United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
the court is plaintiff Credit Europe Bank, N.V.'s
(“CEB”) motion for a preliminary injunction. ECF
No. 7. Defendant Tuspa Trade, LLC (“Tuspa”) filed
an opposition (ECF No. 22) to which CEB replied (ECF No. 26).
Along with its reply, CEB filed evidentiary objections to
certain declarations submitted in support of Tuspa's
opposition. ECF No. 27.
and Procedural Background
core, this is a fraudulent transfer action brought under NRS
§ 112.180 for the fraudulent transfer of stock shares by
non-party Hasmet Bedii Kurum (“Mr. Kurum”), an
individual and Turkish citizen, to defendant Tuspa Trade, LLC
(“Tuspa”), a Nevada limited liability company.
See ECF No. 1.
Credit Europe Bank, N.V. (“CEB”) is an
international bank incorporated in the Netherlands with its
principal place of business in Amsterdam. On or about January
25, 2013, CEB entered into a credit agreement with
non-parties Kurum International S.H.A. (“Kurum
International”), an Albanian company, and Kurum Demir
Sanayi Dis Ticaret A.S. (“Kurum Demir”)
(collectively “borrowers”), a Turkish company,
known as the Framework Credit Agreement. Pursuant to the
credit agreement, CEB agreed to extend borrowers €10,
000, 000.00 in uncommitted credit. Borrowers' performance
under the credit agreement was guaranteed by Mr. Kurum and
non-party Kurum Holding A.S., an Albanian company
(collectively “guarantors”). Mr. Kurum is the
owner/director of all the various entities.
the credit agreement and guarantee, the borrowers and
guarantors pledged all corporate and individual assets to CEB
and specifically agreed that no party would transfer any
asset without CEB's written approval. See ECF
No. 1, Ex. A. Further, the credit agreement provided that a
default of the agreement would occur if any of the parties
(1) ceased to exist; (2) ceased business operations; or (3)
underwent any court ordered liquidation or reorganization.
Id. On June 1, 2015, the parties entered into a
First Supplemental Agreement to the credit agreement through
which CEB agreed to increase the line of uncommitted credit
from €10, 000, 000.00 to €20, 000,
about February 26, 2016, CEB sent a notice of default
notifying all parties that an event of default had occurred
under the loan agreement and that repayment of all amounts
disbursed under the credit agreement were now
The underlying event of default was the bankruptcy filing of
borrower Kurum Demir in Turkey. A second notice of default
was sent to all parties on or about March 4,
2016. This second notice identified an
additional event of default; the bankruptcy filing of
borrower Kurum International in Albania. Neither the
borrowers (who have filed for bankruptcy) nor the guarantors
have responded to CEB's notices of default nor repaid any
of the outstanding debt due under the credit agreement. At
this time, the amounts owed under the credit agreement are
€11, 109, 323.00 and $5, 194, 816.40.
to either event of default, but after he had signed the
guarantee of the credit agreement, Mr. Kurum, along with
another associate, Serafattin Ismail Kirpikli
(“Mr.Kirpikli”), formed defendant Tuspa on or
about November 3, 2014. Mr. Kurum was the founding member and
operating manager of Tuspa at the time it was incorporated.
On or about January 26, 2015, during the time borrowers were
drawing millions on the credit agreement, Mr. Kurum entered
into a gift agreement with Tuspa. The gift agreement was
entered into by Mr. Kurum both individually and on behalf of
Tuspa. Through the gift agreement, Mr. Kurum transferred 100%
of the stock shares in a company known as Kosova e Re Sh.
p.k. (“Kosova”), an insurance company in the
Republic of Kosovo, to Tuspa for no monetary compensation.
This transfer of shares was allegedly done without CEB's
knowledge and without CEB's express written consent and
about June 2016, Mr. Kirpikli allegedly acquired Tuspa and
became the operating manager. While manager of Tuspa, Mr.
Kirpikli entered into a transaction with Fitorja SH.P.K
(“Fitorja”), a Kosovo company, for the purchase
of Tuspa. On November 10, 2016, Fitorja purchased Tuspa for
€2, 100, 000.00. As of now, Fitorja is allegedly the
current owner of defendant Tuspa.
February 28, 2017, CEB filed the underlying complaint against
Tuspa alleging a single cause of action for fraudulent
transfer in violation of NRS § 112.180. ECF No. 1. In
its complaint, CEB seeks avoidance of the transfer of Kosova
shares from Mr. Kurum to Tuspa and attachment of the shares
to CEB. Id. Along with its complaint, CEB filed an
ex parte application for a temporary restraining
order (ECF No. 4) and motion for a preliminary injunction
(ECF No. 7) seeking to enjoin defendant Tuspa from
transferring, selling, or in any way relieving itself of the
Kosova shares during the pendency of this action. Also on
February 28, 2017, the court issued an order granting
CEB's ex parte application for a temporary
restraining order and setting a hearing on the request for a
preliminary injunction. ECF No. 8.
may grant a preliminary injunction upon a showing of: (1)
irreparable harm to the petitioning party; (2) the balance of
equities weighs in petitioner's favor; (3) an injunction
is in the public's interest; and (4) the likelihood of
petitioner's success on the merits. See Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct.
365, 376, 172 L.Ed.2d 249 (2008) (citations omitted). In
Winter, the Supreme Court stated that a
“likelihood” is required as to all four factors.
See 555 U.S. at 22. The Ninth Circuit has since
interpreted the Winter decision as being compatible
with a sliding scale, under which a party may satisfy the
requirements for an injunction with a lower showing under one
factor if there is a very strong showing under another.
See Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1131 (9th Cir. 2011). Under the sliding scale
approach, the Ninth Circuit has determined that
“serious questions” as to the merits would
satisfy the “likelihood of success” requirement
in the event of a strong showing of irreparable harm.
Likelihood of ...