Filed June 3, 2011
But here again, Sharp International is controlling, because the Second Circuit held in that case that the creditor body as a whole was not hindered, delayed, or defrauded by the repayment of a loan owing to one creditor. Sharp Int’l, 403 F.3d at 56 (“The $12.25 million payment was at most a preference between creditors and did not ‘hinder, delay, or defraud either present or future creditors.
Filed August 1, 2011
Id. at 56 (dismissing claim under N.Y. Debt. & Cred. Law § 276). Although the Second Circuit recognized a potential exception for situations in which a creditor actively participates in a debtor’s fraud, 403 F.3d at 55, as explained at length above, the Trustee has not alleged facts showing that JPMorgan knowingly participated in Madoff’s Ponzi scheme. Under Sharp International, therefore, the Trustee has not stated a claim to recover BMIS’s loan repayment.
Filed May 18, 2009
Compl. ¶¶ 4-6; In re Sharp, 403 F.3d at 56 (transfer not in the usual course of business is a badge of fraud). B. The Detailed Allegations Of The Complaint Also State A Claim For Constructive Fraudulent Conveyance
Filed November 3, 2008
But as noted above, the relationship between a bank and its customers is that of debtor and creditor, governed by ordinary principles of contract law. Flaherty, 808 F. Supp. at 64 (bank’s relationship to customer is one of creditor and debtor, “a relationship which imposes no duty to counsel or to make disclosures to the customer”); Sharp Int’l., 403 F.3d at 52 (legal relationship between a borrower and a bank is contractual, one of debtor and creditor). A bank’s liability even to a customer requires its actual knowledge of a misappropriation of the customer’s funds.
Filed November 16, 2012
BNY Mellon’s receipt of funds on behalf of the Exchange Holders is not active concert or participation in Argentina’s failure to pay Plaintiffs. It is not an action taken to help, benefit, or assist Argentina, Alemite Mfg., 42 F.2d at 833, nor can it rise to the level of “affirmative assistance” or “concealment” of Argentina’s separate failure to pay Plaintiffs that would lead to a finding of Case 1:08-cv-06978-TPG Document 396 Filed 11/16/12 Page 19 of 26 - 13 - aiding and abetting that failure, In re Sharp Int’l. Corp., 403 F.3d at 50.8 BNY Mellon’s ministerial actions under the Indenture have nothing to do with whether Argentina complies with the Injunction.
Filed December 7, 2009
Thus, Plaintiff fails to state a plausible claim for aiding and abetting a breach of fiduciary duty against O’Connor with the particularity required by Rule 9(b). See In re Sharp, 403 F.3d at 49-52 (affirming the dismissal of aiding and abetting breaches of fiduciary duty claims where the complaint insufficiently alleged knowing inducement or participation in the breaches). II. In the Alternative, the Claims of Negligent Misrepresentation and Aiding and Abetting a Breach of Fiduciary Duty against O’Connor Must be Dismissed as Time Barred under New York Law
Filed March 31, 2009
Case 1:05-md-01720-JG-JO Document 1180 Filed 03/31/09 Page 23 of 33 PageID #: 18108 19 consideration; . . . [and] retention of control of the property by the transferor after the conveyance.’” (Report & Recommendation at 34 (quoting In re Sharp Int’l Corp., 403 F.3d at 56) (add’l citations omitted).) But rather than identify badges of fraud, plaintiffs allege facts that reveal only legitimate conduct.
Filed May 31, 2006
… [S]ilence and forbearance did not assist the fraud affirmatively. Sharp Int’l, 403 F.3d at 52. Here, even assuming all of the complaint’s allegations to be true, the only “action” allegedly taken by Citibank was to execute wire transfers requested by Israel, who was a principal of the Bayou Funds.
Filed March 27, 2012
Co., Ltd. v. Hunter Green Invs. LLC, 566 F. Supp. 2d 295, 300 (S.D.N.Y. 2008); see also Sharp Int'l Corp., 403 F.3d at 51; Musalli Factory for Gold & Jewelry v. JPMorgan Chase Bank, N.A., 261 F.R.D. 13, 25 (S.D.N.Y. 2009). In fact, as with its other claims, Spot Mobile has wholly failed to allege any facts that could show it was harmed in any way by the alleged breach, and certainly has not alleged that it was injured as "a direct or reasonably foreseeable result of the conduct complained of.
Filed March 9, 2012
These allegations all amount to inaction, which cannot amount to substantial assistance unless the defendant owes a fiduciary duty “directly to the plaintiff.” Kaufman, 307 A.D.2d at 126; see also Sharp International, 403 F.3d at 51-52 (allegations that “come down to omissions or failures to act” do not support a claim of “substantial assistance”). The alleged failure “to comply with domestic and international bank secrecy, know-your-customer, and anti-money laundering laws, decrees, and regulations” does “not elevate [defendants’] actions into the realm of ‘substantial assistance.