Bel Air Grand Holdings, LLC, et al v. Federal Deposit Insurance Corporation

Filing 11

ORDER GRANTING Plaintiffs' Emergency 8 Motion for TRO. Defendant Federal Deposit Insurance Corporation is enjoined from accelerating the principal amount due under the Spanish Ridge 1 Loan ((Loan No. 9011020396)). Plaintiffs shall post secur ity in the amount of $166,440.76 in cash to be deposited with Nevada Title Company, to then be deposited in an interest bearing account subject to further order of this Court. Responses due by 7/5/2010 and Replies due by 7/7/2010 re 9 MOTION f or Preliminary Injunction. A Motion Hearing is set for 7/9/2010 at 11:00 AM in LV Courtroom 6A before Judge James C. Mahan re 9 MOTION for Preliminary Injunction. Signed by Judge James C. Mahan on 6/30/10. (Copies have been distributed pursuant to the NEF - ECS)

Bel Air Grand Holdings, LLC, et al v. Federal Deposit Insurance Corporation

Doc. 11

1 CRAIG A. HENDERSON
Nevada Bar No. 10077

2 BAILEY.:.KENNEDY 8984 Spanish Ridge Avenue
3 Las Vegas, Nevada 89148

[phone] Telephone
4 [phone] Facsimile

CHendersontiBaileyKennedy.com
5

Attorneys for Plaintiffs 6 BEL AIR GRAND HOLDINGS, LLC, THE JRB- TAT BAILEY F AMIL Y TRUST
7 and JOHN R. BAILEY, P.C.
8

UNITED STATES DISTRICT COURT
9

DISTRICT OF NEVADA
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11

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13

BEL AIR GRAND HOLDINGS, LLC, a Nevada limited liabilty company; The JRBTAT BAILEY FAMILY TRUST, a Nevada trust; and JOHN R. BAILEY, P.C., a Nevada
professional corporation,

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

Case No.: 2:10-cv-00063-JCM-LRL

14
15

Plaintiffs,

vs. '....
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for COMMUNITY BANK OF NEVADA,

16
17 18

TEMPORARY RESTRAINING ORDER AND ORDER SETTING BRIEFING SCHEDULE FOR MOTION FOR PRELIMINARY INJUNCTION

Defendant.

)

19

20 Plaintiffs Bel Air Grand Holdings, LLC ("BAGH"), The JRB- TAT Bailey Family Trust,
21 and John R. Bailey, P.c.'s (collectively "Plaintiffs") Emergency Motion for Temporary
22 Restraining Order and for Preliminary Injunction (the "Motion"), having been fied with this
23 Court on June 29, 2010; notice of

the Motion and the Motion having been served on James
SYLVESTER & POLEDNAK, LTD., counsel for Defendant Federal Deposit

24 MacRobbie, Esq., of

25 Insurance Corporation ("FDIC") via e-mail on June 29, 2010; and the Court, having reviewed th
pleadings and papers on fie herein, at this stage of the proceedings, finds that:
BAILEY.:. KENNEDY
8984 SPANISH RIGE AVENU
LAS VEGAS, NEVADA 89148

PHONE [phone] FAX [phone]

1

Dockets.Justia.com

Case 2:10-cv-00063-JCM-LRL Document 10

Filed 06/29/10 Page 2 of 5

1

1.

In or around February 2007, BAGH obtained a loan from Community Bank of

2 Nevada predecessor-in-interest to Defendant FDIC (the "Bank) (Loan No. 9011020396) (the

3 "Spanish Ridge 1 Loan"), for the purchase of commercial real property located at 8984 Spanish
4 Ridge, Las Vegas, Nevada (the "Spanish Ridge Property"). 5

2.
3.

The Spanish Ridge 1 Loan was evidenced by a promissory note.

6

The Spanish Ridge 1 Loan was secured by a first deed of trust on the Spanish

7 Ridge Property.
8

4.

The Spanish Ridge 1 Loan was guaranteed by BAGH's manager, John R. Bailey

9 ("Bailey") and Plaintiff

The JRB-TAT Bailey Family Trust (the "Trust").
The terms of the Spanish Ridge 1 Loan included a principal amount of $2.8

10

5.

11 milion, with a fixed interest rate of 6.85% per annum, with 119 monthly payments of
12 $19,696.07 and a balloon payment of

approximately $2,218,540.97.

13

6.

On August 14,2009, due to the Bank's insolvency, the Bank was closed by the

14 Nevada Financial Institutions Division, and Defendant FDIC was appointed as the Bank's
15 receiver (the "Takeover").
16
7.
The FDIC, through counsel, represented that even if

Plaintiffs were awarded

17 damages on their claims, that they would not be entitled to a monetary payment from the FDIC,
18 but instead would be entitled to a Trustee's Certificate that would have to be redeemed against

19 the (now insolvent) Bank.
20
8.

Following the Takeover, BAGH paid the FDIC $39,392.14 (on or about October

21 15, 2009) on the Spanish Ridge 1 Loan for the months of September and October 2009 as well as

22 $984.80 for late charges.
23
9.
10.

BAGH has not made a payment to the FDIC since the October 15,2009 payment.
On May 24,2010, the FDIC recorded a Notice of

24
25 Under Deed of

Breach and Election to Sell

Trust on the Spanish Ridge Property ("Notice of

Breach") evidencing the FDIC's

BAILEY.:. KENNEDY
8984 SPANISH RIDGE A VENUE LAS VEGAS, NEVADA 89148 PHONE [phone]

FAX [phone]

Case 2:10-cv-00063-JCM-LRL Document 10

Filed 06/29/10 Page 3 of 5

1 intention to foreclose on the Spanish Ridge 1 Property. (maybe something in here about no

2 amount to cure/redeem included in notice)
3

11.

Shortly thereafter, BAGH, through its manager, requested and obtained a

4 Redemption Worksheet from Nevada Title Company for the Spanish Ridge 1 Loan.
5

12.

The Redemption Worksheet indicates that BAGH would have to pay a cure

6 amount of $316,977.56 in order to bring the Spanish Ridge 1 Loan current.
7
8

13. 14.

On June 11,2010, the FDIC sent BAGH a Loan Payment Notice.

The Loan Payment Notice states that a cure amount of$205,823.90 would be

9' required by BAGH in order to bring the Spanish Ridge 1 Loan current.
10
15.
Neither of

these amounts appears to take into account the payment made by

11 BAGH on October 15, 2009, and they indicate an internal discrepancy of over $100,000 by the

12 FDIC with respect to the cure amount for the Spanish Ridge 1 Loan.
13

16.

It is BAGH's position that the actual cure amount required to bring the Spanish

14 Ridge 1 Loan current is $166,440.76.
15

17.

Although BAGH has requested that the FDIC provide the actual cure amount, the

16 FDIC has not done so.
17
18.

NRS 107.080(3)(a) provides in part that a lender may not accelerate a loan

18 secured by real property until 35 days after a notice of breach and election to sell has been

19 recorded and sent to the borrower.
20
19.

NRS 107.080(3) requires in part that the notice of breach and election to sell

21 "describe the deficiency in performance or payment and may contain a notice of intent to declare
22 the entire unpaid balance due if acceleration is permitted by the obligation secured by the deed 0

23 trust. . . ."
24
25

BAILEY.:. KENNEDY
8984 SPANISH RIGE AVENUE
LAS VEGAS, NEVADA 89148 PHONE [phone]

FAX [phone]

3

Case 2:10-cv-00063-JCM-LRL Document 10

Filed 06/29/10 Page 4 of 5

20. Because the FDIC has not provided BAGH with the amount required to bring the
2 Spanish Ridge 1 Loan current, its appears that the FDIC is attempting to collect money it is not

3 owed and improperly accelerate the Spanish Ridge 1 Loan.
4

21.

In light of

the FDIC's representation that BAGH, and the other Plaintiffs, wil be

5 entitled to recover a Trustee's Certificate for redemption against the now insolvent Bank, as

6 opposed to money damages in the event Plaintiffs are entitled to damages, BAGH wil suffer
7 irreparable harm if it is forced to pay funds above and beyond those contractually required to

8 bring the Spanish Ridge 1 Loan current.

9

22.

The balance of

hardships weighs in favor ofBAGH because as the beneficiary of
trust, the FDIC is required under NRS 107.080 to provide

10 the Spanish Ridge 1 Loan deed of

11 BAGH with the proper cure amount required to bring the Spanish Ridge 1 Loan current.
12

23.

The court further finds that the sum of$166,440.76 shall be adequate security for

13 the payment of such costs and damages as may be incurred or suffered by any party who is found
14 to have wrongfully enjoined by this Order.

15 Good cause appearing, it is
16 ORDERED that Plaintiffs' Emergency Motion for a Temporary Restraining Order be and
17 the same is granted. And it is further
18 ORDERED, until further order of this Court or expiration of

this order, whichever comes

19 first, that Defendant Federal Deposit Insurance Corporation is enjoined from accelerating the
20 principal amount due under the Spanish Ridge 1 Loan ((Loan No. 9011020396)). And it is

21 further
22 ORDERED that, as a precondition to the effect of

this Temporary Restraining Order,

23 Plaintiffs shall post security in the amount of$166,440.76 in cash to be deposited with Nevada
24 Title Company, to then be deposited in an interest bearing account subject to further order of

this

25 Court. And it is further
BAILEY.:. KENNEDY
8984 SPANISH RIDGE AVENU
LAS VEGAS, NEVADA 89148 PHONE [phone]

FAX [phone]

1 ORDERED that Defendant Federal Deposit Insurance Corporation shall fie a Response

5h 2 to Plaintiff s Motion for Preliminary Injunction with this Court on or before the t_ day of July
3 2010, and that Plaintiffs shall file a Reply in Support of

their Motion for

7_ 4 Preliminary Injunction this Court on or before theth day of

July

2010. And it is

5 further
6 ORDERED that this Temporary Restraining Order shall expire by operation of law in ten PRELIMINARY INJUNCTION HEARING IS 7 days unless extended by order of the Court. SET FOR JULY 9, 2010, AT 11:00 A.M.
8

ISSUED this30th day of June, 2010, at0, at the hour _day of ,201 1:35 p.m.

of _:__.m.

9
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11

UNITED STATES DISTRICT COURT JUDGE JAMES C. MAHAN

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Respectfully submitted by:

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15

16 By:
17

18 Attorneys for Plaintiffs
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21

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BAILEY.:. KENNEDY
8984 SPANISH RIDGE AVENU
LAS VEGAS, NEVADA 89 i 48 PHONE [phone]

FAX [phone]

5