By Secrets Reporters
Twenty two days. That was the full life of the receivership Banque Havilland SA obtained over Earnshaw Associates Limited in the British Virgin Islands. The bank got its Receivership Order on 7 November 2017. On 29 November 2017 the bank went back before the same court, on its own application, and asked for the terms of that order to be discharged. Justice K Neville Adderley of the High Court of Justice, Commercial Division, British Virgin Islands, discharged them.
The discharge order, Claim No BVIHCM 191 of 2017, exclusively obtained by SecretsReporters, names Banque Havilland SA as the applicant and Kolawole Aluko, Lightray Capital LLC and Earnshaw Associates Limited as the respondents.
The order is three pages long and its operative terms are four. The Receivership Order, including, for the avoidance of doubt, all injunctions contained within it, is discharged. The appointment of the receivers made under that order is terminated, and the receivers are released from their office as receivers with immediate effect. Costs are reserved.
The order gives no reason for the discharge. It records that the court heard Justin Davis for the bank and Sarah Dobbyn for Lightray Capital LLC, the second respondent, and that Dobbyn undertook to file and serve the executed affidavit of Gerard Rem by 4pm on the day the order was made. The bank's legal practitioners were Appleby of Road Town, Tortola. The court sat in the Renham Building in Castries, St Lucia, and the order was entered on 7 December 2017.
The bank's presence in the case is explained by a loan. A forfeiture complaint filed by the United States in the Southern District of Texas on 14 July 2017 alleged that Aluko owned 100 percent of Earnshaw and that on 3 September 2015 Earnshaw entered into a loan agreement with Banque Havilland for a facility of €25,000,000, pledging the yacht Galactica Star as security. The complaint alleged that One57 79 Inc., a New York corporation the complaint described as a wholly owned subsidiary of Earnshaw, guaranteed Earnshaw's obligations under that loan and executed a mortgage over the apartment at 157 West 57th Street in New York in the bank's favour. The complaint alleged that Earnshaw failed to make an interest payment in September 2016, failed to repay the principal, which was due on 5 September 2016, and that on 26 January 2017 Banque Havilland began a foreclosure action against One57 79 Inc. in the New York State Supreme Court.
Four months before the BVI receivership was obtained, Earnshaw had already been taken into a bankruptcy court in the United States. On 3 July 2017 Campion Maverick Inc. filed an involuntary petition against Earnshaw under Chapter 7 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Florida, case 17-18432, listing Earnshaw's address in care of its registered agent, Mossack Fonseca and Co., in Road Town, Tortola.
The petition rests on a debt chain that begins in Abidjan. A debt settlement agreement dated 20 October 2012 between La Chorale SARL, an Ivorian oil and gas trading company, and Ark Exploration and Production Holdings Ltd recorded a total of $83,136,251.41 as due over cargoes of Jet A1 and gasoline supplied in September 2012. Earnshaw gave a guaranty and indemnity over that settlement dated 28 June 2015, and One57 79 Inc. gave a guaranty of the same settlement on the same date. The rights of the creditor passed from La Chorale to NH Consulting and Engineering Sarl in November 2015.
On 13 June 2017 Johnnie Quaicoe, who stated in a sworn affidavit that he was the sole director of Earnshaw, confessed judgment against Earnshaw in favour of NH Consulting and Engineering Sarl in the sum of $83,136,251. The confession states that Earnshaw had assumed joint and several liability for the sum under the 2015 guaranty and that no payment had been made on it. On 20 June 2017 NH Consulting and Engineering Sarl assigned the Earnshaw guaranty and the One57 79 Inc. guaranty to Campion Maverick Inc. Campion's own statement in the bankruptcy filing says it took the transfer to finance the collection of the debt in return for a 33 percent share in collections, with the balance to return to the transferor. The petition form records Campion's claim as $100,000 and above, while the exhibits attached to the same petition carry the confessed sum.
Under the terms of the BVI discharge order, the receivers were directed to file accounts within seven days of the order and to provide to Earnshaw Associates Limited any property of Earnshaw Associates Limited which had come into their hands.
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