Provident Funding Associates, L.P. v. Lydian Private Bank et al

Filing 30

STIPULATION AND ORDER STAYING PROCEEDINGS AND ADJOURNING DEADLINES. Case stayed. Case Mgmt Conference date of 10/21/11 at 1:30 PM VACATED.. Signed by Judge Joseph C. Spero on 10/05/11. (klh, COURT STAFF) (Filed on 10/5/2011)

Neil R. O’Hanlon, SBN 67018

Joel M. Miller (pro hac vice)
Charles R. Jacob III (pro hac vice)
Jeremy M. Sher (pro hac vice)
MILLER & WRUBEL P.C.
570 Lexington Avenue
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendant

1 Asheley G. Dean, SBN 245504
HOGAN LOVELLS US LLP

2 1999 Avenue of the Stars, Suite 1400
Los Angeles, CA 90067

3 Telephone: [phone]
Facsimile: [phone]

4 Email: [e-mail]
Email: [e-mail]
Attorneys for Plaintiff
6 [Other Counsel on Signature Page]

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7

UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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11

PROVIDENT FUNDING ASSOCIATES,
12 L.P.,
Plaintiff,

13

Case No.: CV-11-1538 JCS
STIPULATION AND ORDER STAYING
PROCEEDINGS AND ADJOURNING
DEADLINES

v.

14

15 LYDIAN PRIVATE BANK,

VIRTUALBANK, A DIVISION OF LYDIAN
16 PRIVATE BANK, and Does 1 through 20,
Defendants.

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18

On August 19, 2011, the Office of the Comptroller of the Currency closed Defendant

19 Lydian Private Bank (“Lydian”) and appointed the FDIC as Receiver pursuant to 12 U.S.C. §§
20 1464(d)(2) and 1821(c)(5). The FDIC accepted the appointment as Receiver for Lydian that same
21 day.
22

On September 14, 2011, the Court so-ordered the parties’ stipulation substituting the

23 FDIC, as Receiver, for Lydian in this action. (Stip. & Order Substituting FDIC, as Receiver, for
24 Def. Lydian, ECF No. 28.)
25

The Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”)

26 provides that the FDIC, as Receiver for Lydian, may request a ninety-day stay of this action. See
27 12 U.S.C. § 1821(d)(12)(A)(ii). FIRREA requires the Court to “grant such stay as to all parties.”
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-1- STIPULATION AND ORDER STAYING PROCEEDINGS
AND ADJOURNING DEADLINES

1 Id. § 1821(d)(12)(B). The FDIC as Receiver hereby requests entry of a stay under 12 U.S.C.
2 § 1821(d)(12).
3

In addition, since Plaintiff must exhaust the FIRREA administrative claims process before

4 continuing this action against the FDIC as Receiver, a further stay is appropriate until such time as
5 the FDIC as Receiver acts on the claim to be filed by Plaintiff Provident Funding Associates, L.P.
6 The FDIC as Receiver has set November 22, 2011 as the last day for creditors of Lydian to file a
7 claim with the FDIC as Receiver (the “Claims Bar Date”). Pursuant to 12 U.S.C.
8 § 1821(d)(5)(A)(1), the FDIC as receiver has 180 days from the date on which it receives a claim
9 to determine whether to allow or disallow the claim and to notify the claimant of any
10 determination with respect to such claim. 12 U.S.C § 1821(d)(6) indicates that a claimant has
11 sixty days after “the date of any notice of [the FDIC’s] disallowance of [a] claim” to “continue an
12 action commenced before the appointment of the receiver.” See id. § 1821(d)(13)(D) (“Except as
13 otherwise provided in this subsection, no court shall have jurisdiction over . . . any claim or action
14 for payment from, or any action seeking a determination of rights with respect to, the assets of any
15 depository institution for which the [FDIC] has been appointed receiver . . . .”); McCarthy v.
16 FDIC, 348 F.3d 1075, 1081 (9th Cir. 2003) (“[A]ll claims or actions must be submitted for
17 administrative resolution. . . . As [the plaintiff] failed to exhaust the claims made in this action, the
18 district court properly determined that it lacked subject matter jurisdiction. Therefore, dismissal
19 was required.”).
20

A stay would affect three dates currently scheduled by the Court: the October 10, 2011

21 deadline for the parties to commence private ADR (see Order Referring Case to Private ADR, July
22 12, 2011, ECF No. 23), the October 14, 2011 deadline for the parties to submit an updated Case
23 Management Statement (see Civil Minute Order, July 25, 2011, ECF No. 25), and the October 21,
24 2011 case management conference (see Case Management and Pretrial Order, July 27, 2011, ECF
25 No. 26).
26

Therefore, IT IS HEREBY STIPULATED AND AGREED THAT, pursuant to 12 U.S.C.

27 § 1821(d)(12), the Court should stay this action until the sooner of May 21, 2012 (180 days after
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STIPULATION AND ORDER STAYING PROCEEDINGS
AND ADJOURNING DEADLINES

1 the Claims Bar Date) or 180 days from the date on which the FDIC as Receiver receives Plaintiff’s
2 claim. The parties shall jointly notify the Court when the 180 day determination period ends for
3 the FDIC as Receiver to allow or disallow Plaintiff’s claim; and
4

IT IS FURTHER STIPULATED AND AGREED THAT the Court should adjourn the

5 October 10, 2011 deadline for the parties to commence private ADR, the October 14, 2011
6 deadline for the parties to submit an updated Case Management Statement, and the October 21,
7 2011 case management conference without date, with the parties and the Court to confer on
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STIPULATION AND ORDER STAYING PROCEEDINGS
AND ADJOURNING DEADLINES

1 rescheduling these dates if and when Plaintiff continues this action following its exhaustion of the
2 FIRREA administrative claims process.
3
4 Dated: October 4, 2011

HOGAN LOVELLS US LLP

5

By: /s/ Neil R. O’Hanlon
Neil R. O’Hanlon, SBN 67018
Asheley G. Dean, SBN 245504
HOGAN LOVELLS US LLP
1999 Avenue of the Stars, Suite 1400
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Plaintiff

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7
8
9
10
11
12 Dated: October 4, 2011

MILLER & WRUBEL P.C.

13

By: /s/ Joel M. Miller
Joel M. Miller (pro hac vice)
Charles R. Jacob III (pro hac vice)
Jeremy M. Sher (pro hac vice)
MILLER & WRUBEL P.C.
570 Lexington Avenue
New York, NY 10028
Telephone: [phone]
Facsimile: [phone]
email: [e-mail]

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ROBERT J. STUMPF, JR., SBN 72851
MARTIN WHITE, SBN 253476
SHEPPARD, MULLIN, RICHTER
& HAMPTON LLP
Four Embarcadero Center, 17th Floor
San Francisco, CA 94111-4109
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant

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STIPULATION AND ORDER STAYING PROCEEDINGS
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Judge Jo

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HON. JOSEPH C. SPERO C. Spero
seph
NO

26 Dated: October ___, 2011
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UNIT
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25 PURSUANT TO STIPULATION, IT IS SO ORDERED.

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