FirstBank Puerto Rico v. Barclays Capital Inc. (In re Lehman Bros. Holdings Inc.)

492 B.R. 191
CourtUnited States Bankruptcy Court, S.D. New York
DecidedMay 10, 2013
DocketBankruptcy No. 08-13555 (JMP); Adversary No. 10-04103 (JMP)
StatusPublished
Cited by6 cases

This text of 492 B.R. 191 (FirstBank Puerto Rico v. Barclays Capital Inc. (In re Lehman Bros. Holdings Inc.)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
FirstBank Puerto Rico v. Barclays Capital Inc. (In re Lehman Bros. Holdings Inc.), 492 B.R. 191 (N.Y. 2013).

Opinion

MEMORANDUM DECISION DENYING MOTION FOR SUMMARY JUDGEMENT OF FIRSTBANK PUERTO RICO AND GRANTING MOTION FOR SUMMARY JUDGMENT OF BARCLAYS CAPITAL INC.

JAMES M. PECK, Bankruptcy Judge.

Introduction

Plaintiff FirstBank Puerto Rico (“First-Bank”) wants its property back. It complains that certain securities pledged more than ten years before the bankruptcy to Lehman Brothers Special Financing, Inc. (“LBSF”) to secure a routine interest rate swap agreement were transferred from its swap counterparty to LBSF’s broker-dealer affiliate Lehman Brothers Inc. (“LBI”) and then sold by LBI to Barclays Capital Inc. (“Barclays”) when these securities were swept into and became part of the complex sale of financial assets to Barclays that occurred with such amazing speed immediately after commencement of these bankruptcy cases. FirstBank has sued Barclays for the return of the pledged securities.

FirstBank asserts that LBI had no right to sell property it did not own and also argues that these securities were not within the category of assets acquired by Bar-clays under the language of the relevant transaction documents and, accordingly, are not entitled to benefit from the protections of the bankruptcy court order approving the sale (the “Sale Order”). First-Bank is not the first Lehman counterparty to seek relief from the Sale Order on legal or equitable grounds. Like others that previously have presented similar arguments, its attempts to distance itself from the impact of the Sale Order are unpersuasive.

FirstBank has tried to distinguish its claims against Barclays and to treat them as if they are not directly related to the Lehman bankruptcy cases. Perhaps for that reason, Plaintiff initially commenced its lawsuit against Barclays in the United States District Court for the Southern District of New York (the “District Court”). Case No. 09-cv-10317, ECF No. 1. In its six-count complaint filed on December 21, 2009, FirstBank seeks to recover twenty securities with identified CUSIP numbers [193]*193(the “Disputed Securities”) originally deposited with LBSF under the terms of a governing ISDA Master Agreement with an attached Schedule and Credit Support Annex (“CSA”) (collectively, the “Swap Agreement”).

The Disputed Securities were pledged in connection with the Swap Agreement but did not remain with LBSF. At various times, they were transferred to other holders as a result of intervening repurchase agreement transactions that were permissible under the Swap Agreement. Such transfers by means of repos are consistent with routine financing practices on Wall Street. After the Disputed Securities were in LBI’s control, they ended up being packaged with a multitude of other similar securities and were included in the vast pool of financial assets subsequently acquired by Barclays pursuant to the Sale Order. This pooling occurred without regard to or consideration of the ownership claims of FirstBank. The factual background section of this decision sets forth in more detail the circumstances that led to inclusion of the Disputed Securities in the assets acquired by Barclays.

The litigation seeking to recover the Disputed Securities proceeded for a period of time in the District Court before being referred to this Court. On May 3, 2010, the District Court granted in part and denied in part Barclays’ motion to dismiss the FirstBank complaint. Case No. 09-cv-10317, ECF No. 22. Following the District Court’s ruling, the surviving claims include unjust enrichment, constructive trust/accounting, and conversion. Four months later, the District Court granted a motion by Barclays to refer the litigation to the bankruptcy court, holding that the dispute is a core proceeding. Case No. 09-cv-10317, ECF No. 44. The District Court found that because the Sale Order “ostensibly transferred the collateral at issue from Lehman to [Barclays] [,] ... any remaining rights that [FirstBank] has in the collateral would need to be determined by analyzing the [e]ffect” of the Sale Order. Id. at 2.

Following transfer to this Court, this litigation has taken on the character of a Lehman-related adversary proceeding. The parties completed discovery and have fully briefed and argued their cross-motions for summary judgment. The arguments presented focus particular but not exclusive attention on the question identified by the District Court — the impact of the Sale Order on FirstBank’s ability to recover the Disputed Securities from Bar-clays.

Despite FirstBank’s ardent advocacy of its position, such advocacy has its limits. The Court finds, just as it has in other similar cases involving challenges to the protections of the Sale Order, that Bar-clays is immune from attack and has no obligation to return the Disputed Securities to FirstBank. This result is mandated by the inescapable conclusion that the Disputed Securities properly fit within the definition of Purchased Assets (i.e., the assets acquired by Barclays) under the terms of the APA and Clarification Letter (each as defined below).1 FirstBank strains to argue otherwise, but is unable to counter the preclusive effect of the Sale Order when read in conjunction with these transaction documents. For the reasons stated, Barclays is entitled to the entry of judgment in its favor, and the motion of FirstBank is denied.

[194]*194 Standard

Summary judgment is appropriate where there is “no genuine dispute as to any material fact,” and the moving party is entitled to “judgment as a matter of law.” Fed.R.Civ.P. 56(a); see NML Capital v. Republic of Argentina, 621 F.3d 230, 236 (2d Cir.2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Redd v. Wright, 597 F.3d 532, 535-36 (2d Cir.2010)). The court must view the facts in the light most favorable to the non-moving party, and must resolve all ambiguities and draw all inferences against the moving party. See Net Jets Aviation, Inc. v. LHC Communs., LLC, 537 F.3d 168, 178 (2d Cir.2008) (citing Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505; Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir.1991)). In determining whether to grant a motion for summary judgment, the court is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.2006) (quoting Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505 (internal quotation marks omitted)). Here, the Motion for Summary Judgment presented by Bar-clays easily satisfies this strict standard.

Factual Background

Because this is a core proceeding, prior rulings of this Court made in connection with these chapter 11 cases and the liquidation of LBI under the Securities Investor Protection Act (“SIPA”) constitute the law of the case. See Term Loan Holder Comm. v. Ozer Group, L.L.C. (In re Caldor Corp.),

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