SEQUOR LAW, P.A.

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

www.flsb.uscourts.gov

In re: 

Performance Insurance Company SPC Chapter 15

Debtor in a Foreign Proceeding. Case No.: 21-12609-AJC

_________________________________/

MOTION TO COMPEL TURNOVER OF FUNDS

HELD AT TRUIST BANK

Kenneth Krys and Neil Dempsey (the “JLs” or the “Foreign Representatives”), the Official 

Joint Liquidators of Performance Insurance Company SPC and its segregated portfolios1

(collectively, the “Debtor”), file this Motion to Compel Turnover of Funds Held at Truist Bank

(the “Motion”), seeking an order directing Truist Bank (“Truist”) to turnover the funds in the bank 

accounts held by Performance 5 SP, one of the Debtor’s segregated portfolios. In support of their 

Motion, the Foreign Representatives state as follows:

RELEVANT FACTS

I. Background

1. The Debtor is a segregated portfolio company (“SPC”) incorporated in the Cayman 

Islands. D.E. 2, at 14. 

2. The Debtor operates in the captive insurance industry through its 12 Segregated 

Portfolios. One of these segregated portfolios is Performance 5 SP (“Performance 5”).

 

1

 The Debtor’s segregated portfolios are: (i) Bottini Insurance SP; (ii) Gen 1 Insurance Company SP; 

(iii) Goldenstar Holdings Company SP; (iv) Greystone Insurance SP; (v) Hudson York Insurance Company 

SP; (vi) Omega Insurance Company SP; (vii) Performance 5 SP; (viii) Prewett Insurance Company SP; (ix) 

Smart Insure SP; (x) SSS Insurance SP; (xi) Sustainable Insurance Company SP; and (xii) Triangle RGK 

SP. These twelve segregated portfolios are hereinafter referred to as the “Segregated Portfolios.”

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3. On April 15, 2021, the Court entered its Order Granting Recognition of Foreign 

Main Proceeding Pursuant to §§ 1515 and 1517 of the Bankruptcy Code and Granting Additional 

Relief (the “Recognition Order”). D.E. 17. The Recognition Order recognized the Debtor’s courtsupervised liquidation pending in the Cayman Islands as a foreign main proceeding and the JLs as 

foreign representatives. D.E. 17. 

4. Among other things, the Recognition Order entrusts the Foreign Representatives 

with “the full administration and realization of all or part of the Debtor’s bankruptcy estate and 

assets within the territorial jurisdiction of the United States.” D.E. 17, at ¶ 3.

5. Performance 5 holds at least two accounts at Truist Bank ending in 

XXXXXXXXX5102 and XXXXXX1758 (the “Performance 5 Accounts”). These accounts were 

opened prior to the liquidation of the Debtor. As of August 2021, the Performance 5 Accounts 

held $99,878.49 in total. 

II. Attempts to Obtain Control of the Truist Accounts

6. As of the date of this Motion, Truist has not responded to several attempts made 

by the Foreign Representatives to gain control over the Truist Accounts.

7. The Foreign Representatives have been in communication with Truist 

representatives since August 2021 to obtain control of the Performance 5 Accounts. Truist, 

through its agent, advised that such change in control would require the Foreign Representatives 

to attend one of their branches to effect the transfer of the accounts.

8. An agent for the Foreign Representatives visited separate Truist branches located 

in Indiana and Kentucky to transfer the funds in the Performance 5 Accounts to a new account 

controlled by the Foreign Representatives, but Truist advised that it could not effect this transfer. 

See Correspondences with Jennifer Thomas, attached hereto as Exhibit “A”. Though Ms. Thomas 

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advised that there should be no issue effecting the transfer, the various attempts to effect the 

transfer by the Foreign Representatives were rebuffed. Ex. A.

9. On February 10, 2022, the Foreign Representatives sent a letter (the “Demand 

Letter”) to Jennifer Thomas, the Administrative Assistant to Truist’s Market President, the Truist 

representative they had been in contact. The Demand Letter is attached hereto as Exhibit “B”. 

The Demand Letter advised Truist that due to the Debtor’s liquidation in the Cayman Islands, the 

Foreign Representatives’ assumed control of Performance 5 SP and the Performance 5 Accounts. 

Ex. B. The Foreign Representatives also advised that they have the sole authority in connection 

with the Performance 5 Accounts and demanded the turnover of funds in the Performance 5 

Accounts within 10 business days. Ex. B.

10. On February 17, 2022, Ms. Thomas advised that she forwarded the Demand Letter 

to Truist’s Bankruptcy Department “to help you get everything completed.” See February 17, 

2022 Correspondence from Jennifer Thomas, attached hereto as Exhibit “C”. As of the date of 

this Motion, Truist has yet to respond to the Demand Letter or otherwise transfer Performance 5 

Accounts funds to the Foreign Representatives.

BASIS FOR RELIEF AND RELIEF REQUESTED

11. By this Motion, the Foreign Representatives request the entry of an Order directing 

Truist Bank to transfer the funds held in the Performance 5 Accounts to the Foreign 

Representatives.

12. The Recognition Order entrusted the Foreign Representatives with the full 

administration and realization of all or a part of the Debtor’s estate in the United States. D.E. 22, 

at ¶ 3.

13. Further, under section 1521(a)(7), the Court may grant to the foreign representative 

“the sort of relief that might be available to a trustee appointed in a full bankruptcy case, including 

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the turnover of property belonging to the debtor.” In re Markus, 610 B.R. 64, 76 (Bankr. S.D.N.Y. 

2019) (quoting In re Inversora Electrica de Buenos Aires S.A., 560 B.R. 650, 655 (Bankr. 

S.D.N.Y. 2016) (internal quotations omitted); In re Tri-Continental Exch. Ltd., 349 B.R. 627, 

(Bankr. E.D. Cal. 2006) (permitting the turnover of funds to the foreign representative for 

administration of funds). 

14. Truist has so far ignored the Foreign Representatives’ multiple attempts to gain 

control of the Performance 5 Accounts. 

15. Accordingly, the Foreign Representatives request an order from the Court pursuant 

to section 1521(a)(7) directing Truist Bank to turn over the funds held in the Performance 5 

Accounts to the trust account of the Foreign Representatives’ counsel or to such other account in 

the United States that is specified by the Foreign Representatives. 

WHEREFORE, the Foreign Representatives respectfully request that the Court enter an 

Order, in the form attached hereto as Exhibit “D”, directing Truist Bank to turn over the funds 

held at the Performance 5 Accounts to the trust account of the Foreign Representatives’ counsel 

or to such other account in the United States that is specified by the Foreign Representatives, and 

any such further and other relief as the Court deems just and proper.

Dated: March 8, 2022 Respectfully submitted,

SEQUOR LAW, P.A.

1111 Brickell Avenue, Suite 1250 

Miami, Florida 33131

Telephone: (305) 372-8282 

Facsimile: (305) 372-8202

Email: ggrossman@sequorlaw.com

jmendoza@sequorlaw.com 

By: /s/ Juan J. Mendoza

Gregory S. Grossman

Florida Bar No. 896667

Juan J. Mendoza

Florida Bar No.: 113587

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was filed via electronic 

filing using the CM/ECF system with the Clerk of the Court which sent e-mail notification of such 

filing to all CM/ECF participants in this case and via regular US mail to all participants who are 

not on the list to receive e-mail notice/service for this case as indicated on the service list on March 

8, 2022.

By: /s/ Juan J. Mendoza

Juan J. Mendoza

SERVICE LIST

Electronic Mail Notice List

The following is the list of parties who are currently on the list to receive email notice/service 

for this case.

Gregory S Grossman ggrossman@sequorlaw.com, ngonzalez@sequorlaw.com

Office of the US Trustee USTPRegion21.MM.ECF@usdoj.gov

Manual Notice List

o Truist Bank, Attn: Jennifer Thomas, Commercial Litigation Specialist, 214 N Tryon Street, 

34th Floor, Charlotte, NC 28202.

o Truist Bank, Attn: Jennifer Thomas, at Jenn.Thomas@truist.com. 

o Truist Bank, Attn: Bankruptcy Department, at defaultbankruptcymanagement@truist.com.

o Truist Bank, Attn: Margaret Rowlett, Branch Manager, 401 W Main St. Suite 100, Louisville, 

KY 40202-2935. 

o Truist Bank, 4210 Charlestown Rd., New Albany, IN 47150-9567. 

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