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Federal Deposit Insurance Corporation, As Receiver For La Jolla Bank, Fsb v. Danny Tarkanian

April 17, 2012

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 DIAMANT, AN INDIVIDUAL; JOSEPHINE DIAMANT, 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 DIAMANT; JOSEPHINE DIAMANT, COUNTERCLAIMANTS,
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, COUNTERDEFENDANTS. DANNY TARKANIAN; AMY M. TARKANIAN; JERRY TARKANIAN; LOIS TARKANIAN; GEORGE TARKANIAN; ZAFRIR DIAMANT; JOSEPHINE DIAMANT, 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 for Summary Judgment on the Counterclaims of Defendants Danny Tarkanian, Amy Tarkanian, Jerry Tarkanian, Lois Tarkanian, George Tarkanian, Zafir Diamant, and Josephine Diamant filed by Plaintiff Federal Deposit Insurance Corporation ("FDIC") as Receiver for La Jolla Bank, FSB ("La Jolla Bank"). (ECF No. 61).

BACKGROUND

On May 6, 2010, Plaintiff FDIC, as receiver for La Jolla Bank, initiated this action by removing the Complaint from San Diego Superior Court pursuant to 28 U.S.C. § 1441(b) and 12 U.S.C. § 1819(b)(2)(B). (ECF No. 1). The original complaint filed in San Diego Superior Court alleged two causes of action against Defendants Danny Tarkanian, Amy Tarkanian, Jerry Tarkanian, Lois Tarkanian, George Tarkanian, Zafir Diamant, Josephine Diamant, Douglas Johnson, and Debra Johnson for breach of guaranty on loans for which the Defendants were individual guarantors. Id. at 30-48.

On June 11, 2010, Defendants filed Counterclaims against Plaintiff, alleging causes of action for fraudulent concealment, negligence, civil conspiracy, breach of the covenant of good faith and fair dealing, and aiding and abetting deceit. (ECF No. 6 at 11-28). Defendants allege in their counterclaims that La Jolla Bank had a duty to disclose certain material facts regarding the subject loans and that La Jolla Bank breached that duty by concealing those material facts.

On January 5, 2012, the Court dismissed Douglas Johnson and Debra Johnson as counterclaimants for failure to substitute counsel. (ECF No. 83).

On November 21, 2011, Plaintiff filed a Motion for Summary Judgment on the Counterclaims (ECF No. 61). On December 27, 2011, Counterclaimants filed an opposition. (ECF No. 77). On January 3, 2012, Plaintiff filed a reply. (ECF No. 80).

UNDISPUTED FACTS

On July 12, 2007, Vegas Diamond Properties LLC ("Vegas Diamond") executed a Promissory Note with La Jolla Bank in the amount of $14,568,750 secured by a deed of trust on a vacant parcel of land owned by Vegas Diamond. Vegas Diamond represented that the purpose of the loan was to refinance the vacant land and invest in a real estate project by developer Robert Dyson in Anza, California.

Defendants Danny Tarkanian, Amy Tarkanian, Jerry Tarkanian, Lois Tarkanian, George Tarkanian, Zafrir Diamant, and Josephine Diamant personally guaranteed the loan. The Guaranties contained the following provisions:

.Guarantor absolutely and unconditionally guarantees full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender. Guarantor will make any payments to Lender... without set-off or deduction or counterclaim. Guarantor represents and warrants to Lender that... no representations or agreements of any kind have been made to the Guarantor which would limit or qualify in any way the terms of this Guaranty. Lender shall have no obligation to disclose to Guarantor any information or documents acquired by Lender in the course of its relationship with Borrower... Guarantor also waives any and all rights or defenses based on.any defenses given to guarantors at law or in equity other than actual payment and performance of the Indebtedness. (Heumann Declaration, Exhibits 11-19; ECF Nos. 61-9 at 28-53 and 61-10 at 1-16).

On the same day, July 12, 2007, Dyson executed a Promissory Note with Vegas Diamond promising to satisfy Vegas Diamond's loan with La Jolla Bank when the loan matured in 2009. La Jolla Bank was not a party or signatory to the Promissory Note between Dyson and Vegas Diamond.

DISCUSSION

"A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The materiality of a fact is determined by the ...


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