periodically transfers the funds which are then used to make scheduled interest and principal payments to the Bondholders to HSBC UK, but the accountholder of the account at HSBC UK is in fact HSBC USA as the trustee paying agent.... [T]he transfer of funds from the Republic to an account of HSBC USA at HSBC UK occurs outside the United States from assets of the Republic that do not originate from, are not located in, and are not remitted by the Republic to an account of HSBC USA in the United States. All such funds transferred from the Republic to HSBC USA as the trustee paying agent are held in trust by it for the benefit of the Bondholders. The Republic has no legal interest in such funds once they have been transferred to the trustee paying agent. HSBC USA is the fiduciary of the Bondholders and is not the agent of the Republic.
(Id. ¶ 5). In response, Plaintiff references an Information Memorandum for certain dollar-denominated bonds due in 2029 which provides that any funds "unclaimed [by the Congo's bondholders] for five years after the date upon which such principal or interest shall have become due and payable shall be repaid to the Republic." (Wilhelm Aff., Ex. A at A-7). Plaintiff additionally relies on EM Ltd. v. Republic of Argentina, No. 03 Civ. 2507, 2009 WL 2568433 (S.D.N.Y. Aug. 18, 2009) for the proposition that funds used to service the 2029 bonds are attachable assets. However, the Information Memorandum itself makes clear that the existence of any Congolese property in the Southern District of New York is purely speculative. Thus, even if the Court accepted that unclaimed payments exist and could form the basis of venue under § 1391(f)(1), those payments in no event would revert back to the Congo before 2012 - five years after the bonds were issued in 2007. Plaintiff's complaint was filed in September 2011, at which point in time there could not have been any unclaimed bond payments to attach. Moreover, Mr. Ikemo states that Defendants have "never requested that any unclaimed funds be returned to it in the United States and has no plans to request to receive unclaimed funds, if any, in the United States." (Corrected Ikemo Decl. ¶ 6). Plaintiff cannot assert venue on the property prong of § 1391(f)(1).
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