BLX Capital, LLC v. Samjin General Supply, Inc. et al

Filing 25

STIPULATION and ORDER signed by Judge Garland E. Burrell, Jr on 2/22/10 ORDERING that pltf BLX is granted leave to amend the pleadings and proceedings herein to substitute BNY as Trustee. (Manzer, C)

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LEO D. PLOTKIN (SBN 101893) JOHN P. MERTENS (SBN 252762) LEVY, SMALL & LALLAS A Partnership Including Professional Corporations 815 Moraga Drive Los Angeles, California 90049-1633 Telephone: [phone] Facsimile: [phone] [e-mail] / [e-mail] Attorneys for Plaintiff BLX CAPITAL, LLC UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA BLX CAPITAL, LLC. Plaintiffs, vs. SAM JIN GENERAL SUPPLY, INC., ET AL., Defendants. Case No. 2:09-CV-02438 GEB-JFM STIPULATION AND ORDER TO AMEND PLEADINGS TO SUBSTITUTE REAL PARTY IN INTEREST AS PLAINTIFF

STIPULATION AND [PROPOSED] ORDER TO AMEND PLEADINGS TO SUBSTITUTE REAL PARTY IN INTEREST AS PLAINTIFF

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This Stipulation is entered into by and between BLX Capital, LLC ("BLX"), the United States of America, on behalf of its agency the Small Business Administration ("SBA"), Sam Jin General Supply, Inc. ("Sam Jin"), Mason Au and Najoo Au (collectively the "Individuals"), and Wabash National Trailer Centers, Inc. ("Wabash" and together with the SBA, Sam Jin and the Individuals, "Defendants"), as more fully described below: WHEREAS, on or about September 26, 2005, Samjin and the Individuals executed and delivered to BLX a written Promissory Note in the principal sum of $1,780,000.00 (the "Note"); WHEREAS, on or about September 26, 2005, the Individuals executed and delivered to BLX a certain Deed of Trust with Assignments of Rent ("Deed of Trust"), which was recorded on September 27, 2005 in Book 2005-0048140 in the official Records of the County of Yolo, State of California; WHEREAS, on or about September 28, 2005, BLX executed an Allonge to the Note and an Assignment of the Deed of Trust, transferring the Note and Deed of Trust to BLC Capital Funding, LLC ("BLC"); WHEREAS, on or about September 28, 2005, BLC executed an Allonge to the Note and an Assignment of the Deed of Trust, transferring the Note and Deed of Trust to HSBC Bank USA, its successors and assigns, as indenture trustee under that certain Indenture dated as of March 19, 2004, relating to BLX Conventional Funding Trust II Notes (the "First Trustee"); WHEREAS, on or about March 1, 2006, the First Trustee executed an Allonge to the Note and an Assignment of the Deed of Trust, transferring the Note and Deed of Trust to The Bank of New York Trust Company, N.A., its successors and assigns, as Indenture Trustee under that certain Indenture dated as of March 1, 2006, as the same may be amended from time to time, for the benefit of the Indenture Trustee and the holders of Business Loan Express Business LoanSTIPULATION AND [PROPOSED] ORDER TO AMEND PLEADINGS TO SUBSTITUTE REAL PARTY IN INTEREST AS PLAINTIFF

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Backed Notes, 2006-A and the Hedge Counterparty, as their respective interest may appear, subject to the Indenture dated as of March 1, 2006, as the same may be amended from time to time relating to BLX Conventional Funding Trust I Notes (the "Second Trustee"); WHEREAS, pursuant to a merger in 2007, The Bank of New York Trust Company, N.A. is now known as the Bank of New York Mellon Trust Company, N.A., and thus the current holder of the Note and Deed of Trust is the Bank of New York Mellon Trust Company, N.A. f/k/a The Bank of New York Trust Company, N.A., its successors and assigns, as Indenture Trustee under that certain Indenture dated as of March 1, 2006, as the same may be amended from time to time, for the benefit of the Indenture Trustee and the holders of Business Loan Express Business Loan-Backed Notes, 2006-A and the Hedge Counterparty, as their respective interest may appear, subject to the Indenture dated as of March 1, 2006, as the same may be amended from time to time relating to BLX Conventional Funding Trust I Notes ("BNY as Trustee"); WHEREAS, previously it was the policy of BLX to repurchase defaulted notes from the securitization trustee (here, BNY as Trustee) and foreclose under BLX's own name, but that policy was changed without being communicated to all employees of BLX or its counsel herein; WHEREAS, as a result, BLX mistakenly brought this action in its own name when the Note and Deed of Trust were actually owned by the securitization trustee, BNY as Trustee, which is the real party in interest with respect to plaintiff's claims herein; WHEREAS, Federal Rule of Civil Procedure ("FRCP") 15(a)(2) provides that, where a party is not entitled to amend a pleading as a matter of course pursuant to FRCP 15(a)(1), a party may amend its pleading only with the opposing

STIPULATION AND [PROPOSED] ORDER TO AMEND PLEADINGS TO SUBSTITUTE REAL PARTY IN INTEREST AS PLAINTIFF

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party's written consent or the court's leave, which leave should be given freely when justice so requires; WHEREAS, FRCP 15(c)(1)(B) provides in part that an amendment relates back to the date of the original pleading when it asserts a claim that arose out of the conduct, transaction, or occurrence set out -- or attempted to be set out ­ in the original pleading; WHEREAS, FRCP 17(a)(1) provides that an action must be prosecuted in the name of the real party in interest, and FRCP 17(a)(3) provides in part that after substitution of the real party in interest, the action proceeds as if it had been originally commenced by the real party in interest; NOW, THEREFORE, IT IS HEREBY STIPULATED by and between BLX and Defendants, through their respective counsel of record, that: 1. 2. 3. BLX may have leave to amend the pleadings and proceedings herein All pleadings and proceedings in this action may be amended by All pleadings hereby amended are deemed to relate back to the date of to substitute as plaintiff the real party in interest herein, BNY as Trustee. striking out BLX and adding BNY as Trustee as plaintiff herein. the original pleading pursuant to Fed. Rule Civ. Proc. 15(c)(1)(B) and 17(a)(3). DATED: February 17, 2010 LEO D. PLOTKIN JOHN P. MERTENS LEVY, SMALL & LALLAS A Partnership Including Professional Corporations

By: /s/ John P. Mertens JOHN P. MERTENS Attorneys for Plaintiff BLX CAPITAL, LLC
STIPULATION AND [PROPOSED] ORDER TO AMEND PLEADINGS TO SUBSTITUTE REAL PARTY IN INTEREST AS PLAINTIFF

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DATED: February 17, 2010

BENJAMIN B. WAGNER United States Attorney

By: /s/ Bobbie J. Montoya BOBBIE J. MONTOYA Attorneys for UNITED STATES OF AMERICA DATED: February 17, 2010 BILL J. SYMES FOLEY & LARDNER LLP

DATED: February 17, 2010

By: /s/ Bill J. Symes BILL J. SYMES Attorneys for Defendant WABASH NATIONAL TRAILER CENTERS, INC. JAMES J. KIM KIM & ASSOCIATES

By: /s/ James J. Kim JAMES J. KIM Attorneys for Defendants SAM JIN GENERAL SUPPLY, INC., MASON AU AND NANJOO AU

STIPULATION AND [PROPOSED] ORDER TO AMEND PLEADINGS TO SUBSTITUTE REAL PARTY IN INTEREST AS PLAINTIFF

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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 Dated: February 22, 2010 ORDERED that: 1.

ORDER Good cause appearing and the parties having so stipulated, IT IS HEREBY Plaintiff BLX Capital, LLC ("BLX") is granted leave to amend the

pleadings and proceedings herein to substitute as plaintiff the real party in interest herein, Bank of New York Mellon Trust Company, N.A., f/k/a The Bank of New York Trust Company, N.A., as Indenture Trustee for the benefit of the Noteholders, the Hedge Counterparty and the Certificateholders of Business Loan Express Business Loan Trust 2006-A ("BNY as Trustee"). 2. All pleadings and proceedings in this action hereby are, and shall be deemed to be, amended by substituting out BLX and adding BNY as Trustee as plaintiff herein.

GARLAND E. BURRELL, JR. United States District Judge

[PROPOSED] ORDER TO AMEND PLEADINGS TO SUBSTITUTE REAL PARTY IN INTEREST AS PLAINTIFF