Federal Trade Commission v. Johnson et al, No. 2:2010cv02203 - Document 1079 (D. Nev. 2013)
Court Description: ORDER Granting 1076 Motion to Substitute Party/Counsel. Federal Deposit Insurance Corporation - R substituted for SunFirst Bank as Intervenor. Attorneys Sam E Taylor, Jr, and Rodrigo M. Rodriguez for Federal Deposit Insurance Corporation - R added. Signed by Magistrate Judge George Foley, Jr on 6/11/13. (Copies have been distributed pursuant to the NEF - MMM)
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Federal Trade Commission v. Johnson et al 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Doc. 1079 SAM E. TAYLOR, JR. (TX SBN 24035600) SaTaylor@FDIC.gov Telephone: 972-761-8142 Facsimile: 972-761-8181 RODRIGO M. RODRIGUEZ Rrodriguez@FDIC.gov Telephone: (972) 761-4295 Facsimile: (972) 761-8484 (TX SBN 17148485) FDIC LEGAL DIVISION 1601 Bryan Street Dallas, Texas 75201 Attorneys for Federal Deposit Insurance Corporation, as Receiver for SunFirst Bank IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA FEDERAL TRADE COMMISSION, Case No. 2:10-cv-02203-MMD-GWF Plaintiff, v. MOTION TO INTERVENOR JEREMY JOHNSON, et al., PARTY- MOTION TO SUBSTITUTE COUNSEL Defendants. 22 23 SUBSTITUTE The Federal Deposit Insurance Corporation, as Receiver for SunFirst Bank (“FDIC-R”), 24 by and through undersigned counsel, and pursuant to Rule 25, Fed. R. Civ. P., hereby 25 respectfully moves the Court to substitute the FDIC-R in place of SunFirst Bank as intervenor 26 and to substitute counsel in the above-captioned matter. In support of this Motion, the FDIC-R 27 states as follows: 28 1. 29 On November 4, 2011, the Utah Department of Financial Institutions closed SunFirst Bank, St. George, Utah, and appointed the FDIC its Receiver. See Exhibit “A.” 1 Dockets.Justia.com 1 On the same date, the FDIC accepted the appointment as Receiver pursuant to 12 U.S.C. § 2 1821(c)(3)(A). See Exhibit “B.” 3 2. As Receiver for SunFirst Bank, and by express operation of law, the FDIC 4 "succeed[s] to . . . all rights, titles, powers, and privileges . . . and the assets of the institution.” 5 12 U.S.C. § 1821(d)(2)(A)(i). As to particular assets germane to this case, the FDIC-R is the 6 holder of a certain Credit Agreement and Disclosure dated December 2, 2009, executed by 7 defendant Sharla Johnson, and is the beneficiary under a certain Revolving Credit Deed of Trust 8 of even date and recorded on December 7, 2009. The FDIC-R stands in SunFirst Bank's place 9 and operates as its successor. See, 12 U.S.C. §§ 1821(d)(2)(A)(i) and 1821(d)(2)(B). 10 11 12 13 14 15 16 Rule 25(c), Fed. R. Civ. P., provides, in relevant part: If an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party. 3. Because the FDIC-R has succeeded to all of SunFirst Bank’s assets, interests, 17 operations, claims, and defenses, the FDIC-R is now the real party in interest in this action and 18 should be substituted as intervenor in the place of SunFirst Bank. Indeed, federal courts 19 routinely enter orders substituting the FDIC as receiver in cases such as this one. See, e.g., 20 Yeomalakis v. FDIC, 562 F.3d 53, 58 (1st Cir. 2009) (appellate court granted motion of FDIC as 21 Receiver to be substituted for failed institution); In re Community Bank of Northern Virginia, 22 418 F.3d 277, 293 n.6 (3rd Cir. 2005) (“FDIC succeeded to all ‘rights, titles, powers, and 23 privileges of . . . insured depository institution’” and was ordered substituted “as the true party in 24 interest”); Amerifirst Properties, Inc. v. FDIC, 880 F.2d 821, 823 n.2 (5th Cir. 1989) (following 25 appointment of FDIC as Receiver for insolvent bank, court granted motion to substitute FDIC 26 “as the real party in interest”); Phipps v. FDIC, 417 F.3d 1006, 1009 (8th Cir. 2005) (after 2 1 briefing, FDIC was appointed Receiver and was granted leave to substitute itself for failed 2 institution as appellee); see also Village of Oakwood v. State Bank & Trust Co., 481 F.3d 364, 3 368 (6th Cir. 2007) (holding that, “[e]ven if a claim arises under state law between a bank and 4 nondiverse plaintiffs, the district court could still exercise jurisdiction if the FDIC, in its capacity 5 as receiver, is substituted as a party for that bank under Fed. R. Civ. P. 25(c)”). 6 4. The substitution of the FDIC-R in the place and stead of SunFirst Bank would 7 accord with the FDIC-R’s congressionally-delegated powers and obligations, as set forth in Title 8 12 of the United States Code, as well as the case law cited above. Accordingly, this Court 9 should enter an Order substituting the FDIC-R in place of SunFirst Bank. 10 5. The FDIC-R designates Sam E. Taylor, Jr. and Rodrigo M. Rodriguez as its 11 counsel of record and respectfully requests that the court substitute Mr. Taylor and Mr. 12 Rodriguez for Nathan K. Fisher as counsel of record. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Federal Deposit Insurance Corporation Legal Division Dallas Regional Office 1601 Bryan Street Dallas, Texas 75201 Sam E. Taylor, Jr. Counsel 972-761-8142 (Direct) 972-837-8441 (Cell) SaTaylor@fdic.gov Rodrigo M. Rodriguez Senior Attorney (972) 761-4295 (office) (214) 701-6543 (Blackberry) Rrodriguez@fdic.gov 31 WHEREFORE, the FDIC-R respectfully requests that this Court grant this Motion and 32 enter an order substituting the FDIC-R in place of SunFirst Bank as intervenor in this action and 3 1 substituting counsel, together with such other and further relief deemed just and proper under the 2 circumstances. 3 Dated: June 10, 2013 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Respectfully submitted, FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for SunFirst Bank By: /s/ Sam E. Taylor, Jr. Sam E. Taylor, Jr. TX SBN 24035600 Rodrigo M. Rodriguez TX SBN 17148485 Federal Deposit Insurance Corporation 1601 Bryan St. Dallas, Texas 75201 Attorneys for FDIC, as Receiver for SunFirst Bank By: /s/ Nathan K. Fisher [w/permission] Nathan K. Fisher 6642 444 East Tabernacle, Building B, Suite 201 St. George, Utah 84770 IT IS SO ORDERED: June 11, 2013 Dated: _________________ __________________________________ UNITED STATES DISTRICT JUDGE GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE United States Magistrate Judge CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing MOTION TO SUBSTITUTE PARTY-INTERVENOR and MOTION TO SUBSTITUTE COUNSEL was served via the ECF system on the 10th day of June, 2013, on all registered attorneys, and via US Mail, first class postage prepaid, on June 11, 2013, to: 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Loyd Johnston 2988 Kings Court Lane Washington, Utah 84780 Defendant (Pro se) Andy Johnson 3641 Vista View Cir. Santa Clara, Utah 84765 Defendant (Pro se) Bryce Payne 2399 East Bella Rosa Circle Saint George, UT 84780 Defendant (Pro se) Kevin Pilon 1975 East 1060 North Saint George, UT 84770 Defendant (Pro se) Ryan Riddle 446 East 1410 South Washington, UT 84780 Defendant (Pro se) Scott Leavitt 2271 Southgate Hills Dr. Saint George, UT 84770 Defendant (Pro se) Jason Vowell 491 North Bluff Street, Suite 306 Saint George, UT 84770 Tara-Lynn Adams 2152 Starline Meadow Place Las Vegas, NV 89139 The following non-CM/EDF participants were served by electronic mail on June 10, 2013: Sharla Johnson jsajohnson@mac.com SPECIAL NOTICE PARTIES -- MAIL Aaron D. Randall Hughes, Thompson Randall & Mellen P.C. 187 North 100 West Saint George, UT 84770 Jen Geiger FDIC 25 Jessie Street, Suite 1400 San Francisco, CA 94105 N. George Daines, Esq. Registered Agent and Corporate Counsel Cache Valley Bank 108 North Main Logan, UT 84321 Curtis M. Jensen V. Lowry Snow Snow Jensen & Reece 912 West 1600 South, Suite B200 Saint George, UT 84770 Christopher Childs Lionel, Sawyer & Collins 300 S. Fourth Street, Suite 1700 Las Vegas, NV 89101 /s/ Sam E. Taylor, Jr. 5 PERRI ANN BASALIS #5658 Assistant Attorneys General MARK L. SHURTLEFF #4666 Attorney General Attorneys for G. Edward Leary, Commissioner of Financial Institutions 160 East 300 South, Yh Floor P.O. Box 140874 Salt Lake City, Utah 84114-0874 Telephone: (801) 366-0375 E-Mail: pbabalis@utah.gov IN THE FIFTH JUDICIAL DISTRICT COURT IN AND FOR WASHINGTON COUNTY, STATE OF UTAH In the Matter of: The Possession of SUNFIRST BANK by the COMMISSIONER OF FINANCIAL INSTITUTIONS CERTIFICATE OF APPOINTMENT OF' FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER OR LIQUIDATOR CaseNo./ )C603<3Cft.£y Judge G. Rand Beacham G. Edward Leary, Commissioner of Financial Institutions of the State ofUtah (.. Commissioner"), as Commissioner in possession of SunFirst Bank ("Bank"), having determined and found that the deposits of the Bank are insured by the Federal Deposit Insurance Corporation ("FDIC"), and having heretofore taken possession of the Bank pursuant to Utah Code Ann.§ 7-2-6(l)(a) (West Supp. 2011), and the Court having approved the taking of possessiOn, Exhibit "A" HEREBY APPOINTS the FDIC as receiver or liquidator of the Bank pursuant to Utah Code Ann. § 7-2-9(2)(a) (West Supp. 2011 ). Upon receiving notice, in writing, of the acceptance of this appointment, the Commissioner shall thereupon file this Certificate of Appointment in his office and with the Clerk of the Court, whereupon, by operation oflaw and pursuant to Utah Code Ann. § 7-2-9 (West Supp. 2011): (a) the possession of all assets, business and property of the Bank shall be vested in the FDIC, without the execution of any instruments of conveyance; (b) the Commissioner shall be relieved from any and all further responsibility and liability for the receivership or liquidation; and (c) the FDIC, as receiver or liquidator, shall have all the powers and privileges provided by law with respect to the receivership or liquidation ofthe Bank, and with respect to the depositors and other cr:editors of the Bank. DATED this£ day of November, 201 1. G.EDWARDLEAR Commissioner of of the State ofUtah -2- /;/· FDICi Federal Deposit Insurance Corporation West Coast Temporary Satellite Office. 40 Pacifica, Irvine, CA 92618 Division of Resolutions and Receiverships November 4, 2011 G. Edward Leary Commissioner of Financial Institutions Utah Department of Financial Institutions 324 South State Street, Suite 201 Salt Lake City, Utah 8411 0 Subject: SunFirst Bank St. George, Utah- In Receivership Acceptance of Appointment as Receiver Dear Commissioner Leary: Please be advised that the Federal Deposit Insurance Corporation accepts its appointment as Receiver of the above-subject depository institution, in accordance with the Federal Deposit Insurance Act, as amended. Sincerely, FEDERAL DEPOSIT INSURANCE CORPORATION Title: Receiver-in-Charge Exhibit "B"
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