United States Fire Insurance Company v. Vesta Strategies, LLC et al

Filing 267

STIPULATION AND ORDER re 262 Proposed Order, filed by Thomas A. Dillon, Borel Private Bank & Trust Company. Signed by Judge James Ware on 1/17/12. (sis, COURT STAFF) (Filed on 1/17/2012)

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Attorneys for Counter-Claimant Thomas Dillon,
as Court-Appointed Receiver for Vesta Strategies, LLC
and Excalibur 1031 Group LLC

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ROBERT L. BRACE, SBN 122240
[e-mail]
PETER L. CANDY, SBN 149976
[e-mail]
HOLLISTER & BRACE
P.O. Box 630
Santa Barbara, CA 93102
Telephone: [phone]
Facsimile: [phone]

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UNITED STATES DISTRICT COURT D I S T R I C T O

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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UNITED STATES FIRE INSURANCE
COMPANY, a corporation,

Assigned to Hon. James Ware
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Plaintiff,
vs.
VESTA STRATEGIES, LLC, a limited
liability company; SAMUEL W. HENKA, an
individual,

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STIPULATION AND [PROPOSED]
ORDER FOR PRODUCTION OF
DOCUMENTS

Defendants.
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Case No.: 09-cv-02388 JW

THOMAS DILLON, as Receiver for Vesta
Strategies, LLC
Counter-Claimant,

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vs.

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UNITED STATES FIRE INSURANCE
COMPANY, a corporation.

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Counter-Defendant.

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Counter-Claimant THOMAS A. DILLON, as Court-Appointed Receiver for Vesta

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Strategies, LLC and Excalibur 1031 Group (“Dillon”) and Borel Private Bank and Trust

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Company (“Borel”), by and through their respective counsel, stipulate and agree as follows:

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STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF BOREL BANK DOCUMENTS
Case No. C 09-2388-JW

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1.

On September 30, 2011, the United States District Court, Northern District of

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California, through counsel for Dillon, issued the subpoena attached hereto as Exhibit A to

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Borel. Borel thereafter timely served objections.

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2.

Following a reasonable search and investigation, Borel has located documents in

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accounts in the name of IAG 1031, LLC (“IAG 1031”) responsive to the subpoena. Dillon is

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not a signatory to the IAG 1031 accounts at Borel, but asserts that he (as the Receiver for Vesta,

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the successor of IAG 1031) owns all right, title and interest to said accounts. In addition, Dillon

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asserts that certain signatories to the IAG 1031 account have agreed that the IAG 1031

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documents may be released to Dillon.

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3.

Borel desires to comply in good faith with its obligations to respond to the

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subpoena, and its obligations to its account holders. As a result, and for the reasons stated

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herein, Dillon and Borel agree as follows:

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a.

Borel shall send written notice (the “Written Notice”) containing the

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subpoena, this Stipulation and [Proposed] Order for Production of Documents and a

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statement that Borel intends to produce documents responsive to the subpoena, absent an

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objection or motion to quash, by U.S. Mail to the last known address of IAG 1031 and

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the last known address of the signatories of the IAG 1031 accounts. The signatories on

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the IAG 1031 accounts (the “IAG 1031 Signatories”) are Robert Estupinian, Ginny

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Hillig (a/k/a Ginny Estupinian), Peter Ye and Sarah Gaus.

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execution and filing of this Order, Dillon will serve the executed and filed Order on IAG

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1031 and the IAG 1031 Signatories.

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b.

Within 5 days of the

If there is no objection in writing or motion to quash filed and served

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within the latter of 15 days after the date of the Written Notice or 5 days after service of

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the Order as specified in 3.a, Borel is authorized to produce said documents to Dillon’s

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attorney of record.

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c.

If there is an objection in writing or a motion to quash filed and served

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within the time frames specified in 3.b., Borel need not produce such documents unless

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and until said objection is resolved between IAG 1031, the IAG 1031 Signatories or the
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STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF BOREL BANK DOCUMENTS
Case No. C 09-2388-JW

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objecting entity or person, on the one hand, and Dillon on the other hand, via motion or

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otherwise, in a manner that authorizes Borel to produce such documents.

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4.

Upon the production of documents pursuant to this Stipulation and Order, Dillon

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shall maintain the confidentiality of the documents and information therein and shall use the

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documents and information for no purpose other than this action and shall not disclose the

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documents outside of this action.

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IT IS SO STIPULATED.

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DATED: December 16, 2011

HOLLISTER & BRACE

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By:
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/s/ Robert L. Brace
ROBERT L. BRACE
PETER L. CANDY
Attorneys for Counter-Claimant
THOMAS DILLON, AS COURTAPPOINTED RECEIVER FOR
VESTA STRATEGIES, LLC and
EXCALIBUR 1031 SERVICES

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DATED: December 16, 2011

NIXON PEABODY LLP

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By:
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/s/ Bruce E. Copeland
BRUCE E. COPELAND
Attorneys for Non-party
BOREL PRIVATE BANK &
TRUST COMPANY
ORDER

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The parties having stipulated and good cause appearing, IT IS SO ORDERED.

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DATED:

January 17, 2012

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HON. JAMES WARE
UNITED STATES DISTRICT JUDGE

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STIPULATION AND [PROPOSED] ORDER RE: PRODUCTION OF BOREL BANK DOCUMENTS
Case No. C 09-2388-JW