Branch Banking and Trust Company v. Sossaman & Guadalupe Plaza, LLC et al

Filing 72

ORDER that the parties shall file a Notice of Related Cases consistent with the requirements of Local Rule 7-2.1 by November 1, 2013. Failure to do so by this date may result in sanctions. Signed by Judge Gloria M. Navarro on 10/24/2013. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Branch Banking and Trust Company,
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Plaintiff,
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vs.
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Sossaman & Guadalupe Plaza, LLC; Yoel Iny; )
Noam Schwartz; Yoel Iny, Trustee of the Y&T )
Iny Family Trust dated June 8, 1994; Noam
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Schwartz, Trustee of the Noam Schwartz Trust )
dated August 19, 1999; and D.M.S.I., L.L.C., )
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Defendants.
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Case No.: 2:12-cv-01775-GMN-PAL
ORDER

This action is brought by Plaintiff Branch Banking and Trust Company (“BB&T”)

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against Defendants Yoel Iny; Noam Schwartz; Sossaman & Guadalupe Plaza, LLC

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(“Sossaman”); Yoel Iny, Trustee of the Y&T Iny Family Trust dated June 8, 1994 (“Trustee

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Iny”); Noam Schwartz, Trustee of the Noam Schwartz Trust dated August 19, 1999 (“Trustee

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Schwartz”); and D.M.S.I., L.L.C. (“DMSI”) (collectively, “Defendants”).

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I. BACKGROUND

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Plaintiff initiated this action in October 2012, alleging causes of action arising out of a

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series of loan transactions originating with a loan from Colonial Bank, N.A., to Defendant

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Sossaman as Borrower, secured by commercial property in Arizona, and for which Defendants

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Iny, Schwartz, Trustee Iny, Trustee Schwartz, and DMSI served as Guarantors. (Compl., ECF

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No. 1.) In July 2006, Colonial Bank, N.A., was succeeded by Colonial Bank through its

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conversion from a national banking association to a state-chartered bank. (Id. at 4:¶17.) In

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2009, Colonial Bank was closed by the State Banking Department of the State of Alabama, and

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in August 2009, the Federal Deposit Insurance Corporation (“FDIC”) was named receiver in

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order to liquidate and distribute the assets of Colonial Bank. (Id. at 4:¶20.) The FDIC then

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assigned to Plaintiff “all of its right, title and interest in, to and under the loan documents

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evidencing, securing, Guaranteeing and otherwise related to the Note.” (Id. at 4:¶21.)

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The FDIC’s transfer to Plaintiff was publicly recorded in Arizona as an Assignment of

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Security Instruments, Notes, and Other Loan Documents. (“Assignment,” Ex. 6 to Compl., ECF

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No. 1-6.) The Assignment indicates that the FDIC “does hereby grant, bargain, sell, assign,

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transfer and set over unto [Plaintiff] all of [the FDIC]’s rights, title, and interests in and to those

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documents set forth on Exhibit A,” which lists loan documents relating to borrowers Pebble

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Creek Plaza, LLC, Pebble Creek Plaza Pad, LLC, Sossaman and Guadalupe Plaza, LLC, and

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27th & Southern Holding, LLC. (Id.) The transaction was “for and in consideration of the sum

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of TEN AND NO/100 DOLLARS ($10.00), and other good and valuable consideration

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received from or on behalf” of Plaintiff. (Id.)

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Plaintiff alleges a claim for Deficiency against Defendant Sossaman as Borrower.

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(Compl. at 6:¶¶33–35.) Plaintiff alleges a claim for Breach of Guarantees against Defendants

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Iny, Schwartz, Trustee Iny, Trustee Schwartz, and DMSI as Guarantors (“Guarantor

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Defendants”). (Id. at 6:¶36–7:¶¶37–40.) Plaintiff alleges its claim for Breach of the Covenant

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of Good Faith and Fair Dealing against both Defendant Sossaman as Borrower and Defendants

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Iny, Schwartz, Trustee Iny, Trustee Schwartz, and DMSI as Guarantors. (Id. at 7:¶¶41–45.)

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II. DISCUSSION

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In Defendants’ Proposed Second Amended Answer and Counterclaim (Ex A. to Mot. to

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Amend, ECF No. 25), Defendants allege that representatives of BB&T “explicitly promised

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that BB&T would provide Defendants with adequate time and opportunity to propose and

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implement a real estate property action plan to address and work-out certain Colonial Bank

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loans (‘Work-out Agreement’).” (Id. at 12:¶8.) Defendants allege that these promises relate to

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Colonial Bank loans with the following borrowers:

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a. 27th & Southern Holding, LLC;
b. Casa Grande Business Park, LLC;
c. Eloy Business Park, LLC;
d. GAC Storage Lansing, LLC;
e. Jones-Windmill, LLC;
f. Mt. Charleston Hotel, LLC;
g. Pebble Creek Plaza, LLC;
h. Pebble Creek Plaza Pad, LLC;
i. Regena Homes, LLC;
j. Smoke Ranch Development, LLC;
k. Sossaman & Guadalupe Plaza, LLC; and
l. White Beauty Development, LLC.
(Id. at 13:¶9.)
The parties have not filed any Notice of Related Cases pursuant to the Local Rules of

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Civil Practice for the District of Nevada. See D. Nev. R. II.7-2.1. However, at this time the

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Court takes notice of the following cases pending in the District of Nevada that relate to each of

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these borrowers except for Casa Grande Business Park, LLC, and Mt. Charleston Hotel, LLC:

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 Branch Banking & Trust Co. v. 27th & Southern Holding, LLC, No. 2:12-cv-01781LRH-PAL (filed Oct. 10, 2012);
 Branch Banking & Trust Co. v. Eloy Business Park, LLC, No. 2:12-cv-01679-LRH-PAL
(filed Sept. 24, 2012);
 Branch Banking & Trust Co. v. Iny, No. 2:11-cv-01777-MMD-VCF (filed Nov. 4,
2011);
 Branch Banking & Trust Co. v. Jones/Windmill, LLC, No. 2:12-cv-00452-JCM-GWF
(filed March 16, 2012);
 Branch Banking & Trust Co. v. Pebble Creek Plaza, LLC, No. 2:12-cv-01737-GMNNJK (filed Oct. 3, 2012);
 Branch Banking & Trust Co. v. Pebble Creek Plaza Pad, LLC, No. 2:12-cv-01736MMD-CWH (filed Oct. 3, 2012);
 Branch Banking & Trust Co. v. Regena Homes, LLC, No. 2:12-cv-00451-JAD-GWF
(filed March 16, 2012);
 Branch Banking & Trust Co. v. Smoke Ranch Dev., LLC, No. 2:12-cv-00453-APG-NJK
(filed March 16, 2012);
 Branch Banking & Trust Co. v. Sossaman & Guadalupe Plaza, LLC, No. 2:12-cv01775-GMN-PAL (filed Oct. 10, 2012);
 Branch Banking & Trust Co. v. White Beauty Dev., LLC, No. 2:13-cv-00469-JAD-PAL
(filed March 20, 2013).

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The Court also takes notice of the following case that relates to the Guarantor
Defendants but is not apparently related to these borrowers:
 Branch Banking & Trust Co. v. D.M.S.I., LLC, No. 2:11-cv-01778-APG-VCF (filed

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Nov. 4, 2011).

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The Court hereby gives notice to the parties that failure to comply with local rules may

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result in sanctions. See D. Nev. R. I.A. 4-1. The Court will give the parties one week to comply

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with Rule 7-2.1 by filing a Notice of Related Cases consistent with the requirements of Rule 7-

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2.1. In accordance with this rule, the Notice of Related Cases should indicate why

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reassignment is desirable, and if not, why reassignment is not desirable.

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IV. CONCLUSION

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IT IS HEREBY ORDERED that the parties shall file a Notice of Related Cases

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consistent with the requirements of Local Rule 7-2.1 by November 1, 2013. Failure to do so by

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this date may result in sanctions.

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DATED this 24th day of October, 2013.
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Gloria M. Navarro
United States District Judge

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