Federal Deposit Insurance Corporation v. Lake Elsinore 521, LLC

Filing 31

ORDER granting 28 Motion to Seal 19 Emergency Motion to Quash Writ of Execution and Compel Satisfaction of Judgment. Signed by Judge Gloria M. Navarro on 4/20/11. (Copies have been distributed pursuant to the NEF - ECS)

1 RANDOLPH L. HOWARD, ESQ.
Nevada Bar No. 006688
2 GEORLEN K. SPANGLER, ESQ.
Nevada Bar No. 003818
3 KOLESAR & LEATHAM, CHTD.
3320 W. Sahara Avenue, Suite 380
4 Las Vegas, Nevada 89102
Telephone: [phone]
5 Facsimile: [phone]
E-mail: rhoward@klnevada. corn
gspangl er(Ziklncvada.com
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7 Attorneys for FEDERAL DEPOSIT INSURANCE
CORPORATION, AS RECEIVER FOR FIRST
8 NATIONAL BANK OF NEVADA, SUCCESSORIN-INTEREST TO FIRST NATIONAL BANK OF
9 ARIZONA
UNITED STATES DISTRICT COURT
10
DISTRICT OF NEVADA
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FEDERAL DEPOSIT INSURANCE
Case No.: 2:11 -cv-003 86-GNM-LRL
A 12 CORPORATION, as Receiver for FIRST
NATIONAL BANK OF NEVADA, successor[PROPOSED] ORDER
ORDER GRANTINGGRANTING
in-interest by merger to FIRST NATIONAL
MOTION TO SEAL OR REDACT
BANK OF ARIZONA, N.A., a national
EXHIBITS FROM FDIC’S
EMERGENCY MOTION TO QUASH
14 banking association
WRIT OF EXECUTION AND
Plaintiff,
COMPEL SATISFACTION OF
15
JUDGMENT
VS.
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LAKE ELSINORE 521, LLC a Nevada limited
liability company; BRADLEY F. BURNS, an
individual; and DOES 1 through 100 inclusive,

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THIS MATTER came before the Court on Plaintiff FDIC’s Motion to Seal or Redact

21 Exhibits from FDIC’s Emergency Motion to Quash Writ of Execution and Compel Satisfaction
22 of Judgment filed on April 19, 2011. The Court, having reviewed the motion and other
23 documents on file, being fully advised in the premises, and good cause appearing therefore,
24 hereby orders as follows:

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IT IS HEREBY ORDERED that FDIC’s Motion to Seal or Redact Exhibits from FDIC’s

26 Emergency Motion to Quash Writ of Execution and Compel Satisfaction of Judgment is
27 GRANTED.
28

IT IS FURTHER ORDERED that the FDIC’s Emergency Motion to Quash Writ of
925844 (7211-5)

Page 1 of

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Execution and Compel Satisfaction of Judgment [Doe. No. 191 be replaced with the FDIC’s
SEALED by the Clerk

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Emergency Motion to Quash Writ of Execution and Compel Satisfaction of Judgment, a copy of
of the Court.

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which isIT IS SO ORDERED this 20th Clerkof April, 2011.
attached to this Order, and that the day is directed to make such entry.
IT IS SO ORDERED THIS

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day of April, 2011.

________________________________
Gloria M. Navarro
United States District Judge

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UNITED STATES DISTRICT COURT JUDGE

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KOLESAR & LEATHAM, CHTD.

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By

O$N

RANDOLPH L. HOWARD, Q.
Nevada Bar No. 006688
GEORLEN K. SPANGLER, ESQ.
Nevada Bar No. 003818
3320 W. Sahara Avenue, Suite 380
Las Vegas, Nevada 89102
Attorneys for FEDERAL DEPOSIT
INSURANCE CORPORATION, AS
RECEIVER FOR FIRST NATIONAL
BANK OF NEVADA, SUCCESSOR-IN
-INTEREST TO FIRST NATIONAL
BANK OF ARIZONA

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925844(7211-5)

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RANDOLPH L. HOWARD, ESQ.
Nevada Bar No. 006688
2 GEORLEN K. SPANGLER, ESQ.
Nevada Bar No. 003818
3 KOLESAR & LEATHAM, CHTD.
3320 W. Sahara Avenue, Suite 380
4 Las Vegas, Nevada 89102
Telephone: [phone]
5 Facsimile: [phone]
E-mail:
[e-mail]
6
[e-mail]

1

Attorneys for FEDERAL DEPOSIT INSURANCE
CORPORATION, AS RECEIVER FOR FIRST
8 NATIONAL BANK OF NEVADA, SUCCESSORIN-INTEREST TO FIRST NATIONAL BANK OF
9 ARIZONA
UNITED STATES DISTRICT COURT
10
DISTRICT OF NEVADA
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FEDERAL DEPOSIT INSURANCE
Case No.: 2:11 -cv-003 86-LRL
12 CORPORATION, as Receiver for FIRST
NATIONAL BANK OF NEVADA, successorFDIC’S EMERGENCY MOTION TO
QUASH WRIT OF EXECUTION
P 13 in-interest by merger to FIRST NATIONAL
BANK OF ARIZONA, N.A., a national
AND COMPEL SATISFACTION OF
JUDGMENT
14 banking association

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F-

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Plaintiff,

[REQUEST PURSUANT TO LR 6-11

vs.

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LAKE ELSINORE 521, LLC a Nevada limited
liability company; BRADLEY F. BURNS, an
individual; and DOES 1 through 100 inclusive,

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COMES NOW, Plaintiff, FEDERAL DEPOSIT INSURANCE CORPORATION, as

21 Receiver for FIRST NATIONAL BANK OF NEVADA, successor-in-interest by merger to
22 FIRST NATIONAL BANK OF ARIZONA, N.A., (hereinafter "FDIC") by and through its
23 counsel of record, and hereby submits this Emergency Motion to Quash Bradley F. Burns’ Writ
24 of Execution and to Compel Satisfaction of Judgment. This Emergency Motion is based on and
25 necessitated by Bradley F. Burns having caused a Writ of Execution to issue and having
26 scheduled an execution sale of the FDIC’s chose in action’ for April 26, 2011, all in violation of
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The Notice of Marshal’s Sale identifies the personal property to be sold as Plaintiffs’/Judgment Debtors’
choses in action, causes of action, and claims brought in the United States District Court - District of Nevada Case
919496.doc (7211-5)

Page 1 of 8

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12 U.S.C. § 1821(d)(13).
This Motion is supported by the following Memorandum of Points and Authorities, the

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Declaration of Georlen Spangler, Esq. ("Spangler Declaration") attached hereto as Exhibit 1, and

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the papers and pleadings on file with the Court, all of which are incorporated herein by this

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reference.
MEMORANDUM OF POINTS AND AUTHORITIES

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I.

The issue before this Court on this Motion is whether there is any circumstance where the

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ISSUE PRESENTED

judgment creditor, Bradley Burns, may execute upon his judgment against the FDIC on the
FDIC’s personal property. As more fully forth below, there are no circumstances which would
allow execution on the judgment in the case at bar. 12 U.S.C. § 1821(d)(13) prohibits Bradley
Burns from executing upon his judgment, and the FDIC has also established that the judgment

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has been satisfied. Accordingly, the FDIC respectfully requests that the instant emergency

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motion be granted.

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II.

STATEMENT OF FACTS
On February 10, 2011, Defendant Bradley F. Burns filed a Certification of Judgment for

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Registration in Another District [Doc. 1]. The final judgment at issue was an award for

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attorney’s fees granted to Burns by the United States District Court, Central District of

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California. Thereafter, Burns filed a series of Affidavits and Requests for Issuance of Writ of

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Execution [Doe. 2 - 6]. On February 24, 2011, a Writ of Execution in favor of Bradley F. Burns

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and against the FDIC in the amount of $116,491.76 [Doe. 71 was issued by the clerk. Upon

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learning of the issuance of the Writ, the FDIC promptly filed a Request for 90-Day Stay pursuant

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to 12 U.S.C. § 1821 (d)(12)(A)(ii) [Doe. 9] in order to assess the claims and consider issuance of

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a Receiver’s Certificate.

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On March 22, 2011, the FDIC issued a Receivership Certificate of Proof of Claim to

26 I Bradley Burns in satisfaction of the judgment at issue in this litigation. A true and correct copy
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#: 2:08-cv-01571-PMP-GWF, entitled: Federal Deposit Insurance Corporation vs. Jason Halpern, et al. In this
pending case, the FDIC has brought a claim for deficiency judgment against the guarantors of a loan.
919496.doc (7211-5)

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of the letter from the FDIC to Mr. Burns enclosing the Receivership Certificate of Proof of

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Claim is attached hereto as Exhibit 2. It is well established that the FDIC as Receiver is entitled

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to pay creditors with receiver’s certificates. However, even after the Receivership Certificate

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was provided to Bums, he has refused to dismiss or cease prosecution of the instant action for
enforcement of the judgment. Bums, through his attorneys, has subsequently filed an opposition
to the request for stay [Doc. 12].

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On March 31, 2011, the FDIC’s counsel contacted counsel for Burns regarding the Writ

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of Execution. Mr. Burns’ counsel was specifically informed that the Receiver’s Certificate

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satisfied the claim and that this action should be dismissed.

See Spangler Declaration ¶ 3. In

response, counsel for Burns represented that he had not received a copy of the Receiver’s

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Certificate. Accordingly, a copy of the certificate was sent to Burns’ counsel, and the FDIC

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renewed its request that the action be dismissed.

Id ¶ 4. On April 1, 2011, Burns’ counsel

responded by email stating, "I have not had the opportunity to discuss this with my client but I
am sure that he will not accept the certificate as satisfaction of his judgment." Id. ¶52
In light of the foregoing, the FDIC filed a Reply in response to Burns’ Opposition to the

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FDIC’s Request for 90-Day Stay [Doc. No. 15]. The Reply advised the Court of the Receiver’s

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Certificate which was issued to satisfy the judgment. Furthermore, due to the fact that the

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judgment has been paid via the certificate, the FDIC requested that the Court dismiss the instant

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action as moot.

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Notwithstanding the fact the judgment has been paid, Burns had a Notice of U.S.

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Marshal’s Sale of Personal Property issued, scheduling the sale of the FDIC’s personal property

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(as described therein) for April 26, 2011. A copy of the Notice is attached hereto as Exhibit 3.

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For this reason, the FDIC now brings the instant emergency motion requesting that this Court

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quash the Writ of Execution and issue an order prohibiting the Marshal from continuing with the

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sale of personal property identified in the Notice of Sale. The FDIC further requests that the

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Court issue an order compelling Mr. Burns and his attorneys to acknowledge the satisfaction of

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Moreover, the original Receiver’s Certificate has been sent to Burns’ counsel via hand delivery
contemporaneously with the filing of this Motion. A receipt of copy verifying the delivery will be filed separately.
919496.doc (7211.5)

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1 the judgment, as it is undisputed that the Receiver’s Certificate has been issued to Burns in full
2 satisfaction of the judgment.
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LEGAL ARGUMENT

III.

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a. The Writ of Execution must be quashed and Mr. Burns must be prohibited
from proceeding with the Marshal’s Sale.

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12 U.S.C. § 1821 (d)(12)(A) provides in pertinent part the following:

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After the appointment of a conservator or receiver for an insured depository
institution, the conservator or receiver may request a stay for a period not to
exceed -

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(i)
(ii)

45 days, in the case of a conservator; and
90 days, in the case of a receiver,

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in any judicial action or proceeding to which such institution is or becomes a
party.
12 U.S.C. § 1821 (d)(12)(A). It is further provided that "[u]pon receipt of a request by
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any conservator or receiver pursuant to subparagraph (A) for a stay of any judicial action

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or proceeding in any court with jurisdiction of such action or proceeding, the court shall

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grant such stay as to all parties." 12 U.S.C. § 1821(d)(12)(B). According to the plain
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language of this statute, this action has been stayed, as the FDIC has duly filed a request

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under 12 U.S.C. § 1821(d)(12). 3 Therefore, Bums’ Writ of Execution must be quashed in

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order to prevent unlawful execution on the judgment during the stay.

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Moreover, 12 U.S.C.A. § 1821(d)(13) prohibits Burns from executing upon the

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judgment at issue in this litigation. Specifically, 12 U.S.C.A. § 1821(d)(13) states, "[n]o

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attachment or execution may issue by any court upon assets in the possession of the

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receiver." 12 U.S.C. §1821(d)(13). In RTC v. Cheshire, the Court held that "Section

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182 1(d)(13)(C) of FIRREA provides that ’[n] attachment or execution may issue by any

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court upon assets in the possession of the receiver" and that this "provision bars [the

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judgment creditor] from registering its judgment against RTC, for it prevents the

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"[T]he task of interpretation begins with the text of the statute itself, and statutory language must
be accorded its ordinary meaning." Telematics Intl, Inc. v. NEMLC Leasing Corp., 967 F.2d 703, 706 (1st
Cir. 1992).
919496.doc (7211-5)

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encumbrance of property owned by the RTC as receiver."

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Cheshire Mgmt. Co., Inc., 18 F.3d 330, 334 (6th Cir. 1994)(citing GWNPetroleum Corp.

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v. OK-Tex Oil & Gas, Inc., 998 F.2d 853, 857 (10th Cir.1993) (§§ 1821(d)(13)(C) and

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1825(b)(2) prohibit any "ancillary remedy in aid of execution to obtain payment of a

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judgment")). The Court further stated that a "judgment lien interferes with the receiver’s

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ability to dispose of assets in much the same manner as an attachment or execution" and

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to "allow a creditor to do so would frustrate Congress’s purpose in enacting §

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1821 (d)( 1 3)(C), which is to preclude post-receivership improvement of position."

Resolution Trust Corp. v.

Id.

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Therefore, Burns’ Writ of Execution must also be quashed pursuant to 12

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U.S.C.A. § 1821(d)(13), as Burns is clearly prohibited from executing upon the assets in
possession of the FDIC. Furthermore, this Court must issue an order instructing the
Marshal to cancel the sale, as Bums must be prevented from unlawfully prosecuting the

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instant Writ of Execution.

Li.

b. The Receiver’s Certificate issued by the FDIC satisfies Burns’ judgment.

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There is no question that the FDIC as Receiver of a failed institution may pay creditors

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with receiver’s certificates instead of cash.

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1999), citing to RTC v. Titan Fin. Corp., 36 F.3d 891, 891 (91h Cir. 1994)(per curium). Section

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1821(d)(10)(A) authorizes the FDIC, as receiver, to "pay creditor claims. . in such manner and

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amounts as are authorized under this chapter." In

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FDIC may use receiver’s certificates as its manner of payment because requiring cash payments

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would subvert the comprehensive scheme of F1RREA including §1821 (i)(2)’s limitation on an

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unsecured general creditor’s claim to only a pro rata share of the proceeds from the liquidation of

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the financial institution’s assets. See Titan, 36 F.3d at 892 (citing Franklin Bank v. FDIC, 850

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F.Supp. 845 (N.D.Cal. 1994)). To require the FDIC to pay certain creditors in cash would allow

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those creditors to "jump the line," recovering more than their pro rata share of the liquidated

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assets, if the financial institution’s debts exceed its assets. Battista, 195 F.3d at 1117. See also:

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F.D.I.C. v. Phoenix Casa Del Sol, LLC ,

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opinion).
919496.doc (7211.5)

Battista v. F.D.I.C., 195 F.3d 1113, 1116 (9th Cir.

Titan, the Ninth Circuit reasoned that the

2011 WL 81858, *2 (D.Ariz. March 3, 201 1)(slip

Page 5 of 8

In the case at bar, the FDIC has issued a Receiver’s Certificate to Bums for the amount of

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the judgment. Therefore, the judgment has been satisfied. See Receiver’s Certificate, attached

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hereto as Exhibit 2, and Declaration of Georlen Spangler, Esq., attached hereto as Exhibit 1.

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Because the judgment is satisfied, the FDIC is entitled to an entry of satisfaction of judgment.

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FRCP 69(a) applies the state law of the state where the Court is located to post judgment

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procedures on money judgments. NRS 17.200 provides, "[w]henever a judgment is satisfied in

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fact, the party or attorney shall give such an acknowledgment, and the party who has satisfied the

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judgment may move the court to compel it or to order the clerk to enter the satisfaction in the

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docket of judgment." NRS 17.200; Arley v. Liberty, 81 Nev. 411, 412, 404 P.2d 426, 427
(1965).

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As set forth above, the judgment has been satisfied in fact by the Receiver’s Certificate. 4

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Therefore, the FDIC requests an order directing Burns and his attorneys to enter satisfaction of

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judgment within ten days, or upon his failure to do so, an order directing the clerk to make such

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entry.
IV.

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CONCLUSION

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Based on the foregoing, it is clear that the Writ of Execution and the Marshal’s Sale

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violate 12 U.S.C.A. § 1821(d)(12) and (13). Therefore, the FDIC respectfully requests that this

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Court immediately issue an order quashing the Writ of Execution filed by Burns and issue an

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order instructing the Marshal to cancel the sale scheduled for April 26, 2011. The FDIC further

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requests that this Court immediately issue an order directing Bums and his attorneys to enter

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"Section 1821(j) states that, except as otherwise provided, the courts shall lack the power to restrain or
affect the FDIC in the exercise of those powers." Telematics Intl, Inc. v. NEMLC Leasing Corp., 967 F.2d 703, 706
(1st Cir. 1992).

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919496.doc (7211-5)

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satisfaction of judgment within ten days, or upon his failure to do so, an order directing the clerk

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to make such entry.

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DATED this

/2

day of April, 2011.

4

KOLESAR

& LEATHAM, CHTD.

5
By
NDOLPH LFIO WARD, ESQ.
Nevada Bar No. 006688
GEORLEN K. SPANGLER, ESQ.
Nevada Bar No. 003818
3320 W. Sahara Avenue, Suite 380
Las Vegas, Nevada 89102

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8

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Attorneys for FEDERAL DEPOSIT
INSURANCE CORPORATION, AS
RECEIVER FOR FIRST NATIONAL BANK
OF NEVADA, SUCCESSOR-IN-INTEREST
TO FIRST NATIONAL BANK OF ARIZONA

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919496doc (7211-5)

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CERTIFICATE OF SERVICE

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I hereby certify that I am an employee of Kolesar & Leatham, Chtd., and that on the

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I C.-day of April, 2011, I caused to be served a true and correct copy of foregoing FDIC’S

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EMERGENCY MOTION TO QUASH WRIT OF EXECUTION AND COMPEL

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SATISFACTION OF JUDGMENT in the following manner:

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(ELECTRONIC SERVICE) Pursuant to FRCP 5(b)(3) and LR 5-4, the above-referenced

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document was electronically filed and served upon the parties listed below through the Court’s

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Case Management and Electronic Case Filing (CM/ECF) system:

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Christopher H. Byrd, Esq.
Fennemore Craig
300 South Fourth Street, Suite 1400
Las Vegas, Nevada 89101
Attorneys for Defendant/Judgment Creditor
Bradley F. Burns

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A E p1te of KOLESAR &

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919496.doc (7211-5)

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LEATHAM, CHTD.

EXHIBIT 1

EXHIBIT 1

1 RANDOLPH L. HOWARD, EsQ.
Nevada Bar No. 006688
2 GEORLEN K. SPANGLER, ESQ.
Nevada Bar No. 003818
3 KOLESAR & LEATHAM, CHTD.
3320 W. Sahara Avenue, Suite 380
4 Las Vegas, Nevada 89102
Telephone: [phone]
5 Facsimile: [phone]
E-mail:
rhoward@k1 nevada. corn
6
gstangl er@k I nevada. corn
7 Attorneys for FEDERAL DEPOSIT INSURANCE
CORPORATION, AS RECEIVER FOR FIRST
8 NATIONAL BANK OF NEVADA, SUCCESSORIN-INTEREST TO FIRST NATIONAL BANK OF
9 ARIZONA
10
11

H
L)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver for FIRST
NATIONAL BANK OF NEVADA, successorin-interest by merger to FIRST NATIONAL
BANK OF ARIZONA, N.A., a national
banking association

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Cl)>

eq

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Plaintiff,
0

Case No.: 2:1 1-cv-00386-LRL

DECLARATION OF GEORLEN K.
SPANGLER, ESQ. IN SUPPORT OF
FDIC’S EMERGENCY MOTION TO
QUASH WRIT OF EXECUTION
AND COMPEL SATISFACTION OF
JUDGMENT

VS.

[REQUEST PURSUANT TO LR 6-11

18

LAKE ELSINORE 521, LLC a Nevada limited
19 liability company; BRADLEY F. BURNS, an
individual; and DOES 1 through 100 inclusive,
20
21
22

I, GEORLEN K. SPANGLER, ESQ., do hereby declare:

23

1.

I am a partner with the law firm of Kolesar & Leatham, Chtd., and am one of the

24 attorneys representing the Plaintiff in this matter. I have personal knowledge of the matters set
25 forth below and am fully competent to testify to all facts set forth in this Declaration.
26
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1

2.

I make this Declaration in support of Plaintiff FEDERAL DEPOSIT

INSURANCE CORPORATION, AS RECEIVER FOR FIRST NATIONAL BANK OF

28 NEVADA, SUCCESSOR-IN-INTEREST TO FIRST NATIONAL BANK OF ARIZONA ’s
919688(7211-5)

Page 1 of

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("FDIC") EMERGENCY MOTION TO QUASH WRIT OF EXECUTION AND

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COMPEL SATISFACTION OF JUDGMENT (the "Motion"), filed concurrently herewith.

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4

3.

On March 31, 2011, I spoke with Christopher Byrd, Esq., counsel for Defendant

Bradley F. Burns regarding the Writ of Execution and the Receiver’s Certificate that was just

5 issued by the FDIC allowing Burns’ claim in the amount of $116,491.76. I told Mr. Byrd that
6
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the Receiver’s Certificate satisfied the claim and that this action should be dismissed.
4.

Mr. Byrd advised me that he had not yet received the Receiver’s Certificate so I

8 sent him an email with the Receiver’s Certificate and accompanying cover letter attached. In the
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email, I reiterated that "the Receiver’s Certificate satisfies the claim against the FDIC and,

10 therefore, the Writ of Execution, and we would like to have that action dismissed." A true and
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correct copy of my March 31, 2011 email is attached hereto as
5.

Exhibit 1.

On Friday, April 1, 2011 at 8:40 a.m., Mr. Byrd responded, by email, by stating:

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the certificate as satisfaction of his judgment." I immediately responded back at 9:00 am. as

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"I have not had the opportunity to discuss this with my client but I am sure that he will not accept

follows: "Based on the case law it is not his choice." A true and correct copy of the email chain

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dated April 1, 2011 is attached hereto as Exhibit 2.

An
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6.

Thereafter, on April 4, 2011, the FDIC filed its Reply to Bradley Burns’

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Opposition to the FDIC’s Request for 90-Day Stay [Doc. 15]. In the Reply, we advised this

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Court that a Receiver’s Certificate had been issued and that according to

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F.3d 1113, 1116

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Certificates instead of cash. Therefore, Burns had been paid in full. The FDIC then asked this

Battista v. FDIC, 195

(9th Cir. 1999), the FDIC was authorized to pay creditors with Receiver’s

22 II Court to dismiss this action as moot.
23

I declare under penalty of perjury that the foregoing is true and correct.

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EXECUTED on April

11 in Clark County, Las Vegas, Nevada.

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GEORLEN K. SPAN ER, ESQ.

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919688 (7211-5)

Page 2 of 2

EXHIBIT 1

EXHIBIT 1

Georlen K. SDanaler
From:

Georlen K. Spangler
Thursday, March 31 2011 2:44 PM
[e-mail]
Randolph L. Howard; Natalie M. Cox; E. Daniel Kidd
FDIC adv. Burns: Receiver’s Certificate (7211-5)

Sent:

To:
Cc:
Subject:

POF - Letter from FDIC to Burns re: Notice of Allowance of Claim and Receivership Certificate
of Proof of

Attachments:

91 1642 1.pdf

Chris,
Attached is a copy of the letter dated March 22, 2011 to Bradley P. Burns do you sending
the Receiver’s Certificate in the amount of $116,491.76, which is the amount we calculated
to be due on the California Judgment. You said that you have not yet received this.
The Receiver’s Certificate satisfies the claim against the FDIC and, therefore, the Writ
of Execution, and we would like to have that action dismissed.
Please advise ASAP.
j on
Georlen K. Spangler, Esq.
Kolesar & Leatham, Chtd.
3320 West Sahara Ave., Suite 380
Las Vegas, MV 89102
Voice: 702-362-7800
Fax: [phone]
This communication (including any attachments) is not intended or written to be used, arid
it cannot be used, for the purpose of avoiding tax penalties that may be imposed on the
taxpayer.
This transmission is intended only for the use of the addressee and may contain
information that is privileged, confidential and exempt from disclosure under applicable
law. If you are not the intended recipient, any use of this communication is strictly
prohibited. If you have received this communication in error, please notify us
immediately.

FDW

Federal Deposit Insurance Corporation
1601 Bryan Street, Dallas, TX 75201

Division of Resolutions and Receiverships

March 22, 2011
Bradley F. Burns
CIO Christopher H. Byrd, Esq.
300 South Fourth St
Suite 1400
Las Vegas, NV 89101

SUBJECT:

10008 FIRST NATIONAL BANK OF NEVADA
RENO, NV - In Receivership
NOTICE OF ALLOWANCE OF CLAIM

Dear Claimant:
On July 25, 2008 (the "Closing Date"), the FIRST NATIONAL BANK OF NEVADA, 6275 NEIL RD,
RENO, NV, 89511 (the "Failed Institution") was closed by the Office of the Comptroller of the Currency,
and the Federal Deposit Insurance Corporation (the "FDIC") was appointed Receiver (the "Receiver").
Enclosed you will find a Receiver’s Certificate in the amount of $116,491.76. The enclosed Receivership
Certificate represents a formal record of your claim as allowed. As the FDIC acting as Receiver liquidates
the assets of the Failed Institution, you may periodically receive payments on your claim through
dividends. The Receiver pays dividends according to the priorities established by applicable law.
The Receiver will send your dividends to the address shown on your Receivership Certificate, please
notify this office if your address changes.
If you have uninsured deposits, as established by the FDIC’s insurance determination, you automatically
have a claim for such funds. In the event you disagree with the FDIC’s determination with respect to
your uninsured deposits, you may seek a review of the FDIC’s determination In the United States
District Court for the federal Judicial district where the principal place of business of the Failed
Institution was located. You must request this review no later than 60 days after the date of this
letter.

If you have any questions, please call [phone].

RLSY213

10008 - FIRST NATIONAL BANK OF NEVADA

RENO, NV

(Name and Location of Bank)

RECEIVERSHIP CERTIFICATE OF PROOF OF CLAIM - NO.383
March 22, 2011

THIS IS TO CERTIFY THAT Bradley F. Burns

6214
(Name)

(Tax No)

Of C/O Christopher H. Byrd, Esq., 300 South Fourth St, Suite 1400, Las Vegas, NV
(Address)

has made satisfactory proof that Bradley F. Burns
is a creditor of the 10008 - FIRST NATIONAL BANK OF NEVADA

in the amount of

One hundred sixteen thousand four hundred ninety one and seventy six /100
Dollars upon the following
claim to wit:
CLAIM NUMBERS
500009291-000
TOTALS

ACCOUNT NUMBERS

AMOUNTS
$116,491.76
$116,491.76

FDIC USE ONLY
DPC#ITAX CODE
AMOUNTS
940.0
$114,971.00
940.1
$1,520.76
TOTALS
$116 491.76
,

Balance due in excess of any amount paid by and assigned the Federal Deposit Insurance Corporation
and said creditor or the lawful assignee of this claim will alone be entitled to any distributions made
hereon.
No assignment of this claim, or any portion thereof, will be recognized as to any distribution unless written
notice of assignment has been given to the Receiver and accepted by it and entered thereon before such
distribution has been paid. Please complete the section below only if you are assigning your claim to
another person or entity.
Claimant should notify the Receiver promptly of any change in claimant’s address.
FEDE

TION, RECEIVER

By
(Receiver)

ASSIGNMENT OF RECEIVER’S CERTIFICATE

Date:

For value received claimant herein named hereby transfers and assigns the within claim to:
(Name and Address)
(Original Claimant Signature)

FDIC accepted/entered on Date:

RLS7213

(Date Signed)

by

2

EXHIBIT 2

EXHIBIT 2

Georlen K. Spangler
From:
Sent:

To:
Subject:

Georlen K. Spangler
Friday, April 01, 2011 9:00 AM
[e-mail]
Re: FDIC adv. Burns: Receiver’s Certificate (7211-5)

Based on the case law it is not his choice.
Georlen K. Spangler, Esq.
KolLesar & Leatharn, Chtd.
3320 West Sahara Ave., Suite 380
Las Vegas, NV 89102
Voice: 702-362-7800
Fax: [phone]
This communication (including any attachments) is not intended or written to be used, and
it cannot be used, for the purpose of avoiding tax penalties that may be imposed on the
taxpayer.
This transmission is intended only for the use of the addressee and may contain
information that is privileged, confidential and exempt from disclosure under applicable
law. If you are not the intended recipient, any use of this communication is strictly
prohibited. If you have received this communication in error, please notify us
immediately.

Original Message ----From: BYRD, CHRIS <CBYRD@FCLAW corn>
To: Georlen K. Spangler
Sent: Fri Apr 01 08:40:34 2011
Subject: RE: FDIC adv. Burns:
Receiver’s Certificate (7211-5)
Jon:
Good morning. I have not had the opportunity to discuss this with my client but I
am sure that he will not accept the certificate as satisfaction of his judgment.
Chris

Fennernore Craig, P.0
Denver I Las Vegas I Nogales I

Phoenix I Tucson www.FennemoreCraig.com

IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, we
inform you that, to the extent this communication (or any attachment) addresses any tax
matter, it was not written to be (and may not be) relied upon to (i) avoid tax-related
penalties under the Internal Revenue Code, or (ii) promote, market or recommend to another
party any transaction or matter addressed herein (or in any such attachment) . For
additional information regarding this disclosure please visit our web site.
CONFIDENTIALITY NOTICE: The information contained in this message may be protected by the
attorney-client privilege. If you believe that it has been sent to you in error, do not
read it. Please immediately reply to the sender that you have received the message in
error. Then delete it. Thank you.

Original Message----From: Geonlen K. Spangler [mailto:[e-mail]]
Sent: Thursday, March 31, 2011 2:44 PM
To: BYRD, CHRIS
Cc: Randolph L. Howard; Natalie M. Cox; E. Daniel Kidd
Subject: FDIC adv. Burns: Receiver’s Certificate (7211-5)

Chris,
Attached is a copy of the letter dated March 22, 2011 to Bradley F.
Burns do you sending the Receiver’s Certificate in the amount of $116,491.76, which is
the amount we calculated to be due on the California Judgment. You said that you have not
yet received this.
The Receiver’s Certificate satisfies the claim against the FDIC and, therefore, the Writ
of Execution, and we would like to have that action dismissed.
Please advise ASAP.
ion
Georien K. Spangler, Esq.
Kolesar & Leatham, Chtd.
3320 West Sahara Ave., Suite 380
Las Vegas, NV 89102
Voice: 702-362-7800
Fax: [phone]
This communication (including any attachments) is not intended or written to be used, and
it cannot be used, for the purpose of avoiding tax penalties that may be imposed on the
taxpayer.
This transmission is intended only for the use of the addressee and may contain
information that is privileged, confidential and exempt from disclosure under applicable
law. If you are not the intended recipient, any use of this communication is strictly
prohibited. If you have received this communication in error, please notify us
immediately.

2

EXHIBIT 2

EXHIBIT 2

FDW

Federal Deposit Insurance Corporation
1601 Bryan Street, Dallas, TX 75201

Division of Resolutions and Receiverships

March 22, 2011
Bradley F. Burns
C/O Christopher H. Byrd, Esq.
300 South Fourth St
Suite 1400
Las Vegas, NV 89101
SUBJECT:

10008 - FIRST NATIONAL BANK OF NEVADA
RENO, NV - In Receivership
NOTICE OF ALLOWANCE OF CLAIM

Dear Claimant:
On July 25, 2008 (the "Closing Date"), the FIRST NATIONAL BANK OF NEVADA, 6275 NEIL RD,
RENO, NV, 89511 (the "Failed Institution") was closed by the Office of the Comptroller of the Currency,
and the Federal Deposit Insurance Corporation (the "FDIC") was appointed Receiver (the ’Receiver’).
Enclosed you will find a Receiver’s Certificate in the amount of $116,491.76. The enclosed Receivership
Certificate represents a formal record of your claim as allowed. As the FDIC acting as Receiver liquidates
the assets of the Failed Institution, you may periodically receive payments on your claim through
dividends. The Receiver pays dividends according to the priorities established by applicable law.
The Receiver will send your dividends to the address shown on your Receivership Certificate, please
notify this office if your address changes.
If you have uninsured deposits, as established by the FDIC’s insurance determination, you automatically
have a claim for such funds. In the event you disagree with the FDIC’s determination with respect to
your uninsured deposits, you may seek a review of the FDIC’s determination In the United States
District Court for the federal judicial district where the principal place of business of the Failed
Institution was located. You must request this review no later than 60 days after the date of this
letter.

If you have any questions, please call [phone].

RLS72I 3

10008 - FIRST NATIONAL BANK OF NEVADA

RENO, NV

(Name and Location of Bank)

RECEIVERSHIP CERTIFICATE OF PROOF OF CLAIM - NO.383

March 22, 2011
THIS IS TO CERTIFY THAT Bradley F. Burns

IM-6214
(Name)

(Tax No

Of C/O Christopher H. Byrd, Esq., 300 South Fourth St, Suite 1400, Las Vegas, NV
(Address)

has made satisfactory proof that Bradley F. Bums
is a creditor of the 10008 - FIRST NATIONAL BANK OF NEVADA

in the amount of

One hundred sixteen thousand four hundred ninety one and seventy six /100
Dollars upon the following
claim to wit:
FDIC USE ONLY
CLAIM NUMBERS

L
I

I

ACCOUNT NUMBERS

AMOUNTS

DPC#ITAX CODE

AMOUNTS

500009291-000

$116,491.76

TOTALS

$116,491.76

940.0
940.1

$114,971.00
$1,520.76

TOTALS

$116,491.76

I
L

Balance due in excess of any amount paid by and assigned the Federal Deposit Insurance Corporation
and said creditor or the lawful assignee of this claim will alone be entitled to any distributions made
hereon.
No assignment of this claim, or any portion thereof, will be recognized as to any distribution unless written
notice of assignment has been given to the Receiver and accepted by it and entered thereon before such
distribution has been paid. Please complete the section below only if you are assigning your claim to
another person or entity.
Claimant should notify the Receiver promptly of any change in claimant’s address.
FEDE

TION, RECEIVER

By
(Receiver)

ASSIGNMENT OF RECEIVER’S CERTIFICATE

Date:

For value received claimant herein named hereby transfers and assigns the within claim to:
(Name and Address)
(Original Claimant Signature)

FDIC accepted/entered on Date:

RLS721 3

(Date Signed)

,

by

EXHIBIT 3

EXHIBIT 3

1

6

CHRISTOPHER FL BYRD, ESQ.
Nevada Bar No. 1633
LINDSAY A. HANSEN, ESQ.
NevadaBarNo. 11985
FENNEMORE CRAIG, P.C.
300 South Fourth Street, Suite 1400
Las Vegas, Nevada 89101
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

7

Attorneys for Defendant Bradley F. Burns

2
3
4
5

8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
11
12

FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver for FIRST
NATIONAL BANK OF NEVADA,
successor-in-interest by merger to FIRST
NATIONAL BANK OF ARIZONA, N.A.,
a national banking association,

13

Case No.: 2:1 1-CV-00386-KJD-LRL
(formerly Case No.: 2:11-ms-00016-NA)

Plaintiffs,
14
vs.
15
16
17
18

LAKE ELSINORE 521, LLC, a Nevada
limited liability company; BRADLEY F.
BURNS, an individual; and DOES I
through 100 inclusive,
Defendants.

19
20

NOTICE OF U.S. MARSHAL’S SALE OF PERSONAL PROPERTY

21

On March 11, 2009, a Judgment was entered by the United States District Court for

22

the Central District of California, in favor of Defendant, BRADLEY F. BURNS

23

(hereinafter the "Judgment Creditor"), and against Plaintiffs, FEDERAL DEPOSIT

24

INSURANCE CORPORATION, as Receiver for FIRST NATIONAL BANK OF

25

NEVADA, successor-in-interest by merger to FIRST NATIONAL BANK OF

26

ARIZONA, N.A., a national banking association (hereinafter the "Judgment Debtors"), in

27

the amount of ONE HUNDRED FOURTEEN THOUSAND NINE HUNDRED

28 SEVENTY-ONE and 00/100 DOLLARS ($114,971.00), plus post-judgment interest at the
FENNEMORE CRAIG, P.0

La, VEGAS

LASIDMAUIJ 11951.2/024399.0001

1

Federal rate from the date of the Judgment until fully satisfied. Thereafter, pursuant to 28

2

U.S.C. § 1963, the Judgment was registered with the United States District Court for the

3

District of Nevada on February 10, 2011.

4

On February 24, 2011, the Clerk of the United States District Court for the District

5

of Nevada entered a Writ of Execution authorizing the Judgment Creditor to execute and

6

sell at a U.S. Marshal’s sale all right, title and interest in the following personal property

7

of the Judgment Debtors: Plaintif’fs’/Judgment Debtors’ choses in action, causes of

8

action, and claims brought in the United States District Court - District of Nevada Case #:

9

2:08-cv-01571-PMP-GWF, entitled: FEDERAL DEPOSIT INSURANCE

10

CORPORATION vs. JASON HALPERN, et at.

11

The Writ of Execution was entered in favor of the Judgment Creditor and against

12

the Judgment Debtors. The amount due under the Judgment as of the date the Writ of

13

Execution was issued by the Court was ONE HUNDRED SIXTEEN THOUSAND FOUR

14

HUNDRED NINETY-ONE and 76/100 DOLLARS ($116,491.76).

15

The personal property has been executed upon by the Judgment Creditor for the

16

satisfaction of the above described Judgment and will be sold by the US Marshal for the

17

District of Nevada to the highest bidder on April 26, 2011 at the hour of 9:00 a.m. on the

18

steps of the Entrance of the Lloyd D. George U.S. Courthouse, United States District

19

Court for the District of Nevada - Las Vegas, located at 333 S. Las Vegas Blvd, Las

20

Vegas, Nevada.

21

I/I

22
23
24

I/I

25
26
27
28
FENNMOR CRAIG, P.C.

LAS/DMAUL/II 1951.2/024399.0001

LAI VEGA,

-2-

I

All interested parties may bid on the property at the execution sale and the property

2 will be sold to the .highest bidder. Any bidder wishing to make a bid must bring cash or
3 cashier’s checks to the sale sufficient to cover the amount of its bid. The minimum bid is
4 $25,000.00. Upon sale of the personal property, the purchaser shall be substituted for and
5

acquire all the right, title and interest of the Judgment Debtors in such property. The

6 purchaser shall be given a certificate of sale as provided by NIRS § 21.180.
7

DATED this

day of March, 2011.
U.S. MARSHAL - DISTRICT OF NEVADA

8
9
10
11
12
Submitted by:
13

FENNEMORE CRAIG, P.C.

14
15
16
17
18

C1-IRISTOIHER H. BYRD, ESQ.

Nevada Bar No. 1633
LINDSAY A. HANSEN, ESQ.
Nevada BarJ4o. 11985
300 South 4 Street, Suite 1400
Las Vegas, Nevada 89101

Attorneys for Defendant Bradley F. Burns

19

25
26
27
28
FENMEMORE CRAIG, P.0
LAS VEGAS

LASIDMAUIJI 1951.2/024399.0001

-3-