Guinn et al v. Federal Deposit Insurance Corporation et al

Filing 278

PRELIMINARY INJUNCTION. Signed by Judge Philip M. Pro on 11/13/2013. (Copies have been distributed pursuant to the NEF - SLR)

Case 2:09-cv-01809-PMP-CWH Document 277 Filed 11/13/13 Page 1 of 4

MORRIS LAW GROUP
Robert McCoy, Bar No. 9121
Email: [e-mail]
Rex D. Garner, Bar No. 9401
Email: [e-mail]
900 Bank of America Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Telephone: [phone]
Facsimile: [phone]
Attorneys for Federal Deposit
Insurance Corporation, as Receiver
for Community Bank of Nevada
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
JEFFREY B. GUINN, individually
and as Trustee of the DEL MAR
TRUST, et al.
Plaintiff/Counterdefendant,
vs.
FEDERAL DEPOSIT INSURANCE
CORPORATION, AS RECEIVER
FOR COMMUNITY BANK OF
NEVADA; DO INDIVIDUALS I-XX,
Defendant/Counterclaimant.
________________________________

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 2:09-cv-01809-PMP-CWH
PRELIMINARY INJUNCTION

Defendant/Counterclaimant the Federal Deposit Insurance
Corporation's, as Receiver for Community Bank of Nevada ("FDIC-R"),
Motion for Preliminary Injunction was heard on October 28, 2013, at 2 p.m.
Plaintiffs/Counterdefendants Kent and Marry Barry (the "Barrys") received
notice of the motion and hearing and attended. The Court, having
considered the FDIC-R's motion (#265) and the Declaration of Robert
McCoy and exhibits in support of that motion, finds as follows:

Case 2:09-cv-01809-PMP-CWH Document 277 Filed 11/13/13 Page 2 of 4

1.

The FDIC-R has shown a likelihood of success on the

merits of its motion for a writ of execution against Pacific Sunset
Development, LLC ("Pacific Sunset"). The Court will address that motion
after it is fully briefed.
2.

The FDIC-R has shown a possibility of harm if a

preliminary injunction is not ordered because there is the possibility of the
Barrys spending or moving the funds held in the Pacific Sunset bank
account before the Court can rule on the FDIC-R's motion for a writ of
execution.
3.

The balance of equities favors ordering a preliminary

injunction against the Barrys because denial of a preliminary injunction
would allow the Barrys unfettered access to any funds in the Pacific Sunset
bank account, whether held at Wells Fargo or any other financial
institution, which could hinder the FDIC-R's ability to collect on its
outstanding judgments.
4.

Entering a preliminary injunction against the Barrys is in

the public interest because the FDIC-R is an agency of the federal
government and is tasked with the objective of collecting on the assets of a
failed bank.
5.

The FDIC-R is not required to post a bond for a

preliminary injunction pursuant to 12 U.S.C. § 1822(a).
IT IS HEREBY ORDERED THAT:
1.

The FDIC-R's Motion for Preliminary Injunction is

granted in part.
2.

Kent and Mary Barry, along with their officers, agents,

servants, employees, and all persons in active concert or participation with
one or both of them, are enjoined from transferring or removing any funds
from any bank account held in the name of Pacific Sunset Development,
Pageȱ2 ofȱ4

Case 2:09-cv-01809-PMP-CWH Document 277 Filed 11/13/13 Page 3 of 4

LLC at Wells Fargo or any other financial institution, except as follows for
reasonable and necessary living expenses:
a.

One rent payment per month in the amount of
$4,500;

b.

One payment per month per vehicle in the total
amount of $1,308 and other attendant
transportation costs;

c.
d.

Insurance;

e.

Food and groceries;

f.

Necessary medical expenses; and

g.
3.

Utilities;

Education expenses.

In the event that any allowable expense(s) under this

order (except the mortgage and car payment) will exceed $1,000.00 total
per month in any one of the categories enumerated above, the Barrys must
give notice of such expenditure(s) that would cause the expenses in that
category to exceed $1,000 to the FDIC-R.
4.

Kent and Mary Barry, along with their officers, agents,

servants, employees, and all persons in active concert or participation with
one or both of them, are enjoined from transferring or disposing of any
funds from any bank account held in the name of Pacific Sunset
Development, LLC at Wells Fargo or any other financial institution.
5.

This Preliminary Injunction shall remain in effect until

further order of this Court.

Pageȱ3 ofȱ4

Case 2:09-cv-01809-PMP-CWH Document 277 Filed 11/13/13 Page 4 of 4

6.

The FDIC-R does not need to post any bond for this

Preliminary Injunction to take effect.
____________________________________
UNITED STATES DISTRICT JUDGE
November 13, 2013

DATED: ___________________________

Pageȱ4 ofȱ4