Opinion
Case No.: C11-03295
10-28-2011
FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver for INDYMAC BANK, F.S.B., Plaintiff, v. RICHARD STRAUB, an individual and dba STRAUB APPRAISAL, Defendants.
ANDERSON, McPHARLIN & CONNERS LLP By: Vanessa H. Widener Jennifer S. Muse Attorneys for Plaintiff FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver for INDYMAC BANK, F.S.B. LAW OFFICE OF PETER N. BREWER By: Julia M. Wei Henry Chuang Attorneys for Defendant RICHARD STRAUB
Peter N. Brewer / St.Bar No 87971
Julia M. Wei / St.Bar No 218005
Henry Chuang / St.Bar No 250628
Law Offices of Peter N. Brewer
Attorneys for Defendant Richard Straub, an Individual and dba Straub Appraisal.
STIPULATION TO AMEND ANSWER
Plaintiff, FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR INDYMAC BANK, F.S.B. ("Plaintiff"), by and through its attorneys of record, Vanessa Widener and Jennifer Muse of Anderson, McPharlin & Conners LLP and defendant RICHARD STRAUB, individually and dba STRAUB APPRAISAL ("Defendant") by and through their attorneys of record Julia M. Wei and Henry Chuang of The Law Offices of Peter N. Brewer, hereby stipulate and agree as follows:
1. Plaintiff filed its Complaint for breach of contract and negligent misrepresentations on July 6, 2011.
2. Defendant filed his Answer to the Complaint on September 30, 2011. In the Answer, Defendant's Eleventh Affirmative Defense alleged a complaint of comparative negligence. The Eleventh Affirmative Defense reads as follows:
The damages sustained by plaintiff were either wholly or in part negligently caused by and/or the fault of persons, firms, corporations, or entities other than this answering defendant, and said negligence and/or fault, comparatively reduces the percentage of negligence and/or fault, if any, by this answering defendant. More specifically, Plaintiff's contributory or comparative negligence in the underwriting of the subject loan caused or contributed to Plaintiff's claimed damages relating to the approval of the subject loan. Additionally, Plaintiff relied on the acts and representations of the mortgage broker to underwrite the loan and its damages are either in whole or in part negligently caused by the mortgage broker.
3. The FDIC contends that Defendant's Eleventh Affirmative Defense for comparative fault/negligence does not apply to the claims asserted in the Complaint -- i.e., breach of contract or negligent misrepresentation. The FDIC has filed a Motion to Strike the Eleventh Affirmative Defense which is set for hearing on March 6, 2012.
4. Prior to filing the Motion to Strike, the Parties met and conferred regarding the sufficiency of the defense. Defendants' agreed the Eleventh Affirmative Defense does not apply to breach of contract action. However, Defendants argue that the Eleventh Affirmative Defense for comparative fault/negligence can be asserted in response to a claim for negligent misrepresentations.
5. Therefore, in the interest of judicial economy, the Parties hereby stipulate and agree that the Eleventh Affirmative Defense shall not apply to the breach of contract claim and shall be amended to state:
The damages sustained by plaintiff as to the negligent misrepresentation claim for relief were either wholly or in part negligently caused by and/or the fault of persons, firms, corporations, or entities other than this answering defendant, and said negligence and/or fault, comparatively reduces the percentage of negligence and/or fault, if any, by this answering defendant. More specifically, Plaintiff's contributory or comparative negligence in the underwriting of the subject loan caused or contributed to Plaintiff's claimed damages from the negligent misrepresentation claims for relief relating to the approval of the subject loan. Additionally, Plaintiff relied on the acts and representations of the mortgage broker to underwrite the loan and its damages are either in whole or in part negligently caused by the mortgage broker.
6. The Parties continue to disagree about whether the defense can be applied to a claim for negligent misrepresentation. As such, the Parties stipulate and agree that the FDIC's Motion to Strike the Eleventh Affirmative Defense as it relates to the FDIC's claim for negligent misrepresentation shall remain on calendar and the issue should be decided by this Court on March 6, 2012 as noticed.
IT IS SO STIPULATED
ANDERSON, McPHARLIN & CONNERS
LLP
By: Vanessa H. Widener
Jennifer S. Muse
Attorneys for Plaintiff FEDERAL DEPOSIT
INSURANCE CORPORATION as Receiver
for INDYMAC BANK, F.S.B.
LAW OFFICE OF PETER N. BREWER
By: Julia M. Wei
Henry Chuang
Attorneys for Defendant RICHARD STRAUB
PURSUANT TO STIPULATION, IT IS SO ORDERED.
SANDRA BROWN ARMSTRONG
UNITED STATES DISTRICT JUDGE