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ASG: BoH violated local law with interpleader request

Says bank has "no one to blame but itself" for legal problems
fili@samoanews.com

The American Samoa Government says the Bank of Hawai’i has no one to blame but itself for the current legal situation it is faced with: two conflicting orders — one by the federal court in Honolulu and the other by the High Court of American Samoa — over ASG funds the bank froze following a writ of execution per request by Marisco Limited.

Both ASG and Honolulu-based Marisco, which provided services for the government, filed their responses Monday afternoon at the federal court in Honolulu in response to last week’s interpleader motion by the bank. BOH wants the more than $811, 000 of ASG funds it froze due to the ongoing legal battle between the two parties, deposited with the clerk of the federal court.

ASG ARGUMENT

ASG, through its Honolulu-based attorney Mark S. Hamilton with the law firm of Frame & Nakano, contends the interpleader failed on several fronts. The  first is that the Aug. 23 federal court order for BoH to pay Marisco the $811,000 was appealed by ASG on Sept. 11 with the federal appeal court in San Francisco.

ASG said the appeal questions whether the Honolulu federal court  had jurisdiction over the funds on deposit with the American Samoa branch of BoH, and thus, whether it could legally issue the writ of execution order to garnish those funds.

ASG argues that this case is now in the hands of the Ninth Circuit Court of Appeals and the lower court no longer has jurisdiction in this matter.

ASG also dismissed claims by the bank that it was acting as a neutral stakeholder, arguing that BoH is “advocating the removal of the funds from the American Samoa branch of BoH to the Clerk of the Court, and subsequently, distribution to Marisco.”

In addition, although the High Court of American Samoa clearly has jurisdiction, neither BoH nor Marisco availed itself of the jurisdiction and authority of the High Court to file their actions to seize and distribute the funds.

“BoH did not file an interpleader in American Samoa. Marisco did not seek a writ of execution in American Samoa. BOH and Marisco are forum shopping,” said ASG.

“...given the generally applicable rule barring federal injunctions of state court proceedings, the [federal] Court should defer to and not interfere in parallel proceedings in American Samoa that pre-date the interpleader,” it said and added, “where a moving party has caused the controversy, an interpleader should not be granted.”

ASG insisted that “BoH violated American Samoa law and waited for nearly three months before seeking a remedy. Its acts and/or omissions led to the conflicting court orders of which it complains. Thus, BoH caused its dilemma and BoH’s Motion should be denied.”

MARISCO ARGUMENT

According to Marisco, it “can empathize” with the bank’s “frustration” with ASG, who filed for injunctive relief in the High Court “in a flagrant disregard of its prior acceptance of this [federal] court’s jurisdiction.”

Marisco said ASG Attorney General Fepuleai A. Ripley Jr., executed the Agreement to Arbitrate this matter with the Honolulu federal court. Additionally, ASG submitted to the federal court jurisdiction by agreeing to ‘sue and be sued’.

Marisco also pointed out — in a footnote in the motion — that BoH had stated in its interpleader motion that Fepuleai is a member of the Hawai’i State Bar Association and therefore held to be conversant with jurisdiction and the Hawai’i Rules of Professional Conduct.

Marisco said BoH should follow the federal court’s order last month to release the $811,000 frozen by the bank in ASG’s account.

“Alternatively, Marisco will reluctantly agree to the BoH interpleader of the funds due to Marisco and request that the federal court include amounts for accrued interest and for post judgement attorneys’ fees and costs,” according to the motion. Marisco agrees with BoH that the Honolulu federal court “retains continuing jurisdiction in order to maintain a status quo between the parties.”

Marisco disagrees with ASG’s argument that the matter is now in the hands of the appeals court. “It is well settled that following a Notice of Appeal, the [federal] District Court retains jurisdiction ‘to preserve the integrity of this court’s judgements in general, and specifically to protect the court’s final judgement’...,” Marisco argued.

According to Marisco, the bank is not seeking to alter the status of the case on appeal but merely to preserve the status quo.

The hearing on BoH’s interpleader motion is set for tomorrow morning in Honolulu.



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