Multibank 2009-1 RES-ADC Venture, LLC v. PineCrest at Neskowin, LLC et al

Filing 124

SUPPLEMENTAL OPINION AND ORDER: The Court, therefore, GRANTS Plaintiff Multibank's Motion for Summary Judgment as herein specified. See 5-page supplemental opinion and order attached. Ordered by Judge Anna J. Brown. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MULTIBANK 2009-1 RES-ADC VENTURE,
LLC, a Delaware Limited Liability
Company,
Plaintiff,
v.
PINECREST AT NESKOWIN, LLC; MICHAEL
D. FREEMAN; MELANIE S . FREEMAN; and
UNIT OWNERS ASSOCIATION OF PINECREST,
Defendants.

PINECREST AT NESKOWIN, LLC; MICHAEL
D . FREEMAN; MELANIE S . FREEMAN; and
UNIT OWNERS ASSOCIATION OF PINECREST,
Counterclaimants,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION,
as receiver for SILVER FALLS BANK,
Counterclaim Defendant/
Third-Party Defendant.

1 - OPINION AND ORDER

3:11-CV-853-BR

SUPPLEMENTAL
OPINION AND ORDER

DANIEL STEINBERG
Green & Markley P.C.
1515 Fifth Ave., Suite 600
Portland, OR 97201
[phone]
MICHAEL A. GEHRET
Snell & Wilmer, L.L.P.
15 West South Temple, Ste. 1200
Salt Lake City, UT 84101
[phone]
Attorneys for Plaintiff Multibank
2009-1 Res-ADC Venture, LLC

KEVIN J. JACOBY
PAUL R. J. CONNOLLY
Law Office of Paul R. J. Connolly
P.O. Box 3095
Salem, OR 97302
[phone]
Attorneys for Defendants/Counterclaimants Pinecrest at Neskowin, LLC;
Michael D. Freeman; Melanie S. Freeman;
and Unit Owners Association of Pinecrest

JOEL P. LEONARD
JOHN D. OSTRANDER
WILLIAM A. DREW
Elliott Ostrander & Preston, P.C.
Union Bank of California Tower
707 S.W. Washington Street, Ste. 1500
Portland, OR 97205
[phone]
Attorneys for Counterclaim Defendant/
Third-Party Defendant Federal Deposit Insurance
Corporation

BROWN, Judge.
On April 10, 2013, the Court issued and Opinion and Order
(#122) in which,

inter alia, it GRANTED the Motion (#84) for

2 - OPINION AND ORDER

Partial Summary Judgment filed by Counterclaim Defendant Federal
Deposit Insurance Company (FDIC); GRANTED Plaintiff Multibank
2009-1 RES-ADC VENTURE, LLC's Motion (#89)
and DENIED the Motion (#92)

for Summary Judgment;

for Partial Summary Judgment filed

by Defendants/Counterclaimants Pinecrest at Neskowin, LLC,
Michael D. Freeman, Melanie S. Freeman, and Unit Owners
Association.
It has been brought to the Court's attention that the
Opinion and Order did not explicitly resolve the following issues
also raised by Multibank in its Motion for Summary Judgment:
(1) whether Multibank is the real party-in-interest to
Defendants' loan obligations of Defendants at issue in this case
and (2) whether all issues raised in the underlying claims for
foreclosure and breach of guaranties asserted by Multibank have
been resolved in favor of Multibank and against Defendants since
the Court found in favor of FDIC on its Motion for Partial
Summary Judgment and in favor of Multibank on its Motion for
Summary Judgment.
1.

Multibank is the Real Party-in-Interest.

In its original Opinion and Order, the Court concluded FDIC
had the authority to assign to Multibank any right that FDIC had
to collect amounts owing on Defendants' loan made originally by
Silver Falls Bank before that bank failed.

Based on this ruling,

it necessarily follows that Multibank, as the assignee of FDIC,

3 - OPINION AND ORDER

is the real party-in-interest in collecting any amounts due and
owing on Defendant's loan.
Accordingly, the Court GRANTS Plaintiff Multibank's Motion
for Summary Judgment and holds that Multibank is the real partyin-interest as to Defendants' loan obligations at issue in this
case.
2.

Multibank's Claims for Foreclosure and Breach of Guarantees.

The Court found in favor of Multibank and FDIC and against
Defendants on those Motions addressed in the Opinion and Order
(#122) .

In particular, the Court's summary judgment rulings, in

combination, addressed and disposed of each of Defendant's
Affirmative Defenses that, if proved, might have precluded
enforcement by Multibank of the loan documents Defendants entered
into with Silver Falls Bank.
The Court, however, is unable to tell from the current
record whether there are any disputed issues of material fact as
to Defendants' default and the underlying claims for foreclosure
and breach of guarantees because it appeared Defendants denied
the central allegations as to those issues.

Thus, the Court is

uncertain whether it may presently determine Plaintiffs' right to
a judgment on the record as it stands.

Until the state of the

factual record is clarified for the Court, the ultimate question
of judgment in Plaintiff's favor remains pending.
The Court directs counsel to confer and, as part of the

4 - OPINION AND ORDER

submission due April 22, 2013 (#23), counsel should include a
concise statement as to their respective views of the factual
record as to Plaintiff's claims for judgment .

The Court will

then address this matter further with counsel at the Rule 16
Conference (to be set) .

CONCLUSION

The Court, therefore, GRANTS Plaintiff Multibank's Motion
for Summary Judgment as herein specified .
IT IS SO ORDERED.
DATED this ~~ day of April, 2013.

A~Of}~l
United States District Judge

5 - OPINION AND ORDER