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Federal Deposit Insurance Corporation Acting As Receiver For La Jolla Bank, Fsb v. Cg 80

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 24, 2012

FEDERAL DEPOSIT INSURANCE CORPORATION ACTING AS RECEIVER FOR LA JOLLA BANK, FSB,
PLAINTIFF,
v.
CG 80, LLC, A DELAWARE LIMITED LIABILITY COMPANY; MICHAEL MYERS, AN INDIVIDUAL,, DEFENDANTS.

The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER GRANTING MOTION TO SUBSTITUTE REAL PARTY IN INTEREST

Plaintiff Federal Deposit Insurance Corporation ("FDIC"), as Receiver for La Jolla Bank, FSB, has filed a motion to substitute ADC Venture 2011-2, LLC ("ADC"), real party in interest, in the place and stead of FDIC. For the reasons discussed below, Plaintiff's motion is GRANTED.

On September 16, 2011, FDIC commenced this action. As receiver for La Jolla Bank, FSB ("LJB"), FDIC sued Defendants for breach of contract, open book account, and account stated. The claims arise out of a loan in the principal amount of $5,460,000.00 issued by LJB to Casa Grande 80. According to the Complaint, Defendant CG 80 assumed the loan and agreed to fully perform all obligations of Casa Grande 80 under the Note, Trust Deed, and other documents related to the loan. (Compl. ¶10.) Defendant Michael Myers executed a commercial guaranty in favor of LJB, whereby Myers absolutely and unconditionally guaranteed full and punctual payment and satisfaction of any and all amounts owed to LJB pursuant to the loan, regardless of whether or not LJB first exhausted remedies against CG 80 or any collateral pledged to secure the loan. (Compl. ¶ 11.)

FDIC moves to substitute ADC as the Plaintiff in this action because on December 20, 2011, FDIC entered into a loan sale agreement with ADC, pursuant to which FDIC transferred to ADC all right, title and interest in and to the loans that are the subject of this action. Thus, ADC is now the real party in interest.

Under Fed. R. Civ. P. 25(c), if an interest is transferred, the court may, on motion, order the transferee to be substituted in the action or joined with the original party. Because all right, title, and interest in and to the loans that are the subject of this lawsuit were transferred to ADC, it is appropriate to substitute ADC as the Plaintiff. See FDIC v. Saint Andrews Forum Golf Shop, Ltd., 2011 WL 3204338 (D. Nev. July 27, 2011) (substituting a limited liability company as plaintiff for causes of action related to loans sold to the limited liability company by the FDIC, acting as receiver).

Accordingly, FDIC's motion is GRANTED. ADC Venture 2011-2, LLC is substituted in as Plaintiff in this action. The docket shall reflect that counsel of record for ADC Venture 2011-2, LLC is: MICHAEL R. FARRELL (BAR NO. 173831) JULIE W. RUSS (BAR NO. 198246) ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP 515 South Figueroa Street, Ninth Floor Los Angeles, California 90071-3309 Phone: (213) 622-5555 Fax: (213) 620-8816 E-Mail: mfarrell@allenmatkins.com jruss@allenmatkins.com

IT IS SO ORDERED.

20120424

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