PER CURIAM:
David Alan Baron, James Wilson Perkins, Robert Phillip Charrow, and Laura Metcoff Klaus, Greenberg Traurig, LLP, Washington, D.C. for Jeannette Hausler, Estate of Robert Otis Fuller, Frederick Fuller, Grace Lutes, Irene Moss, and Frances Fuller. Kenneth Caruso (argued), and Matthew Belz, White & Case LLP, New York, New York for Banco Bilbao Vizcaya Argentaria Panama, S.A. and Banco Bilbao Vizcaya Argentaria, S.A.
Juancarlos Sanchez, Esq. And Wilfredo A. Rodriguez, Avila Rodriguez Hernandez Mena & Ferri LLP, Coral Gables, FL, for Banco Santander, S.A., Caja Madrid, Caja de Ahorros y Monte do Piedad de Madrid, and Caja Madrid.
Bernard James Garbutt, III, Morgan, Lewis & Bockius LLP, New York, NY, for Banco Espanol De Credito, Banco Santander Totta, S.A., Union Bancaire Privee, Banco Central de Venezuela, Banco de Desarrollo Economico y Social de Venezuela, Estudios Mercados y Suministros, S.L., and Philips Mexicana S.A. de C.V.
Glenn M. Kurtz, White & Case LLP, New York, NY, for Shanghai Pudong Development Bank Co. Ltd.
James L. Kerr and Karen E. Wagner, Davis Polk & Wardwell LLP, New York, New York for San Paolo Bank, S.A., ING Bank, N.V., JPMorgan Chase Bank, N.A., Citibank, N.A., The Royal Bank of Scotland N.V., Bank of America, Corp., UBS AG, and Bank of America N.A.
David Michael Kirstein, Kirstein & Young PLLC, Washington, DC, for LTU LuftransportUnternehmen, LTU Gmbh In Care of Kirstein & Young PLLC
Claurisse Campanale–Orozco, Tisdale Law Offices, LLC, New York, NY, for Premuda S.p.A.
David S. Jones, United States Attorney's Office for the Southern District of New York, New York, NY, for the United States of America.
Before: HALL, LYNCH, and CARNEY, Circuit Judges.
PER CURIAM:
Before us on appeal is a matter of first impression regarding the interpretation of § 201 of the Terrorism Risk Insurance Act of 2002 (codified at 28 U.S.C. § 1610 note) (“TRIA”). The plaintiffs-appellees (collectively “Hausler”) are family members or trustees of the estates of victims of state-sponsored terrorism. They seek to enforce their 2009 Florida state court judgment (“the underlying judgment”) obtained against, among others, the Republic of Cuba (“Cuba”) by attaching the blocked assets of that state pursuant to TRIA § 201. Specifically, Hausler seeks to satisfy the underlying judgment from electronic fund transfers (“EFTs”) blocked pursuant to the Cuban Assets Control Regulations, 31 C.F.R. Part 515. The defendant-garnishee banks at which the EFTs are stopped pursuant to the block oppose turning over the value of the EFTs. The dispositive questions are whether and under what factual circumstances TRIA permits the attachment of mid-stream EFTs.
For a detailed explanation of how EFTs function, see Shipping Corp. of India Ltd.v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 60 n. 1 (2d Cir.2009).
DISCUSSION
On appeal the garnishee-banks and ACRs argue that the blocked EFTs are not attachable “assets of” Cuba under TRIA § 201. We review de novo the “threshold issue of whether EFTs are ... property” of a particular party. Calderon–Cardona v. JPMorgan Chase Bank, N.A., 770 F.3d 993, 1000 (2d Cir.2014) (quoting Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 66–67 (2d Cir.2009)).
In the ordinary case, a foreign state will be “immune from the jurisdiction of the courts of the United States and of the States” pursuant to the Foreign Sovereign Immunities Act (“FSIA”). 28 U.S.C. § 1604 (1988). Congress, however, has created terrorism-related exceptions to immunity under FSIA. See Calderon–Cardona, 770 F.3d at 998. One such exception is TRIA's authorization of the attachment of the property of terrorist parties and that of their agencies or instrumentalities to satisfy certain judgments issued against them. See TRIA § 201(a). In particular, TRIA provides that:
Notwithstanding any other provision of law, and except as provided in subsection (b), in every case in which a person has obtained a judgment against a terrorist party on a claim based on an act of terrorism, or for which a terrorist party is not immune under [28 U.S.C. § 1605(a)(7) ], the blocked assets of that terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party) shall be subject to execution or attachment in the aid of execution in order to satisfy such judgment to the extent of any compensatory damages for which such terrorist party has been adjudged liable.
TRIA § 201(a) (emphasis supplied).
“[W]hether or not midstream EFTs may be attached or seized depends upon the nature and wording of the statute pursuant to which attachment and seizure is sought.” Export–Import Bank of U.S. v. Asia Pulp & Paper Co., 609 F.3d 111, 116 (2d Cir.2010). As with FSIA § 1610(g), Congress did not define the “type of property interests that may be subject to attachment under” TRIA § 201(a). Calderon–Cardona, 770 F.3d at 1001 (interpreting FSIA § 1610(g)). While the Cuban Assets Control Regulations, for purposes of those regulations, include a non-exhaustive list of types of property that may be attached, 31 C.F.R. § 515.311(a), EFTs involving a Cuban bank are not among the types of property identified. When Congress leaves a gap in a statute that “has not created any new property rights, but ‘merely attaches consequences, federally defined, to rights created under state law,’ we must look to state law to define the ‘rights the judgment debtor has in the property the [creditor] seeks to reach.’ ” Calderon–Cardona, 770 F.3d at 1001 (quoting Asia Pulp, 609 F.3d at 117). Here, the banks at which the EFTs are blocked are in New York, so we look to New York property law to fill the gap.
We recently explained in Calderon–Cardona “that under New York law ‘EFTs are neither the property of the originator nor the beneficiary while briefly in the possession of an intermediary bank.’ ” Id. at 1001 (quoting Jaldhi, 585 F.3d at 71). As such, “the only entity with a property interest in the stopped EFT is the entity that passed the EFT on to the bank where it presently rests.” Id. at 1002. Thus, in order for an EFT to be a “blocked asset of” Cuba under TRIA § 201(a), either Cuba “itself or an agency or instrumentality thereof (such as a state-owned financial institution) [must have] transmitted the EFT directly to the bank where the EFT is held pursuant to the block.” Id.
Unlike in Calderon–Cardona, where a remand was necessary to determine whether the EFTs at issue were attachable, it is undisputed that no Cuban entity transmitted any of the blocked EFTs in this case directly to the blocking bank. As a result, neither Cuba nor its agents or instrumentalities have any property interest in the EFTs that are blocked at the garnishee banks. Because no terrorist party or agency or instrumentality thereof has a property interest in the EFTs, they are not attachable under TRIA § 201.
CONCLUSION
We have reviewed the parties' additional arguments and find them unavailing. In light of the foregoing analysis, the judgment of the District Court is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion. -------- Notes: