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In FARC Case in SDNY Before Judge Oetken Petitioners Want Time Extended Under NY CPRL

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, June 27 – In one of the FARC cases pending in the U.S. District Court for the Southern District of New York, in which Samark Jose Lopez Bello is seeking to intervene, on June 22 Judge J. Paul Oetken held a proceeding. Inner City Press covered it.

   Surprisingly, Citibank which appeared in a parallel case before SDNY Judge Andrew L. Carter, was not present.

These despite a June 5 filing that the case would be addressing issues "regarding whether the Citibank assets are 'subject to TRIA attachment and execution.'"

  Judge Oetken called this a "metaphysical" issue, a word then repeatedly used by counsel.

 On June 26, after 5 pm, this was filed to Judge Oetken: " Re: Pescatore, et al. v. Palmera Pineda, et al., No. 1:18-mc-00545-JPO Dear Judge Oetken: On June 22, 2020, this Court held a telephonic conference with the Pescatore Plaintiffs and Intervenors Samark Jose Lopez Bello and Yakima Trading Corporation (“Intervenors”). During the call, the Plaintiffs notified the Court that they wished to seek an extension of time to complete the execution and turnover proceedings related to their judgment against the FARC terrorist organization and its agents and instrumentalities. See 18 U.S.C. § 2333(e). Accordingly, Plaintiffs hereby move for this time extension pursuant to Fed. R. Civ. P. 69(a) and N.Y. C.P.L.R. § 5234(c), which is detailed below, and respectfully request that this extension be ordered on or before July 3rd to preserve Plaintiffs’ priority under New York law. Plaintiffs seek an extension under N.Y. C.P.L.R. § 5234(c), which states: (c) Priority of other judgment creditors. Where personal property or debt has been ordered delivered, transferred or paid, or a receiver thereof has been appointed by order, or a receivership has been extended thereto by order, and the order is filed before the property or debt is levied upon, the rights of the judgment creditor who secured the order are superior to those of the judgment creditor entitled to the proceeds of the levy. Where two or more such orders affecting the same interest in personal property or debt are filed, the proceeds of the property or debt shall be applied in the order of filing. Where delivery, transfer, or payment to the judgment creditor, a receiver, or a sheriff or other officer is not completed within sixty days after an order is filed, the judgment creditor who secured the order is divested of priority, unless otherwise specified in the order or in an extension order filed within the sixty days. (emphasis added).

This extension is necessary because Plaintiffs will be unable to complete their execution within the 60 day time period. The Intervenors seek to raise several legal issues that are likely to delay the resolution of any execution and turnover proceedings. In addition, Plaintiffs recently obtained discovery concerning the nature of the Intervenors’ assets, and Plaintiffs have agreed to share this information with the Intervenors. Therefore, to ensure the Plaintiffs maintain their priority and rights, if any, to the assets of the Intervenors in relation to any other judgment creditors, Plaintiffs believe it is vital to obtain a time extension pursuant to § 5234(c) so that this Court can fully resolve the legal rights of the Plaintiffs and Intervenors. As such, Plaintiffs respectfully request that the time requirement in § 5234(c) to complete execution be tolled until this Court rules otherwise. Plaintiffs have not previously requested any extensions of time, and the Intervenors do not oppose this motion and reserve their rights to assert all available defenses."

The Judge Carter case has a conference in July.

This case is PESCATORE et al, 18-mc-545 (Oetken).


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