Dafeng Hengwei Textile Co. v. Aceco Industrial & Commercial Corp. , 54 F. Supp. 3d 287 ( 2014 )

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge:

Plaintiff Dafeng Hengwei Textile Co., Ltd. filed the above-captioned action against Defendants Aceco Industrial & Commercial Corporation, Aceco, Inc. (collectively “Aceco”), David Liu and Chang-Zhu Yu on October 24, 2013. Plaintiff asserts claims against Aceco for breach of contract and for account stated, and seeks to hold Liu and Yu liable through a veil-piercing theory of liability. By order dated October 30, 2013, the Court granted Plaintiff an ex parte prejudgment order of attachment (the “Attachment Order,” Docket Entry No. 5), allowing the United States Marshal to levy against properties in which Defendants have an interest. On or about November 7, 2013 and February 11, 2014, Plaintiff caused the U.S. Marshal to levy certain property owned by Aceco, Liu and Yu. Liu and Yu (collectively “Mov-ants”) seek to vacate the Attachment Order. (Def. Mot. to Vacate Order of Attachment (“Def. Mot.”), Docket Entry No. 34.) The Court referred the motion to vacate to Magistrate Judge Victor V. Po-horelsky for a report and recommendation. By Report and Recommendation (“R & R”) dated August 21, 2014, Judge Pohorel-sky recommended that the Court grant Movants’ motion to vacate the Attachment Order. (“R & R,” Docket Entry No. 57.) Plaintiff timely filed an objection to Judge Pohorelsky’s R & R, (“PI. Obj.,” Docket Entry No. 61), and Movants timely responded to Plaintiffs objections, (“Def. Response,” Docket Entry No. 63). With Plaintiffs consent, Movants submitted a supplemental response to Plaintiffs objections on September 29, 2014. (“Supp. Def. Response”, Docket Entry No. 68.) No other objections were filed. For the reasons set forth below, the Court adopts the R & R in its entirety.

I. Background

The Court assumes familiarity with the parties and background to this case, which is set forth in greater detail in its October 20, 2014 Memorandum and Order. Dafeng Hengwei Textile Co. v. Aceco Indus. & Commercial Corp., 54 F.Supp.3d 279, 2014 WL 5319688 (E.D.N.Y. Oct. 20, 2014). The facts necessary to decide this motion are outlined below.

a. The alleged breach of contract

Plaintiff, a Chinese textile manufacturer, commenced this action on October 23, 2013, seeking to recover on an unpaid contract in the amount of $1,977,642.02 from Defendants, who distributed textiles from Plaintiff for resale in the United States through K-Mart. (Compl. ¶¶ 13-17.) Movants are the primary officers and sole shareholders of Aceco. Aceco contracted with Plaintiff to supply its products beginning in late 2009. (Id. ¶ 14.) Though the parties initially agreed that the payment term was “Documents against Payment (“D/P”) at sight,” (id. ¶ 15), Aceco’s collecting bank was occasionally unable to satisfy Plaintiffs invoices, at which point Aceco would request payment extensions and promise to make future payments, (id. ¶ 20). Aceco began to accumulate an unpaid balance based on its failure to pay as promised. (Id. ¶ 21.) Over the course of 2013, Aceco negotiated additional shipments from Plaintiff upon promises to pay the outstanding amount. (Id. ¶¶ 22-30.)

During the same period of time in 2013, Aceco paid $1,298,741.15 toward its overdue existing balance, leaving an unpaid total of $1,977,642.02. (Id ¶ 31.) By the end of July 2013, China Citic Bank, Aceco’s collecting bank, returned to Plaintiff all unpaid invoices and payment requests. (Id ¶ 34.) Despite repeated requests, Aceco failed to pay its outstanding balance.¹ (Id. ¶¶ 37-51.) Plaintiff alleges that Aceco terminated its business relationship with K-Mart, and that Liu informed Plaintiff that Aceco would no longer continue its business with Plaintiff. (Id ¶¶ 35-36.)

b. Alleged disappearance of assets and attachment of property

By September 25, 2013, “Kmart had fully paid all invoices issued by Aceco for Plaintiffs goods delivered, in the amount of $3,575,385.48....” (PI. Obj. 3.) Plaintiff produced evidence that Aceco used the money from K-Mart to pay both Plaintiff and other vendors, and to make payments on loans. (Id at 3-4) According to Plaintiff, Aceco’s bank records show “abnormal amounts of loans and loan payments and transfers.” (Id at 5.) Plaintiff alleges that “at least some of the loans may have been made to finance some mortgage loans taken by other individuals and interrelated and jointly owned entities-” (Id) Aceco’s bank records suggest that a payment was made directly from the corporate account to a loan addressed in the name of Movants as individuals rather than Aceco as a corporation. (Id at 8; Ex. I, annexed to Supp. Decl. of Bing Li in Supp. of Pl. Obj. dated Sept. 8, 2014 (“Li Decl. II”), Docket Entry No. 61-1.)

On or about November 7, 2013, Plaintiff requested the U.S. Marshal to levy on Aceco’s account at Rosenthal & Rosenthal (a factoring company), Movants’ bank account with People’s United Bank, Aceco’s corporate account with K-Mart, and Ace-co’s bank accounts at China Citic Bank.² (Decl. Bing Li in Opp’n to Def. Mot. to Vacate Order of Attachment (“Li Decl. I”) ¶¶ 11-15, Docket Entry No. 37.) The levy on Aceco’s K-Mart account and Rosenthal & Rosenthal accounts failed to attach any funds, (Li. Decl. I ¶¶ 12, 14), and the levy on Aceco’s bank accounts failed because the bank asserted a secured interest in Aceco’s assets. (PI. Obj. 3-4.) Movant’s bank account had $193 in attachable assets. (Li Decl. I ¶ 13, Ex. I.) On or about February 11, 2014, Plaintiff caused the U.S. Marshal to levy on three parcels of real property, two of which were owned by Movants and one of which was owned by non-party Rockaway Associates.³ (Li Decl. I ¶¶ 33-35.)

Following the issuance of the Attachment Order, Plaintiff alleges that Movants attempted to close Aceco’s business, pointing to evidence that Movants had relocated' Aceco’s corporate offices from an address in Great Neck to Movants’ own residence in Manhasset. (Pl. Obj. 4.) Plaintiff also notes that Movants listed their real properties for sale after the commencement of the lawsuit, in late 2013 and early 2014. (Id. at 11.)

II. Discussion

a. Standards of Review

i. Report and recommendation

A district court reviewing a magistrate judge’s recommended ruling “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and recommendation, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. Id.; see also Larocco v. Jackson, No. 10-CV1651, 2010 WL 5068006, at *2 (E.D.N.Y. Dec. 6, 2010). The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record. 28 U.S.C. § 636(b)(1)(C); see also Larocco, 2010 WL 5068006, at *2. The clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates its original arguments. See Rahman v. Fischer, No. 10-CV-1496, 2014 WL 688980, at *1 (N.D.N.Y. Feb. 20, 2014) (“If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error.” (citations omitted)); Time Square Foods Imports LLC v. Philbin, No. 12-CV-9101, 2014 WL 521242, at *2 (S.D.N.Y. Feb. 10, 2014) (clearly erroneous standard applies when party reiterates arguments made to the magistrate judge); see also DePrima v. City of N.Y. Dep’t of Educ., No. 12-CV-3626, 2014 WL 1155282, at *3 (E.D.N.Y. Mar. 20, 2014) (collecting cases).

ii. Motion to vacate Attachment Order

New York State Law governs this Court’s authority over provisional remedies, including attachment. See Fed. R.Civ.P. 64(a)-(b). Where a plaintiff obtains an order of attachment, “the defendant, the garnishee or any person having an interest in the property or debt may move ... for an order vacating or modifying the order of attachment.” N.Y. C.P.L.R. § 6223 (2012). “Upon a motion to vacate ... the plaintiff shall have the burden of establishing the grounds for the attachment, the need for continuing the levy and the probability that he will succeed on the merits.”⁴ Id. § 6223(b); see Rothman v. Rogers, 221 A.D.2d 330, 633 N.Y.S.2d 361, 361 (1995) (holding grant of vacatur appropriate because plaintiff failed to establish grounds for attachment). The Court has “broad discretion ... to vacate an attachment order ‘when evidence, though not lacking altogether, may seem too weak or uncertain to justify the remedy.’ ” Trigo Hnos., Inc. v. Premium Wholesale Groceries, Inc., 424 F.Supp. 1118, 1123 (S.D.N.Y.1976) (“Trigo Hnos. I”) (quoting AMF Inc. v. Algo Distribs. Ltd., 48 A.D.2d 352, 369 N.Y.S.2d 460, 468 (1975)); see also Rothman, 633 N.Y.S.2d at 361 (“The court has broad discretion in considering such an application.”) (citing Zenith Bathing Pavilion v. Fair Oaks S.S. Corp., 240 N.Y. 307, 148 N.E. 532, 534 (1925)).

The grounds for attachment are enumerated by statute. New York Law provides in pertinent part that:

An order of attachment may be granted in any action, except a matrimonial action, where the plaintiff has demanded and would be entitled, in whole or in part, or in the alternative, to a money judgment against one or more defendants, when: ... 3. the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiffs favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts.... ”

N.Y.C.P.L.R. § 6201. However, “‘¡because attachment is a harsh remedy,’ these statutory factors ‘must be strictly construed in favor of those against whom’ attachment is sought.” DLJ Mortg. Capital, Inc. v. Kontogiannis, 594 F.Supp.2d 308, 319 (E.D.N.Y.2009) (quoting Monteleone v. Leverage Grp., No. 08-CV-1986, 2008 WL 4541124, at *6 (E.D.N.Y. Oct. 7, 2008)) (citing Brastex Corp. v. Allen Int'l, Inc., 702 F.2d 326, 332 (2d Cir.1983); Kornblum v. Kornblum, 34 A.D.3d 748, 828 N.Y.S.2d 404 (2006)).

b. Plaintiffs Objections

Plaintiff objects to Judge Pohorelsky’s -recommendation that the Court grant Movants’ motion to vacate the Attachment Order, arguing that Judge Pohorelsky made three errors: (1) making findings of disputed facts in favor of Movants; (2) failing to shift the burden to Movants to explain and document the disappearance of their assets; and (3) failing to address Plaintiffs additional facts which supported its argument that Defendants intended to frustrate the enforcement of a judgment. At its core, Plaintiff objects to the conclusion that it failed to meet its burden to show Movants disposed of or secreted assets with intent to commit fraud, as required by N.Y.C.P.L.R. § 6201(3). For the reasons discussed below, the Court adopts Judge Pohorelsky’s recommendation and grants Movants’ motion to vacate the Attachment Order,

i. Disputed facts and additional facts

Plaintiff objects to Judge Pohorelsky’s conclusion that “the plaintiff offers no proof that the money paid by K-Mart was in fact diverted to the individual defendants or otherwise secreted,” and points to at least six statements Judge Pohorelsky makes in support of that conclusion. (PI. Obj. 12.) Plaintiff objects to these “findings of fact” he has inferred from Judge Poho-relsky’s R & R, including: (1) “the vast majority of the funds deposited into [Ace-co’s China Citic Bank] accounts during 2013 were used to pay down loans made to Aceco by the bank,” (R & R 299); (2) “[t]he loans reflected in Aceco’s bank records may well have been advances used to pay the plaintiff and other manufacturers who provided goods to Aceco for resale,” (id. at 299 n. 6); (3) “[PJlaintiff apparently acknowledges receiving payments totaling approximately $2.4 million from Aceco during 2013,” (id.); (4) “[according to the defendants, however, one of the two [pieces of real] properties had been listed for sale as early as 2012 in an effort to raise funds,” (id. at 299) and two additional statements related to a property owned by third-party Rockaway Associates, which is no longer the subject of the current motion to vacate. (See PI. Obj. 12-18.) Plaintiff argues that: (1) not all of the funds were used to pay loans, and “it is not known what these abnormal loan payments were for,” (PI. Obj. 12.); (2) Aceco never used a loan advance to pay Plaintiff, (id. at 14); (3) Plaintiff had not verified the payment amount at the time of oral argument, (id. at 15); and (4) Plaintiff presented documents that the property was first listed for sale in November of 2013, (id. at 16).

Plaintiff also objects to the R & R on the ground that Judge Pohorelsky erred by failing to address Plaintiffs contentions that Aceco was closing its business and its bank accounts, that Yu made an incorrect statement to the U.S. Marshals who came to levy on her property,⁵ that defendants “fail[ed] to provide documents showing the nature and use of the abnormal amount of loans and loan payments” and otherwise did not comply with Plaintiffs discovery requests, that defendants disposed of “all of their interests in real properties,” and the timing of the listed acts. (PI. Obj. 21.) Plaintiff argues that “[t]hese facts, coupled with the unexplained disappearance of funds from Aceco [a]ccounts, compel the conclusion that Aceco Defendants disposed of and secreted assets with intent to frustrate enforcement of a judgment Plaintiff will obtain in this action.” (Id.)

Movants argue, in sum, that Judge Pho-relsky’s statements were not formal findings of fact, but were rather illustrations and explanations of why he concluded that Plaintiff failed to meet its burden. (Supp. Def. Response 6-7.)

In order to sustain an action based on Section 6201(3), the plaintiff must show both that the defendant assigned, disposed of, encumbered or secreted property, and that such actions were taken with intent to defraud creditors or frustrate the enforcement of a judgment. N.Y. C.P.L.R. § 6201. “It is well established in New York that the mere removal or other disposition of property by a debtor is not a sufficient ground for an attachment.” Bank of Leumi Trust Co. of N.Y. v. Istim, Inc., 892 F.Supp. 478, 483 (S.D.N.Y.1995) (collecting cases); see also Ames v. Clifford, 863 F.Supp. 175, 178-79 (S.D.N.Y.1994) (“[T]he mere transfer of assets, without some showing of fraudulent intent, will not justify attachment.” (citing Computer Strategies, Inc. v. Commodore Bus. Machs., Inc., 105 A.D.2d 167, 483 N.Y.S.2d 716, 721 (1984))); Trigo Hnos. I, 424 F.Supp. at 1123 (“[Preferential payment to certain creditors, unless part of a larger scheme undertaken with actual intent to defraud creditors, will not suffice to support an attachment.” (citations omitted)).

The plaintiff must show “that such fraudulent intent really exists in the defendant’s mind.” DLJ Mortg. Capital, 594 F.Supp.2d at 319 (citations and internal quotations omitted). The plaintiff must “present more than ‘a scintilla of proof as to the requisite elements of the fraud cause of action alleged in the complaint.’” Trigo Hnos., Inc. v. Premium Wholesale Groceries, Inc., 424 F.Supp. 1125, 1132 (S.D.N.Y.1976) (“Trigo Hnos. II”) (quoting MacMillan v. Hafner, 42 A.D.2d 533, 344 N.Y.S.2d 729, 729 (1973)). “Since direct evidence of fraudulent intent is rare, courts often look for the presence of ‘badges of fraud’ which commonly accompany fraudulent transfers in determining whether to infer fraudulent intent” from a disposition of assets. U.S. Fid. & Guar. Co. v. J. United Elec. Contracting Corp., 62 F.Supp.2d 915, 924 (E.D.N.Y.1999); see also DLJ Mortg. Capital, 594 F.Supp.2d at 319 (“Because fraud is not lightly inferred, plaintiffs moving papers must contain evidentiary facts as opposed to conclusions proving the fraud.” (citations, internal quotations and alterations omitted)). The “badges of fraud” courts consider include: (1) a close relationship between the parties involved in the transfer or transaction; (2) secrecy in the transfer; (3) a questionable transfer not in the usual course of business; (4) gross inadequacy of consideration; (5) the transferor’s knowledge of the creditor’s claim and the transferor’s inability to pay it; (6) the use of fictitious parties; (7) the retention of control of the property by the transferor after transfer. See U.S. Fid. & Guar. Co., 62 F.Supp.2d at 924 (citing HBE Leasing v. Frank, 48 F.3d 623, 639 (2d Cir.1995)); DLJ Mortg. Capital, 594 F.Supp.2d at 320.

Plaintiff has made a showing that Defendants have disposed of or are attempting to dispose of at least some of their property. Movants have listed the parcels of real property for sale, and Aceco has used a significant amount of its assets to make loan payments. However, the mere disposition of property does not give rise to a presumption of intent to defraud. See DLJ Mortg. Capital, 594 F.Supp.2d at 319. Plaintiff must also present evidence that Movants had fraudulent intent when they disposed of their assets, or otherwise intended to frustrate the enforcement of this judgment. Plaintiff has failed to do so.

As Judge Pohorelsky stated, “the principal evidence offered by [Plaintiff] to establish that [Defendants] have secreted or disposed of their assets with the intent to defraud [Plaintiff] is the fact that during the calendar year 2013 Aceco received some $3.5 million in payments from KMart for the bedding goods that were sold by [Plaintiff], but failed to pay approximately $2 million of the Plaintiffs invoices for those products.” (R & R 298.) Plaintiffs assertion that the money paid from K-Mart should have gone directly to Plaintiff and that Defendant’s failure to pay it directly to Plaintiff, and failure to account for exactly to whom the money was paid, is insufficient to support an inference of fraud. See Ames, 863 F.Supp. at 179; Rosenthal v. Rochester Button Co., 148 A.D.2d 375, 539 N.Y.S.2d 11, 12 (1989) (Plaintiffs showing rapid deterioration of corporation’s financial condition, combined with corporate sale of assets, still “completely devoid of any evidence of fraudulent intent on the part of [the defendant].”)

Furthermore, Plaintiff has not presented evidence that any of the monetary or real-estate transactions at issue demonstrate “badges of fraud” that would support a finding of fraudulent intent. Bank records show that there may have been some money transfers between Aceco and Movants, closely related parties, but only for small amounts in comparison to the amount owed to Plaintiff. “The records of the [Movants’] bank accounts were produced to [Plaintiff] in discovery, and disclose that except for modest transfers totaling perhaps $50,000 to $60,000, there is no proof that any of the funds in the corporate accounts were diverted to the [Movants’] accounts.” (R & R 299.) Plaintiff presents nothing more than its suspicions as to why this money was transferred or the ultimate use of the money, and fails to show evidence of any “badge of fraud” beyond the close relationship of the parties. See De Ping Song v. 47 Old Country, Inc., No. 09-CV-5566, 2011 WL 3846929, at *5-6 (E.D.N.Y. Aug. 30, 2011) (granting motion to vacate order of attachment against corporate entities and individual owners/shareholders, despite fact that bank records “tended to show that [individual defendants] were less than fastidious in keeping the banking activities of their three [corporations] separate” and that defendants were otherwise “poor record keepers”). As to the loan payments made by Aceco, Plaintiff asserts that “while it is not known what all [Defendants’] abnormal loan payments were for ... it is reasonable to infer that at least some of the payments went to finance” loans made by Movants, or other companies in which Movants are involved. (PI. Obj. 13.) The Court disagrees that this inference is “reasonable,” and finds that Plaintiff failed to present sufficient evidence to support a finding of fraudulent intent with regard to these payments.

ii. Burden shifting

Plaintiff argues that the Judge Pohorel-sky improperly imposed on Plaintiff “an enhanced burden of proof ... to prove where the funds are hidden after disappearance” by requiring Plaintiff to show more than the transfer or disappearance of an “abnormal amount of property.” (PI. Obj. 18-19.) Plaintiff also argues that Ace-co’s bank records prove that Aceco’s funds were “diverted to the [Movants] personally or elsewhere to enrich the [Movants.]” (Id.)

To the extent Plaintiff argues that the unexplained disappearance of a large amount of property establishes a proper basis for an attachment order, Plaintiff merely reiterates arguments made in its opposition to the motion before Judge Pohorelsky, (see PI. Opp’n 7-10), and the Court will therefore review Judge Pohorel-sky’s recommendation as to this argument for clear error. See Rahman, 2014 WL 688980, at *1. On this point, Judge Pohorelsky concluded that “[t]he evidence submitted to the court [] does not establish that the funds paid by K-Mart have disappeared; it only establishes that [Defendants] used those funds to pay other debts.” (R & R 300.) Having considered Judge Pohorelsky’s conclusions and the accompanying objections, the Court concludes that Plaintiff has not shown any clear error.

If a plaintiff can establish the defendant has disposed of or hidden assets in order to defraud creditors, “[t]he burden then shifts to the defendant to explain the actions or to rebut the plaintiffs allegations.” Bank of Leumi Trust Co., 892 F.Supp. at 483; Monteleone v. Leverage Group, No. 08-CV-1986, 2008 WL 4541124, at *9 (E.D.N.Y. Oct. 7, 2008) (noting defendants failed to put forth a legitimate motive for spending investors’ money-on personal matters rather than investing it as promised); Mineola Ford Sales Ltd. v. Rapp, 242 A.D.2d 371, 661 N.Y.S.2d 281, 281-82 (1997) (affirming order of attachment, noting defendant-employee failed to explain falsified business records and failed to explain what she had done with plaintiff-employer’s money). However, before the burden will shift, a plaintiff must present evidence that shows both a disposition of property and fraudulent intent on the part of the defendant. See Bank of Leumi Trust, 892 F.Supp. at 483 (collecting cases).

As discussed above, Plaintiff has not presented sufficient evidence to establish that Movants have acted with intent to defraud creditors. See De Ping Song, 2011 WL 3846929 at *5-6. Assuming, however, that the facts presented were sufficient to establish a prima facie case of fraudulent intent, Defendants have presented explanations for the money transfers and the real estate sales. Aceco asserts that it had “numerous letters of credit” with China Citic Bank to finance the operations of Aceco. (Decl. of David Liu dated Mar. 29, 2014, annexed to Affirmation of Jonathan Gould in Supp. of Mot. to Vacate Order of Attachment ¶ 17.). Movants also assert that they listed their parcels of real property “for financial reasons.” (Supp. Decl. of David Liu dated Apr. 30, 2014 ¶ 15.) Those explanations are supported by bank records which show numerous outgoing loan payments, and by the fact that China Citic Bank has a secured interest in Aceco’s bank accounts. Given the evidence, “[i]t appears ... that [Defendants’] lack of funds is simply the product of poor business decisions or perhaps bad luck,” and not necessarily of any intent to defraud creditors. (See R & R 300.)

III. Conclusion

Having considered Judge Pohorelsky’s Report & Recommendation and Plaintiffs objections, the Court adopts the Report & Recommendation in its entirety. The Court grants Movants’ motion to vacate the Attachment Order.

SO ORDERED.

REPORT AND RECOMMENDATION

VIKTOR V. POHORELSKY, United States Magistrate Judge.

The individual defendants David Z. Liu (also known as Zuowei Liu) and Chang-Zhu Yu (also know as Cee Cee Yu) have moved to vacate the order of attachment entered by this court in November of 2013. They contend that the plaintiff has not adequately established the grounds for such an order, and that the order is working an undue hardship on their ability to continue the business of the corporate defendants Aceco Inc. and Aceco Industrial & Commercial Corporation (collectively “Aceco”),¹ of which they are the owners. The motion has been referred to me by Judge Brodie for a report and recommendation pursuant to section 636(b)(1)(B) of title 28, United States Code.

Background

This'action was brought by the plaintiff to obtain payment for microfiber bedding products manufactured by the plaintiff in China and delivered to Aceco for resale to K-Mart here in the United States. The order of attachment that is the subject of this motion was first entered ex -parte on October 30, 2013 as a temporary order shortly after the plaintiff filed the complaint. The order was then confirmed approximately a month later on November 27, 2013. Although given notice and an opportunity to be heard concerning the entry of the latter order, the defendants offered no opposition to the factual and legal arguments advanced by the plaintiff in support of the request for confirmation of the attachment. In addition to restraining the defendants’ assets, the ex parte order provided for expedited discovery requiring the defendants to provide information and documents concerning the nature and location of property — both real and personal — that they owned directly or indirectly, and requiring Liu and Yu to appear for depositions on as little as two days’ notice. Pursuant to the attachment order, the U.S. Marshal levied on various bank accounts and real estate in which the various defendants were asserted to hold some interest.²

The order of attachment .was issued pursuant to Rule,64 of the Federal Rules of Civil Procedure, which specifically refers to attachment as one of the remedies available to federal litigants. Fed R. Civ. P. 64(b). The law of the state where the court is located governs the reach of this remedy. John Wiley & Sons, Inc. v. Kirtsaeng, No. 08 Civ. 7834, 2009 WL 3003242, at * 2 (S.D.N.Y. Sept. 16, 2009), citing Cargill, Inc. v. Sabine Trading & Shipping Co., 756 F.2d 224, 227 (2d Cir.1985). Here, the basis for attachment upon which the plaintiff relied was section 6201 of the New York Civil Practice Law and Rules, which permits the court to grant an order of attachment in cases where a plaintiff would be entitled to a money judgment if the plaintiff can demonstrate that

the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiffs favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts; ...

N.Y.C.P.L.R. § 6201[3]. To obtain the order, the plaintiff established, with assertions in the verified complaint and in an affidavit submitted by the President of the plaintiff, that the plaintiff had delivered goods worth almost $2 million to K-Mart at Aceco’s direction, that Aceco had not paid for the goods, and that the defendant Liu had admitted that Aceco owed the plaintiff for the goods. The plaintiff further asserted that Aceco had apparently received payment from K-Mart for the goods, and argued that the only plausible explanation for the defendants’ failure to pay the plaintiff was that the individual defendants “secreted or disposed of or are about to secret or dispose of Aceco’s assets to avoid paying Plaintiff and to frustrate the enforcement of a judgment Plaintiff will obtain in this action.” PI. Mem., Oct. 24, 2013, at 5 [Dkt. Ent. 4-2], In the absence of any opposition from the defendants, the court had little basis to conclude otherwise.

Having now obtained new counsel, the defendants argue that their prior counsels’ failure to offer any opposition to the entry of the order deprived them of the opportunity to demonstrate that the plaintiff had not satisfied the high burden required under New York law for the issuance of such an attachment order, and they accordingly ask the court to reverse its prior ruling.

Discussion

“Upon a motion to vacate or modify an order of attachment the plaintiff shall have the burden of establishing the grounds for the attachment, the need for continuing the levy and the probability that he will succeed on the merits.” N.Y.C.P.L.R. § 6223(b)(McKinney); Raze Contracting, Inc. v. Colombo, 16 A.D.3d 656, 791 N.Y.S.2d 444 (2nd Dep’t 2005); Rothman v. Rogers, 221 A.D.2d 330, 633 N.Y.S.2d 361 (2nd Dep’t 1995). “Because of the harsh nature of attachment and because it is in derogation of the common law, the courts have strictly construed the attachment statute in favor of those against whom it may be employed.” Michaels Elec. Supply Corp. v. Trott Elec. Inc., 231 A.D.2d 695, 647 N.Y.S.2d 839 (2nd Dep’t 1996) (citing Elton Leather Corp. v. First Gen. Res. Co., 138 A.D.2d 132, 135, 529 N.Y.S.2d 769 (1st Dep’t 1988)). As noted above, the grounds for attachment under section 6201[3] require a demonstration “(1) that the defendant has, or is about to conceal his or her property in one of the enumerated ways, and (2) that defendant has acted or will act with the intent to defraud his or her creditors or to frustrate the enforcement of a judgment for the plaintiff.” Societe Generate Alsacienne De Banque, Zurich v. Flemingdon Dev. Corp., 118 A.D.2d 769, 772, 500 N.Y.S.2d 278, 281 (2nd Dep’t 1986). An intent to defraud, however, “is never presumed by a mere showing of the liquidation or disposal by a debtor of its business assets,” Rosenthal v. Rochester Button Co., 148 A.D.2d 375, 376, 539 N.Y.S.2d 11, 12-13 (1st Dep’t 1989), and thus “the mere removal or assignment or other disposition of property is not grounds for attachment,” Computer Strategies, Inc. v. Commodore Bus. Machines, Inc., 105 A.D.2d 167, 173, 483 N.Y.S.2d 716, 721 (2nd Dep’t 1984); accord, e.g., Monteleone v. Leverage Grp., CV-08-1986, 2008 WL 4541124, at *8 (E.D.N.Y. Oct. 7, 2008); Abacus Fed. Sav. Bank v. Lim, 8 A.D.3d 12, 13, 778 N.Y.S.2d 145, 146 (1st Dep’t 2004).

Here, the principal evidence offered by the plaintiff to establish that the defendants have secreted or disposed of their assets with the intent to defraud the plaintiff is the fact that during the calendar year 2013 Aceco received some $3.5 million in payments from KMart for the bedding goods that were sold by the plaintiff, but failed to pay approximately $2 million of the plaintiffs invoices for those products.³ The plaintiff thus argues that the defendants’ failure to explain what happened to the shortfall amounts to proof that they have secreted or disposed of those assets with the intent to prevent the plaintiff from collecting a judgment. Tr. 42-43.⁴ But the plaintiff offers no proof that the money paid by K-Mart was in fact diverted to the individual defendants or otherwise secreted. The records of two bank accounts maintained by Aceco at China Citic Bank which were submitted by the plaintiff in opposition to the motion disclose that the vast majority of the funds deposited into those accounts during 2013 were used to pay down loans made to Aceco by the Bank. Li Deck, Exs. O, P [Dkt. Ent. 37-3].⁵ The records of the individual defendants’ bank accounts were produced to the plaintiff in discovery, and disclose that except for modest transfers totalling perhaps $50,000 to $60,000, there is no proof that any of the funds in the corporate accounts were diverted to the individual defendants’ accounts. Tr. 23, 62-63. Nor has the plaintiff provided proof that any of the funds were diverted elsewhere for the benefit of the defendants. The evidence produced by the plaintiff concerning the disposition of the funds in Aceco’s bank accounts thus establishes merely the disposal of business assets, and gives rise to no presumption of an intent to defraud.⁶ See, e.g., Rochester Button Co., 148 A.D.2d at 376, 539 N.Y.S.2d 11.

The only other proof concerning disposition of assets by the defendants concerns the listing of two items of real property for sale after the entry of the attachment order. According to the defendants, however, one of the two properties had been listed for sale as early as 2012 in an effort to raise funds, and the other property is owned by a partnership named Rockaway Associates of which they are no longer partners. Liu Aff., ¶¶ 11-15 [Dkt. Ent. 39]. Both properties remain unsold.⁷ Moreover, as to the property owned by Rockaway Associates, the decision to list the property was apparently made at the suggestion of the bank that holds the mortgage on the property, Liu Aff., ¶ 12, and documents submitted in connection with a separate motion by Rockaway Associates to vacate the attachment disclose that the proceeds of a sale that has now been negotiated for the property will be used to pay the mortgage and other loans owed to the bank by Rockaway Associates. Given these entirely plausible explanations, the listing of the properties for sale does not constitute persuasive evidence that the defendants were seeking to dispose of property with the intent to defraud the plaintiff.

The plaintiff cites various opinions by this and other courts involving attachment orders for the proposition that the unexplained disappearance of a large amount of property establishes a proper basis for an attachment order. See, e.g., Monteleone v. Leverage Grp., CV-08-1986, 2008 WL 4541124 at *7 (E.D.N.Y. Oct. 7, 2008); JSC Foreign Econ. Ass’n Technostroyexport v. Int’l Dev. & Trade Servs., Inc., 306 F.Supp.2d 482, 487-88 (S.D.N.Y.2004); Mineola Ford Sales Ltd. v. Rapp, 242 A.D.2d 371, 661 N.Y.S.2d 281 (2nd Dep’t 1997). The situation here is different, however, because the plaintiff has not established any substantial disappearance of assets. The inflows of funds to Aceco, insofar as the plaintiff has sought to establish those inflows by submitting bank records to the court, consist of deposits of over $4 million, excluding inter-account transfers, and thus exceed the $3.5 million supposedly paid by K-Mart.⁸ As noted above, most of the funds deposited were used to pay bank loans and none has been shown to be diverted to the individual defendants. The evidence submitted to the court thus does not establish that the funds paid by K-Mart have disappeared; it only establishes that the plaintiff used those funds to pay other debts.

The court understands the plaintiffs consternation that it finds itself with unpaid invoices and finds the defendants with insufficient funds to pay them. They are apparently not alone, as other vendors have also instituted an action against the defendants. See Shaoxing Aceco Blanket Co., Ltd. v. Aceco, Inc., No. 13-CV-4937 (E.D.N.Y). It appears, however, that the defendants’ lack of funds is simply the product of poor business decisions or perhaps bad luck. The evidence does not establish that the defendants have disposed of or secreted their assets with the intent to defraud the plaintiff. Accordingly, I recommend that the defendants’ motion to vacate the attachment order be granted.

ifs % #

Any objections to the Report and Recommendation above must be filed with the Clerk of the Court within 14 days of receipt of this report. Failure to file objections within the specified time waives the right to appeal any judgment or order entered by the District Court in reliance on this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see, e.g., Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985); Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir.2002); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v. Secretary of Health and Human Serv., 892 F.2d 15, 16 (2d Cir.1989) (per curiam).

Respectfully recommended,

1 . Movants argue that Aceco does not owe the balance Plaintiff claims, in part because KMart discovered defects in the textiles shipped by Plaintiff, which resulted in "chargebacks” against Aceco totaling approximately $850,000. (Decl. of David Liu dated Mar. 29, 2014, annexed to Affirmation of Jonathan Gould in Supp. of Mot. to Vacate Order of Attachment (“Liu Decl.”) ¶¶ 10-12.)

2 . In the process of executing service of process of the levies, the U.S. Marshal listed that Aceco’s offices in Great Neck were closed. (PI. Obj. 4.)

3 . The notice of attachment filed against the property owned by Rockaway Associates, located at 25 Gracewood Drive, Manhasset, N.Y. 11030, is the subject of this Court's October 20, 2014 Memorandum and Order. Dafeng Hengwei Textile Co. v. Aceco Indus. & Commercial Corp., 54 F.Supp.3d 279, 2014 WL 5319688 (E.D.N.Y. Oct. 20, 2014).

4 . The parties' dispute centers on whether Plaintiff made an adequate showing of the grounds for attachment, namely that Movants have disposed of or secreted assets with intent to defraud their creditors or frustrate the enforcement of a judgment. See N.Y. C.P.L.R. § 6201(3). Because the Court finds that Plaintiff has failed to meet its burden on this prong, it does not address the adequacy of Plaintiff's allegations regarding the need for continuing the levy or the probability that Plaintiff will succeed on the merits.

5 . According to Plaintiff, the U.S. Marshal attempted service of the Attachment Order at Movants’ residence in Manhasset, New York, and noted on the second attempt "DOES NOT KNOW ABOVE NAMED INDIVIDUALS PER OWNER OF RESIDENCE MRS. XU[.]:” (PL Obj. 4-5.) Plaintiff asserts that the same individual later identified herself as Defendant Yu and accepted the court papers for herself and for Liu. (PI. Obj. 5.)

1 . According to the complaint, in an allegation admitted by the defendants, at some point the defendant Aceco Industrial & Commercial Corporation merged with or changed its name to Aceco, Inc. and Aceco, Inc. became the successor in interest to Aceco Industrial & Commercial Corporation. However, at least one bank account in the name of Aceco Industrial & Commercial Corporation remains in existence at China Citic Bank.

2 . According to the plaintiff levies were placed on the individual defendants’ bank account at People’s United Bank, Aceco’s accounts at China Citic Bank, Aceco’s account with K-Mart, and Aceco’s account at Rosenthal & Rosenthal (a factoring company), as well as two pieces of real property owned by the individual defendants and one piece of real property owned by a partnership that the plaintiff asserts is owned in part by the individual defendants. Li Decl., ¶¶ 11-15, 35.

3 . The plaintiff and Aceco had been doing business together since 2009, during which time substantial deliveries of goods had been made by the plaintiff, and substantial payments on the plaintiff's invoices had been made by Aceco. A listing of the allegedly unpaid invoices is annexed as Exhibit B to the declaration of the plaintiff's President Yong-gen Qin. The Qin Declaration, in turn, is attached as Exhibit D to the Li Declaration [See Dkt. Ent. 37-2]. A statement provided by KMart concerning the payments to Aceco totaling $3.5 million in 2013 is attached as Exhibit J to the Li Declaration [Dkt. Ent. 37-3]. The defendants vigorously dispute that they owe the plaintiff $2 million dollars as they contend that substantial "chargebacks” attributable to deliveries of defective products by the plaintiff will substantially reduce or perhaps eliminate any debt they owe to the plaintiff. Liu Aff., ¶ 10 (annexed to the defendants’ Notice of Motion, Dkt. Ent. 34)

4 . "Tr.” refers to the transcript of the oral argument on the motion held on June 18, 2014 [Dkt. Ent. 55],

5 . The accounts were in two different names, one in the name of Aceco Inc., and the other in the name of Aceco Industrial & Commercial Corp. For reasons not explained, most of the inflows of funds were deposited first in the Aceco Inc. account, where modest amounts were used to pay down loans. Li Deck, Ex. O [Dkt. Ent. 37-4], Most of the remaining balances - from deposits were then transferred to the Aceco Industrial & Commercial Corp. account, where virtually all of the funds were applied to pay principal and interest on numerous other loans, all of which were also itemized in the bank statements for that account. Li Deck, Ex. P [Dkt. Ent. 37-4].

6 . The loans reflected in Aceco's bank records may well have been advances used to pay the plaintiff and other manufacturers who provided goods to Aceco for resale. The plaintiff apparently acknowledges receiving payments totaling approximately $2.4 million from Ace-co during 2013. Tr. 13-14.

7 . Rockaway Associates separately moved to vacate the attachment order as to that property, Dkt. Ent. 44, and that motion is the subject of a separate Report and Recommendation that has already been entered by me, Dkt. Ent. 56.

8 . The bank records submitted by the plaintiff do not disclose the specific sources of the inflows of funds, whether that be K-Mart or other buyers of Aceco's products, and neither the plaintiff nor the defendants have sought to provide that information.