of IWIRC’s Fetner Award, which is given each year to an outstanding international member.

Blanco – herself an IWIRC founders award-winner in 2019 – said she was “honoured” to have been named IWIRC’s next chair. “I will be a steward to the IWIRC mission and continue to make IWIRC accessible to everyone, increasing diversity and helping our worldwide members connect and forge productive relationships,” she said.

In an inaugural speech delivered on 15 December at a hybrid in-person and virtual event for IWIRC’s 2020 Rising Star Award – an honour presented to Sequor Law attorney Nyana Miller, who is the first Latin America regional chair on IWIRC’s international board – Blanco said the chaos of this pandemic year had actually delivered “a silver-lining” in the form of online events.

She jokingly thanked covid-19 for uncovering “this extra arrow in our quiver” and pledged to use virtual events to drive focus on inclusion, labelling them “an invaluable tool to help us in our mission – to connect women worldwide”.

Speaking to GRR, Blanco notes that the past three years have seen IWIRC add Brazil, Latin America and Korea networks to its ranks, and that it is her ambition to work on expanding the European network and developing new networks during her time as chair.

“Efforts are already in the works for the development of networks in New Zealand, Ireland, Dubai, South Africa and Pacific Northwest,” Blanco says.

“It is my hope that women from across the globe who are not already represented in an IWIRC network will have a network to join and participate with IWIRC in the promotion of women in the insolvency field worldwide,” she adds, noting that anyone interested in joining or forming a new IWIRC network is welcome to get in touch with her directly.

Blanco joined Sequor law in mid-2018 from GrayRobinson in Miami, alongside another shareholder, Fernando Menendez. She regularly works on international litigation and insolvency matters relating to the US and Latin America, especially Chapter 15 recognition cases.

In November, she asked the US Bankruptcy Court for the Southern District of Florida to recognise the most recent liquidator of Ukrainian bank PJSC Bank Finance and Credit, following a series of different appointments in the wake of the bank’s licence being revoked in 2015.

She is also the regular author of GRR’s asset recovery column.


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Emergency Measures in Insolvency Legislation in Response to the COVID-19 Crisis

by Cristina Vicens, Sequor Law, P.A., Miami, Florida

What emergency measures in insolvency or restructuring legislation has the United States adopted to help businesses cope with the economic crisis caused by the COVID-19 pandemic?

In March 2020, the U.S. Congress swiftly passed a series of stimulus packages to help stabilise the economy after COVID-19 forced many businesses to shut down and caused millions of Americans to become unemployed. The third (and latest) of these stimulus packages, the “Coronavirus Aid, Relief, and Economic Security Act” (CARES Act; P.L. 116-136), was a US$2 trillion stimulus packages passed on 25 March 2020. The CARES Act directs financial assistance to individual tax payers, expands unemployment benefits to persons that normally would not have qualified for unemployment benefits, provides for federal grants, loans, and other assistance for small businesses and other businesses disproportionately affected by the COVID-19 pandemic, and establishes a US$150 billion Coronavirus Relief Fund to make payments to states, tribal governments, and local governments as they respond to the public health emergency.

Specifically, with regard to insolvency or restructuring legislation adopted to help businesses cope with the economic crisis, the CARES Act provides for several amendments to the U.S. Bankruptcy Code. First, it increases the debt ceiling for businesses to be eligible to file under the small business provisions of Chapter 11 of the Bankruptcy Code from US$2,725,625 to US$ 7,500,000. The Small Business Reorganisation Act (“SBRA”), which took effect on 19 February 2020, just a few weeks before the national shutdown, provides a streamlined path through Chapter 11 for small business debtors. This increased threshold will potentially allow more businesses with access to the SBRA to survive. After one year, however, the debt ceiling increase reverts to US$2,725,625. Second, for a period of one year, the CARES Act amends the definition of “income” under Chapters 7 and 13 to exclude COVID-19 related payments from the federal government. Third, applicable to individuals rather than businesses, it clarifies that the calculation of disposable income under Chapter 13 does not include COVID-19 related payments; and, lastly, permits individuals and families in Chapter 13 proceedings to seek payment plan modifications in response to COVID-19 related financial hardship, including extending payments for up to seven years after their initial payment was due.

In addition, the CARES Act provides the authority to the Administrator of the U.S. Small Business Administration (“SBA”) to make loans under the Paycheck Protection Program (“PPP”) through the commercial banking market. The PPP is designed to provide a direct incentive for small businesses to keep their employees on the payroll and allows loans to be forgiven if all employees of a business are kept on the payroll for eight weeks and the loan proceeds are used for payroll, rent, mortgage interest, or utilities. While the CARES Act does not prohibit PPP loans or grants to be provided to Chapter 11 debtors, the SBA has taken the position that it does, creating uncertainty for companies operating under Chapter 11 protection and leading to litigation. [See Perspectives on COVID-19 Relief Funding and the Reopening of America, ABI Journal, July 2020, at 8.]

Further, small business owners are able to apply for Economic Injury Disaster Loans (“EIDL”) and receive an advance of up to US$10,000, designed to provide economic relief to businesses that are experiencing a temporary loss of revenue. Relevantly, the loan advance does not have to be repaid and recipients do not have to be approved for the loan in order to receive the Emergency Measures in Insolvency Legislation in Response to the COVID-19 Crisis AIJA Insolvency Commission 2020 68 advance. Contrary to the PPP loans, the SBA administers the EIDL program directly and not through the commercial banking market.


Click here to read the full summary (page 67).

The Effect of the General Data Protection Regulation on Discovery in the United States

By Amanda E. Finley, Miami

The European Union implemented the General Data Protection Regulation (GDPR), and it became effective on 25 May 2018.1 The GDPR enforces privacy requirements to protect EU citizens.2 “The GDPR applies to the processing of ‘personal data,’ which is defined as any information related to an ‘identified or identifiable natural person,’” who can be directly or indirectly identified by the data produced.3 The GDPR purports to have extraterritorial effect by applying “regardless whether the processing takes place in the EU or elsewhere.”4 The GDPR allows imposition of penalties and sanctions that “significantly increase[d] the maximum fine to €20 million, or 4% of annual worldwide turnover, whichever is greater.”5 Further, “[t]he GDPR provides an individual with access to the courts to seek a judicial remedy” in addition to any administrative remedy.6 Essentially, any production of documents that contain information about EU citizens could cause serious consequences and large fines for a GDPR violation.

The early cases in the United States suggest that the GDPR may have a profound impact on discovery in the United States. The GDPR may provide for targets subject to the jurisdiction of courts in the United States to object to discovery with the purpose (or possibly under the guise) of protecting EU citizens’ privacy. Defendants may object to production as a whole, request significant redaction of the discovery, request a strict confidentiality agreement, request to produce anonymized data that does not identify any EU citizen, or any combination thereof. There is limited case law on the implications of the GDPR on U.S. discovery because it is a relatively new regulation. So far, U.S. courts have taken divergent approaches on how to address and resolve objections to discovery based on the GDPR. Overall, it appears that most courts are allowing production of the discovery in some form, over a defendant’s GDPR objection.

U.S. Courts’ Historical Response to Discovery Objections Based on Foreign Privacy Statutes or Secrecy Laws

Historically, U.S. courts have been unwilling to allow a foreign privacy statute to preclude the production of responsive documents that were otherwise discoverable in U.S. litigation. As the Supreme Court stated, “[i]t is well settled that such statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute.”7 The Court further noted that the French “blocking statute” was “originally ‘inspired to impede enforcement of United States antitrust laws,’ and that it did not appear to have been strictly enforced in France,” which further undercut U.S. courts’ interest in enforcing that foreign privacy statute over the American interest of full disclosure in discovery.8 Prior and subsequent courts similarly ruled that foreign privacy statutes are not dispositive on production of discovery in U.S. cases, although the statutes may be relevant to the issue of whether sanctions should be imposed for failure to comply with U.S. discovery orders.9 Likewise, U.S. courts deemed foreign bank secrecy laws insufficient to preclude discovery in U.S. litigation.10 Therefore, generally, courts in the United States overwhelmingly have held that full disclosure in discovery outweighs any interest in enforcing foreign privacy or secrecy laws.

A Chronological Review of U.S. Courts’ Approaches to GDPR Discovery Disputes and Other Foreign Privacy Statutes

On 5 October 2018, the first published ruling on GDPR in U.S. litigation involved a defendant, Microsoft, raising a GDPR objection to discovery based on the undue burden and cost of producing the discovery due to “the alleged tension with GDPR.”11 The court did not significantly analyze the GDPR issue, but stated that “the court [wa]s not persuaded by Microsoft’s arguments concerning undue burden” and required the production of documents.12

On 17 December 2018, the first substantive ruling by a U.S. court to address an objection to discovery based on GDPR was in the context of a 28 U.S.C. § 1782 application to obtain discovery for use in a foreign proceeding.13 The court “grant[ed] the application with respect to documents held by foreign custodians only to the extent that the Applicants (1) assume the costs of the document production, including the costs of compliance with the GDPR or other applicable European data privacy laws and (2) indemnify Respondents against any potential breaches of European data privacy laws.”14 Although the court granted production of the documents over the GDPR objection, this ruling has serious adverse consequences for parties seeking discovery in U.S. litigation if the GDPR is implicated because it required unknown and potentially multimillion-dollar indemnification liability on the party receiving the documents.

The approach in Hansainvest of requiring indemnification of the discovery target “against any potential breaches of European data privacy laws” is a serious deterrent to any party seeking discovery.15 It would be unusual and highly unlikely that any party would knowingly accept such an open-ended and potentially large financial risk given the large fines for a GDPR violation. If courts routinely adopted this approach, it would have a significant chilling effect on U.S. discovery when the GDPR is implicated. Hansainvest is the only U.S. court, thus far, to rule that indemnification of any GDPR liability is a condition precedent to production of the documents. In later rulings, U.S. courts have taken less drastic approaches to GDPR objections to discovery.

Click here to read the full article in the Spring 2020 International Law Quarterly (page 16) and the Business Law Section.

2021 IWIRC Board of Directors Announced

Stanardsville, VA – December 3, 2020 – The International Women’s Insolvency and Restructuring Confederation (IWIRC), the premier international, networking, and professional growth organization for women in the restructuring and insolvency industry, recently announced its 2021 Board of Directors. Carrianne Basler (AlixPartners, Chicago), Past Chair and Chair of the 2021 Nomination Committee announced that “This year’s process highlighted the incredible breadth of talent in our membership and their fervent dedication to IWIRC worldwide. We are delighted to present the composition of this new Board that will be leading this organization in 2021”.

The complete list of directors can be found at this link.

Leyza Blanco (Sequor Law, Miami) will be the first Hispanic Chair of the Board of Directors. Blanco stated, “I am honored to have been named IWIRC’s next chair. I will be a steward to the IWIRC mission and continue to make IWIRC accessible to everyone, increasing diversity and helping our worldwide members connect and forge productive relationships.”

The other officers include Jennifer Kimble (Lowenstein Sandler, New York), Vice-Chair; Marjorie Kaufman (Getzler Henrich & Associates LLC, Boston), Secretary; Karen Fellowes (Stikeman Elliott, Vancouver) Finance Director; Michelle Pickett (PwC Canada, Toronto ) Immediate Past Chair. New to the Executive Board is Evelyn Meltzer (Troutman Pepper Hamilton Sanders LLP) as Vice Finance Director. “I believe strongly in IWIRC’s mission to connect and promote women in the insolvency and restructuring profession and look forward to continuing to advance this important work in my new role with the Executive Board in 2021 and beyond,” said Meltzer.

Michelle Pickett, outgoing Chair shared, “One of IWIRC’s missions is to provide opportunities for members to develop their leadership skills. Well, I certainly got that opportunity in 2020. Being chair of IWIRC in 2020, during a global pandemic, was a once-in-a-lifetime experience. It’s an experience I will fondly remember and certainly not soon forget. It was a growth opportunity for members of the executive, the board, and our administrative director. We all had to think differently about how we delivered value and supported members around the globe during these uncertain times. I finish my year as Chair knowing that IWIRC will be in very capable hands with Leyza Blanco as Chair in 2021. Leyza is a trailblazer and is well suited to lead IWIRC out of the pandemic and into new opportunities to Inspire, Inform and Connect our members worldwide.”



IWIRC is committed to the connection, promotion and success of women in insolvency and restructuring worldwide. For more than 25 years, across the board room, courtroom and the continents, our diverse relationships make IWIRC the premier organization for women in the restructuring and insolvency professions. IWIRC networks are located in Asia, Europe, North America and South America. We welcome the development of new networks in these or new regions. Be Inspired. Be Informed. Be Connected. For more information, please contact Administrative Director, Shari Bedker at, or visit the website of IWIRC.

Click here to read the original article on the IWIRC website.

Your Recovery Is Mine: Enforcement of Judgments via a Judgment Debtor’s Claims Against Third Parties

Authored By: Daniel M. Coyle – Sequor Law


Asset Recovery and Judgment Satisfaction demands access to broad remedies and creative thinking. A Judgment Creditors’ efforts to enforce a judgment may be stymied by property exemptions, wage-garnishment exemptions, trusts, multi-member LLCs, and/or because the Judgment Debtor’s property is held by a tenancy-by-the-entireties (if this manner of holding property is recognized in the state). Judgment Creditors and their counsel should look to other assets that are available, such as claims (also called choses in action) held by Judgment Debtors against others.

Black’s Law Dictionary (rev. 4th Ed. 1968) defines a chose in action as: A personal right not reduced into possession, but recoverable by a suit at law . . . A right to receive or recover a debt, demand, or damages on a cause of action ex contract or for a tort or omission of a duty

Seizure of Claims.

In Florida, for instance, a Judgment Creditor may reach such property via Florida’s Proceedings Supplementary statute, Fla. Stat. §56.29. Subsection (6) of that statute provides that “a court may order any property of the judgment debtor, not exempt from execution, or any property, debt, or other obligation due to the judgment debtor, in the hands of or under the control of any person subject to the Notice to Appear, to be levied upon and applied toward the satisfaction of the judgment debt.” Thus, if a Judgment Debtor has sued a third party, the Judgment Creditor may seize the claim under Fla. Stat. § 56.29. Myd Marine Distrib., Inc. v. Int’l Paint Ltd., 201 So. 3d 843, 845 (Fla. 4th DCA 2016). See also Gen. Guar. Ins. Co. of Fla. v. DaCosta, 190 So. 2d 211, 213–14 (Fla. 3d DCA 1966) (decided under predecessor statute). Other states also permit Judgment Creditors to execute and levy upon these types of assets. See, e.g., Holt v. Stollenwerck, 56 So. 912, 913 (Ala. 1911); Wittenauer v. Kaelin, 15 S.W.2d 461, 462-63 (Ky. Ct. App. 1929); Rucks-Brandt Const. Corp. v. Silver, 151 P.2d 399, 400 (Okla. 1944); Lynn v. Int’l Bhd. of Firemen & Oilers, 90 S.E.2d 204, 206 (S.C. 1955); Maranatha Faith Ctr., Inc. v. Colonial Tr. Co., 904 So. 2d 1004, 1010 (Miss. 2004); Reynolds v. Tufenkjian, 136 Nev. Adv. Op. 19 (2020). Once the Judgment Creditor seizes or attaches the claim, the Judgment Creditor now becomes the plaintiff, or potential plaintiff, as if the claim had been voluntarily assigned to it. The Judgment Creditor thus has full discretion in how to manage litigation of the claim, including full settlement discretion, but also must fund litigation of the claim.

Seeking an Equitable Lien on Claims for Personal Torts.

However, in Florida, a Judgment Creditor may not levy and execute on a claim under section 56.29 if the claim is one for a “personal” tort or the claim is not assignable. Shaughnessy v. Klein, 687 So. 2d 43 (Fla. 2d DCA 1997). Personal torts are those claims that are personal to the plaintiff and that the plaintiff cannot assign, due to the personal relationship of the claim to the victim. Such torts include, but are not limited to, assault and battery, fraud, medical malpractice, (most) legal malpractice, intentional infliction of emotional distress, slander, and malicious prosecution. Forgione v. Dennis Pirtle Agency, Inc., 93 F.3d 758, 760 (11th Cir. 1996), certified question accepted, 689 So. 2d 1069 (Fla. 1997), and certified question answered, 701 So. 2d 557 (Fla. 1997); 21 C.J.S. Creditors’ Suits s 29. YOUR RECOVERY IS MINE: ENFORCEMENT OF JUDGMENTS VIA A JUDGMENT DEBTOR’S CLAIMS AGAINST THIRD PARTIES. ThoughtLeaders4 Fire Magazine • ISSUE 3 44 Other courts also recognize the same limitation. See, e.g., Certified Grocers of California, Ltd v. San Gabriel Valley Bank, 197 Cal. Rptr. 710, 715 (Ct. App. 1983); Blackmore v. Dunster, 274 P.3d 748, 752 (Mont. 2012); Reynolds v. Tufenkjian, 136 Nev. Adv. Op. 19 (2020).

While a Judgment Creditor may not levy and execute upon these types of claims, a Judgment Creditor may use proceedings supplementary to request the Court to craft alternative relief: awarding the Judgment Creditor an equitable lien on the Judgment Debtor’s potential recovery. Although section 56.29 does not contain a specific provision addressing a Judgment Creditor’s right to an equitable lien on a Judgment Debtor’s claim, 56.29(6) states: The court may enter any orders, judgments, or writs required to carry out the purpose of this section, …”.

Cases in Florida have already determined that a judgment creditor may obtain an equitable lien on a Judgment Debtor’s homestead property. Zureikat v. Shaibani, 944 So. 2d 1019, 1022 (Fla. 5th DCA 2006); Whigham v. Muehl, 511 So. 2d 717, 718 (Fla. 1st DCA 1987). Moreover, the case law interpreting section 56.29 states that Proceedings Supplementary “are equitable in nature and should be liberally construed” to provide the broadest relief to the creditor. Ferguson v. State Exchange Bank, 264 So.2d 867, 868 (Fla. 1st DCA 1972); Regent Bank v. Woodcox, 636 So.2d 885, 886 (Fla. 4th DCA 1994). Trial courts also have discretion in crafting appropriate relief for the benefit of the creditor. Myd Marine Distrib., Inc. v. Int’l Paint Ltd., 201 So. 3d 843, 844 (Fla. 4th DCA 2016). Thus a Judgment Creditor’s argument for an equitable lien on the proceeds of a lawsuit for a personal tort stands on solid ground. Other states have recognized similar concepts. See, e.g., Blackmore v. Dunster, 274 P.3d 748, 752 (Mont. 2012) (“Blackmore could petition the court to assign to Blackmore any proceeds from Dunster’s tort action in satisfaction of the judgment debt.”).

Once the Court awards the equitable lien, similarly to an attorney’s charging lien, the Judgment Creditor must file the lien in the docket of the Judgment Debtor’s lawsuit to provide notice to the Court presiding over the Judgment Debtor’s lawsuit as well as the third party of the Judgment Creditor’s interest in the potential recovery. In contrast to the Judgment Creditor’s seizure of the claim, the filing of an equitable lien leaves the management of the claim, including the discretion on settlement decisions, with the Judgment Debtor. The Judgment Debtor also retains the obligation to fund the litigation. A potential drawback is that these factors, combined with the fact that some, most or all of the recovery will flow to the Judgment Creditor may result in the Judgment Debtor losing interest in pursuing the claim, and/or abandoning it entirely.

A potential alternative to the equitable lien would be to monitor the lawsuit, and to timely serve a writ of garnishment upon the third party after the verdict. However, this has the drawback of increased administrative costs due to the need to constantly monitor proceedings, the need to coordinate with a potentially a third party who has nothing to gain by such cooperation and whose interests are still adverse to the Judgment Creditor and the need to time the writ of garnishment (with potential service requirement issues as the writ must be served on the third party, not its attorney in the case).


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11th Circuit Court Of Appeals Affirms Sequor Law Section 1782 Orders

Sequor Law, led by Arnoldo B. Lacayo and Cristina Vicens, secured a favorable ruling from the Eleventh Circuit Court of Appeals affirming the district court’s orders holding that Sequor Law’s client was entitled to receive judicial assistance under 28 U.S.C. § 1782. In In re Application of Rigail Pons, Sequor Law represents an ex-wife in a foreign proceeding where the foreign court is charged with conducting an inventory of marital assets. Based on indicia that the ex-husband did not completely and accurately disclose his marital assets, Sequor Law was able to deploy Section 1782 successfully to obtain documents and testimony from financial institutions and other discovery targets that had documents and information about marital assets that the ex-husband should have, but did not, disclose before the foreign court. The Eleventh Circuit agreed with the district court, that the evidence sought would be “for use” in the foreign proceeding where the ex-wife would have the opportunity to use the evidence to request that the foreign court carry out a supplemental inventory of marital assets, including assets that were not disclosed during the original inventory proceeding. This decision in favor of Sequor Law’s client is the second significant Section 1782 decision obtained by the firm at the Eleventh Circuit Court of Appeals following the 2014 decision in In re Application of Consorcio Ecuatoriano de Telecomunicaciones S.A.

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Eleventh Circuit Gives Green Light to Broad Discovery in Aid of Foreign Bankruptcies

By Greg Grossman and Francis Curiel, Miami

The Eleventh Circuit recently affirmed a district court’s broad grant of discovery for use in five foreign bankruptcy proceedings to which the discovery applicant was a creditor-party. This article will briefly examine how the (relaxed) standard set forth by this Section 1782 proceeding compares to the (less relaxed) standard set forth by two notable Chapter 15 cases.

In re Petroforte, by now a well-known Chapter 15 case, involved the liquidation of one of Brazil’s largest gas and ethanol distributors. During the liquidation, the Brazilian trustee found evidence of fraudulent transfers made to several entities, which led the Brazilian court to extend the bankruptcy case to include the transferees. The Brazilian trustee commenced a Chapter 15 proceeding in the Southern District of Florida to seek discovery to assist the Brazilian liquidation. The discovery targets objected, arguing that the subpoenas sought broad financial information about the non-debtor targets that exceeded the limits of discovery under Section 1521(a)(4) and Rule 2004. When the court interpreted the scope of “debtor” under Section 1521(a)(4), it held, in part, that the entities that were subject to the Brazilian bankruptcy extension order were “debtors subject to Section 1521’s discovery powers; however, with regard to any third parties who were not subject to the extension order, the trustee was entitled to broad discovery only when the debtor was a majority stockholder in the non-debtor discovery target.

In re SAM likewise dealt with a Chapter 15 proceeding stemming from a Brazilian bankruptcy, wherein the debtor concealed corporate interests by transferring property to family members. The foreign representative sought documents relating to non-debtors who the foreign representative alleged were relevant to his investigation and potential recovery of assets of the foreign estate. The court focused on whether the foreign representative exceeded the proper scope of Rule 2004 discovery. It found that the foreign representative was entitled to discovery relating to (1) the transferees and (2) the non-debtor corporate entities in which the debtor had a majority interest or in those entities already found by the Brazilian courts to have participated in the debtor’s asset concealment scheme. The foreign representative was not entitled to discovery relating to the non-debtor entities whose connections to the debtor had not yet been established in the Brazilian courts. The court further noted that the foreign representative’s inquiries of non-debtors were to be narrowly tailored.

Notably, courts have analogized discovery under Chapter 15 with discovery under 28 U.S.C. § 1782. An incongruity may now exist when comparing Petroforte and In re SAM to the Eleventh Circuit’s recent case, In re Victoria.

In March 2018, Victoria, LLC (Victoria) filed a § 1782 application in the Southern District of Florida, seeking discovery for use in five pending Russian bankruptcy proceedings to which Victoria was a creditor. The bankruptcy proceedings pertained to either (1) Iliya Likhtenfeld (the Debtor) or (2) his Russian companies. Victoria planned to object to the dischargeability of debt, but first needed proof that the Debtor failed to disclose his U.S. assets in the Russian bankruptcies.

To do so, Victoria requested testimony and documents relating to corporate governance, banking, financing, money transfers, business transactions, accounting practices, and the like, from (1) the Debtor; (2) Florida banks with which the Debtor did business; (3) Florida entities that the Debtor allegedly owned or was affiliated with; and (4) individuals affiliated with the Florida entities. To support the existence of these affiliations, Victoria submitted Sunbiz corporate records. Some of these records showed that a woman—who lived at the same address as the Debtor—acted as (either current or former) manager and registered agent of two of the target Florida entities. Notably, the Debtor’s name appeared nowhere on the corporate records of these two Florida entities. Discovery was nonetheless granted for use in the Russian bankruptcies. The shared residence between the Debtor and the manager of these entities proved connection enough.

Moreover, in support of its allegations that the subpoena targets were “closely related” to the Debtor, and that the targets “should have documents and knowledge of assets tied to the Russian [bankruptcies],” Victoria created and submitted a chart showing that many of the Florida entities shared the same address, principals, and registered agents. The entities were thus alleged to be interrelated to each other, although not all directly related to the Debtor himself.

Victoria also submitted two noteworthy declarations in support of its Section 1782 application. The first declarant alleged “upon information and belief” that the Debtor had (1) caused his Russian companies to enter loan agreements with no intention of repaying; (2) failed to repay the borrowed money; and (3) transferred the borrowed money directly or indirectly to his family members or trusted representatives. Ultimately, the declarant “believed” that the borrowed funds found their way into the United States and were used, in part, to support the Debtor’s luxurious lifestyle in Florida. Neither the declarant nor Victoria submitted any other evidence to support these allegations or the connection between the borrowed funds and the Florida corporations. The second declarant stated that the Debtor had not disclosed any of his U.S. assets to the Russian bankruptcy court even though, “based on the [Sunbiz corporate records],” the Debtor owned and/or held officer positions in several Florida entities. Despite the tenuous connections between the Debtor and some subpoena targets, the court granted the broad financial discovery request with few limitations. The aforementioned evidence (or lack thereof) was enough for this grant of discovery to survive through the Eleventh Circuit, which upheld the district court’s ruling.

The disconnect between the above cases poses a noteworthy question—is the Petroforte limitation too narrow in light of the In re Victoria grant of discovery? Victoria, as a creditor seeking discovery assistance for use in foreign bankruptcy proceedings, was granted wide-ranging discovery relating to (1) the Debtor; (2) the Debtor’s banks; (3) non-debtor associates; and (4) non-debtor entities, some of which showed little to no relation to the Debtor besides a shared address with the entities’ manager.

The court did not inquire into the Debtor’s ownership interests (or transfer thereof). Nor did it probe into the foreign courts’ findings. Rather, the grant of discovery was based largely on uncorroborated beliefs and bare allegations. More so, it was based on reasonable suspicion that these target individuals and non-debtor entities were involved in the Debtor’s transfer of assets to the detriment of his creditors. In re Victoria has introduced a more relaxed standard that loosens the restrictions placed on discovery requests for use in foreign bankruptcies. In light of this recent development, perhaps it is time to reassess the scope of discovery in Chapter 15 cases, too.

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