Lange v. Federal Deposit Insurance Corporation et al

Filing 3

STIPULATED ORDER REGARDING WITHDRAWL OF THE REFERENCE OF ADVERSARY PROCEEDING AND VENUE TRANSFER - NOW, THEREFORE, pursuant to the stipulation of the Trustee and the FDIC-R, and the Nebraska District Court otherwise sufficiently advised, the Nebraska District Court hereby finds and orders as follows: Withdrawal of the reference of the Adversary Proceeding is hereby ordered. Good cause exists to transfer the Adversary Proceeding to the D.C. District Court, where the FIRREA Lawsuit is pending. Pu rsuant to 28 U.S.C. § 1404(a), the Adversary Proceeding is hereby ordered to be transferred to the D.C. District Court. The time for the FDIC-R to answer, move or otherwise respond to the complaint in the Adversary Proceeding is extended through and including the date that is 21 days after the D.C. District Court enters this transferred action on its docket. Civil Case Terminated. Ordered by Judge Richard G. Kopf. (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICK D. LANGE, Chapter 7 Trustee
Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver for TierOne
Bank,
Defendant.

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Case No. 4:11-CV-03081-RGK-CRZ

STIPULATED ORDER REGARDING WITHDRAWAL OF THE REFERENCE OF ADVERSARY
PROCEEDING AND VENUE TRANSFER
Rick D. Lange, Chapter 7 Trustee (the “Trustee”) for TierOne Corporation (the “Debtor”),
and the Federal Deposit Insurance Corporation, as Receiver (the “FDIC-R”) for TierOne Bank
(the “Bank”), hereby stipulate as follows:
1.

On March 4, 2011, the Trustee initiated an adversary proceeding against the

FDIC-R in the United States Bankruptcy Court for the District of Nebraska (the “Bankruptcy
Court”), styled Lange v. FDIC, Case No. 11-4018 (the “Adversary Proceeding”).
2.

Subsequently, on March 4, 2011, the Trustee also initiated a lawsuit against the

FDIC-R in the United States District Court for the District of Columbia (the “D.C. District Court”),
styled Lange v. FDIC, et al., Case No. 1:11-cv-00472 (the “FIRREA Lawsuit”).
3.

On April 7, 2011, the FDIC-R filed with the Bankruptcy Court its Motion to

Withdraw the Reference of the Adversary Proceeding to the Bankruptcy Court (the “Reference
Withdrawal Motion”), so that it could subsequently seek to transfer the Adversary Proceeding to
the D.C. District Court. See Adv. Proc. Doc. No. 6.
4.

By stipulated order entered by the Bankruptcy Court on April 11, 2011, all

proceedings in the Adversary Proceeding were stayed until after the Reference Withdrawal

Motion had been resolved and the FDIC-R’s time to respond to the complaint in that action was
extended until 21 days after the entry of an order deciding the Reference Withdrawal Motion.
5.

On May 5, 2011, the Trustee filed his Objection/Resistance to Motion for

Withdrawal of Reference of this Proceeding to the Bankruptcy Court, and on May 19, 2011, the
FDIC-R filed its Reply Brief of the Federal Deposit Insurance Corporation, as Receiver for
TierOne Bank, in Support of its Motion to Withdraw the Reference of this Adversary Proceeding
to the Bankruptcy Court. See Adv. Proc. Doc. Nos. 18 & 27.
6.

On May 27, 2011, the Honorable Chief Judge Thomas L. Saladino of the

Bankruptcy Court filed his Report & Recommendation with the Bankruptcy Court, wherein he
recommends to the United States District Court for the District of Nebraska (the “Nebraska
District Court”) that the Reference Withdrawal Motion be granted and the Adversary Proceeding
be transferred to the D.C. District Court.

See Adv. Proc. Doc. No. 30-31 (hereinafter the

“Report and Recommendation”).
7.

While reserving all of their other rights and defenses and without regard to the

merits of the Reference Withdrawal Motion and without adoption by this Court of all or any part
of the Report and Recommendation, the parties seek to resolve any further litigation over the
Reference Withdrawal Motion and any subsequent venue transfer motion that the FDIC-R might
file in the above-captioned case and respectfully agree as follows:
(i)

That the reference of the Adversary Proceeding be withdrawn and that
the Adversary Proceeding be transferred by the Nebraska District Court
to the D.C. District Court; and

(ii)

That the time for the FDIC-R to answer, move or otherwise respond to the
complaint in the Adversary Proceeding is extended through and including
the date that is 21 days after the D.C. District Court enters this transferred
action on its docket.

8.

In addition, the Trustee and the FDIC-R stipulate that no party shall be bound in

any litigation between them by the Bankruptcy Court’s statement in the Report and
Recommendation that: “The 2008 tax refund is in the receiver’s possession.” No evidence was
presented by either party in connection with the motion to withdraw reference and this is a fact
that remains in dispute between the parties.
NOW, THEREFORE, pursuant to the stipulation of the Trustee and the FDIC-R, and the
Nebraska District Court otherwise sufficiently advised, the Nebraska District Court hereby finds
and orders as follows:
1.

Withdrawal of the reference of the Adversary Proceeding is hereby ordered.

2.

Good cause exists to transfer the Adversary Proceeding to the D.C. District

Court, where the FIRREA Lawsuit is pending. Pursuant to 28 U.S.C. § 1404(a), the Adversary
Proceeding is hereby ordered to be transferred to the D.C. District Court.
3.

The time for the FDIC-R to answer, move or otherwise respond to the complaint

in the Adversary Proceeding is extended through and including the date that is 21 days after the
D.C. District Court enters this transferred action on its docket.
SO ORDERED THIS 6th day of June, 2011.
s/ Richard G. Kopf
The Honorable Judge Richard G. Kopf
STIPULATED AND AGREED TO BY:
By:

/s/ Robert J. Bothe
Robert J. Bothe, #15018
Robert P. Diederich, #23393
McGrath North Mullin & Kratz, PC LLO
First National Tower, Suite 3700
1601 Dodge Street
Omaha, Nebraska 68102
Telephone: [phone]
*Consenting to electronic signature

By:

/s/ Brian S. Kruse
_____
Rick D. Lange, #17730
Brian S. Kruse, #21963
Rembolt Ludtke LLP
1201 Lincoln Mall, Ste. 102
Lincoln, Nebraska 68508
Telephone: [phone]
*Consenting to electronic signature