Federal Deposit Insurance Corporation v. Straub

Filing 24

STIPULATION AND ORDER TO AMEND ANSWER. Signed by Judge ARMSTRONG on 10/28/11. (lrc, COURT STAFF) (Filed on 10/31/2011)

Case4:11-cv-03295-SBA Document23

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Filed10/26/11 Page1 of 4

Peter N. Brewer / St.Bar № 87971
Julia M. Wei / St.Bar № 218005
Henry Chuang / St.Bar № 250628
Law Offices of Peter N.nd
Brewer
2501 Park Boulevard, 2 Floor
Palo Alto, CA 94306
Tel: [phone]
Fax: [phone]
Eml: [e-mail], [e-mail]

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Attorneys for Defendant Richard Straub, an Individual and dba Straub Appraisal.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA – OAKLAND DIVISION
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FEDERAL DEPOSIT INSURANCE
CORPORATION as Receiver for INDYMAC
BANK, F.S.B.,

Case No.: C11-03295
STIPULATION TO AMEND ANSWER

nd

2501 Park Boulevard, 2 Fl.
Palo Alto, CA 94306
650-327-2900

Law Offices of Peter N. Brewer

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Plaintiff,

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v.

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RICHARD STRAUB, an individual and dba
STRAUB APPRAISAL,

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Defendants.

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Plaintiff, FEDERAL DEPOSIT INSURANCE CORPORATION, AS

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RECEIVER FOR INDYMAC BANK, F.S.B. (“Plaintiff”), by and through its
attorneys of record, Vanessa Widener and Jennifer Muse of Anderson, McPharlin

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& Conners LLP and defendant RICHARD STRAUB, individually and dba

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STRAUB APPRAISAL ("Defendant") by and through their attorneys of record

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Julia M. Wei and Henry Chuang of The Law Offices of Peter N. Brewer, hereby

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stipulate and agree as follows:

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///
908537.108503.1

Stipulation to Amend Answer
FDIC (Indymac Bank) v. Straub
Case No. C11-03295

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Case4:11-cv-03295-SBA Document23

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1.

Filed10/26/11 Page2 of 4

Plaintiff filed its Complaint for breach of contract and negligent

misrepresentations on July 6, 2011.
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Defendant filed his Answer to the Complaint on September 30,

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2011. In the Answer, Defendant’s Eleventh Affirmative Defense alleged a

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complaint of comparative negligence. The Eleventh Affirmative Defense reads as

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follows:

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nd

2501 Park Boulevard, 2 Fl.
Palo Alto, CA 94306
650-327-2900

Law Offices of Peter N. Brewer

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The damages sustained by plaintiff were either wholly or in part
negligently caused by and/or the fault of persons, firms, corporations, or
entities other than this answering defendant, and said negligence and/or
fault, comparatively reduces the percentage of negligence and/or fault, if
any, by this answering defendant. More specifically, Plaintiff’s
contributory or comparative negligence in the underwriting of the subject
loan caused or contributed to Plaintiff’s claimed damages relating to the
approval of the subject loan. Additionally, Plaintiff relied on the acts and
representations of the mortgage broker to underwrite the loan and its
damages are either in whole or in part negligently caused by the mortgage
broker.
3.
The FDIC contends that Defendant’s Eleventh Affirmative Defense

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for comparative fault/negligence does not apply to the claims asserted in the

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Complaint -- i.e., breach of contract or negligent misrepresentation. The FDIC

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has filed a Motion to Strike the Eleventh Affirmative Defense which is set for

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hearing on March 6, 2012.
4.

Prior to filing the Motion to Strike, the Parties met and conferred

regarding the sufficiency of the defense. Defendants’ agreed the Eleventh
Affirmative Defense does not apply to breach of contract action. However,
Defendants argue that the Eleventh Affirmative Defense for comparative

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fault/negligence can be asserted in response to a claim for negligent

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misrepresentations.

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5.

Therefore, in the interest of judicial economy, the Parties hereby

stipulate and agree that the Eleventh Affirmative Defense shall not apply to the
908537.108503.1

Stipulation to Amend Answer
FDIC (Indymac Bank) v. Straub
Case No. C11-03295

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Case4:11-cv-03295-SBA Document23

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2501 Park Boulevard, 2 Fl.
Palo Alto, CA 94306
650-327-2900

Law Offices of Peter N. Brewer

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Filed10/26/11 Page3 of 4

breach of contract claim and shall be amended to state:
The damages sustained by plaintiff as to the negligent misrepresentation
claim for relief were either wholly or in part negligently caused by and/or
the fault of persons, firms, corporations, or entities other than this
answering defendant, and said negligence and/or fault, comparatively
reduces the percentage of negligence and/or fault, if any, by this answering
defendant. More specifically, Plaintiff’s contributory or comparative
negligence in the underwriting of the subject loan caused or contributed to
Plaintiff’s claimed damages from the negligent misrepresentation claims
for relief relating to the approval of the subject loan. Additionally, Plaintiff
relied on the acts and representations of the mortgage broker to underwrite
the loan and its damages are either in whole or in part negligently caused
by the mortgage broker.
6.

The Parties continue to disagree about whether the defense can be

applied to a claim for negligent misrepresentation. As such, the Parties stipulate
and agree that the FDIC’s Motion to Strike the Eleventh Affirmative Defense as it
relates to the FDIC’s claim for negligent misrepresentation shall remain on

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calendar and the issue should be decided by this Court on March 6, 2012 as
noticed.
IT IS SO STIPULATED

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DATED: October 25, 2011

ANDERSON, McPHARLIN & CONNERS
LLP

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By: /s/ Jennifer S. Muse
Vanessa H. Widener
Jennifer S. Muse
Attorneys for Plaintiff FEDERAL DEPOSIT
INSURANCE CORPORATION as Receiver
for INDYMAC BANK, F.S.B.

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908537.108503.1

Stipulation to Amend Answer
FDIC (Indymac Bank) v. Straub
Case No. C11-03295

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Case4:11-cv-03295-SBA Document23

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DATED: October 26, 2011

Filed10/26/11 Page4 of 4

LAW OFFICE OF PETER N. BREWER

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By: /s/ Henry Chuang
Julia M. Wei
Henry Chuang
Attorneys for Defendant RICHARD STRAUB

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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10/28/11
DATED: ___________________

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2501 Park Boulevard, 2 Fl.
Palo Alto, CA 94306
650-327-2900

Law Offices of Peter N. Brewer

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__________________________________
SANDRA BROWN ARMSTRONG
UNITED STATES DISTRICT JUDGE

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908537.108503.1

Stipulation to Amend Answer
FDIC (Indymac Bank) v. Straub
Case No. C11-03295

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