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At home in Cuba, Cornelia Hernandez was searching through her late father’s papers several years ago when she made a potentially momentous find. Her father, Gabriel G. Hernandez, was a successful businessman who had his holdings taken from him by the government of Fidel Castro. He died in 1968. Among her father’s papers, she discovered a letter to him dated Dec. 19, 1958, from the Havana branch of First National City Bank of New York. The letter stated that a “certificate is deposited in our Securities Department to your account and at your disposal.” The CD was in the amount of 300,000 Cuban pesos. Hernandez, who lives on the Isle of Youth, off the south coast of Cuba, was shocked. She claims the CD was never paid out to her father or to anyone else in the family. First National City Bank of New York is now the international financial giant Citibank, with $57 billion in revenues last year. First National’s holdings in Cuba were expropriated by the Castro government in 1960. Hernandez, a retiree in her 60s who takes care of her disabled brother, has filed suit against Citibank in Miami-Dade Circuit Court. Hernandez, who is her father’s sole heir, is seeking payment for her father’s certificate of deposit. That CD would now be worth nearly $15 million in U.S. dollars, according to her attorneys. If she succeeds in her suit — and if she uncovers evidence that the bank never paid back other deposits made by Cubans before the Castro revolution — it could pose big problems for Citibank and other U.S. banks that operated on the island before the revolution. Such an outcome could prompt thousands of claims by others whose deposits in branch offices of U.S. banks in Cuba were similarly expropriated by the Castro government. “My guess is that many more people are situated like Cornelia Hernandez,” said Boca Raton solo practitioner Charles P. Randall, who is representing Hernandez with Abbey L. Kaplan of Kluger Peretz Kaplan & Berlin in Miami. Citibank has filed a motion to summarily dismiss the suit based on the theory that she failed to state an adequate claim against the bank. It has not yet had to file an answer formally responding to the claims. The banking giant is being represented by Jose I. Astigarraga of Astigarraga Davis Mullins & Grossman in Miami. He declined to comment. Calixto Garcia-Velez, who is president of Citibank Florida in Miami, said in a statement: “This claim goes back to an account opened in Cuba in the 1950s. While we empathize with the customer, our investigations have not given us any substantiation to recognize this claim. Although we continue to research the matter.” Hernandez’s attorneys are seeking to examine bank documents and depose bank officials as part of their effort to recover her father’s allegedly lost riches. Randall said the case is reminiscent of the successful legal efforts by Jewish Holocaust survivors and their relatives to collect deposits made in Swiss banks before World War II. In 1998, several Swiss banks settled a class action lawsuit filed in U.S. District Court in Brooklyn for $1.25 billion. The banks initially argued they had no record of such deposits, but documents were eventually discovered showing the existence of the accounts. While many observers said Hernandez’s claim is the first of its kind in South Florida, it’s not the first in the United States. In the 1980s, some Cuban-Americans sought to reclaim deposits they had made in branch offices of U.S. banks in Cuba. Two appellate courts took sharply different positions on the matter. Hernandez’s lawsuit, filed last April, contends that because her father deposited the money in a branch office of a U.S. bank, it still should be collectable from any of the bank’s other branches around the world. The fact that Cuba nationalized all of the banks in the country in 1960 makes no difference, she argues. A hearing is scheduled for this month before Circuit Judge Roberto M. Pineiro, at which Hernandez’s lawyers will seek permission to begin formally requesting documents and deposing Citibank officials. According to Hernandez’s lawyers, Citibank’s response thus far has been that it has no documentation relating to her father’s deposit. “The bank is contending the books were left in Havana,” Randall said. Part of the reason Hernandez’s lawyers seek to depose Citibank officials is to find out if the company still has a list of the funds and accounts deposited before the Cuban revolution in the First National branches in Cuba. Such a record would not only boost her claim but could provide the basis for numerous other claims as well. Randall contends that even if no such list is found, the 1958 letter to Gabriel Hernandez from the First National bank official in Havana provides sufficient evidence for his client to win her case. According to Randall, the CD is now worth more than $15 million because of compound interest since it was purchased and because the Cuban peso was pegged one-to-one to the U.S. dollar prior to the Cuban revolution. After the Cuban revolution in 1959, the Castro government launched a massive effort to nationalize private businesses in the country. On July 6, 1960, according to Hernandez’s suit, Cuba enacted Law No. 851, which gave the president and prime minister the authority “to order the nationalization through forced expropriation of the assets or firms owned by natural or legal persons of the United States.” Two months later, on Sept. 17, 1960, an executive order under Law No. 851, called Resolution No. 2, expropriated and nationalized the assets of Citibank’s branch banks in Cuba. The Castro government also enacted Law No. 78 allowing expropriation. In the 1980s, some Cuban-Americans in cases that ended up in New York tried to recover deposits their relatives had made before the revolution in the Cuban branch offices of U.S. banks. In 1976 Juanita Gonzalez sued Chase Manhattan Bank in U.S. District Court in Puerto Rico, claiming that the bank owed her money because she and her late husband, wealthy businessman Jose Lorenzo Perez, had purchased two certificates of deposit at a Chase branch office in the Vedado section of Havana in 1958. Gonzalez rediscovered the CDs in a safety deposit box belonging to her husband after he died in 1975. Her lawsuit was transferred to U.S. District Court in Manhattan. At trial, Gonzalez claimed that Chase bank officers told her and her husband that depositing the money in the U.S.-based bank would be the safest place for her money, given the volatile political situation under the Fulgencio Batista government. In its defense, Chase argued that Cuba’s appropriation of its funds in Cuba canceled the debt it owed her. The jury awarded Gonzalez $760,383. In March 1984, a divided 2nd U.S. Circuit Court of Appeals panel affirmed the judgment. “Chase would not argue that its debt was extinguished if an armed gunman had entered its Vedado branch and demanded payment,” the 2nd Circuit panel held. “Yet in effect, this is what transpired. The Cuban government did nothing more than ‘enter’ Chase’s Vedado branch armed with Law No. 78 and demand depositors’ money. … As in the case of a bank robbery, the bank itself must bear the consequences.” Two days later, the Court of Appeals of New York, the state’s highest court, reached the opposite conclusion in a similar case. In that case, a Cuban named Rosa Manas claimed she had purchased five certificates of deposit, totaling $227,336, from a different Chase Manhattan branch office in Havana before the revolution. Manas was the wife of a Cabinet minister in Batista’s government. In 1974, she walked into Chase’s New York office and asked for payment, but was denied. So she sued, but in a bench ruling the court said that because the branch was expropriated, the parent bank’s liability was extinguished. The appellate division reversed the trial court but the Court of Appeals of New York overturned the appellate division by a 5-2 vote. Agreeing with the trial court, the Court of Appeals ruled that when the Cuban government expropriated the branch’s assets, that amounted to the bank’s payment and any further payment meant the bank was paying twice. The plaintiff’s only recourse, the court said, was to seek recovery from the Cuban government. The state appellate court cited a legal principle known as the act of state doctrine, which holds that a court of one country will not sit in judgment on the acts of the government of another. It said the doctrine prevented it from requiring the Cuban government to do anything. “Chase paid over the full amount of its debt pursuant to the direction of the Cuban government, a direction which under the Act of State doctrine is beyond our review,” the court held. “Chase is relieved of liability on any subsequent demand by Manas for the funds.” In similar lawsuits involving deposits and government expropriations in other countries, the general tilt in the courts during the 1980s was in favor of depositors. There were several cases brought by people who had made deposits in banks in Saigon but lost the money when the communist government of Vietnam nationalized the banks in the former South Vietnam. To halt that legal trend, Congress in 1994 passed a law stating that banks shall not be required to repay a deposit made at a foreign branch if the branch cannot repay the deposit due to war, insurrection or civil strife. Under terms of the law, however, it cannot be applied to events before the law was enacted. The statute, however, appears to not have settled the matter. In 1998, Joseph H. Sommer, counsel to the Federal Reserve Bank of New York, summed up the confusion, writing in the Maryland Law Review: “In these foreign branch expropriation cases, courts and commentators have had a hard time understanding where the money is, or who should get it.” Experts say that currently, most banks with a presence in foreign countries take steps to insulate themselves from lawsuits like Hernandez’s by creating separate entities in each country. While a bank may have the same name in different countries, it is often a wholly different corporate entity. “Generally, each business operates as its own business concern in that country,” said Victor M. Alvarez, managing partner of White & Case in Miami. “That makes it difficult to hold a parent company liable for all of the liabilities of its subsidiary.” In her lawsuit in Miami-Dade Circuit Court, Hernandez will have to demonstrate that First National’s operation in Cuba in 1958 was not an independent subsidiary of the giant bank, but rather was part of the U.S.-based operation. “The big question is, ‘Is it [an independent] subsidiary or not?’” said Clemente Vasquez-Bello, a partner at Gunster Yoakley & Stewart in Miami who is not involved in the case. Vasquez-Bello said he assumed that First National’s operation in Cuba was separate from the U.S. operation. If it wasn’t separate, he said, “we already would have seen a lot of these lawsuits here already.” But there’s a simpler explanation for why there haven’t been more lawsuits seeking to recover money deposited at bank branches in Cuba that were nationalized. Most Cubans and Cuban-Americans have no idea what to do in order to seek payment on accounts opened in U.S. bank branches in Cuba before the revolution, said Matias Travieso-Diaz, a partner at Shaw Pittman in Washington, D.C., who is active in Cuba legal issues. Cornelia Hernandez just got lucky. After she found the letter to her father from the First National bank officer, she mentioned it to a friend. That friend happened to know about Miami lawyer Carlos Enriquez, who often travels to Cuba to represent Cubans seeking to obtain inheritances left to them by their Cuban-American relatives. Hernandez wrote to Enriquez and made arrangements to meet him in Havana. In 2001, she met with Enriquez and Randall, with whom Enriquez often collaborates. Enriquez and Randall took Hernandez’s case to Abbey Kaplan, a veteran Miami litigator with experience in banking issues. Kaplan agreed to litigate the case. “You need an enterprising lawyer to find out about the complaint and bring an action,” Travieso-Diaz said. “But the interesting question is why people in Miami have not thought of it before.”

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