Randall D. Smith Roth IRA v. Grupo Tribasa, S.A. de C.V.

304 A.D.2d 483, 758 N.Y.S.2d 313, 2003 N.Y. App. Div. LEXIS 4304

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 2003
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Charles Ramos, J.), entered March 22, 2002, awarding plaintiff damages, and bringing up for review a prior order which, in an action to collect on a beneficial interest in a “global” promissory note issued by one defendant and guaranteed by the other, granted plaintiff’s motion for a default judgment against defendants, unanimously affirmed, with costs.

We reject defendants’ argument that plaintiff, a purchaser of a beneficial interest in the subject “Regulation S Global Note,” could not resort to the service of process provision contained in defendants’ Fiscal Agency Agreement with certain nonparty banks pursuant to which the global note was issued. Under that agreement and a related Offering Circular, the global note was registered in the name of a certain trust company, which was to sell beneficial interests in the global note transferrable through its book entry system. Defendants argue that these book entry transfers of beneficial interests trigger certain registration requirements under the Fiscal Agency Agreement, and that absent registration, a transferee such as plaintiff may not serve process on the agent that defendants designated in the Fiscal Agency Agreement for service of process. However, the registration requirements invoked, which are reprinted on the face of the global note, apply only upon a transfer by the trust company of the entire global note itself, not to transfers of partial beneficial interests. As the motion court held, defendants’ argument is flawed in that there has been no transfer of the global note. Concur — Tom, J.P., Saxe, Ellerin, Williams and Marlow, JJ.