Alsohaibi v. Arcapita Bank B.S.C.(c) (In re Arcapita Bank B.S.C.(c))
Alsohaibi v. Arcapita Bank B.S.C.(c) (In re Arcapita Bank B.S.C.(c))
Opinion of the Court
MEMORANDUM & ORDER
Captain Hani Alsohaibi appeals from an order of Bankruptcy Judge Sean H. Lane entered on November 21, 2013 sustaining the objection of Arcapita Bank B.S.C.(c) to Alsohaibi’s claim. See In re Arcapita Bank, No. 12-11076(SHL), 2013 WL 6141616 (Bankr.S.D.N.Y. 2013). For the following reasons, the bankruptcy court’s order is affirmed.
BACKGROUND
I. Facts
Arcapita Bank was a Bahrain bank which specialized in facilitating investments under Sharia law. Typically, Arca-pita structured its transactions by establishing a Cayman Islands company (a “Holding Company”) that acquired an equity interest in an unaffiliated target company. Arcapita then created another Cayman Islands company (a “Syndication Company”) to which it transferred a portion of the equity of the Holding Company. Private investors could purchase an interest in the Syndication Company, thereby indirectly acquiring an interest in the target company.
Alsohaibi made several investments through Arcapita in 2005 and 2006. He invested $ 1 million in Fuselage Capital Ltd., the Syndication Company associated with target company Cirrus Industries, Inc. He later invested an additional $300,000 in Fuselage. In May 2011, Also-haibi received $260,000 for his Fuselage stock as his share of compensation from a merger. Alsohaibi invested $100,000 in each of four Syndication Companies associated with Bahrain Bay Developments B.S.C.(c).
II. Procedural History
On March 19, 2012, Arcapita and certain of its subsidiaries (together, the “Reorganized Debtors”) filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code. None of the Syndication Companies Alsohaibi invested in or the target companies they are affiliated with are among the Reorganized Debtors-that is, none of the companies Alsohaibi invested in have gone bankrupt, only Arcapita, the bank that facilitated them. He still has his investments.
On August 25, 2012, Alsohaibi, acting pro se, sent a letter to Bankruptcy Judge Sean H. Lane requesting the bankruptcy
On August 29, 2012, Alsohaibi, still acting pro se, filed a proof of claim against Areapita in the amount of $1,039,032.33. (Claim # 280.) He now argues the proof of claim was made “in the aggregate amount” of $1,527,139.35 because paperwork submitted along with the proof of claim form added up to the latter amount, not the lesser amount noted on the form. This discrepancy does not affect the issues in this appeal. Alsohaibi’s proof of claim characterized his claim as one based on “Corporate Investment.” He attached a portfolio statement showing his investment balances and a $104.84 balance in his deposit account.
On April 26, 2013, the Reorganized Debtors filed their Second Omnibus Objection to Claims, which objected to Alsohai-bi’s claim because (a) it was for an amount greater than the amounts reflected on Ar-capita’s books and records and (b) it appeared to be based on Alsohaibi’s equity interests in non-debtor entities. (Bankr. Dkt. No. 1050.) Documents attached to the objection showed Alsohaibi’s bank account actually had a balance of $148.91 on the day the Reorganized Debtors filed for bankruptcy, not $104.84 as Alsohaibi stated in his proof of claim. Because Areapita denied liability for Alsohaibi’s investments, it argued his claim should be reduced to $148.91.
Thereafter, Alsohaibi retained an attorney who responded to the Reorganized Debtors’ objection. (Bankr.Dkt. No. 1417.) On November 21, 2013, Bankruptcy Judge Lane granted the Debtors’ objection to Alsohaibi’s claim, reducing it to $148.91. Alsohaibi filed this appeal.
DISCUSSION
I. Standard of Review
On appeal, a bankruptcy court’s findings of fact are reviewed for clear error while its conclusions of law are reviewed de novo. Fed. Bankr.R. 8013; In re Motors Liquidation, No. 12 Civ. 6785(WHP), 2013 WL 110545, at *1 (S.D.N.Y. Jan. 7, 2013) (citing In re Vouzianas, 259 F.3d 103, 107 (2d Cir. 2001)).
II. Whether Adequate Evidence Supported Disallowance of the Proof of Claim
“When a debtor declares bankruptcy, each of its creditors is entitled to file a proof of claim ... against the debt- or’s estate.” Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 449, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007). A properly filed proof of claim is “prima facie evidence of the validity and amount of the claim.” Fed. Bankr.R. 3001(f). A party in interest may object to a claim and show that it should not be allowed because it falls within one of the nine exceptions listed in 11 U.S.C. § 502(b). The objecting party bears the initial burden of production and must provide evidence showing the claim is legally insufficient. In re Oneida, Ltd., 400 B.R. 384, 389 (Bankr.S.D.N.Y. 2009). The burden then shifts to the claimant, who must “prove by a preponderance of the evidence that under applicable law the claim should be allowed.” In re Oneida, 400 B.R. at 389.
“[A] ‘claim’ is a ‘right to payment’ or ‘equitable remedy.’ ” Hasson v. Motors Liquidation Co. GUC Trust (In re Motors Liquidation Co.), 2012 WL
The Reorganized Debtors submitted two declarations in support of their objection to Alsohaibi’s claim. The first, from Steven Kotarba, a managing director at Alvarez & Marshal, the restructuring advisor for the Reorganized Debtors, stated that Alsohaibi’s claim did not conform to Areapita’s books and records. (Bankr. Dkt. No. 1351.) Kotarba averred that Al-sohaibi’s “investment account claims” sought “recovery of funds previously exchanged by the claimant for equity interests in Debtors or non-Debtors, necessitating a reduction or even disallowance of the asserted claims.” (Bankr.Dkt. No. 1351 at 6.) The Reorganized Debtors also submitted a declaration from Amin Ebrahim Ja-wad, an associate in the investor information management group at Arcapita. (Bankr.Dkt. No. 1351.) The Jawad Declaration attached the share purchase agreements reflecting Alsohaibi’s equity investments in Cirris Industries, Bahrain Bay Development, and Riffa Golf; an account statement for Alsohaibi’s deposit account; and a portfolio statement showing his equity investments as of June 30, 2013. (Bankr.Dkt. No. 1351.)
Alsohaibi asserts that the Kotarba and Jawad declarations are “self-serving” and “based on hearsay” without elaborating on these arguments. The declarations are sufficient to authenticate the records attached to them. Alsohaibi also argues Arcapita violated Federal Rule of Appellate Procedure 10(a) by submitting certain evidence as part of the appellate record that was filed as part of the underlying bankruptcy but not in connection with the adjudication of Arcapita’s objection to his claim. Alsohaibi does not identify the specific evidence he objects to, referring only to “Statements and Schedules.” These appear to be the schedules Arcapita referenced in its objection to Alsohaibi’s claim, so Alsohaibi is incorrect that they were not submitted in connection with the claim. But regardless, it is Bankruptcy Rule 8006 which controls, not Federal Rule of Appellate Procedure 10(a). Under that rule, a party may draw from documents submit
Importantly, Alsohaibi does not dispute that his proof of claim, with the exception of his deposit account, is based on equity investments. The proof of claim itself listed “Corporate Investment” as its basis and attached papers consistent with that assertion. The bankruptcy court correctly found it is “clear” that except for the $148.91 in his bank account, Alsohaibi’s claim “is based not on an obligation of the Debtors but rather on [Alsohaibi’s] equity in these three non-Debtor entities.” In re Arcapita, 2013 WL 6141616, at *3. Alsohai-bi submits evidence showing his investments have not been profitable and are unlikely to become profitable. But this does not provide the basis for a claim against Arcapita. Investments are inherently risky.
Alsohaibi contends the bankruptcy court erred in granting Arcapita’s objection without applying the foreign law he argues governs his relationship with Arcapita. He states that the agreement opening his investment account at Arcapita provides that it is governed by the laws of Bahrain to the extent they are not inconsistent with Sharia law. Alsohaibi never submitted this purported agreement to the bankruptcy court, but merely put forth what he says is the relevant language in his response to Alcapita’s objection. His purchase agreements for the Bahrain Bay and Riffa Golf investments state they are governed by the laws of the Cayman Islands.
But in addition to not specifying which nation’s law should apply in the face of conflicting choice of law provisions, Also-haibi does not explain how he is entitled to recover against Arcapita under either Bahrain or Cayman Islands law. He does not claim that Arcapita breached the contracts containing the choice of law provisions. The fact section of his brief makes a con-clusory assertion that Arcapita unlawfully solicited him in Saudi Arabia, where it was allegedly not entitled to do business. But this is not raised in his proof of claim and Alsohaibi has not presented any evidence as to this allegation or shown why, if true, it provides him with a private right of action against Arcapita under some foreign law. In fact, in responding to Arcapita’s objection, Alsohaibi has steadfastly avoided articulating what the theory of his claim is if it is not merely his equity ownership in non-debtor companies. At oral argument, Alsohaibi’s counsel offered either “unlawful solicitation” under Saudi law, an argument which was not raised in Alsohai-bi’s proof of claim or explained in his papers, or alternatively, “as a matter of the Bahrain law there is liability.” Mar. 7, 2014 Tr. 6:12-17 (ECF No. 10). This vagueness is insufficient to show a claim against Arcapita. Therefore even if Bahrain or Cayman Islands law governs Also-haibi’s contracts, he has not shown what claim he has against Arcapita under foreign law.
The bankruptcy court correctly found that Arcapita’s evidence refuted the prima facie validity of the claim by showing that Alsohaibi’s claims were based on equity investments in non-debtor entities. Also-haibi did not prove by a preponderance of the evidence that his claim should be allowed. The bankruptcy court therefore properly granted Areapita’s objection.
Alsohaibi argues Arcapita violated Federal Rule of Civil Procedure 44.1 and Bankruptcy Rule 9017, which require a party to give notice if it intends to rely on foreign law. Alsohaibi’s argument is baffling, as Arcapita did not rely on foreign law — it is Alsohaibi who intended to rely on foreign law (though what foreign law is unclear). Because Arcapita did not raise an issue of foreign law, it did not violate Rule 44.1 or Bankruptcy Rule 9017.
IV. Choice of Forum
Alsohaibi objects to proceedings in the Southern District of New York because his agreements with Arcapita provide for exclusive jurisdiction in the courts of Bahrain (in one contract
V.Cirrus Purchase Agreement
The fact section of Alsohaibi’s brief claims that one of his Cirrus purchase agreements was “forged” because the signature block states it was executed in Lebanon, when in fact it was executed in Saudi Arabia. The bankruptcy court noted, as is true of much of Alsohaibi’s contentions, that “the precise legal argument is vague on this point.” In re Arcapita Bank, 2013 WL 6141616, at *6. On appeal, Alsohaibi presents no legal argument relating to this assertion and appears to have abandoned any argument premised on it. Nonetheless, the bankruptcy court correctly found that Alsohaibi “has not explained why or how the potential evidentiary issue he raises would in any way impact the fact that his Claim is based upon an equity investment in a non-Debtor entity. Indeed, it would seem that the location in which Claimant signed the agreement would have no impact on the facts relevant for resolving this Objection.” In re Arcapita Bank, 2013 WL 6141616, at *6.
CONCLUSION
For the foregoing reasons, Bankruptcy Judge Sean H. Lane’s well-reasoned memorandum of decision and order is affirmed. The Clerk of Court is directed to terminate all pending motions and mark this case closed.
SO ORDERED:
. The Syndication Companies are WaterBay Capital Ltd., WaterFront Capital Ltd., WaterWay Capital Ltd., and WaterSide Capital Ltd.
. The Syndication Companies are Delmon Lifestyle Capital Fund and Awal Lifestyle Capital Ltd. Riffa Golf appears to also go by, or have changed its name to, Riffa Views B.S.C.(c).
. These agreements were attached as Exhibits 5 and 6 to the Jawad declaration.
. Again, Alsohaibi merely informed the bankruptcy court this contract provides for exclusive jurisdiction in Bahrain without actually producing the contract.
Reference
- Full Case Name
- In re ARCAPITA BANK B.S.C.(c), Reorganized Debtors. Captain Hani Alsohaibi v. Arcapita Bank B.S.C.(c), Reorganized Debtors-Appellees
- Cited By
- 18 cases
- Status
- Published