Fairfield Sentry Limited (In Liquidation) et al v. Kredietbank Sa Luxembourgeoise et al
Bankruptcy

Exhibit Declaration of Thomas J. Moloney

Southern District of New York (Bankruptcy), nysb-1:2010-ap-03868

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10-03868-smb Doc 146-3 Filed 03/18/20 Entered 03/18/20 16:34:29 Exhibit Declaration of Thomas J. Moloney Pg 1 of 313 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK) In re:)) Chapter 15 Case Fairfield Sentry Limited, et al.,)) Case No. 10-13164 (SMB) Debtors in Foreign Proceedings.) Jointly Administered) Fairfield Sentry Limited (In) Liquidation), et al., acting by) and through the Foreign) Adv. Pro. No. 10-03496 (SMB) Representatives thereof,) Plaintiffs,)) Administratively Consolidated -against-)) Theodoor GGC Amsterdam, et al.,) Defendants.))))) This supplemental memorandum) of law applies to the Adversary) Proceedings listed on Exhibit 1)) ATTORNEY DECLARATION OF THOMAS J. MOLONEY IN SUPPORT OF DEFENDANTS' RENEWED MOTION TO DISMISS I, Thomas J. Moloney, hereby declare under penalty of perjury as follows: 1. I am duly licensed and admitted to practice law in the State of New York, and I am a partner with the law firm of Cleary Gottlieb Steen & Hamilton LLP, counsel for HSBC Institutional Trust Services (Asia) Limited, Robinson and Company, Murdoch and Company, Republic Nominees Limited (f/k/a HSBC Private Banking Nominee 1 (Jersey) Limited), HSBC Securities Services (Luxembourg) S.A., HSBC Private Bank (C.I.) Limited (f/k/a HSBC Private Bank (Guernsey) Limited), Republic Nominees Limited, HSBC Private Bank (Suisse) S.A., HSBC Bank USA, N.A., HSBC Trust Company AG (f/k/a HSBC Guyerzeller Trust Company -1- 10-03868-smb Doc 146-3 Filed 03/18/20 Entered 03/18/20 16:34:29 Exhibit Declaration of Thomas J. Moloney Pg 2 of 313 AG), HSBC Latin America Holdings (UK) Limited (successor-in-interest to HSBC Securities (Panama) S.A.), HSBC International Trustee Limited, Somers Nominees (Far East) Limited, and HSBC Bank Bermuda Limited (collectively, the "HSBC Defendants"). I respectfully submit this declaration in support of Defendants' Consolidated Motion in the Actions.1 2. Attached hereto as Exhibit 1 is a list of applicable adversary proceedings. Adv. Pro. No. 10-3619 – HSBC Institutional Trust Services (Asia) Limited. 3. Attached hereto as Exhibit 2 is a true and correct copy of certain Hong Kong Companies Registry Electronic Search Services records, identifying that HSBC Institutional Trust Services (Asia) Limited ("HTHK") was registered as a Hong Kong trust company on November 19, 1974 and continues to hold such registration as of September 9, 2019. The Hong Kong Companies Registry Electronic Search Services records for HTHK may be accessed for a fee at https://www.icris.cr.gov.hk/csci/mpstProducts.do (click "To enter Companies Registry Cyber Search Centre, please click" hyperlink; then click "Unregistered User" hyperlink; then click "(7) the particulars of the company;" check box and click "Accept, Submit and Login" hyperlink; then from the "Product" drop-down menu, click "Other Products" hyperlink; then click "List of companies of specific company type"). 1 All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Consolidated Memorandum of Law in Support of Defendants' Renewed Motion to Dismiss Pursuant to 11 U.S.C. §§ 561(d), 546(e), and 546(g) and for Insufficient Service of Process Under the Hague Service Convention, dated March 16, 2020. -2- 10-03868-smb Doc 146-3 Filed 03/18/20 Entered 03/18/20 16:34:29 Exhibit Declaration of Thomas J. Moloney Pg 3 of 313 Adv. Pro. No. 10-3629 – HSBC Private Banking Nom a/k/a HSBC Private Banking Nominee 1 (Jersey) Ltd. n/k/a Republic Nominees Limited 4. Attached hereto as Exhibit 3 is a true and correct copy of a Jersey Financial Services Commission ("JFSC") Registration Certificate for HSBC Private Banking Nominee 1 (Jersey) Limited ("PBJ") dated June 14, 2001, identifying its authorization to carry on "Trust Company Business." 5. Attached hereto as Exhibit 4 is a true and correct copy of a JFSC Notice in Respect of a Merger Between Two Jersey Companies and One Overseas Body dated December 30, 2016, identifying that PBJ amalgamated with Republic Nominees Limited ("RNL") and other entities and that RNL was the surviving company effective December 30, 2016. 6. Attached hereto as Exhibit 5 is a true and correct copy of certain JFSC Companies Registry records as of March 3, 2020, identifying that the authorization of PBJ was terminated upon its dissolution on December 30, 2016. The Jersey Financial Services Commission's records on PBJ may be accessed at https://www.jerseyfsc.org/registry/documentsearch/NameDetail.aspx?Id=3648. Adv. Pro. No. 10-3630 – HSBC Securities Services (Luxembourg) S.A. 7. Attached hereto as Exhibit 6a is a true and correct copy of a letter from the Grand- Duchy of Luxembourg Ministry of the Treasury (Ministère du Trésor) numbered TR-288/88. Attached hereto as Exhibit 6b is a true and correct copy of an English translation and certification of Exhibit 6a, identifying that Bank of Bermuda (Luxembourg) S.A. was authorized "to exercise in Luxembourg all the operations permitted by the law on November 27, 1984 on banking and savings establishments." 8. Attached hereto as Exhibit 7a is a true and correct copy of a letter from the Grand- Duchy of Luxembourg Ministry of Finance (Ministère des Finances) dated September 15, 2004. -3- 10-03868-smb Doc 146-3 Filed 03/18/20 Entered 03/18/20 16:34:29 Exhibit Declaration of Thomas J. Moloney Pg 4 of 313 Attached hereto as Exhibit 7b is a true and correct copy of an English translation and certification of Exhibit 7a, identifying the Minister of the Treasury and the Budget's non- objection to Bank of Bermuda (Luxembourg) S.A.'s name change to HSBC Securities Services (Luxembourg) S.A. ("HSSL"). 9. Attached hereto as Exhibit 8 is a true and correct copy of a letter from the Luxembourg Commission de Surveillance du Secteur Financier dated December 4, 2014, identifying that HSSL received permission to surrender its banking license. Adv. Pro. No. 10-3631 – HSBC Private Bank (Guernsey) Ltd. a/k/a HSBC Republic Bank (Guernsey) Ltd., Republic Nominees Limited, HSBC Private Bank (C.I.) Limited ("HSCI") 10. Attached hereto as Exhibit 9 is a true and correct copy of the Guernsey Financial Services Commission ("GFSC") Annual Report & Financial Statements for the year ended December 31, 2003, identifying (i) HSBC Republic Bank (Guernsey) Limited ("RPG") as an institution holding a banking license as of December 31, 2003 (on page 63), and (ii) identifying RNL as an institution holding a joint fiduciary license as of December 31, 2003 (on page 68). The GFSC Annual Report & Financial Statements for the year ended December 31, 2003 may be accessed at https://www.gfsc.gg/sites/default/files/Annual-Report-2003.pdf. 11. Attached hereto as Exhibit 10 is a true and correct copy of a Certificate of Change of Name of a Company No. 14169 dated December 19, 2003, identifying that RPG changed its name to HSBC Private Bank (Guernsey) Limited ("PBG") effective January 1, 2004. 12. Attached hereto as Exhibit 11 is a true and correct copy of a Certificate of Change of Name of a Company No. 14169 dated May 31, 2008, identifying that PBG changed its name to HSBC Private Bank (C.I.) Limited ("HSCI") effective May 31, 2008. -4- 10-03868-smb Doc 146-3 Filed 03/18/20 Entered 03/18/20 16:34:29 Exhibit Declaration of Thomas J. Moloney Pg 5 of 313 13. Attached hereto as Exhibit 12 is a true and correct copy of a certification of the GFSC dated June 3, 2008, identifying that HSCI was licensed to carry on "deposit-taking business" in the Island of Guernsey. 14. Attached hereto as Exhibit 13 is a true and correct copy of a GFSC Regulated Entities registry record as of March 3, 2020, identifying that the joint fiduciary license of RNL was surrendered on June 9, 2017. The GFSC's record regarding RNL may be accessed at https://www.gfsc.gg/commission/regulated-entities/67885?surrendered=true. 15. Attached hereto as Exhibit 14 is a true and correct copy of a letter from the GFSC dated December 23, 2019, identifying that HSCI surrendered its banking license as of December 23, 2019. Adv. Pro. No. 10-3633 – HSBC Private Bank (Suisse) SA 16. Attached hereto as Exhibit 15 is a true and correct copy of an Extract without cancellations from the Geneva Register of Commerce certified on July 5, 2018, identifying that HSBC Private Bank (Suisse) SA ("PBRS") was registered for "operation of a bank" on January 9, 2001. The Geneva Register of Commerce's records regarding PBRS may be accessed in French at https://www.ge.ch/recherche-entreprises-registre-du-commerce-geneve (click "English" in top menu bar; then type "HSBC Private Bank (Suisse) SA" into the "Business name" text box and click "Search;" then click the icon below "Excerpt"). 17. Attached hereto as Exhibit 16 is a true and correct copy of the Swiss Federal Banking Commission's ("SFBC") list of authorized banks and securities dealers dated December 26, 2008, identifying PBRS as a "[b]ank." SFBC's list of authorized banks and securities dealers may be accessed at https://www.finma.ch/FinmaArchiv/ebk/e/institute/index.html (click on the PDF icon adjacent to "List of authorised banks and securities dealers"). -5- 10-03868-smb Doc 146-3 Filed 03/18/20 Entered 03/18/20 16:34:29 Exhibit Declaration of Thomas J. Moloney Pg 6 of 313 18. Attached hereto as Exhibit 17 is a true and correct copy of a letter from the Swiss Financial Market Supervisory Authority ("FINMA") dated February 28, 2020, identifying that PBRS was "authorized to act as a bank" between January 1, 2004 and December 31, 2008. 19. Attached hereto as Exhibit 18 is a true and correct copy of FINMA's list of authorized banks and securities dealers dated March 3, 2020, identifying PBRS as a "[b]ank." FINMA's list of authorized banks and securities dealers may be accessed at https://www.finma.ch/en/finma-public/authorised-institutions-individuals-and-products/ (click "List of banks and securities firms authorised by FINMA" next to the PDF icon). Adv. Pro. No. 10-3634 – HSBC Bank USA, National Association 20. Attached hereto as Exhibit 19 is a true and correct copy of certain Federal Deposit Insurance Corporation ("FDIC") BankFind records as of February 26, 2020, identifying that HSBC Bank USA, National Association ("HBUS") is the successor institution to HSBC Bank USA as of July 1, 2004, and that, through its predecessor banks, HSBC Bank USA was established on June 1, 1812, insured by the FDIC beginning January 1, 1934, and a member of the Federal Reserve System. The FDIC's BankFind records regarding HSBC Bank USA may be accessed at https://research2.fdic.gov/bankfind/detail.html?bank=589&name=HSBC%20Bank%20USA&sea rchName=HSBC%20BANK%20USA&searchFdic=&city=&state=&zip=&address=&searchWit hin=&activeFlag=&searchByTradename=false&tabId=2. 21. Attached hereto as Exhibit 20 is a true and correct copy of certain records from the Federal Financial Institutions Examination Council ("FFIEC") National Information Center repository as of March 3, 2020, identifying HSBC Bank & Trust Company (Delaware), National Association was a non-deposit trust company regulated by the Office of the Comptroller of the -6- 10-03868-smb Doc 146-3 Filed 03/18/20 Entered 03/18/20 16:34:29 Exhibit Declaration of Thomas J. Moloney Pg 7 of 313 Currency ("OCC") and a member of the Federal Reserve System from May 21, 1998 until its merger into HBUS on July 1, 2004. The FFIEC National Information Center repository records regarding HSBC Bank & Trust Company (Delaware), National Association may be accessed at https://www.ffiec.gov/npw/Institution/Profile/2696528?dt=20000815. 22. Attached hereto as Exhibit 21 is a true and correct copy of certain FDIC BankFind records as of February 26, 2020, identifying that HBUS has been a chartered national bank regulated by the OCC since July 1, 2004. HBUS is also regulated by the Consumer Financial Protection Bureau ("CFPB"). The FDIC BankFind records regarding HBUS may be accessed at https://research.fdic.gov/bankfind/detail.html?bank=57890&name=HSBC%20