HSBC Bank USA National Assoc v MF Global Inc, NYSD Bankruptcy Ct 11-02924, (8 Dec 2011), Doc 1, INTERPLEADER COMPLAINT

LEGAL_US_E # 95825338.9

Jesse H. Austin, III, Esq. (

Pro Hac Vice

Pending)PAUL HASTINGS LLP600 Peachtree Street, N.E.Twenty-Fourth FloorAtlanta, Georgia 30308Telephone: (404) 815-2400Facsimile: (404) 815-2424- and -Bryan R. Kaplan, Esq.PAUL HASTINGS LLPPark Avenue Tower75 East 55th Street, First FloorNew York, New York 10022Telephone: (212) 318-6000Facsimile: (212) 319-4090

Counsel to the Interpleader Plaintiff

UNITED STATES BANKRUPTCY COURTSOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------------------

In re:MF GLOBAL INC.,Debtor.

----------------------------------------------------------------x:::::::x

Chapter 11Case No. 11-2790 (MG) SIPA(Jointly Administered)HSBC BANK USA, NATIONAL ASSOCIATION Interpleader Plaintiff,v.JASON FANE and JAMES W. GIDDENS,in his capacity as Trustee for MF Global Inc.Interpleader Defendants.

----------------------------------------------------------------:::::::::::x

Adv. Proc. No. __

11-02924-mg Doc 1 Filed 12/08/11 Entered 12/08/11 17:59:38 Main DocumentPg 1 of 20

2

LEGAL_US_E # 95825338.9

INTERPLEADER COMPLAINT

Interpleader plaintiff HSBC Bank USA, National Association (“HSBC”) hereby files thisinterpleader complaint (the “Complaint”) against Jason Fane (“Mr. Fane”) and James W.Giddens, in his capacity as Trustee (the “Trustee,” together with Mr. Fane, the “InterpleaderDefendants”) for MF Global Inc. (“MFGI”).

I.

NATURE OF ACTION

1.

HSBC faces competing claims by the Interpleader Defendants with respect to

fivegold bars and fifteen silver bars being held by HSBC (the “Property”) in connection with eightCOMEX contracts entered into between Mr. Fane and MFGI. Both Mr. Fane and MFGI haveasserted claims for the Property. HSBC is the depository for the Property—the Property is inHSBC’s possession, but HSBC does not have any ownership interest in the Property. HSBC hasreceived conflicting instructions from the Interpleader Defendants regarding ownership anddisposition of the Property.

2.

Accordingly, HSBC is exposed to multiple liabilities with respect to thedisposition of the Property without this Court’s resolution of the Interpleader Defendants’competing claims. By way of this interpleader action, HSBC requests that the Court adjudicatethe rights of the Interpleader Defendants in the Property without need for further involvement byHSBC.

II.

JURISDICTION AND VENUE

3.

This adversary proceeding arises from and is related to the above-captionedliquidation proceeding of MFGI under the Securities Investor Protection Act of 1970 (“SIPA”),which currently is pending in this Court.

11-02924-mg Doc 1 Filed 12/08/11 Entered 12/08/11 17:59:38 Main DocumentPg 2 of 20

3

LEGAL_US_E # 95825338.9

4.

The Court has jurisdiction over the subject matter of this adversary proceedingunder 28 U.S.C. § 157 and § 1334. Venue is proper in this Court under 28 U.S.C. § 1408 and1409.5.

The statutory basis for the relief requested herein is Rule 22 of the Federal Rulesof Civil Procedure, as made applicable by Rule 7022 of the Federal Rules of BankruptcyProcedure.

III.

PARTIES

6.

Interpleader plaintiff HSBC is a national bank organized under the laws of theUnited States with its principal place of business in New York, New York.7.

Upon information and belief, Interpleader Defendant Mr. Fane is a persondomiciled in Ithaca, New York.8.

By order of the United States District Court for the Southern District of New York dated October 31, 2011, Interpleader Defendant Trustee was appointed as trustee for theliquidation of MFGI under SIPA.

IV.

BACKGROUND

9.

Upon information and belief, prior to the commencement of the LiquidationProceeding on October 31, 2011 (the “Commencement Date”), Mr. Fane and MFGI entered intofive COMEX gold contracts and three COMEX silver contracts relating to the Property. HSBCis the depository for the Property pursuant to a certain Gold Delivery Point Agreement and acertain Silver Delivery Point Agreement entered into between HSBC and the New York Mercantile Exchange, Inc.10.

At all times prior to the Commencement Date and through the present, HSBC hasbeen merely in possession of the Property and has not had any ownership interest in the Property.

11-02924-mg Doc 1 Filed 12/08/11 Entered 12/08/11 17:59:38 Main DocumentPg 3 of 20