The opinion of the court was delivered by: Present: The Honorable David O. Carter, Judge
Julie Barrera N/A Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:
None Present None Present
PROCEEDINGS: (IN CHAMBERS): ORDER DENYING DEFENDANT'S
Before the Court is a Motion to Dismiss filed by Defendant Craig Cross ("Defendant") (Dkt. 25). After reviewing the motion, opposition, and reply, the Court DENIES Defendant's Motion.*fn1
The facts alleged by the Plaintiff IndyMac Resources, Inc. ("Plaintiff"), are as follows:
Plaintiff is a Delaware corporation with its principal place of business in Irvine, California. Compl. ¶ 2. Prior to July 11, 2008, Plaintiff was a wholly-owned subsidiary of IndyMac Bank, F.S.B. ("IndyMac Bank"). Id. Since July 11, 2008, Plaintiff has been a wholly-owned subsidiary of the Federal Deposit Insurance Corporation ("FDIC"). Id. at ¶ 19.
Defendant was employed by Plaintiff and IndyMac Bank from October 31, 2005 to September 8, 2008. Id. at ¶¶ 6, 18. Defendant is a resident of Orange County, California. Id. at ¶ 1.
On May 15, 2008, IndyMac Bank paid Defendant $106,875, which was memorialized in a promissory note ("Note") as a retention loan. Id. at ¶ 7, Ex. 1. The Note states that Plaintiff is the "Holder" of this loan and Defendant is the "Maker." Compl. ¶ 16. The Note states that, as Holder, Plaintiff is entitled to repayment of the loan made by IndyMac Bank to Defendant. Compl. Ex. 1.
The Note required Defendant to pay the principal and interest of the loan in eight quarterly installments, beginning on March 31, 2010. Compl. ¶ 9, Ex. 1 at 4.
1.Terms Applicable in the Event of Default
In the section that this Court will refer to as "Default Clause," the Note states:
Upon the occurrence of an Event of Default . . . the [Plaintiff] shall have all other remedies provided at law or equity, including, without limitation, specific performance; and in addition, the [Plaintiff], may do one or more of the following: declare all obligations of the [Defendant] hereunder to be immediately due and payable and without prior notice to the [Defendant], any such notice being hereby expressly waived, to set off and to apply any and all payment due [Defendant] from the [Plaintiff] (including, but not limited to, earnings payments, severance payments, payments in lieu of accrued vacation or any other cash incentives or payments due to the [Defendant] at the time of such Event of Default) . . . .
Id. at § V(i). Pursuant to the Note, an "Event of Default" constitutes an occurrence of a "failure of the [Defendant] to pay any principal, interest or other amount due hereunder within fifteen calendar days of the date such payment is due, or the [Defendant] shall in any way fail to comply with the other terms, covenants or conditions contained in this Note." Id. at § IV(ii).
2.Terms Applicable in the Event of Involuntary Termination Without Cause
In the section that this Court will refer to as "Termination Clause," the Note states:
In the event the [Defendant]'s employment with the [Plaintiff] is involuntarily terminated without cause, for poor performance, or in the event of death or disability, then any payment of the principal and interest due upon acceleration as described herein shall be deducted from any earnings payments, contractual severance amounts, payments in lieu of accrued vacation or any other cash incentives then due and payable to the [Defendant] from the [Plaintiff] without prior notice to the [Defendant], any such notice being hereby expressly waived.
C.IndyMac Bank's Notice of ...