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Federal Deposit Insurance Corp. v. Tarkanian

October 5, 2010

FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR LA JOLLA BANK, FSB, PLAINTIFF,
v.
DANNY TARKANIAN, AN INDIVIDUAL; AMY M. TARKANIAN, AN INDIVIDUAL; JERRY TARKANIAN, AN INDIVIDUAL; LOIS TARKANIAN, AN INDIVIDUAL; GEORGE TARKANIAN, AN INDIVIDUAL; ZAFRIR DIAMONT, AN INDIVIDUAL; JOSEPHINE DIAMONT, AN INDIVIDUAL; DOUGLAS R. JOHNSON, AN INDIVIDUAL; DEBRA JOHNSON, AN INDIVIDUAL; AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.
DANNY TARKANIAN; AMY M. TARKANIAN; JERRY TARKANIAN; LOIS TARKANIAN; GEORGE TARKANIAN; ZAFRIR DIAMONT; JOSEPHINE DIAMONT; DOUGLAS R. JOHNSON; DEBRA JOHNSON, COUNTER CLAIMANTS,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER FOR LA JOLLA BANK, FSB, A FEDERALLY CHARTERED SAVINGS BANK; DOES I-X, INCLUSIVE; AND ROE CORPORATIONS I-X, INCLUSIVE, COUNTER DEFENDANTS.
DANNY TARKANIAN; AMY M. TARKANIAN; JERRY TARKANIAN; LOIS TARKANIAN; GEORGE TARKANIAN; ZAFRIR DIAMONT; JOSEPHINE DIAMONT; DOUGLAS R. JOHNSON; DEBRA JOHNSON, THIRD PARTY PLAINTIFFS,
v.
BEN WIGGINS; DOES I-X, INCLUSIVE; AND ROE CORPORATIONS I-X, INCLUSIVE, THIRD PARTY DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the Motion to Dismiss Counterclaim under F.R.C.P. 12(b)(6) and Motion to Strike under F.R.C.P. 12(f) ("Motion to Dismiss"), filed by Plaintiff/Counterdefendant Federal Deposit Insurance Corporation ("FDIC"), as Receiver for La Jolla Bank, FSB ("La Jolla Bank"). (ECF No. 15).

I. Background

On December 10, 2009, La Jolla Bank initiated this action by filing a Complaint against Defendants in San Diego County Superior Court. (ECF No. 1).

A. Allegations of the Complaint

On July 12, 2007, Vegas Diamond LLC, through its manager Defendant Danny Tarkanian, executed a Promissory Note ("Note #1") in the amount of $14,568,750 and a Deed of Trust securing payment of Note #1 with 8.96 acres of vacant land currently owned by Vegas Diamond LLC and located near Barbara Street and Las Vegas Boulevard in Las Vegas, Nevada ("Vegas Diamond Property"). The maturity date for the Note was August 1, 2009. The performances due under Note #1 and the Deed of Trust were guarantied and secured by nine separate commercial guaranties signed by Defendants Danny Tarkanian, Amy M. Tarkanian, Jerry Tarkanian, Lois Tarkanian, George Tarkanian, Zafrir Diamont, Josephine Diamont, Douglas R. Johnson and Debra Johnson. "Pursuant to the terms of the Guaranties, Guarantors each absolutely and unconditionally guaranteed full and personal payment and satisfaction of the indebtedness of the Borrower Vegas Diamond LLC to Lender Plaintiff." Id. ¶ 26.

"The conditions of Note #1 have not been performed, in that Vegas Diamond LLC has failed to make the monthly installments of interest required under Note #1." Id. ¶ 40. Neither Vegas Diamond LLC nor Defendants have paid the full amount of Note #1. "Plaintiff has complied with the terms and performed all obligations under Note #1." Id. ¶ 44.

On July 12, 2007, Johnson LLC, through its manager Defendant Douglas R. Johnson, executed a Promissory Note ("Note #2") in the amount of $10,933,125 and a Deed of Trust securing payment of Note #2 with two parcels of property owned by Johnson Investment LLC in Las Vegas, Nevada: 4.19 acres of vacant land located near Barbara Street and Las Vegas Boulevard, and 2.50 acres of vacant land located near Barbara Street and South Las Vegas Boulevard ("Johnson Properties"). The maturity date for Note #2 was August 1, 2009. The performances due under Note #2 and the Deed of Trust were guarantied and secured by two separate commercial guaranties signed by Defendants Douglas R. Johnson and Debra Johnson. "Pursuant to the terms of the Guaranties, Guarantors each absolutely and unconditionally guaranteed full and personal payment and satisfaction of the indebtedness of the Borrower Johnson LLC to Lender Plaintiff." Id. ¶ 35.

"The conditions of Note #2 have not been performed, in that Johnson LLC has failed to make the monthly installments of interest required under Note #2." Id. ¶ 55. Neither Johnson LLC nor Defendants have paid the full amount of Note #2. "Plaintiff has complied with the terms and performed all obligations under Note #2." Id. ¶ 59.

The Complaint contains two causes of action: (1) breach of Guaranty Note #1 against all Defendants, and (2) breach of Guaranty Note #2 against Defendants Douglas R. Johnson and Debra Johnson. The Complaint requests damages, costs and attorney's fees.

B. Removal

On February 19, 2010, La Jolla Bank was closed by the Office of Thrift Supervision and the FDIC was appointed as Receiver. (ECF No. 1, Ex. A). Pursuant to 12 U.S.C. § 1821, the FDIC has succeeded to all rights, titles, powers and privileges of La Jolla Bank, and the FDIC is charged with preserving and conserving La Jolla Bank's assets.

On April 12, 2010, the San Diego Superior Court granted the FDIC's request to amend the Complaint to change the name of the Plaintiff from "La Jolla Bank, FSB" to "Federal Deposit Insurance Corporation, as Receiver for La Jolla Bank, FSB." (ECF No. 1, Ex. B at 20).

On May 6, 2010, the FDIC removed the case to this Court pursuant to 12 U.S.C. § 1819(b)(2)(B) and 28 U.S.C. § 1441. (ECF No. 1).

On May 11, 2010, Defendants filed an Answer, Counterclaim and Third Party Complaint. (ECF No. 6).

C. Allegations of the Counterclaim and Third Party Complaint

In 2001 or 2002, Robert A. Dyson, Jr., an owner of various "real estate entities," began investing in a real estate development in Anza, California ("Anza Project"). Id. ¶ 19.

Defendant Douglas R. Johnson, who had previously been employed by Dyson, "agreed to help Mr. Dyson obtain funds for the Anza Project by encumbering the Johnson Property." Id. ¶ 47; see also id. ¶ 44. In 2005, "Mr. Dyson arranged for Mr. Johnson to take a loan from Community National Bank ... in the amount of approximately $7.5 million, secured by the Johnson Properties." Id. ¶ 48. "The loan from Community Bank was for two years, with interest only payments at 7% interest, with the full balance due at the end of the two year period." Id. ¶ 49. "From the Community Bank Loan, Mr. Johnson gave the proceeds to Mr. Dyson at 12% interest for the two year term, with interest only payments and the full balance due at the end. There was no security for the loan made by Mr. Johnson to Mr. Dyson." Id. ¶ 50.

"At and prior to the time Mr. Dyson took the loan from Mr. Johnson, Mr. Dyson was encountering severe resistance and trouble in proceeding with the Anza Project." Id. ¶ 55. "Because La Jolla Bank had ventured loans to Mr. Dyson on the Anza Project, and given Mr. Dyson's personal relationship with [Rick] Hall, [a principal of La Jolla Bank,] and [Dyson's] participation in weekly meetings at La Jolla Bank, La Jolla Bank was fully aware of the issues adverse to the Anza Project and the ultimate delays." Id. ¶ 56. "At one point, La Jolla Bank was going to co-locate one of its loan offices with one of Mr. Dyson's 'retail' real estate businesses in Las Vegas." Id. ¶ 31. "La Jolla Bank told [Dyson] that before they would ...


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