1Because of this position, the Board has
conclusively determined that an attorney providing services to an
insured institution is participating in the conduct of the affairs of
such an institution. Id. at 2085. See also FSLIC v.
Hykel, 333 F. Supp. 1308, 1310-12 (E.D.Pa 1971), vacated as
moot 468 F .2d 1386 (3d Cir. 1972); In the Matter of Frank
Jameson, FDIC-89-83e, FDIC ENFORCEMENT DECISIONS AND ORDERS
Paragraph 5154A at A-1542.3 (relying on Hykel), aff'd
on other grounds, 931 F.2d 290 (5th Cir. 1991); FDIC-85-25e,
-85-112k, -85-113k, FDIC ENFORCMENT DECISIONS AND ORDERS Paragraph 5082
at A-999-1002 (interpreting the phrase "participating in the conduct
of the affairs" of a bank).
{{1-31-01 p.A-3181}}
[.4] Administrative Law JudgeBias,
Actual bias, or risk of bias must have a specific basis in the record,
other than the ALJ's rejection of Respondent's arguments.
[.5] Due ProcessNotice
The language in the Notice is typical of notices in administrative
proceedings, and did not conclude, rather than allege wrongdoing.
Additionally, the hearing on the record and de novo review by the Board
and the court's review of the Board's final determination provide due
process.
[.6] Due ProcessOral Argument
Due process does not require that Respondent testify, and the Board
does not need to hear from Respondent to assess his credibility,
particularly where Respondent failed to testify at the hearing.
[.7] Burden of ProofExceptions
Respondent's exceptions are dismissed for lacking specific reference
to the record, relying on evidence outside the record, and quibbling
with the Findings without challenging them.
[.8] Fiduciary ResponsibilitiesConflict/Control
A finding of control over entities getting loans is sufficient conflict
to warrant prohibition. Control means that Respondent benefited from
the transactions, exhibited personal dishonesty or willful disregard
for the Bank's safety and soundness.
[.9] Fiduciary ResponsibilitiesConflict/Control
The interrelationship between the entities and close associates of
Respondent, and Respondent's relationship to all, evidences
Respondent's role as the central, controlling figure throughout.
[.10] Fiduciary ResponsibilitiesConflict, affirmative duty to disclose
Some actions taken by an entity, such as using a bank loan to pay down
a classified loan and purchasing loans that allowed the Respondent to
avoid contempt of court fines, can only be explained by Respondent's
controlling influence.
[.11] Fiduciary ResponsibilitiesBenefit
As a 25% beneficiary of a revocable trust, Respondent received a
benefit when the trust received an extension of credit from
Respondent's bank.
[.12] Fiduciary ResponsibilitiesDisclosures
Respondent's disclosure of his status as successor trustee, but not as
a beneficiary to the trust is not an adequate disclosure of his
potential conflict of interest.
[.13] LoansLending Limits
A violation of Regulation O only requires that loans to insiders or
their related entities exceed a certain limit, regardless of whether or
not the loans were valuable to the institution.
[.14] Prohibition, Removal or SuspensionPersonal Gain
Actual loss to the Bank is not required for an Order of Prohibition. It
is sufficient that Respondent or Respondent's entities benefited or
that the Bank would probably suffer damage.
{{1-31-01 p.A-3182}}
[.15] Prohibition, Removal, or SuspensionWillful disregard for safety or soundnessSelf Dealing
Respondent did not disclose his involvement, nor the fact that the
collateral substituted for the Bank would cause a substantial loss.
[.16] Fiduciary ResponsibilitiesConflict, affirmative duty to disclose
Respondent had a duty to disclose information to the Bank's directors
regarding a transaction they did not understand, that benefited
entities to which he was a party, and cost the bank $800,000.
In the Matter of
ROQUE DE LA FUENTE II
Individually and as an Institution-affiliated party of
FIRST INTERNATIONAL BANK
CHULA VISTA, CALIFORNIA
(Insured State Nonmember Bank)
DECISION AND ORDER
FDIC-97-31e
This case comes before the Board of Directors ("Board")
of the Federal Deposit Insurance Corporation ("FDIC") on the
Recommended Decision ("R.D.") of Administrative Law Judge Arthur
L. Shipe (the "ALJ"), dated March 24, 2000, removing Roque de la
Fuente II ("Respondent") from his position as an
institution-affiliated party of First International Bank, Chula Vista,
California (the "Bank"), and prohibiting him from further
participation in the industry pursuant to section 8(e) of the Federal
Deposit Insurance Act ("FDI Act"), 12 U.S.C. §1818(e). the
case primarily involves numerous extensions of credit to entities
allegedly controlled by Respondent as well as one loan to Respondent
himself. The crucial issue is whether, in fact, Respondent does control
these entities, thus rendering the extensions of credit violative of
Regulation O, 12 C.F.R. Part 215, and/or section 23A of the Federal
Reserve Act, 12 U.S.C. §371c. In addition, the Bank entered into two
other transactions allegedly for Respondent's benefit that evinced
breaches of his fiduciary duty to the Bank and unsafe or unsound
practices. For the reasons set forth below, the Board agrees with the
ALJ that these loans violated the law, adopts and incorporates by
reference the ALJ's R.D., and orders the removal and prohibition of
Respondent.
BACKGROUND
A. Procedural History
On June 11, 1997, the FDIC issued a Notice of Intention to Remove
from Office and to Prohibit from Further Participation ("Notice")
against Respondent. He duly contested the Notice, and the case was
assigned to the ALJ for hearing. After discovery, the parties tried the
matter before the ALJ from April 20 to May 15, 1998, in San Diego,
California. At that hearing, Respondent appeared pro se and
did not testify.
On March 24, 2000, the ALJ issued a 116-page R.D. removing and
prohibiting Respondent. Respondent filed timely Exceptions to the R.D.
Pursuant to delegated authority, the Deputy Executive Secretary
remanded this case to the ALJ on July 5, 2000, to clear up questions
regarding the contents of the record and the Certified Index. The case
was resubmitted to the Board for final decision on September 13, 2000.
B. Undisputed Facts1
This case involves multiple persons, entities and transactions.
The R.D. describes these in great detail. Most of the facts set forth
in the R.D. are undisputed, and therefore, a brief summary is
sufficient here.
1. Persons and Entities
Respondent is the majority shareholder and a director of the Bank.
He was board chairman from 1987 to 1993. Sidney Schwarz, a close
associate of Respondent who has repeatedly performed accounting and
other services for Respondent's family and its entities, is currently
board chairman of the Bank and has been a director since 1993.
Respondent is the sole owner of American International Enterprises
("AIE"), a real estate development and management com-
1"Tr. (Vol._)" references are to the
hearing transcript. "Ex." references are to the trial exhibits of
the FDIC or Respondent. "Exc." references are to the
Respondent's Exceptions to the R.D. "Br." references are to
Respondent's Brief in support of the Exceptions.
{{1-31-01 p.A-3183}}
pany. A close associate, Jose Luis Andreu, is vice president. Until early 1995,
Respondent was the sole owner of National Enterprises, Inc.
("NEI"). In 1995, he transferred the stock in NEI to trusts set
up for each of his children ("childrens' trusts"). The trustees
of the trusts at the relevant times were Schwarz and Isaias Zapata,
another close associate of Respondent. Andreu was vice president of NEI
and is now chairman of its board of directors. Schwarz is a director of
NEI.
Rancho Vista del Mar, Inc. ("RVDM") and Rancho de la Fuente
International Industrial Park ("RDF/IIP") are entities owned by
Respondent's mother through offshore corporations. Respondent's
mother lives in Mexico City and is a housewife who does not participate
in the operations of these companies. Andreu is an agent for both. AIE
has a contract to manage the property owned by these companies. RVDM
had no employees.
Fine Particle Technology Corporation ("FPTC") is a company in
which Respondent owned an interest (5.6 percent) that he transferred to
the childrens' trusts in 1995. Andreu and Zapatas owned 24.42 percent
and 5.02 percent of FPTC respectively as of early 1995. Andreu has been
a director and board chairman of FPTC and is currently president of
FPTC. The company has no employees.
C.T. Produce, Inc. ("C.T.") is an entity with which Respondent
has a joint venture. Andreu is chairman of C.T.
Respondent is also a beneficiary of a revocable trust set up by his
father, the Roque de la Fuente Alexander Trust ("Alexander
Trust"). He has a 25 percent interest in the Alexander Trust.
2. Extensions of Credit
In addition to the interrelationships of people and entities, the
entities had significant economic relationships among themselves and
with the Bank. The record describes numerous intercompany transactions.
R.D. 4551. Moreover, most of these entities received extensions of
credit from the Bank. R.D. 67, 7576. During the period from 1990 to
the end of 1995, these extensions totaled slightly in excess of $9
million. In addition, in 1992, Respondent received an $800,000
extension of credit. It is undisputed that these extensions exceeded
the Bank's legal lending limits under Regulation O and section
23A. R.D. 78 and n. 2.
3. Other Transactions
Two other transactions were at issue in this case. The first
involved the release and substitution of collateral on a loan from the
Bank to RVDM. R.D. 2531. The original collateral to secure a
$1.6 million credit consisted of 320 acres of property owned by
RDF/IIP. The substituted collateral consisted of a first lien on other
property owned by RVDM. The Bank already had a second lien position
against this property. Four months after the release of the original
collateral, Respondent was able to sell it for $2.1 million and used
the money to pay down an NEI debt to another lender. In the same
transaction, he also sold some land he owned for which he received
$235,000. The Bank, however, was forced to foreclose on the loan and
sold the substitute collateral at a loss in excess of $700,000.
The second transaction involved a sale Respondent arranged of a parking
lot the Bank held as Other Real Estate Owned ("OREO") to an
unrelated third party, (" * * * "), with Bank
financing. R.D. 3133. * * * learned that the lot had
environmental contamination problems and threatened suit against
Respondent unless the Bank rescinded the transaction. To avoid the
suit, Respondent arranged for an employee of NEI and AIE to acquire the
parking lot and assume the loan through a company established by
Respondent for this purpose. The transaction had the effect of
releasing a solid borrower from a personal guarantee. Because neither
the employee nor the company were financially qualified to engage in
the transaction, Respondent arranged for NEI to fund loan
payments.2
Respondent repeatedly misled examiners concerning the status of the
credit, and, as a result, was able to cause the FDIC to improve the
loan's classification and forestall the need to recognize a loss or a
capital adjustment. In addition, his actions permitted him to avoid any
potential liability from the threatened fraud suit and from having to
make a capital injection required under an outstanding cease and desist
order.
2 Ultimately, however, the Bank suffered no
loss as a result of this transaction.
{{1-31-01 p.A-3184}}
C. The ALJ's Decision
The ALJ, based on the record before him, recommended that
Respondent be removed and prohibited. He found all three prongs of a
section 8(e) actionmisconduct, effect, and culpabilitysatisfied by
the evidence. With regard to misconduct, he concluded that the repeated
extensions of credit to Respondent and the various entities violated
Regulation O and section 23A, governing limits on loans to or for the
benefit of bank insiders and affiliates, and also constituted a breach
of fiduciary duty. R.D. 624, 3334. He concluded that the collateral
substitution and * * * transactions constituted unsafe or
unsound practices and breaches of fiduciary duty. R.D. 2533, 35, 37.
[.1] The ALJ also found the effect test satisfied because Respondent
benefited personally from all of the transactions and the Bank suffered
losses or other harm on some of the loans. R.D. 34, 3536, 37.
Finally, the ALJ concluded that Respondent's actions evinced both
personal dishonesty and willful and continuing disregard of the Bank's
safety and soundness. In the ALJ's view, Respondent concealed from the
Bank his control over the entities involved in the Regulation O and
section 23A violations, misrepresented the facts of the collateral
substitution transaction while knowing he was benefiting at the Bank's
expense, and, in the case of * * * , set up a sham
transaction for his own benefit. R.D. 3435, 36, 3738.
1. Control of the Affiliated Borrowers
In arriving at these conclusions, the ALJ addressed a variety of
contentions raised by Respondent at trial and in his Exceptions.
Respondent claimed that he committed no Regulation O violations because
he did not control the entities to which the Bank had made the loans.
R.D. 8. As the ALJ recognized, the lending limits in Regulation O only
apply to loans to an insider or that person's "related
interests," and the issue of whether an interest falls within the
ambit of Regulation O depends on whether the insider controls the
interest. R.D. 8.3 However, he had no difficulty
concluding that Respondent controlled the entities receiving extensions
of credit and that they were "related interests."
With respect to RVDM and RDF/IIP, owned by his mother, the ALJ noted
that Respondent's company, AIE, had the exclusive contract to manage
the property owned by the two entities and that Respondent testified
that his mother did not want any responsibility for managing the
companies. R.D. 1112, 5253, 55. Indeed, she could not be active
without jeopardizing the special tax treatment of these companies based
on her status as a non-resident alien. R.D. 5052. The ALJ concluded
that Respondent simply made all of the decisions for these companies,
and that these decisions were `allegedly' ratified by his mother as
owner. R.D. 12, 55. In his view, the conclusion that Respondent
controlled these entities was "inescapable." R.D.
14.4
The ALJ also concluded that Respondent controlled NEI even though
he had transferred his interest in the entity to the trusts of his
three children. R.D. 1415. He observed that Respondent admitted
continuing to make investment decisions for the trusts and that the
trustees, close associates of Respondent, lacked any real knowledge
of the trusts or their activities. R.D. 1415, 5962. In addition,
AIE, by contract, managed NEI. R.D. 15, 62. Thus, in the ALJ's
view, Respondent controlled the trusts and NEI. R.D. 15.
Finally, FPTC, the ALJ found, was also a Respondent-controlled entity.
R.D. 1519. Not only did Respondent and two close associates control
more than 25 percent of the stock, but FPTC took actions benefiting
Respondent. FPTC permitted Respondent to use money lent to FPTC by the
Bank to pay down a classified loan at the Bank and bought loans from
the Bank that spared Respondent and other Bank directors from paying
contempt fines even though prior to that time FPTC was not engaged in
the business of purchasing loans. R.D. 1617, 66, 70, 71; Tr. (Vol. 7)
20205. In the ALJ's view, an independent company would not have
taken these actions, and therefore, FPTC was "part
3 Regulation O places limits on loans to an
"insider." 12 C.F.R.§215.4(d)(1). An "insider" includes
the "related interest[s]" of that individual. 12 C.F.R.
§215.2(h). A "related interest" is an entity
"controlled" by the insider. 12 C.F.R. §215.2(n)(1).
"Control" of an entity requires that the insider have either
direct or indirect control of 25 percent of the voting securities, the
power to elect a majority of the directors, or otherwise have the power
to "exercise a controlling influence." 12 C.F.R. §215.2(c)
(emphasis supplied).
4 The ALJ also found that Respondent failed to
disclose these entities as related interests in filings that he made
with the Bank and represented to the FDIC that he was not involved with
these companies.
{{1-31-01 p.A-3185}}
of the De La Fuente common enterprise." R.D. 17.5
Respondent also challenged the allegation that the loan to the
Alexander Trust violated Regulation O because, in his view, he was a
beneficiary of a revocable trust, his 25 percent interest was
contingent, and the loan, therefore, could not have provided him with
the "tangible economic benefit" required by Regulation O.
R.D. 9. Relying on an opinion of the Federal Reserve System General
Counsel, the ALJ concluded that in fact the contingent interest would
be enough to create a tangible economic benefit because of the
inevitable danger of conflict of interest created by "incentive
[the beneficiary has] to keep the trust funded and keep favor with
the trustor, so as to ensure that any future contingent interest might
come to fruition." R.D. 10.
2. Misconduct Issues
The ALJ found that the collateral substitution and transactions
constituted unsafe or unsound practices and breaches of fiduciary duty.
R.D. 2533. Although Respondent did not vote on the collateral
substitution transaction, the evidence was clear that he "was
involved in every aspect of the . . . transaction from
beginning to end" and "on every conceivable side of the
transaction." R.D. 27. None of the other Bank board of directors
members understood it, in part, because Respondent withheld critical
information. R.D. 2729, 9697. Ultimately, the board approved the
collateral substitution because it believed that the value of the
original collateral was "clouded" by certain problems, and the
proposed collateral was of approximately equal value but
"unclouded." R.D. 29, 10102. Respondent, however, because of
his intense involvement in the negotiations of this transaction, knew
that the proposed collateral was worth less. R.D. 97. He knew that the
two "clouds"the RDF/IIP bankruptcy and the endangered species
issuewere non-existent. R.D. 88, 102. He also knew that the release
of the original collateral would benefit him and that the transaction
to create that benefit was already in place at the time of board
approval of the substitution. R.D. 36, 9596. Yet, he did not disclose
what he knew to the Bank's board. R.D. 3031, 3637, 9798, 101,
102.
Indeed, although Respondent did not vote on the proposal because of the
conflict of interest, the board asked him to come into the meeting at
one point to explain the transaction. R.D. 27. In the end, despite
portraying the deal as advantageous for the Bank, Respondent and his
interests ended up receiving a benefit of $2 million while the Bank
suffered a $700,000 loss. R.D. 30. As the ALJ put it,
"[Respondent] engineered a transaction whereby he usurped the
Bank's opportunity to have a problem loan paid off." R.D.
30.6
Respondent was also "involved in all aspects of the transaction."
R.D. 31. He misrepresented aspects of the transaction to FDIC
examiners, avoiding classification of the loan. R.D. 32, 105. The
transaction had the negative effects on the Bank of releasing a solid
borrower from a guarantee and causing the loan to become delinquent.
The transaction benefited Respondent by relieving him of potential
liability through fraud litigation and of the need to make a capital
injection that an outstanding cease and desist order might have
required. R.D. 3132, 11011.
3. Benefit/Loss Issues
The final major issue addressed by the ALJ involved the effect of
Respondent's misconduct for each transaction. In most cases, FDIC
Enforcement Counsel had alleged a benefit to Respondent rather than a
loss or other harm to the Bank.7 Relying on this Board's
precedent, the ALJ rejected the contention that Respondent himself had
to benefit personally; all that was necessary as a legal matter was
an economic benefit to Respondent's related interest. R.D. 2425.
Most of the transactions, of course, directly benefited a related
interest, although Respondent himself received one of the loans, for
5 The ALJ also found that 10 of the 12 loans
that violated Regulation O violated section 23A governing loans to
affiliates because of the control Respondent exercised over the
entities. R.D. 2124. The ALJ concluded that the test for
"control" for purposes of section 23A was the same as for
Regulation O, rejecting Respondent's claim that under the statute,
control could exist only by virtue of share ownership, control of the
election of a majority of the directors, or by a determination of the
Board of Governors of the Federal Reserve System. Id..
6 Because Respondent had failed to provide
accurate information to the Bank's board, the ALJ concluded that the
bank directors could not have exercised good business judgment in
approving the transaction. R.D. 30.
7 The gain to Respondent from the Regulation O
and 23A violations totaled $6.35 million and $5.3 million respectively.
R.D. 86.
{{1-31-01 p.A-3186}}
$800,000. With regard specifically to the C.T. Produce loans, the ALJ
found that since the proceeds were used to fund a joint venture between
NEI and C.T. the loans were for the indirect benefit of a related
interest, NEI. R.D. 1920.8
Respondent also contended that one extension of credit to FPTC, in July
1995, was exempt from Regulation O because, under the exemption
contained in 12 C.F.R. §215.3(b)(4)(ii), it was allegedly extended
"for the purpose of protecting the bank against loss or of giving
financial assistance to it." R.D. 18. The ALJ found as a factual
matter that the extension of credit was designed to "spare the
directors [of the Bank] (including Respondent) from the imposition of
[contempt of court] penalties" and concluded that as a legal mater
the exemption only applied in circumstances not present in this case:
the need to protect the Bank "against a loss arising from a credit
extended to an unrelated third party." R.D. 19 (quoting from an
Interpretive Letter of the General Counsel of the Federal Reserve
Board).
Both the collateral substitution and * * * transactions
also raised an issue of whether Respondent had benefited or the Bank
had been harmed. The ALJ found that these transactions had both
effects. The proceeds from the sale of the released collateral in the
collateral substitution transaction served to pay down an outstanding
loan NEI had received from a third party. The ALJ found that
"Respondent received the benefit of the $1.8 million proceeds used
for this purpose," and, in addition, Respondent received $235,000
from the sale of his own personal property in connection with the sale
of the collateral. R.D. 35. Thus, in the ALJ's view, Respondent
plainly benefited from the transaction. Id. The transaction
also injured the Bank, because, as the ALJ observed, the Bank was
"placed in an inferior collateral position" and "incurred
actual losses of approximately $716,000" when the underlying loan to
RVDM went into default. R.D. 36.
The ALJ also concluded that the * * * transaction
resulted in a benefit to Respondent by relieving him of potential
liability to * * * and the "need to personally inject
capital into the Bank." R.D. 3738. He also endangered the Bank and
prejudiced the interests of depositors by arranging for assumption of
the loan by an obviously unqualified borrower. R.D. 37.
D. Respondent's Exceptions
Respondent has filed a number of exceptions. One common theme is
that the ALJ improperly based his findings on the "preponderance of
the evidence" standard rather than the "substantial evidence"
standard. Respondent challenges approximately 32 of the 599 Findings of
Fact on a variety of issues including whether he received a benefit or
the Bank sustained a loss as a result of the transactions at issue. He
also takes exception to most of the ALJ's Conclusions of Law based on
the "preponderance of the evidence" standard used.
In his brief in support of the exceptions, Respondent challenges the
ALJ's findings that he controlled the entities at issue, that the
Alexander Trust was a related interest, that he received a benefit from
the C.T. loan, and that he engaged in improper behavior in connection
with the collateral substitution and * * * transactions. He
also claims he did not receive due process from the FDIC and ALJ.
DISCUSSION
After careful review of the record, the ALJ's very thorough
Recommended Decision, and Respondent's exceptions, the Board concludes
that the ALJ properly determined that Respondent should be removed and
prohibited. It is clear to the Board that the transactions at issue,
far from being appropriate arms-length transactions with independent
parties, were engineered by Respondent with entities he controlled, for
his benefit, and to the detriment of the Bank. Thus, the Board adopts
and incorporates the ALJ's findings as supplemented by the discussion
below.
The issues raised by the exceptions can be divided into two groups:
alleged errors infecting the entire proceeding and exceptions to
specific findings. The Board will address the more general exceptions
first.
[.2] A. The General Exceptions
The "preponderance of evidence" and due process issues, in
Respondent's view, infected the entire proceeding and require
reversal. However, the Board finds that these allegations have no merit
and only require a brief discussion.
8 The ALJ found undisputed losses associated with the RVDM and Alexander Trust loans. R.D. 8, 34, 8486.
{{1-31-01 p.A-3187}}
As the Supreme Court and this Board have held, in an administrative
proceeding, as here, governed by the Administrative Procedure Act
("APA"), the proponent of an action (in this case, FDIC
Enforcement Counsel) must prove its case by a preponderance of the
evidence. Steadman v. SEC, 450 U.S. 91 (1981); IMO
John Westering, FDIC-94-167e, FDIC-95-187k at 5, n. 9 (May 17,
2000). The substantial evidence test applies to court review of an
agency decision, not to the administrative proceeding itself. See
In Re Seidman, 37 F.3d 911, 924 (3rd Cir. 1994). Thus, the ALJ
applied the correct standard, and, in any case, Respondent benefited
because the preponderance of the evidence standard is more rigorous
than the substantial evidence standard. See Consolo v. FMC,
383 U.S. 607, 61920 (1966) (Substantial evidence "is something
less than the weight of the evidence").9
[.3] The due process issue also gives the Board little pause. Although
Respondent accuses (Br. 21) the ALJ of being a rubber stamp because he
adopted the FDIC Enforcement Counsel's proposed Findings of Fact
verbatim, Respondent challenges a very limited number of them
(approximately 32), and many of those challenges are not based on any
specific reference to the record. The Board notes that the findings
were almost all quite precise, not vague, and supported by specific
references to the record. Where the findings of fact proposed by a
party are supported by the evidence in the record, there is nothing
improper or objectionable about the ALJ's adoption of them as his own.
[.4] Respondent also alleges (Br. 22) that the "FDIC has an `actual
bias' or, at the very least, the `risk of actual bias.' "
Apparently, he is referring to the ALJ. However, he identifies no
specific basis in the record supporting this allegation. Rather, he
seems to be arguing (Br. 2223) that the bias existed because the ALJ
rejected his view of the case. This argument lacks any colorable legal
basis.
[.5] [.6] His final due process claim (Br. 2324) is that the outcome of this
action was foreordained because the statute, 12 U.S.C. §1818(e),
provides that the action for removal and prohibition be initiated when
the FDIC "determines" that the requisite elements are present and
the Notice used language that did not allege wrongdoing but rather,
concluded it was present. This claim is meritless. The Board notes that
the statute and Notice language are typical in the setting of
administrative proceedings as well as of court proceedings, and the
procedures herea hearing on the record before the ALJ, the
requirement of proof by a preponderance of the evidence and of a
detailed recommended decision by the ALJ, the Board's de
novo review, and court review of the Board's final
determinationserve to ensure that a person charged under 12 U.S.C.
§1818(e) has ample opportunity to challenge the allegations made in
the Notice and present testimony and evidence supporting his
position.10
B. The Specific Exceptions
[.7] The specific exceptions are numerous. Nevertheless, the Board can deal
with a significant number of them summarily. Many lack specific
references to the record or specifically rely on evidence outside the
record.11 Some simply quibble with an inference drawn from
the Finding of Fact but do not challenge the Finding
itself.12 The Board, therefore, overrules these Exceptions
on this basis alone.
9 Respondent also alleges that two Findings of Fact (## 453 and 475) are unsupported because they rely on inadmissible
hearsay. However, hearsay is admissible in administrative proceedings.
In the Matter of * * * ((Insured State Non-Member
Bank), FDIC-83-172b, 1 FDIC Enf. Dec. & Ord. (P-H) ¶ 5330 at
A-338 (Nov. 19, 1984), aff'd on other grounds sub nom. Bank of
Dixie v. FDIC, 766 F.2d 175 (5th Cir. 1985). In any event, none of
the evidence relied on runs afoul of the hearsay rules. Finding of Fact
#453 is based on an internal memorandum of a financial institution and
is thus a business record for purposes of Fed. R. Ev. 803(6). Finding
of Fact #475 is based on a document (Ex. 45) authored by * *
* , who testified at the hearing, a document (Ex. 41) authored by
someone else who had attended the meeting and authenticated by *
* * , Tr. (Vol. 10) 1314, and on testimony of an expert examiner
based on a letter authored by Respondent. Thus, there is no hearsay
problem with any of the evidence the ALJ relied upon.
10 Contrary to Respondent's view (Br.2425), the 30-day period to file exceptions is perfectly reasonable.
In addition, the Board does not believe that oral argument would
benefit its decisionmaking process in this case and denies
Respondent's request for it. His contention that the Board needs to
hear from him to assess his credibility rings hollow in light of his
failure to testify at the hearing.
11 Exceptions to Findings of Fact nos. 93,
383, 384, 388, 389, 390, 394, 395, 398, 399, 400, 401, 437, 454, and 475.
12 Exceptions to Findings of Fact nos. 93,
383, 384, 388, 389, 394, 400, 401, 437, 454, 455, 475, 483, 485, 487,
516, 517, 525.
{{1-31-01 p.A-3188}}
In addressing the rest of the exceptions and challenges to the R.D.,
the Board, for convenience, will examine them on a
transaction-by-transaction basis except for those involving the issue
of control of the entities.
1. Control of the Entities
[.8] As noted above, the finding of violations of Regulation O and section
23A depends on the Bank making extensions of credit for the benefit,
directly or indirectly, of a "related interest" (Regulation O),
or an "affiliate" (section 23A), that is, an entity controlled by
Respondent. 12 C.F.R. § 215.2(c) ("control"), (n)
("related interest"); 12 U.S.C. § 371c(b)(1)(C)(i)
("affiliate"), (b)(3)(A) ("control"). Indeed, once the
finding of control is made, there is really no dispute about the
violations or the appropriateness of prohibition. The finding of
control means that Respondent benefited from each transaction (the
requisite effect) and demonstrated personal dishonesty or at least
willful and continuing disregard for the Bank's safety and soundness
(the requisite culpability).13
Respondent does not challenge the Findings of Fact concerning control
of the entities except for #470 (Exc. 11). He contends, without any
record support, that he was not the primary decisionmaker for RVDM and
RDF/IIP. He also broadly alleges (Br. 4), without citing to the record,
that he did not control RVDM, RDF/IIP, NEI or FPTC.
Finally, he contends (Br. 1112, 20) that he did not control NEI, C.T.
or FPTC.14 In the case of NEI, he alleges (Br. 1112)
that no witness testified to his control over the entity and that the
Federal Reserve had never made the finding he believes the law requires
that NEI is an affiliate for purposes of section 23A.15 With regard to FPTC (Br. 20), he points out that the ALJ's finding of
control is based on the combined stock ownership of Respondent and his
associates, Andreu and Zapata, as well as testimony by one of the
former shareholders that no one ever told him how to vote.
[.9]The Board finds these exceptions without merit. Given the relationship
among the people and entities and the numerous intercompany
transactions, the ALJ correctly determined that Respondent was the
central, controlling figure. As discussed above, RVDM and RDF/IIP are
owned by his mother who cannot be and, in fact, is not active in their
operation. Respondent's company, AIE, manages the property of these
companies and his close associate, Andreu, is agent for them. AIE also
manages NEI. In addition, at all relevant times, the trustees of the
trust holding NEI stock were close associates, Schwarz and Zapata, or,
for one period another person, * * * , none of whom had any
real idea of the trust's business. R.D. 5962. Schwarz is currently a
director of NEI. R.D. 45. Furthermore, Respondent admitted making
investment decisions for the trust.16
[.10] FPTC's major shareholders at the relevant period during 1995, in
addition to Respondent through the children's trust, were his close
associates, Andreu and Zapata. In addition, the ALJ was persuaded by
evidence that the company took two actions benefiting Respondent that
could only be explained by his controlling influence over FPTC:
allowing him to use money loaned by the Bank to FPTC to pay down a
classified loan at the Bank and purchasing loans with financing help
from the Bank that allowed the Respondent and other directors to avoid
paying contempt of court fines.17
In short, the evidence overwhelmingly points to Respondent's control
of these en-
13 The findings of violations of either
Regulation O or section 23A, standing alone, would support the removal
and prohibition.
14 The ALJ never made a finding that C.T. was a related entity.
15 In the Board's view, the appropriate
banking agency for enforcement purposes can make this finding after a
hearing, as happened here. The enforcement process could not function
if the Board of Governors of the Federal Reserve System needed to make
this finding in cases in which it was not bringing the enforcement
proceeding. The Board notes that the ALJ distinguished (R.D. 24)
between the third prong of the control test under section 23A, 12
U.S.C. §371c(b)(3)(A)(iii), and a finding of "actual control"
that the ALJ found to obviate the need to consider the third prong
test. In the Board's view, the evidence the ALJ found to show
"actual control" more than satisfies the third prong of the
test"exercises a controlling influence over the management or
policies of the other company".
16 Respondent contends (Br. 1112) that NEI
is not a related interest because it does not meet the test under
section 23A. However, that test applies to "affiliates" rather
than "related interests" (covered by Regulation O rather than
section 23A). The ALJ did not find that NEI was an "affiliate"
for purposes of section 23A. R.D. 24 n. 11.
17 Respondent's reliance on the testimony of
* * * to prove his lack of control over FPTC is misplaced.
* * * sold all of his stock by the end of January 1995.
R.D. 66. The two actions the ALJ believed to be indicative of
Respondent's control happened during the latter half of 1995. The
purchase of the loans occurred in July 1995 and the use of the loan
money in September 1995. R.D. 1617, 7071. Indeed, the actions took
place after the period during 1994 and very early 1995 when Andreu was
accumulating most of his almost 25 percent holding of FPTC stock. R.D.
66.
{{1-31-01 p.A-3189}}
tities, through his mother, his close associates, and his
active participation in their affairs, rather than to a group of
independent companies doing business at arms length.18 The
record is replete with examples of Respondent negotiating on behalf of
these entities and representing that he had decisionmaking authority.
See, e.g., R.D. 4951, 52, 5558, 6364, 71, 8889, 91,
9396, 98101. The Board can only conclude that for purposes of
Regulation O and section 23A, these entities are "related
interests" or "affiliates."19
2. The Alexander Trust
[.11] Respondent raises several challenges (Br. 610 and n. 3; Exc. 3, 56)
to the finding that the loan to the Alexander Trust supports the
removal and prohibition.20 His primary contention (Br.
610) is that as a beneficiary of a revocable trust, he could not
receive a "tangible economic benefit" for purposes of finding a
violation of Regulation O. See 12 C.F.R. §215.3(f). In
the Board's view, the ALJ correctly determined that he did receive a
"tangible economic benefit." The Board agrees with the opinion of
the Federal Reserve System's General Counsel (quoted at R.D. 9) that
because of the danger of conflict of interest, a 25 percent beneficiary
of a revocable trust receives a benefit as that term is used in section
215.3(f) when the trust receives an extension of credit. As the ALJ put
the matter: "The beneficiary of a contingent interest would have
incentive to keep the trust funded and keep favor with the trustor, so
as to ensure that any future contingent interest might come to
fruition." R.D. 10.21
[.12] Respondent also challenges (Br. 810; Exc. 3) the ALJ's finding that
he failed to disclose his interest in the trust to the Bank at the time
of the extension of credit. Respondent is simply wrong. As the Exhibit
he relies on (#299) makes clear from the portions he has quoted, the
Commercial Credit Authorization does not disclose his 25 percent
interest. It only discloses his status as successor trustee (with a
proviso that one of his close associates would act for him because of
his interest in the Bank) in the event of his father's death. Thus,
the Bank's board would not have known the current status of his
interest at the time of the extension of credit.22
3. FPTC
Respondent contends (Br. 1415) that an exception to Regulation O
applies to one of the four extensions of credit to FPTC: the loan that
facilitated FPTC's purchase of two loans from the Bank that the ALJ
concluded were purchased to relieve the directors, including
Respondent, of contempt fines (R.D. 17). Regulation O provides an
exemption for extensions of credit "for the purpose of protecting
the bank against loss or of giving financial assistance to it." 12
C.F.R. §215.3(b)(4)(ii). While Respondent raises a point that
theoretically could provide a defense, the record does not support the
theory.
The Board agrees with the ALJ's reliance
18 As Justice (then-Judge) Cardoza stated: "We must not close our eyes as judges to what we must perceive as men." People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.&. 48, 63 (1920), cert. denied sub nom. State Tax Comm'n v. Alpha Portland Cement Co., 256 U.S. 702 (1921), quoted in Donovan v. Bierwirth, 680 F.2d 263, 272 (2nd Cir., cert. denied, 459 U.S. 1069 (1982). In this case, the intertwining of the entities, their personnel and their transactions alone strongly suggests Respondent's control.
19 Respondent erroneously contends (Exc. 7) that he received no gain from the Regulation O and section 23A violations because no "money went into [his] pockets." The Board agrees with the ALJ that the test for gain or benefit under Regulation O and section 23A is whether the party or his related interests received a benefit. R.D. 2425 (quoting Board cases). Respondent does not allege that under this test he received no benefit.
20 Respondent challenged the findings (Exc. 56) that this loan resulted in losses to the Bank. However, he cites no record evidence to support this challenge, and, therefore, the Board upholds these findings.
21 Respondent puts much emphasis (Br. 8) on
having been disinherited by his father at one point. The ALJ properly
found this fact to be unpersuasive. The father's action is not
relevant; he did not remove Respondent as a beneficiary of the trust,
and, indeed, the possibility that his father would take some action to
do so might lead Respondent to be even more inclined to favor the
trust's interest over the Bank's to please his father. See
R.D. 10.
22 His abstention from the vote on the loan
does not absolve him from liability, contrary to his contention (Br.
910 and n. 3). Without disclosure of his true interest, his
abstention is fatally undermined. However, the violation of Regulation
O does not depend on his conduct since the Regulation imposes absolute
limits on the amounts he can receive as an insider without regard to
other limits imposed by the regulations concerning extensions of credit
to insiders. Cf. 12 C.F.R. §215.4(d) (lending limits)
with 12 C.F.R. §215.4(b) (prior approval requirement). The failure
to disclose his interest would prevent the loan from satisfying the
prior approval requirements and furnish another reason for concluding
that the loan violated Regulation O.
{{1-31-01 p.A-3190}}
on the Interpretive Letter of the Federal Reserve Board's General Counsel that the exception only
applies "to enable an insider to protect a bank against loss arising
from a credit extended to an unrelated third party" (R.D. 1819
quoting the Interpretive Letter). Nothing in the record suggests that
the loans purchased fell within the terms of this exception. The Board
agrees, for the reasons stated by the ALJ, with his conclusion that, as
a factual matter, the purpose of the transaction was to protect the
directors from contempt fines since FPTC had never before engaged in
this type of business (R.D. 18, 6970). Indeed, the Declaration of
Bank president James L. Redman readily admits that such was the
purpose. Ex. 178, ¶ 5.
[.13] That these loans might have turned out to be valuable to the Bank, as
Respondent contends (Exc. 15), is irrelevant to the Regulation O
inquiry. A violation of Regulation O merely requires that the
extensions of credit to insiders or their related entities exceed a
certain limit. 12 C.F.R. §215.4(d). Likewise, by its terms, the
exception's applicability does not turn on whether or not the loans
provide a benefit to the Bank as well as the insider. Thus, the
purchase of these loans violated Regulation O.23
4. * * *
[.14] Respondent challenges the ALJ's findings concerning the * *
* loan as a basis for removal and prohibition, contending (Exc.
1718; Br. 19) that the Bank suffered no loss on the loan. The flaw in
this contention is that the ALJ never found that the Bank actually
suffered a loss on the loan. R.D. 113. Rather, the ALJ's discussion
and conclusions reveal two bases for removal and prohibition. First,
Respondent benefited from the loan and his misrepresentations to the
FDIC concerning its status because "1) it relieved him of any
potential liability to * * * from threatened litigation and 2) it forestalled Respondent from having to make any capital
injections, as the Bank did not immediately recognize losses associated
with the * * * loan, and [sic] make any capital
adjustments which may have been required by the existing cease and
desist order." R.D. 3233, 11011, 113. Second, the Bank suffered
potential loss and other damage because the transaction released a
"solid borrower . . . from his personal guarantee on the
loan" and substituted a borrower who was unable to service the debt
resulting in the debt becoming delinquent. R.D. 32, 10810, 113. Under
the statute, it is enough either that Respondent benefited from the
transaction and that the Bank would probably suffer loss or other
damage. 12 U.S.C. § 1818(e)(1)(B). Actual loss is not necessary for
removal and prohibition. See In the Matter of Bily Proffitt,
FDIC-96-105e, 1 FDIC Enf. Dec. & Ord. (P-H) [Transfer Binder] ¶ 5251 at A-2977 (Oct. 6, 1998), aff'd, 200 F.3d 855 (D.C.
Cir. 2000).
5. NEI/C.T.
Respondent contends (Br. 11) that there was insufficient evidence of a joint venture between NEI and C.T., thus precluding the loans to C.T. from violating Regulation O. The Board initially notes that since Andreu is board chairman of both companies, R.D. 44, the notion of a joint venture is hardly far-fetched. See note 15, supra. In addition, the Board agrees with the ALJ that the documents in the record and FDIC examiner Shovlowsky's testimony establish the existence of a joint venture between NEI and C.T. R.D. 7374; FDIC Ex. 236, 241, 25254; Tr. (Vol. 2) 19697, 21216.24
6. The Collateral Substitution Transaction
Respondent mounts a major challenge to the ALJ's findings that the collateral substitution transaction constituted a breach of fiduciary duty and unsafe or unsound practice.25 Most of his exceptions to specific facts (Exc. 714) and his Brief (Br. 1219) deal
23 The Board rejects Respondent's contention (Br. 45) that the FDIC was engaged in a "witch hunt" against the Bank. The internal memorandum (FDIC Ex. 870) quoted concerning reversal of gains appears to the Board to be simply a standard memorandum between staff raising an issue and attempting to explore what information would be needed to determine whether reported gains should be reversed. The Board also notes that the testimony of board member Dr. Willis, conceded that, notwithstanding the implication of his testimony that the FDIC treated the directors as if they were "nincompoops," he also said that "I think it's important to realize that there was some good advice given [by the FDIC] in many cases." Tr. (Vol. 16) 277.
24 Respondent's attack (Br. 11) on Mr. Ankenbrand's testimony on this point is irrelevant since the ALJ did not rely on that testimony. R.D. 7374.
25 In connection with his challenge, he has relied extensively on deposition testimony of Bank president James Redman. Mr. Redman was not called as a witness at trial, and the deposition testimony was attached to Respondent's Post-hearing brief. Since this testimony was not admitted at trial, it is not part of the record before the Board, and, therefore, we do not consider it.
{{1-31-01 p.A-3191}}
with this transaction. He attempts to paint a picture of a transaction in which he was relatively uninvolved and which would have worked out favorably but for the machinations of local government. After consideration of the record, the Board concludes that his claims are entirely disingenuous. There is strong evidence that Respondent did breach his duty to the Bank.
The Recommended Decision describes this transaction in detail. The Board will only summarize its crucial aspects. The Board concludes that its complexity alone, as well as its transformation during its course, suggests a transaction generated with something other than the Bank's
interests in mind. Or, to quote Director Schwarz's euphemistic view:
"The purpose of doing this was basically to accommodate a client of
the bank." Tr. (Vol. 16) 222. There is no doubt that Respondent's
involvement was pervasive. R.D. 2627, 8899.26 The
Board agrees with the ALJ that it was undertaken primarily to benefit
him and his interests. R.D. 30.
In evaluating the transaction, the Board focuses, as the ALJ did, on
the roles of Respondent and the Bank's board. The crucial questions
concern Respondent's role in arranging this complex transaction, his
knowledge of the details and the Bank board's decision-making process.
Respondent did not vote at the board meeting approving the transaction.
This recusal, however, only has legal significance for Respondent if
the Bank's board had adequate information so that it could make a
fully-informed, independent decision on the transaction. In the
Board's view, this was not the case.
By 1992, the Bank had outstanding extensions of credit to RVDM totaling
$1.6 million secured by parcels of real estate, some of which RDF/IIP
owned. R.D. 8687. On January 27, 1994, RDF/IIP, an entity Respondent
controlled, entered into an agreement to sell some land, including a
portion of the land partially securing the RVDM loans, for $1.9
million. R.D. 87. Subsequently, the deal expanded to include all of the
RDF/IIP land partially securing the RVDM loans. R.D. 87. The purchaser
of the land needed "environmental mitigation" property to offset
land it was developing elsewhere. Id.
During the months of March and April, 1994, the deal evolved as
Respondent negotiated to have some of his personal property, as well as
some property owned by RVDM and securing the extensions of credit,
included in the deal as well. R.D. 8890.27 As of April
4, the land owned by RDF/IIP appeared to be the primary
"mitigation" property under consideration by the purchaser. R.D.
90.28
In order to effect the transaction, the Bank had to agree to release
the RDF/IIP property as collateral for the RVDM loan. On April 7,
Respondent made such a request, suggesting that other property owned by
RDF/IIP could be substituted as collateral. R.D. 9192. The Bank
president responded favorably so long as the substituted collateral was
of at least equal value and marketability. R.D. 92. He noted a concern
about the original collateral because he believed RDF/IIP was in
bankruptcy. Id. He was apparently unaware that those
bankruptcy proceedings had been dismissed in early March (R.D. 88). At
this time, RVDM proposed certain property it owned as the substitute
collateral. R.D. 92.
At about the same time and prior to the
26 One issue he raises repeatedly in
challenging specific Findings of Fact (##439, 440, 442, 455) is whether
the initials "RDLF" in the Bank's contact sheet (FDIC. Ex. 26)
refer to him or to "Rancho De La Fuente" (Exc. 78, 10).
* * * , the handling officer for the loan who prepared the
contact sheet specifically testified that "RDLF" stood for Roque
De La Fuente. Tr. (Vol. 9) 18284. This testimony is confirmed by a
reference on Ex. 26 at 5: "RDLF request we order appraisal
immediately on property he is requesting to be substituted."
(emphasis supplied). Respondent relies on statements made by * *
* on cross-examination for the contrary proposition (Exc. 8), but
what * * * implied on cross-examination was that he did not
consistently use either Respondent's name or initials but one or the
other. Tr. (Vol. 9) 203 (1.25)204 (1.6). Respondent also points out
that the actual letter referenced is from RDF/IIP. While this is true,
it merely proves what the ALJ found: that in everyone's eyes
Respondent effectively was the company.
Respondent also contests (Exc. 11) Finding of Fact #470 stating that he
was the primary decision-maker on behalf of four entities involved in
the transaction. He admits being the decision-maker for two of the four
but not for RDF/IIP and RVDM. In light of the Board's finding that he
controlled those two entities, this challenge lacks any merit and, in
any case, is belied by the course of negotiations outlined by the
ALJ. R.D. 8799.
27 Respondent admitted intimate involvement in these negotiations. R.D. 91.
28 Respondent contends (Exc. 7) that Finding of Fact #434, on which this sentence is based, is inconsistent with
Findings of Fact ##419 and 420. This is wrong because those findings
(##419 and 420) address an earlier time frame (mid-March) and, in any
event, are not inconsistent.
{{1-31-01 p.A-3192}}
disposition of this transaction
by the Bank's board, Respondent's company, NEI, already committed the
proceeds of the sale of the original collateral to pay down a loan from
another financial institution. R.D. 9394. Respondent did not inform
that institution that the source of the money pledged was property
currently serving as collateral for a loan at the Bank. R.D. 94.
On June 15, 1994, Respondent attended a meeting, on behalf of all of
the entities selling property to the purchaser, with the purchaser and
the U.S. Fish and Wildlife Service concerning environmental issues.
R.D. 95. He alone represented the sellers. Id. At the
meeting, he offered a further modification of the transaction that
would result in the sale of 310 acres of RDF/IIP property securing the
RVDM loans and 40 acres of property he owned personally. R.D. 9596.
This proposal appeared to satisfy the government and ended up
representing almost exactly the actual transaction. R.D. 96.
On June 17, the Bank's board held a meeting concerning the collateral
substitution transaction. Id. Other than Respondent's
abstention from voting, what is undisputed about this meeting is that
the board did not understand the transaction. The loan officer handling
the matter, * * * , had not prepared a credit memorandum
because he did not have an adequate understanding of the transaction.
R.D. 96. Nonetheless, the meeting went ahead. Id. * *
* did not make a recommendation on the advisability of the Bank
entering into the transaction and could not explain the details.
Id. He still does not understand the transaction. Tr. (Vol.
9) 187.
During the meeting, the board called Respondent into the meeting to
explain the transaction. R.D. 9697. He apparently explained the
details of the transaction. Tr. (Vol. 9) 187. However, his explanation
did not touch on a number of issues that board members felt were
important and of which they were apparently unaware. R.D. 28, 10102.
For example, Director Richins was unaware that RVDM was delinquent on
the loan at the time, that RDF/IIP was no longer in bankruptcy, and
that another bank had begun foreclosure procedures against RVDM in
1993. Tr. (Vol. 16) 68. The board minutes do not reflect the fact
that Respondent's transaction involving the original collateral was in
place at the time of the board meeting or that he had already pledged
the proceeds. R.D. 98. The mathematics of the transaction were not
discussed. R.D. 97. Finally, as minutes of a later board meeting make
clear, the board members were under the impression that the bankruptcy
and environmental issues "clouded the possible sale" of the
original collateral whereas the substituted collateral appeared not to
raise any of these issues. R.D. 10102.
[.15]Respondent, as the individual who controlled RDF/IIP, would have known
that the entity was no longer in bankruptcy. As the person involved in
the negotiations with the federal government, he would have known that
no environmental issues existed with respect to the original
collateral. R.D. 102.29 He also knew that the substitute
collateral was not of equal value to the original collateral. R.D. 97.
[.16] Despite his knowledge, he appears not to have communicated any of this
information to the Bank's directors. This Board is very concerned that
the Bank's directors would invite the interested party to explain to
them a transaction they did not understand so that they could vote on
it. If they and the officers did not understand the transaction, they
should not have voted on it until they did understand it rather than
asking Respondent to explain it. However, once they invited Respondent
to explain the details of the transaction and he agreed to do so, he
had an obligation to put the Bank's interests before his own and
disclose any information that might bear on his role in, and the
prudence of, the proposed transaction. See Lowe v. FDIC, 958
F.2d 1526, 15351536 (11th Cir. 1992), aff'g FDIC-89-21k,
1 FDIC Enf. Dec. and Ord. (P-H) ¶ 5153 at A-1536 (1990).
Therefore, he breached his fiduciary duty to the Bank and committed an
unsafe or unsound practice.
One defense seems to be that the Bank had more than ample collateral
even with the substitution. However, that was a decision for the
Bank's directors to make, once they were fully informed of all of the
facts. Thus, his challenge to the ALJ's conclusion that he engaged in
a breach of fiduciary duty and an unsafe or unsound practice must fail.
29 It is not entirely clear from the testimony
or the ALJ's findings what the extent of the environmental
"cloud" was. The clearest indication from the testimony is that
board members believed the original collateral to be unmarketable
because of the environmental issue involving the gnatcatcher. Tr. (Vol.
15) 21617. That Respondent had been able to find a market for the
collateral as "mitigation" property would be important.
{{1-31-01 p.A-3193}}
Respondent also attempts to defend on the basis of the alleged failure
of the County of San Diego to honor an agreement concerning RVDM
property. This defense is based (Br. 16, 17) on an Exhibit 905 never
admitted into evidence and the deposition testimony of Mr. Redman
attached to Respondent's post-hearing brief and also never admitted
into evidence. In any event, this evidence would not change the key
facts: the Bank's board made a decision to substitute less-valuable
collateral based on incomplete information. Accordingly, Respondent
cannot rely on the County's alleged action.30
CONCLUSION
This record contains more than ample justification for
Respondent's removal. It is clear that he used the Bank to finance the
companies and other entities comprising the interlocking web of his
interests with little regard for the law or the Bank's safety and
soundness. Indeed, once the Board disposes of the control issue and the
question of whether Respondent received gains by his actions, the
myriad Regulation O and section 23A violations are undisputed. In
addition, the Board concludes that any one or combination of those
loans that, in addition to the $800,000 loan to Respondent personally,
would violate the lending limits of either Regulation O or section 23A
and would suffice to justify his removal and prohibition. In addition,
the Board concludes that the collateral substitution and * *
* transactions together independently justify his removal and
prohibition. Accordingly, based on the overwhelming record in this
case, the Board adopts and incorporates by reference the ALJ's
recommended decision removing and prohibiting Respondent and issues the
following order implementing this Decision.30
ORDER OF REMOVAL AND PROHIBITION
For the reasons set forth above, and pursuant to section 8(e) of
the Federal Deposit Insurance Act, 12 U.S.C. §1818(e), it is hereby
ORDERED that:
1. Roque de la Fuente II is hereby removed from First
International Bank, Chula Vista, California.
2. Roque de la Fuente II shall not participate in any manner in the
conduct of the affairs of any insured depository institution, agency or
organization enumerated in section 8(e)(7)(A) of the FDI Act, 12 U.S.C.
§1818(e)(7)(A), without the prior written consent of the FDIC and
the appropriate Federal financial institutions regulatory agency, as
that term is defined in section 8(e)(7)(D) of the FDI Act, 12 U.S.C.
§1818(e)(7)(D).
3. Roque de la Fuente II shall not solicit, procure, transfer, attempt
to transfer, vote, or attempt to vote any proxy, consent or
authorization with respect to any voting rights in any
financial institution, agency, or organization enumerated in 12
U.S.C. §1818(e)(7)(A), without the prior written consent of the FDIC
and the appropriate Federal financial institutions regulatory agency,
as that term is defined in section 8(e)(7)(D) of the FDI Act, 12 U.S.C.
§1818(e)(7)(D).
4. Roque de la Fuente II shall not violate any voting agreement
with respect to any insured depository institution, agency, or
organization enumerated in section 8(e)(7)(A) of
30 Respondent also challenges (Exc. 45) the ALJ's findings that the Bank suffered a loss on the collateral
substitution transaction. In his view, whatever loss was suffered has
been or will be recouped by the Bank. This contention does not help
Respondent because the undisputed gain to him on the transaction would
justify the removal and prohibition. In addition, he failed to raise
the issue of whether the transaction resulted in a loss before the ALJ
and has therefore waived it. 12 C.F.R. §308.37(a)(2). However, the
undisputed fact that the Bank initially sustained losses and took a
charge-off certainly establishes "other damage" and probably
"loss" for purposes of 12 U.S.C. §1818(e), even if the loss is
later recouped. See In the Matter of James L. Leuthe,
FDIC-95-15e and 95-16k, 1 FDIC Enf. Dec. & Ord. (P-H) [Transfer
Binder] ¶ 5249 at A-2930 (Aug. 31, 1998), aff'd
mem., 194 F.3d 134 (D.C. Cir. 1999). A charge-off simply
constitutes recognition of a loss and has the same effect as a loss: a
reduction in a bank's capital. That the bank may recoup the loss later
does not change this initial effect. In any event, the Board's review
of the only record evidence cited by Respondent in support of his
challenge, Tr. (Vol. 20) 16978, views that evidence as supporting a
different proposition: that ultimately the Bank would recoup its losses
and charge-offs, not that there was no loss. This is a very different
point.
31 Respondent filed a request on August 30,
2000, to reopen the record because he believes the current record is
stale. His request, however, does not specify why our decision would be
affected in any way by the fact that the hearing was held in 1998, and,
therefore, the request is denied on this basis alone. Indeed, given the
content of his exceptions, it seems likely that his request to update
the record is really a request for an opportunity to prove that the
Bank ultimately suffered no losses because of his conduct. Since, the
Board's decision does not depend on a finding that the Bank ultimately
suffered losses on any of the loans at issue, see n. 27,
supra, there is no reason to reopen the record for such
evidence.
{{1-31-01 p.A-3194}}
the FDI Act, 12 U.S.C. §1818(e)(7)(A), without the prior written consent of the FDIC and
the appropriate Federal financial institutions regulatory agency, as
that term is defined in section 8(e)(7)(D) of the FDI Act, 12 U.S.C.
§1818(e)(7)(D).
5. Roque de la Fuente II shall not vote for a director, or serve or act
as an institution-affiliated party, as that term is defined in section
3(u) of the FDI Act, 12 U.S.C. §1813(u), of any insured depository
institution, agency, or organization enumerated in section 8(e)(7)(A)
of the FDI Act, 12 U.S.C. §1818(e)(7)(A), without the prior written
consent of the FDIC and the appropriate Federal financial institutions
regulatory agency, as that term is defined in section 8(e)(7)(D) of the
FDI Act, 12 U.S.C. §1818(e)(7)(D).
This ORDER will become effective thirty (30) days from the date of its
issuance. It will remain effective and in force except to the
extent that, and until such time as, any provision shall have been
modified, terminated, suspended, or set aside by the FDIC.
IT IS FURTHER ORDERED that copies of this Decision and Order shall be
served on Roque de la Fuente II, FDIC Enforcement Counsel, the ALJ, and
the Superintendent of Banks for the State of California.
By direction of the Board of Directors.
Dated at Washington, D.C., this 21st day of November, 2000.
RECOMMENDED DECISION
In the Matter of
ROQUE DE LA FUENTE II
Individually and as an Institution-affiliated party of
FIRST INTERNATIONAL BANK
CHULA VISTA, CALIFORNIA
(Insured State Nonmember Bank)
DECISION AND ORDER
FDIC-97-31e
Appearances:
For the Federal Deposit Insurance Corporation:
Ms. JoAnna A. Gekas, Esq.
Ms. Frances L. Johnston, Esq.
Mr. Joseph J. Sano, Esq.
For the Respondent:
Mr. Roque De La Fuente II, pro se
ARTHUR L. SHIPE, Administrative Law Judge
I. Summary of Proceedings
This action arises out of a Notice of Intention to Remove from
Office and to Prohibit from Further Participation, issued by the
Federal Deposit Insurance Corporation on June 11, 1997. The Notice,
brought pursuant to section 8(e) of the Federal Deposit Insurance Act,
12 U.S.C. §1818(e), seeks to remove Respondent Roque De La Fuente II
as an institution-affiliated party of the First International Bank,
Chula Vista, California, and to prohibit his further industry
participation.
The matter was tried before me during the period April 20 to May 15,
1998, in San Diego, California, wherein the FDIC appeared through the
above enforcement counsel and Respondent appeared pro se.
On the record as a whole, including my personal observation of the
witnesses, briefs, and arguments presented, I recommend that the FDIC
Board of Directors remove and permanently prohibit Respondent De La
Fuente, for the reasons set forth below.
II. Introduction
Respondent De La Fuente II (hereinafter "Respondent") is the
majority shareholder of First International Bank (hereinafter
"FIB" or "the Bank"), having acquired control of the
institution in 1987. He sits as a member of the Board of Directors, and
served as its Chairman from 1987 to 1993. Immediately before acquiring
control of FIB, Respondent served as director of * * *
until his unsuccessful attempt to acquire control of that institution.
Respondent is a businessman, engaged in multiple ventures,
partnerships, and other associations. He is the sole owner of American
International Enterprises (hereinafter "AIE"), a real estate
development and management company with holdings in and around San
Diego. He was the 100 percent owner of National Enterprises, Inc.
("NEI") until early 1995 when he transferred the stock of the
company to three trusts of his children, and reportedly resigned from
all positions with the company. As the evidence demonstrates, however,
Respondent continued to exercise considerable control and influence
over the operations of NEI.
{{1-31-01 p.A-3195}}
His many other business interests are interconnected through complex
and intricate means. Witnesses described the many different entities as
a "spider web" or a "bowl of spaghetti," and Enforcement
Counsel utilized the following diagram to depict the relationship
between the various entities relevant
here:
[Diagram not viewable on line.]
These characterizations, it turns out, are completely accurate. Among the Respondent's related
entities there existed a series of management agreements whereby
Respondent himself, through AIE, managed certain of the companies
pursuant to contract. Some companies would lend collateral among
themselves; some would transfer funds between them; others would enter
option agreements to purchase stock or realty from one another; while
others would enter into joint ventures. Virtually all of Respondent's
activities operated out of his offices located at 5440 Morehouse Drive
in San Diego, California.
Suffice it to say that Respondent's many business activities are
somewhat commingled and transfused. For this reason, it becomes
difficult to distinguish among the separate entitiesa distinction
quite important when dealing in the regulated field of banking.
Aside from the interconnections and interrelationships that exist,
there are many other facts and transactions which can be explained only
by assuming that the De La Fuente entities are all related. Respondent
raises considerable objection to these assumptions, but elected not to
testify and explain the circumstances. In many respects he alone is the
only person that could truly know, understand, and explain the
intricacies and details concerning the organizations. For whatever
reason he chose not to do so.
Among the various entities relevant to this proceeding are the
following: Rancho Vista del Mar, Inc. (hereinafter "RVDM") and
its sister company Rancho De La Fuente/International Industrial Park
("RDF/IIP"). The Respondent's mother, Bertha Guerra de De La
Fuente, technically owned these entities through a series of offshore
corporations, and served as president of RVDM. As the evidence
demonstrates, however, Re-
{{1-31-01 p.A-3196}}
spondent's involvement with these entities is substantial.
AIE (introduced briefly above) is a California corporation wholly-owned
by Respondent De La Fuente. Respondent at all times relevant served as
president of AIE, and naturally exercised considerable control over its
management and policies. NEI (also introduced briefly above) is a
California corporation wholly owned by Respondent De La Fuente until
early 1995. That year Respondent purportedly "gifted" the stock
of this company to three irrevocable trusts for his children, and
claims to have ended his involvement in the affairs of NEI. The
evidence, however, establishes otherwise.
The Roque De La Fuente Alexander Revocable Trust No. 1 ("Alexander
Trust") is a trust created by Respondent's father in 1979.
Respondent admittedly has a 25 percent contingent interest in this
trust, which holds title to a number of other business assets.
Respondent has regularly reported his interest in this asset, though
when necessary for other purposes, he seeks to distance himself from
the trust.
Witec Cayman Patents ("Witec Patents") and Witec Cayman Services
("Witec Services") are two entities of which Respondent is a part
owner, and previous officer. His involvement with these entities dates
back to at least 1982 when he was appointed vice-president of Witec
Services, eventually becoming president in 1990.
Several other related entities which play a somewhat lesser role in
this proceeding include Fine Particle Technology Corporation
("FPTC"), a company in which Respondent held an ownership
interest which he transferred to the 1995 Irrevocable Trusts. American
International Racing ("AIR") is Respondent's wholly-owned
company; D&D Landholdings ("D&D") is a partnership of which
Respondent owns at least 75 percent through AIR. C.T. Produce,
Inc. ("C.T. Produce") is an entity involved in a joint venture
with Respondent.
Of the above entities, the Alexander Trust, RDF/IIP, RVDM, FPTC, NEI,
and C.T. Produce have all been borrowers of the First International
Bank during the time covered by the FDIC's Notice. Loans to the
Alexander Trust and RVDM have resulted in losses to the Bank in excess
of $1.3 million.
The FDIC's case against Respondent is based on three primary
allegations:
(1) That Respondent concealed his interest in and control over his
various related interests which resulted in multiple extensions of
credit by the Bank in violation of Regulation O and Section 23A; (2)
that Respondent proposed and personally benefited from a transaction to
substitute collateral held by the Bank for less valuable collateral and (3) that Respondent arranged a Bank transaction designed to conceal
and forestall the recognition of Bank losses on a loan made to *
* * , thereby protecting himself from personal liability.
III. Discussion
1. Extensions of Credit to Respondent's Related Interests
The Notice alleges that a number of extensions of credit made by
the Bank violated provisions of Regulation O (12 C.F.R. Part 215) and
that Respondent participated in and aided and abetted those violations.
Regulation O limits loans that banks may extend to insiders, and
defines the term "insider" as a director or principal shareholder
including "any related interest of such person." 12 C.F.R.
§215.2(h).
The applicable limitation here is that no more than 15 percent of the
bank's unimpaired capital and surplus may be loaned to an insider and
his related interests, with the term "related interest" including
any company "controlled" by an insider.1 The
regulation provides that an extension of credit is considered made to
an insider to the extent that the "proceeds are transferred to an
insider or are used for the tangible economic benefit of the
insider." 12 C.F.R. §215.3(f).
The specific loans at issue in this allegation include the following:
$1 million extension of credit to the Alexander Trust
on May 17, 1990 which exceeded the Bank's $630,000 lending limit.
$1 million extension of credit to RDF/IIP on October 8, 1990,
which exceeded the Bank's $702,000 lending limit.
The $400,000 extension of credit to RVDM on December 26, 1990,
which, when aggregated with the previous extensions of credit exceeded
the Bank's $702,000 lending limit.
1 12 C.F.R. § 215.4(c), 215.2(i) and 215.2(n)(1).
{{1-31-01 p.A-3197}}
The $800,000 extension of credit to RVDM on January 24, 1992,
which when aggregated with the then existing extensions of credit,
exceeded the Bank's $820,000 lending limit.
The $1.6 million extension of credit to RVDM on July 15, 1992,
which exceeded the Bank's $976,000 lending limit.
The $800,000 extension of credit to Respondent on September 9,
1992, which when aggregated with the existing extensions of credit
exceeded the Bank's $976,000 lending limit.
The $763,000 extension of credit to FPTC on July 20, 1995,
which when aggregated with the existing extensions of credit exceeded
the Bank's $814,000 lending limit.
The $1.35 million extension of credit to FPTC on August 11,
1995 which exceeded the Bank's $814,000 lending limit.
The $750,000 extension of credit to NEI (by virtue of
assumption of Respondent's loan) on October 27, 1995, which when
aggregated with the existing extensions of credit exceeded the Bank's
$854,000 lending limit.
The $600,000 extension of credit to FPTC on November 8, 1995,
which when aggregated with the existing extensions of credit exceeded
the Bank's $857,000 lending limit.
The $200,000 extension of credit to C.T. Produce on December
18, 1995, which was for the tangible economic benefit of NEI, when
aggregated with the existing extensions of credit exceeded the Bank's
$854,000 lending limit.
The additional $800,000 extension of credit to FPTC on December
28, 1995, which when aggregated with the existing extensions of credit
exceeded the Bank's $854,000 lending limit.
Respondent does not dispute that the above loans were made, nor
does he dispute that as a Bank director and controlling shareholder,
Regulation O applies to him. With one exception, Respondent admits that
Enforcement Counsel accurately calculated the Bank's lending limit for
purposes of determining whether Regulation O was
violated.2
Nor does Respondent dispute that the loan to the Alexander Trust on May
17, 1990, and the loan to RVDM on July 15, 1992 both defaulted, causing
collective loss to the Bank in the amount of $1.34 million. Rather, the
only issue with respect to the Regulation O allegations is whether
these entities are in fact Respondent's related interests due to
"control," and whether Respondent and his interests received the
tangible economic benefit of the Alexander Trust and C.T. Produce
loans.
Regulation O defines the term "control" as follows:
(1) Control of a company or bank means that a person directly or
indirectly, acting through or in concert with one or more persons
(i) owns, controls, or has the power to vote 25 percent or more
of any class of voting securities of the company or bank
(ii) controls in any manner the election of a majority of the directors
of the company or bank; or
(iii) has the power to exercise a controlling influence over the
management of the company or bank.
12 C.F.R. §215.2(c).
a. The Alexander Trust
Enforcement Counsel contend that Respondent received the
"tangible economic benefit" of the Alexander Trust loan within
the meaning of 12 C.F.R. §215.3(f). While the proceeds of the credit
were not transferred directly to Respondent, Enforcement Counsel
contend they were used for his economic benefit.
There is no dispute that the Respondent at all times relevant to the
Notice had a 25 percent interest in the assets of the Alexander Trust.
Respondent repeatedly claimed this ownership in filings made with the
FDIC in 1985 and 1987; in a loan application in 1990; and in civil
depositions conducted in 1990 and 1995. Respondent's position is
simply that the term "tangible economic benefit" does not apply
to a beneficiary of a revocable trust, as the contingent
interest of
2 Though Respondent denied that the FDIC had
accurately calculated the Bank's lending limit as of December 31,
1999, I find the calculation correct in all respects. Respondent did
stipulate at hearing that the calculation was correct for the hearing
only.
{{1-31-01 p.A-3198}}
a revocable trust may be later changed at the wishes of the
settlor.
In 1980 the General Counsel of the Board of Governors of the Federal
Reserve System issued an interpretive opinion of Regulation O. In
describing an issue substantially similar to the one at hand, the
opinion states:
The final question posed in your letter is whether an extension of
credit by a member bank to an estate or trust of which a director of
the member bank is a beneficiary (but not a trustee or executor) is
covered by Regulation O. Under section 215.3(f) of Regulation O, an
extension of credit may be considered made to the director-beneficiary
to the extent "the proceeds of the extension of credit are used for
the tangible economic benefit of, or are transferred," to the
director. An extension of credit by a member bank to an estate or trust
of which a member bank director is a beneficiary would, in our view,
inure to the benefit of the director as a beneficiary of the trust or
estate. Whether or not the extension of credit to the estate or trust
would be considered made to the director-beneficiary under section
215.3(f) would depend upon the size of the director-beneficiary's
interest in the estate or trust. In our view, and consistent with the
definition of control in the statute, an extension of credit by a
member bank to the estate or trust would be considered made to the
director-beneficiary if the director-beneficiary has a 25 percent or
more present or contingent interest in the estate or trust.
This position is consistent with a 1974 Board staff interpretation that
a loan by a member bank to a trust in which an executive officer of the
bank was a beneficiary would be considered a loan under section 22(g)
of the Federal Reserve Act and then existing Regulation O. The staff
reasoned that a personal interest in the income or assets of the trust,
even a future interest, inevitably creates the danger of a conflict of
interest between the officer's duty to the bank and his/her personal
enrichment.
1980 W.L. 119519 (F.R.B.), Ruling No. 3-1062.1 (May 23, 1980)
(emphasis added).
I find this analysis convincing. It stands to reason that a contingent
interest in a trust, which Respondent admits he had here, would be
sufficient to create a "tangible economic benefit" within the
meaning of Regulation O. The insider would naturally be inclined to
favor his interest as beneficiary of a trust. In the case of a
revocable trust, wherein the trustor may change the beneficiary
designation, the insider may be even more inclined to favor this
interest. The beneficiary of a contingent interest would have incentive
to keep the trust funded and keep favor with the trustor, so as to
ensure that any future contingent interest might come to fruition.
Respondent argues at length that the contingent nature of his interest
in the Alexander Trust makes the limitations of Regulation O
inapplicable. I cannot agree with this position, however.
Rather, I find the advisory opinion correctly states what must be the
law on this issue, Regulation O applies to credit extensions to an
estate or trust in which an insider has a 25 percent or greater
interest, regardless of whether the interest is present or contingent.
Loans of this nature present the types of risk which Regulation O
intended to avoid. For these reasons I conclude that the contingent
nature of Respondent's interest in the Alexander Trust renders
applicable the appropriate limitations of Regulation O.
Respondent raises several other arguments concerning this allegation,
including that his abstention from the vote on the Alexander Trust loan
should excuse any violation, that the FDIC should have earlier
challenged this credit extension, and his claim that he was allegedly
at one point disinherited from his father's will (there is no evidence
that he was ever removed as a beneficiary of the Alexander Trust). I
find these arguments unpersuasive, and conclude that Respondent De La
Fuente received the tangible economic benefit of this loan, within the
meaning of Regulation O. Similarly I find the limitations contained in
the regulation were violated.
b. RVDM and RDF/IIP
Enforcement Counsel argue that Regulation O applies to the RVDM
and RDF/IIP loans as Respondent has "power to exercise a controlling
influence over the management or policies of the compan[ies] .
. . " 12 C.F.R. 215.2(c)(1)(iii). Enforcement Counsel concede
that Respondent's mother, Bertha Guerra de De La Fuente is the
ostensible owner of RVDM and RDF/IIP through offshore corporations.
They argue, however, that Respondent has power to exercise a
controlling influence over these companies, and in fact has had such
power from the moment
{{1-31-01 p.A-3199}}
the companies were formed. Respondent denies
substantive involvement with the two companiesa denial rather quickly
disproven.
The evidence establishes that RVDM and RDF/IIP are the successor
corporations to two companies which originally acquired a single piece
of real property in the Otay Mesa area of San Diego. Respondent
engineered the purchase of this real estate in 1982, and decided how
best to structure the two resulting companies and how best to allocate
the property between them. The resulting corporate structure was
designed to receive the most favorable tax treatment possible, and was
accomplished through ownership of the companies by Respondent's
mother, a foreign national.
After creating this corporate structure, Respondent's wholly owned
company AIE was given the exclusive contract to manage the property on
behalf of RVDM and RDF/IIP. As Respondent himself described in prior
testimony in another proceeding, given in 1990:
We [i.e. AIE] were involved from the inception of acquiring the
property, managing the property, selling the property, processing
different permits through the governing bodies, and eventually is
sellingto sell the property.
FDIC Exhibit 326.
Respondent also testified in the prior proceeding that his mother, the
owner of RVDM and RDF/IIP "did not want to have the day-to-day
responsibility of managing the company . . . " and
wanted to be a "completely passive 100 percent investor[ ]."
Id. Indeed, as a non-resident alien, Respondent's mother
was subject to restrictions as to the amount of time that she could
spend in the United States and would have suffered adverse tax
consequences if she had actually been running the companies she owned.
Pursuant to the management agreement, agreement, Respondent, through
AIE, managed and developed the properties owned by RVDM and RDF/IIP.
Respondent made all decisions regarding purchase, sale, trade,
investment, and development of the properties, which decisions were
allegedly "ratified" by his mother, the legal owner.
Respondent caused a number of important steps to be taken concerning
the development of real property in the Otay Mesa area. His biggest
success came as a result of a county condemnation case in which he
received approximately $38 million when property owned by RVDM and
RDF/IIP was condemned by the County of San Diego.
Respondent was a constant participant in the condemnation proceedings
on behalf of RVDM and RDF/IIP. He negotiated all aspects of the case
with county officials, attended meetings, and testified as principal on
behalf of the corporations. From at least 1987 to 1992 he identified
himself as vice president of both RVDM and RDF/IIP, and ample evidence
exists from business associates that Respondent actually exercised
day-to-day control of RVDM and RDF/IIP. He negotiated loans from
financial institutions, settled fee disputes with accounting firms,
negotiated and sold tracts of property, retained accountants and
appraisers, and otherwise exercised complete and actual control over
the companies.
Respondent denies, however, that he exercised any controlling influence
over the management or policies of the companies. He argues that
section 215.2(c)(1)(iii) requires that "the power to exercise a
controlling influence" requires some showing of ownership, authority
to vote stock, or ability to elect directors. He cites a Federal
Reserve Board Staff Opinion and FDIC Advisory Opinion for the
proposition that the "power to exercise a controlling influence"
must relate to ownership.
Neither of the cited opinions gives support to his claim. Rather,
the two opinions deal with the rebuttable presumption of control by
ownership under section 215.2(c)(1)(i)and not the power to exercise a
controlling influence under section 215.2(c)(1)(iii). These are two
very different measures of control, and the FDIC has never alleged
Respondent's ownership of RVDM and RDF/IIP. Rather, the allegation has
always been that he exercised a controlling influence over the
entities, which has never required ownership as the OCC noted, when
concluding:
Section 215.2(b)(1)(iii)3 requires only that an
individual have the power to exercise a controlling influence over the
management of the company. No share ownership is required. If share
ownership were a pre-
3 Currently codified at 12 C.F.R. §215.2(c)(1)(iii).
{{1-31-01 p.A-3200}}
requisite for a finding of control in all circumstances, the regulation could easily be evaded, especially in the
case of closely held family corporations, by placing shares with a
spouse, or otherwise limiting share ownership to passive investors
within the family. Such a formalistic approach ignores the fact that
Regulation O clearly contemplates situations in which control may be
established by indirect means.
OCC Interp. Ltr., April 22, 1991, 1991 WL 338390 (OCC).
The conclusion is inescapable that Respondent De La Fuente exercised a
"controlling influence" over both the management and policies of
RVDM and RDF/IIP. As the above opinion contemplates, Respondent here
has created by "indirect means" a situation in which he controls
RVDM and RDF/IIP through a network of closely held family corporations.
He limits "share ownership to passive investors within the
family," while exercising actual control in all instances. His
argument is the "formalistic approach," which the above opinion
rejects. I conclude that the exercise of "controlling influence"
does not require a showing of share ownership (or something akin
thereto). Rather, I find that it may be established by the exact types
of actions which have clearly been established here.
c. NEI
The evidence establishes that Respondent owned NEI until 1995,
when he transferred his entire interest in this company to the trusts
of his three children. In October of 1995 Respondent claims to have
relinquished his management positions with NEI, and no longer reported
or disclosed any interest therein.
His divestiture of the company was pro forma at best,
however, as Respondent continued to exercise a controlling influence
over both the owners of NEI (i.e. the 1995 Irrevocable Trusts) and
management of the company itself.4 Respondent admitted
that he himself continued to make investment decisions for the trusts.
Although "independently" directed, the appointed trustees were
rather candid when testifying in this proceeding about their complete
lack of knowledge about the trusts, or how management of the trust
business is conducted.
An employee of NEI served as the actual day-to-day manager of the
trusts activities, and maintained virtually all of the records
associated with trust transactions. In my opinion Respondent De La
Fuente controlled all actions of the trusts, which in turn owned NEI.
The "independent" trustees, which have always been very close
associates and confidants of Respondent, simply rubber stamp any and
all decisions made or presented by Respondent.
Just as control of the trusts is not what it appears to be, so too
control of NEI is not what it is represented to be. Despite his
purported separation from NEI, Respondent continued his heavy
involvement in NEI matters. As with RVDM and RDF/IIP, Respondent's
wholly owned company AIE managed NEI pursuant to contract. As such,
Respondent personally negotiated the purchase of assets on behalf of
NEI, settled pending litigation with NEI, acted as guarantor on NEI's
debts, and otherwise demonstrated the complete power and control over
the management and policies of NEI. His "controlling influence"
over virtually all of NEI and its actions is so clearly established.
d. Fine Particle Technology Corporation
Respondent's involvement with FPTC goes back many years. The
evidence conclusively establishes his control over this entity through
both stock ownership, as well as his exercise of a controlling
influence over its management and policy.
In March of 1987 Respondent owned approximately 5.53 percent of the
outstanding FPTC stock. Respondent's close associate, Isaias Zapata
Oscoz ("Zapata"), owned approximately 4.96 percent.5
Together they pursued a joint course of conduct with respect to FPTC to
place another of Respondent's close associates, Jose Luis Andreu
("Andreu") on the FPTC board.6 The collective
4 The evidence suggests that Respondent's
true motivation in "divesting" his interest in NEI was not for
any tax purposes, but rather, to continue permitting NEI to purchase
RTC assets which it would otherwise have been prohibited from doing as
a result of a judgment obtained by the FDIC against Respondent.
5 Respondent and Mr. Zapata were extremely
close friends and business partners of many years. They both served as
directors and shareholders of the Bank; they both participated in
filing the change of control application to acquire the Bank; Mr.
Zapata served as co-trustee on the children's trusts; and both were
involved in business ventures together, including FPTC, Witec Patents,
and Witec Services. Mr. Zapata regrettably died a tragic and untimely
death shortly before the hearing in this matter.
6 Mr. Andreu is another of Respondent's closest associates, and served variously as an officer, director, and
agent for several of Respondent's related entities, including
vice-president of AIR; agent for RVDM and RDF/IIP; agent for the
Alexander Trust; former officer and director of NEI, FPTC, and other
related entities.
{{1-31-01 p.A-3201}}
votes of Respondent and Zapata secured Andreu's seat, and by January 6, 1990
Andreu was Chairman of the Board, and by March 11, 1991 he was
President.
In mid-1994 Andreu began acquiring FPTC stock, and by July 21, 1995,
the date of the first FPTC extension of credit at issue in this
proceeding, Andreu had acquired 24.42 percent of the company. To
acquire this stock, Andreu used funds drawn on an account of Witec
Patents, which company Respondent had been part owner of since 1981.
Respondent, Zapata, and Andreu had been intimately involved in the
affairs of the Witec companies for many years. By May of 1990, Andreu
informed the FPTC Board that he held proxies of all the shareholders of
Witec, who were also the shareholders of FPTC.
These facts lead to the conclusion that Respondent, directly or
indirectly, or acting in concert with others had the power to vote at
least 25 percent of the stock of FPTC. In addition to the power to vote
this stock, however, the evidence also establishes that Respondent had
the power to exercise a controlling influence over the management and
policies of FPTC. The best evidence of Respondent's controlling
influence concerns his receipt of $600,000 of loan proceeds to FPTC in
1995. The proceeds were diverted to Respondent and used to pay down his
recently classified loan at the Bank. There can be no reason that an
independent, unaffiliated company would transfer this kind of money to
Respondent for such purpose, other than through some exercise of
controlling influence.
Another example of Respondent's control of FPTC concerns its purchase
of loans from the Bank to save the directors, including Respondent,
from the individual payment of $500/day contempt sanctions. In that
situation, the FDIC had brought action against the Bank's directors in
federal district court, seeking to impose sanctions for their failure
to comply with a court order enforcing an outstanding FDIC cease and
desist order. On July 14, 1995, the United States District Court for
the Southern District of California entered an order assessing
Respondent and other directors individual fines of $500/day until the
Bank came into compliance with the court's order.
By the following Monday, July 17, 1995, FPTC, which had apparently
never been in the business of purchasing loans before, completed due
diligence and was prepared to purchase the loans provided that the Bank
finance the sale. As a result of this well-timed transaction, FPTC
purchased two loans, the Bank came into compliance with the court's
order, and the directors were spared the payment of contempt penalties.
It is doubtful that a truly independent company would have been aware
of, and much less interested in, purchasing these loans under the
circumstances. Rather, the obvious conclusion is that FPTC was not an
independent entity, but rather, was part of the De La Fuente common
enterprise, subject to his control. FPTC was a functioning member of
the De La Fuente web, assisting Respondent with infusions of cash and
purchases of Bank assets whenever needed. Whether one concludes that
Respondent exercised control of more than 25 percent of FPTC's stock,
or whether one concludes that Respondent had the power to exercise a
controlling influence over FPTC and its activities, the result is the
same; the extensions of credit to FPTC were clearly covered and
restricted by Regulation O. These restrictions were plainly violated.
Respondent's principal argument in reply to this allegation is that
the extension of credit that facilitated FPTC's loan purchase was for
the benefit of the Bank, and therefore not an extension of credit
within the meaning of Regulation O. An exception does provide that an
extension of credit is not covered by the regulatory restrictions if it
is extended "for the purpose of protecting the bank against loss or
of giving financial assistance to it." 12 C.F.R.
§215.3(b)(4)(ii).
Of course it should be noted that the July 1995 extension (the only
credit which Respondent argues is covered by this exception) is but one
of four different credits to FPTC alleged to have violated Regulation
O. This argument does not apply to the other credits, which were used
for other purposes.
I cannot accept that even the July 1995 extension qualifies for this
exception. The Bank and Respondent had contended initially that the
loans sold to FPTC were valuable assets. To now claim that the credit
to purchase the loans was for the purpose of
{{1-31-01 p.A-3202}}
"giving financial assistance" to the Bank is quite inconsistent with this previous
claim. Rather, the evidence adequately establishes that the intent in
selling the loans, and offering FPTC the necessary financing, was not
to confer some assistance upon the Bank, but rather, to spare the
directors (including Respondent) from the imposition of penalties.
The FDIC Board of Directors has concluded that the "statutory
exceptions to insider lending limitations must be strictly
construed." In the Matter of Amberg, 2 P-H FDIC Enf. Dec.
¶ 5181 (1992) at A-2113. The Federal Reserve Board, consistent
with the FDIC's position, has given similar interpretation of the
"protecting the bank or giving financial assistance" provision.
The General Counsel of the Federal Reserve Board stated:
Section 215.3(b)(4)(ii) of Regulation O does not permit a bank to
avoid the lending limit of the Act and the regulation, or to show
preferential treatment to an insider. In the context of the other
provisions of 12 C.F.R. §215.3(b)(4), this exemption is intended to
enable an insider to protect a bank against loss arising from a credit
extended to an unrelated third party. For example, the bank's
executive officer or principal shareholder would be permitted to
provide a guarantee on a loan by the bank to an unrelated person where
the credit has deteriorated.
FRB Interp. Ltr., June 14, 1989, 1989 WL 513159 (FRB) (emphasis added).
In summary, both factually and legally the loan to FPTC in July 1995
was not for the purpose of providing financial assistance to the bank
as permitted by the above authority. Rather, the loan is an
"extension of credit" within the meaning of Regulation O,
violating the limitations contained therein.
e. C.T. Produce
With respect to the C.T. Produce loan, the Enforcement Counsel
argue that the "tangible economic benefit" rule should apply. The
Enforcement Counsel have adequately proved that Respondent controls NEI
through his actual control of the trusts, and through his power to
exercise a controlling influence over NEI's management and policies.
The Enforcement Counsel allege here that the proceeds of the C.T.
Produce extensions were used to support a joint venture with NEI. They
argue therefore that the proceeds of the credit were for the tangible
economic benefit of NEI, and thus subject to the limitation of
Regulation O.
I find sufficient evidence to establish the joint venture between C.T.
Produce and NEI. Bank documents clearly indicate that C.T. Produce was
engaged in a joint venture with De La Fuente. Respondent's confidant,
Mr. Andreu, who served as the C.T. Produce board chairman, wrote the
Bank to acknowledge the relationship that existed between NEI and C.T.
Produce. In that correspondence he indicated that NEI had
"engaged" C.T. Produce to act as broker, discussed how the
"project has worked as planned," and how the "agreement
reached with C.T. Produce was [an] arms length transaction." FDIC
Exhibit No. 241.
I am convinced that NEI was an indirect beneficiary of the Bank's loan
to C.T. Produce. I believe the Bank's loan enabled C.T. Produce to
expand its operations into a business relationship with NEI, which
proved profitable to both entities. The tangible economic benefit of
the C.T. Produce loan inured NEI.
f. Section 215.6 Limitations
Section 215.6 of Regulation O provides that no director or
principal shareholder of a bank shall knowingly receive or permit a
related interest to receive, directly or indirectly, any extension of
credit that is not authorized. 12 C.F.R. §215.6. This provision
became effective on May 18, 1992, and applies only to extensions of
credit made after that date. Given the violations of Regulation O that
I find in this decision, I also find that Respondent De La Fuente has
violated §215.6 with respect to the following transactions that were
made after the effective date of this provision:
July 15, 1992 RVDM - $1.6 million
September 9, 1992 Respondent - $800,000
July 20, 1995 FPTC - $763,000
August 11, 1995 FPTC - $1.35 million
October 27, 1995 NEI - $750,000
November 8, 1995 FPTC - $600,000
December 18, 1995 C.T. Produce - $50,000
December 26, 1995 C.T. Produce - $200,000
December 28, 1995 FPTC - $800,000
{{1-31-01 p.A-3203}}
2. Extensions of Credit to Bank Affiliates
The Notice alleges that 10 of the 12 extensions of credit cited as
violations of Regulation O, also constitute violations of Section 23A
of the Federal Reserve Act, 12 U.S.C. §371c.7 Section
23A limits "covered transactions" that banks may make to an
"affiliate,"8 and defines covered transaction to
include "a loan or extension of credit to the affiliate." 12
U.S.C. §371c(b)(A).
An "affiliate" includes, among other things, any company
"controlled directly or indirectly, by trust or otherwise, by or for
the benefit of shareholders who beneficially or otherwise control,
directly or indirectly, by trust or otherwise, the . . .
bank." 12 U.S.C. §371c(b)(1)(C)(i). Under Section 23A, covered
transactions with affiliates may not in the aggregate exceed 20 percent
of the bank's capital stock and surplus. 12 U.S.C. §371c(1)(B).
Respondent admits that he controls 56.72 percent of the Bank's stock.
He also admits that the extensions of credit which Enforcement Counsel
claim violated section 23A were actually made. With two exceptions, he
admits that the FDIC accurately calculated the Bank's lending limit
for purposes of determining whether Section 23A was
violated.9 What Respondent denies is that he
"controlled" the Bank's "affiliates." With respect to C.T.
Produce, Enforcement Counsel do not contend this to be an affiliate,
but rather, argue that the "tangible economic benefit" of the
loans to C.T. Produce inured to NEI, which is an affiliate. Respondent
denies this as well.
"Control" may be found by reference to three different standards,
or presumptions:
A company or shareholder shall be deemed to have control over
another company if -
i) such company or shareholder, directly or indirectly, or acting
through one or more other persons owns, controls, or has the power to
vote 25 percent or more of any class of voting securities of the other
company
(ii) such company or shareholder controls in any manner the election of
a majority of the directors or trustees of the other company; or
(iii) the Board [of Governors of the Federal Reserve System]
determines, after notice and opportunity for hearing, that such company
or shareholder, directly or indirectly, exercises a controlling
influence over the management or policies of the other company
12 U.S.C. §371c(b)(3)(A).
Enforcement Counsel do not allege control by stock ownership (aside
from FPTC), or by control of the election of directors. And they claim
that no determination of controlling influence under the third
presumption is necessary for a finding of control to be made.
Rather, Enforcement argue that Respondent exercises actual
control over the affiliates, thus obviating the need to even rely on
the presumptions of section 23A. They contend the presumptions are not
the exclusive way to demonstrate control, and cite the following:
Section 23A does not confine its determination of control to
situations that are deemed "control" by the statute.
The use of control is broader than the absolute presumption established
by the statute.
FDIC Advisory Opinion 89-32, FDIC Law, Regulations, and Related
Acts (October 12, 1989) (emphasis original).
Similarly they cite another FDIC Advisory Opinion for the proposition
that:
The ownership of voting securities. . ., the control of the selection of trustees. . ., as well as the
Board of Governors determination . . ., are not the exclusive means of control recognized by the statute.
FDIC Advisory Opinion 9353, FDIC Law,
7 The ten loans alleged to violate Section 23A
include RDF/IIP ($1 million); RVDM ($400,000); RVDM ($800,000); RVDM
($1.6 million); FPTC ($763,000); FPTC ($1.35 million); NEI ($750,000) FPTC ($600,000); C.T. Produce ($200,000); FPTC ($800,000).
8 Section 23A of the Federal Reserve Act is made applicable to state nonmember banks by section 18(j) of the FDI
Act, which states:
Section 23A and 23B of the Federal Reserve Act shall apply with
respect to every nonmember insured bank in the same manner and to the
same extent as if the nonmember bank were a member bank.
12 U.S.C. §1828(j)(1)(A).
9 Although Respondent denied that the FDIC had
accurately calculated the Bank's lending limit as of December 31, 1991
and September 30, 1995, at hearing he stipulated that the FDIC's
calculations were correct for purposes of the hearing only. I find both
calculations correct.
{{1-31-01 p.A-3204}}
Regulations and Related Acts (August 2, 1993).
Enforcement Counsel argue that it would elevate form over substance to
allow Respondent to hide behind the fiction of ownership when in fact
he is the individual actually controlling the affiliates. There is no
doubt that Respondent exercised actual control over RVDM, RDF/IIP, NEI,
and FPTC. The evidence of this actual control is overwhelming.
It is accepted that actual control, as described in the two FDIC
Advisory Opinions, obviates the need to rely on the presumptions
contained in section 23A. The presumptions are exactly that circumstances in which control may be presumed. They are not the
exclusive means by which to show control.
In addition, it is accepted, as Enforcement Counsel argue
alternatively, that FDIC may find controlling influence under the third
presumption of section 23A. While the statute seems to require that the
Board of Governors of the Federal Reserve make "controlling
influence" determinations, this would make little sense in the
context of cases brought by FDIC pursuant to 12 U.S.C. §1828(j),
which makes section 23A applicable to nonmember banks, over which the
Board of Governors has no jurisdiction.
Rather, it seems to me the better interpretation is that the Board of
Directors of the FDIC, and not the Federal Reserve Board, should
determine whether a "controlling influence" is exercised in the
context of cases involving state nonmember banks. It is my finding and
conclusion that Respondent De La Fuente did exercise such control over
the above entities, so as to make them affiliates, within the meaning
of section 23A, 12 U.S.C. 371c(b)(3)(A)(iii). In addition to
establishing actual control, the facts also satisfy the third statutory
presumption of controlling influence.
Respondent received financial gain by reason of the extensions of
credit to himself and his related interests in violation of Regulation
O and Section 23A. For purposes of Regulation O, the gain is the sum of
the loans improperly extended, in this case $6,650.000.10
For purpose of Section 23A, Respondent's gain was $5.6
million.11 That these amounts may be properly attributed
as gain to Respondent were addressed in a similar situation, in which
the FDIC board stated:
First, there is no question that both of Lowe's related interests
received the extensions of credit that exceeded ICB's lending limits.
As a legal matter, the receipt of credit that should not have been
received is an economic benefit which must be directly attributed to
Lowe.
In the Matter of Lowe, et. al., Bound Volume 2, P-H
FDIC Enf. Dec. ¶ 5153 (1990), aff'd 958 F.2d 1526
(11th Cir. 1992).
Similarly, the FDIC Board has also held:
A loan made in violation of law to an institution-affiliated party
or his related interests . . . has been held to be a
benefit in and of itself. . . Therefore, all loans to
Respondent or his related interests in violation of law . .
. resulted in gain or other benefit to Respondent for the purposes
of Section 8(e).
In the Matter of Leuthe, 1 P-H FDIC Enf. Dec. and
Orders ¶ 5249 (1998), aff'd 977 F. Supp. 357.
While Respondent De La Fuente obviously gained from the multiple credit
extensions, the Bank, on the other hand, sustained losses of more than
$1.3 million. The personal interests of the Respondent were clearly
placed ahead of the Bank's interests.
3. Collateral Substitution Transaction
Respondent orchestrated a complex transaction whereby he caused
the Bank to release its lien on 320 acres of property owned by IIP
which served as collateral for a troubled credit to RVDM in the amount
of $1.6 million. Respondent sold the released collateral approximately
four months later for $2.1 million, and used the cash proceeds to pay
down a debt NEI owned to another lender, * * * . As part of
this same transaction, Respondent sold 40 acres of his own land for
approximately $260,000.
In return for the release of this collateral, the Bank accepted from
NEI as substitute collateral a first deed position on other property
owned by RVDM. The Bank already had a second lien position against the
sub-
10 For purposes of Regulation O the loans are: Alexander Trust ($1 million); RDF ($1 million); RVDM ($900,000 - the
total extension of $1.6 million minus the $700,000 used to satisfy the
RDF extension); Roque De La Fuente II ($800,000); FPTC ($1.35 million) FPTC ($600,000); C.T. Produce ($200,000) and FPTC ($800,000).
11 For purposes of Section 23A, the $1 million extension to the Alexander Trust is not included and the $750,000
extension to NEI is included instead of the $800,000 extension to Respondent De La Fuente.
{{1-31-01 p.A-3205}}
stituted property, and NEI merely subordinated to the Bank the first
deed position as well. The stated value of NEI's first deed position
was approximately $550,000.
After the substitution, RVDM defaulted on the loan and the Bank
foreclosed on the substituted collateral and lost over $700,000.
Respondent, of course, after having secured the release sale of the
original collateral, received the benefit of over $2 million.
There are several separate and significant events which make up the
collateral substitution transaction. For ease of understanding the
transaction, the following timeline is presented:
January 27, 1994 The Original Purchase Agreement is executed
between IIP and purchaser.
April 7, 1994 Respondent requested that the Bank release the subject
collateral owned by IIP
April 8, 1994 RVDM sent a letter to Bank proposing substitute
collateral
April 12, 1994 Proceeds from sale are promised to * * *
by NEI
April 14, 1994 Respondent requested that Bank order an appraisal on
the proposed substitute collateral
April 29, 1994 * * * granted a $2.5 million advance to
NEI, with IIP proceeds identified as a source of repayment
May 27, 1994 Respondent formally assigned IIP proceeds to * *
* on behalf of NEI
June 15, 1994 Respondent met with purchaser and state and federal
regulators to negotiate the final sale of IIP's 320 acre parcel and
Respondent's 40 acre parcel
June 17, 1994 The Bank's board of directors meets and approves the
release of the Bank's lien on the IIP property. Respondent explains
the collateral substitution transaction at the meeting but abstained
from voting on transaction.
July 21, 1994 The Bank released its lien on the IIP property.
The evidence establishes that even before the Bank's board of
directors met to consider releasing the IIP collateral, Respondent and
NEI had already pledged the proceeds of the sale to * * *
Respondent met and negotiated extensively with the purchaser and
members of state and federal regulators concerning environmental issues
associated with the transaction. Respondent was involved in every
aspect of the collateral substitution transaction from beginning to
end. His involvement at the bank level was substantial: he contacted
the Bank to request the release of the IIP property as collateral; he
contacted the Bank to request that it immediately order an appraisal on
the substitute property; and he explained the transaction to the Bank
board of directors when it met to approve the transaction in June of
1994. Respondent essentially involved himself on every conceivable side
of the transaction.
At the June 17, 1994 board meeting, the directors discussed and
approved the transaction. The bank officer handling the RVDM loan was
unable to fully and accurately explain the proposal however, and
Respondent, though not voting because of his conflicting interest, was
brought into the meeting to explain the transaction. He was the only
individual with enough knowledge to describe the details.
In contrast to the Respondent's extensive knowledge concerning the
collateral substitution, the Bank's lack of knowledge is alarming.
Neither bank management nor members who approved the transaction had
full details concerning it. Mr. * * * , the officer who
handled the RVDM loan and who presented the transaction to the board
testified repeatedly concerning his lack of understanding of the
details. From the beginning of the transaction until the time of the
Board meeting, Mr. * * * testified, he never understood it.
The Bank president asked Hayes to prepare a proposal for the meeting,
which task he could not complete as he lacked the necessary information
and understanding. Mr. * * * , testified that he made no
recommendation at the board meeting as he did not understand the
transaction.
Similarly the board members voting to approve the transaction
demonstrated considerable misunderstanding of the proposal. Director
Norm Richins, who voted to approve the substitution, testified at
hearing that he was unaware that RVDM was delinquent on its loan at the
time of the proposed substitution; was not aware that IIP had emerged
from bankruptcy; and was not aware that the * * * had
started foreclosure against RVDM in 1993. These would obviously be very
important factors to consider in making a decision whether to release
collateral from the
{{1-31-01 p.A-3206}}
loan. Respondent De La Fuente obviously knew all
these facts.
Furthermore, the minutes of the June 17, 1994 board meeting state the
following with respect to the board's discussion:
Release/Substitution of Collateral
The request for release and subordination of the Rancho Vista Del Mar
collateral was discussed (refer to loan file). It was decided to
request a 125\% fee and payment of the appraisal from the borrower. A
motion for approval was then made by Mr. Richins and seconded by Mr.
Redman. Motion carried. Mr. De La Fuente II abstained.
FDIC Ex. 43 at 2.
The minutes obviously do not (and could not) reflect the extent
of the Respondent's involvement in the transaction, including the
pre-arranged sale of the IIP property, that the proceeds were already
pledged by Respondent to * * * , and that the property
being released had value of some $2.1 million. Respondent chose not to
divulge these details.
A year later, concerned about how the collateral position developed,
the board decided to revisit the transaction. The minutes of the June
23, 1995 meeting provide more information:
Classified Loan Report
Relative to the Rancho Vista Del Mar loan, Mr. Redman expressed his
concern regarding the substitution of collateral which was done in
1994. Several months after the substitution, the original 320 acres
which had been released, was sold for $2.1 million. The Board requested
that Ms. Southwick bring the loan file to the meeting. A review
indicated that the Board, at the time of the release and substitution,
was aware of a pending escrow. However, it was explained that the
Bankruptcy issue concerning the property and the endangered species
issue regarding the gnatcatcher and other problems, clouded the
possible sale. The proposed substitution property was of approximately
equal value with none of the clouded issues. After the substitution the
Federal issues were resolved and the escrow eventually closed.
FDIC Ex. 66.
These minutes supply interesting detail concerning the board's
understanding of the transaction. They suggest the board approved the
proposal for the following reasons: (1) bankruptcy and endangered
species issues which clouded the collateral; and (2) the represented
value of the "unclouded" substitute collateral.
The board had obvious concern that neither the pending bankruptcy
proceeding nor the endangered species issues prevented Respondent from
selling the property almost immediately. These apparent "clouds"
on the property were the primary reason the board elected to release
the property and accept a "clearer" collateral. Additionally, the
value of the substitute collateral, when compared with the price
received form the sale of the released collateral, became of some
further concern to the board.
In contrast to the Respondent's full knowledge of all aspects of the
transaction, the Bank had very little information on which to base its
decision to release $2.1 million in collateral on a large, delinquent,
problem loan. To the extent the Bank did have information, I find that
Respondent misrepresented the transaction by withholding from the board
several pieces of critical information to make this decision.
On brief, Respondent submits two principal arguments to the collateral
substitution allegations: (1) that the transaction was not unsafe and
unsound and that Respondent did not breach his fiduciary duty in
participating therein; and (2) that at the time the bank directors
approved the substitution, it was a good business judgment. I must
reject both of these conclusions.
The evidence of Respondent's breach of duty is overwhelming: he
engineered a transaction whereby he usurped the Bank's opportunity to
have a problem loan paid off. Instead of the Bank retaining its secured
position, Respondent received the benefit of over $2 million while the
Bank ended up losing over $700,000. His participation constitutes a
very clear conflict of interest, and a very clear breach of his
fiduciary duty.
Respondent's claim that the board made a "business decision"
must also fail. The board agreed to release the collateral based on
information that was inaccurate and misleading, a fact well-known to
the Respondent. This "decision," which Respondent very
purposefully arranged, cannot somehow shield Respondent from liability
here.
Finally, I note with respect to this "business judgment" argument
that Respondent attempts to rely rather heavily on evidence which I
expressly excluded at hearing. The
{{1-31-01 p.A-3207}}
material was excluded as its reliability could not be sufficiently tested.
That exclusion notwithstanding, Respondent on brief discusses at length
the "evidence" which supports his claim. The plain fact of the
matter is that none of these claims have any substantive or legal
merit, and must be rejected.
4. * * * Transaction
The final allegation at issue in this proceeding involves
Respondent's involvement in the * * * transaction. The
details of this transaction are summarized below.
In June of 1992 Respondent De La Fuente arranged for the Bank to sell a
parking lot that it held as Other Real Estate Owned. The sale was
financed through a Bank loan of $560,000 to * * * and at
the time of the sale the parking lot contained several environmental
contamination problems.
Respondent was again involved in all aspects of the transaction, from
first proposing the sale to * * * owner * * * ,
to negotiating all of the details. Within two months of the
transaction, however, * * * claimed that Respondent had
fraudulently induced him to purchase the property, and threatened to
sue Respondent unless he caused the Bank to rescind the transaction and
take back the property.
In response to the * * * threats, Respondent again
negotiated extensively to resolve the situation. In a meeting in early
1995 Respondent promised Mr. * * * that he would find
someone to acquire the property and assume the loan.
Respondent then arranged for an employee of NEI and AIE, Mr. Gabriel
Arce, to acquire the parking lot from * * * through a
limited liability corporation established as another of the De La
Fuente companies. Neither Mr. Arce, nor the company through which he
acquired the parking lot were financially qualified to assume the Bank
loan. Nevertheless, Respondent, who was involved in all negotiations
concerning the transaction, orchestrated it such that Mr. Arce acquired
the property and assumed the loan.
Because Arce was not able to service the debt, NEI began supplying Arce
funds with which to make payment. Respondent was fully aware of these
facts.
Respondent and the Bank made several misrepresentations to FDIC
examiners. First, the June 1994 board minutes reflected that the
property was "clean," suggesting that the environmental problems
had been remedied. This was admittedly not the case.
Additionally, during the 1994 examination Respondent represented that
he had negotiated a settlement with * * * , and that it was
only a matter of drawing up the agreement. Based on these
representations, examiners improved the classification of the *
* * loan from "substandard," to "special mention."
Finally, during the 1994 examination Respondent received a letter from
* * * renewing the demand for rescission. This letter was
not in the Bank files, and was never disclosed to the FDIC examiners.
This transaction, and the Respondent's actions taken therein, had
three significant effects on the Bank: 1) it inaccurately improved the
adverse classification of the * * * loan, forestalling the
need for the Bank to recognize the risk of loss on the credit; 2) it
forestalled the Bank from recognizing a capital adjustment that would
be later needed for an environmental clean-up reserve; and 3) it
released Mr. * * * a solid borrower, from his personal
guarantee on the loan.
This transaction likewise had two significant effects on Respondent: 1)
it relieved him of any potential liability to * * * from
the threatened fraud litigation; and 2) it forestalled Respondent from
having to make any capital injections, as the Bank did not immediately
recognize losses associated with the * * * loan, and did
make any capital adjustments which may have been required by the
existing cease and desist order.
5. Prohibition Elements, 12 U.S.C. 1818(e)
To prohibit remove and prohibit Respondent De La Fuente from
participation in the affairs of a financial institution, the Board must
find each of the elements of section 1818(e) established, namely: 1)
there must be a specified type of misconductviolation of law, unsafe
or unsound practice, or breach of fiduciary duty; 2) the misconduct
must have a prescribed effectfinancial gain to the Respondent or
financial loss or other damage to the institution; and 3) the
misconduct must involve culpability of a certain degreepersonal
dishonesty or willful or continuing disregard for institutional safety
or soundness. As the United States Court of
{{1-31-01 p.A-3208}}
Appeals for the Third Circuit has summarized the prohibition elements:
Under Section 1818(e)(1), at least one of the prohibited acts,
accompanied by at least one of the three prohibited effects and at
least one of the two specified culpable states of must be established
by substantial evidence on the whole record before the regulatory
agency can properly remove a person from office and ban him from
banking or thrift industries.
In the Matter of Seidman, 37 F.3d 911, 929 (3rd Cir. 1994).
a. Regulation O and Section 23A Violations
The receipt by Respondent and his related interests of loans in
violation of the lending limits of Regulation O and Section 23A,
clearly constitute violations of law cognizable under section 8(e).
See Greenberg v. Board of Governors of the Federal Reserve
System, 968 F.2d 164, 170 (2d Cir. 1992); Hutensky v.
FDIC, 82 F.3d 1234 (2d Cir. 1996); In the Matter of
Lowe, et. al. Id. These violations have been clearly
established on the record, as further set forth in my findings and
conclusions below.
So too has Respondent's breach of fiduciary duty. The self-dealing
nature of the repeated insider loans, in which Respondent's interests
are advanced at the cost of the Bank, clearly demonstrate a misuse of
position, and breach of his duty to the Bank. See In the Matter
of Candelaria, P-H FDIC Enf. Dec. (Looseleaf) ¶ 5242 (1997).
When confronted with conflicting interests, Respondent De La Fuente
unfortunately chose his personal interests over those of the Bank, in
the form of repeated loans which violated existing regulatory
limitations. These violations seem to have meant nothing to Respondent,
whose real interest was obtaining the funding required by his web of
companies.
The evidence clearly establishes that by reason of the Respondent's
participation in the Regulation O and section 23A violations,
Respondent received personal gain and the Bank suffered financial loss
or other damage. Respondent received the direct economic benefit of all
the improperly extended loans. Of course the Bank suffered direct
losses on the RVDM and Alexander Trust loans, in the amount of $1.3
million. Collectively this financial gain to Respondent and loss and
damage to the Bank prejudice the interests of the Bank's depositors.
In connection with the Regulation O and Section 23A violations, I find
that Respondent has demonstrated personal dishonesty by concealing from
the Bank, and the FDIC, his control over certain of his entities, which
thereby caused the multiple lending violations, which resulted here.
The same facts which demonstrate personal dishonesty also demonstrate
Respondent's willful and continuing disregard for safety and
soundness. Respondent concealed the extent of his control over related
interests and Bank affiliates for years. Respondent was the only person
who knew the extent of his involvement with RVDM, RDF/IIP, FPTC, and
NEI, and yet after supposedly divesting himself of the entities, he
continued nonetheless to exercise control over the entities while
soliciting and receiving Bank credits in violation of applicable law.
His disregard for Regulation O and Section 23A was both willful and
continuous.
b. Collateral Substitution
The collateral substitution transaction is but another classic
example of Respondent putting his personal interests ahead of the
Bank's interests. It was transparently a breach of his fiduciary duty
to the Bank. Respondent usurped the Bank's opportunity to have a
large, problem loan nearly repaid by orchestrating the release of the
IIP property held as collateral.
He did so with knowledge that the substitute collateral was worth far
less than the released collateral, and that the released collateral was
already slated for sale. His self dealing, as evidenced in this
transaction, establishes his breach of fiduciary duty, and clearly
constitutes both an unsafe and unsound practice.
The facts clearly establish that by reason of Respondent's
participation in the collateral substitution transaction, Respondent
received personal gain and the Bank suffered financial loss and other
damage.
First, Respondent received the benefit of the proceeds of the property
sale, as NEI's loan at * * * was paid down. Since NEI was
wholly owned by Respondent at the time, Respondent received the benefit
of the $1.8 million proceeds used for this purpose. Respondent also
individually received $235,000 from the proceeds of the sale of his
personal property. There is no question that Respondent received
personal gain from the collateral transaction.
{{1-31-01 p.A-3209}}
Second, the Bank suffered financial loss and other damage. The Bank
suffered as soon as the transaction occurred in terms of being placed
in an inferior collateral position. Once the loan to RVDM defaulted,
the Bank incurred actual losses of approximately $716,000, which
losses it would obviously not have incurred if it had received the
benefit of the sale proceeds of the original collateral$1.8 million.
Finally, the loss in the Bank's collateral value and the losses
incurred by the Bank on the RVDM loan, in and of themselves, prejudiced
the interests of the Bank's depositors. Respondent's participation in
the collateral substitution resulted in personal gain, financial loss
and other damage to the Bank, and prejudice to the Bank's depositors.
The facts demonstrate that Respondent intimately participated in the
collateral transaction for months without making a full and accurate
disclosure to the Bank concerning the specific details. No one at the
Bank knew that the IIP escrow proceeds, which rightfully belonged to
the Bank, had already been pledged by Respondent before the Board even
considered the transaction. No one at the Bank knew that Respondent had
negotiated and arranged for the transaction to close. In fact, there is
evidence that Respondent misrepresented the details of the transaction
to the board and Bank management.
At a bare minimum, such facts show Respondent's want of fairness and
straightforwardness, a lack of integrity, and untrustworthiness. At
their worst, they show deliberate deception, and disposition to cheat
and defraud. Respondent's conduct amply satisfies the standard
necessary to establish personal dishonesty.
These same facts also demonstrate a willful and continuing disregard
for the safety and soundness of the Bank. Respondent deliberately
participated in the transaction knowing that he would receive the
benefit of the proceeds, while at the same time knowing that the
swapped collateral was worth less to the Bank than the existing
collateral. This is a very clear case of willful disregard.
Likewise this conduct evidences a continuing disregard, in that his
planning and negotiating the collateral substitution took place over a
period of nine months, during which time he never made disclosure of
his role and intended benefit in the transaction. Throughout the course
of this extended transaction Respondent continued to act toward one
goal and one goal only: to receive the benefit of the $2.1 million sale
instead of the Bank. This conduct establishes continuing disregard.
c. * * * Transaction
The * * * transaction is just another case of an
insider orchestrating a sham transaction for his benefit. Respondent
committed a breach of fiduciary duty and unsafe and unsound practice in
arranging for an employee of his to assume a loan in order to forestall
recognition of losses, and absolve himself of any potential liability
to * * * as a result of his own actions. Respondent was
again wrongfully involved on all sides of the transaction.
The facts demonstrate that by reason of the Respondent's participation
in the transaction, Respondent received personal gain or other benefit,
the Bank suffered financial loss or other damage, and the interests of
the Bank's depositors were prejudiced.
Finally, Respondent's willingness to arrange the assumption of a
half-million dollar loan by a borrower obviously not qualified to
assume such debt, is but a sham transaction evidencing personal
dishonesty. It is just simply a dishonest act to set up a straw
borrower through whom one must funnel payments to keep a loan
transaction afloat. The entire transaction is dishonest.
These same facts also evidence a willful and continuing disregard for
the safety and soundness of the Bank. Respondent's primary concern was
in removing * * * as a borrower of the Bank, and in turn,
relieving himself of any liability to * * * and
forestalling any need for him to personally inject capital into the
Bank. By knowingly and deliberately putting his own self-interest
before that of the Bank, Respondent willfully disregarded safety and
soundness.
Furthermore the same conduct evidences a continuing disregard, in that
the transaction took place over a four-year period of time. During this
time period, Respondent controlled every significant act and decision
affecting the * * * property and loan. Throughout the
course of this transaction Respondent continued to act toward one end:
to absolve himself of any liability on the transaction, and to
forestall recognition of loss on the parking lot property.
{{1-31-01 p.A-3210}}
IV. Conclusion
Accordingly, all three prongs of Section 8(e) of the Act have been
met by a preponderance of the evidence with respect to (1)
Respondent's failure to disclose his related interests and resulting
violations of Regulation O and Section 23A; (2) Respondent's
participation in the collateral substitution transaction, and (3)
Respondent's participation in the * * * transaction.
The foregoing demonstrates that Respondent is not fit to participate in
the banking industry. He has taken advantage of the Bank, failed to
disclose his true involvement and controlling influence over related
entities, and orchestrated a sham transaction. These actions evidence a
blatant disregard for safety and soundness, and the law and regulations
which must apply to insured institutions. For these reasons I enter the
following Findings of Fact, Conclusions of Law, and Proposed Order,
seeking Respondent's removal and prohibition from the industry.
V. Findings of Fact
1. At all times pertinent to this proceeding, First International
Bank, Chula Vista, California was a corporation existing and doing
business under the laws of the State of California, having its
principal place of business at Chula Vista, California. Respondent's
Answer, ¶ 1 (hereinafter cited as "Resp. Answer ¶ _").
2. The Bank is and has been, at all times pertinent to this proceeding,
an insured State nonmember bank, as defined by the laws of the State of
California. Resp. Answer ¶ 2.
3. At all times pertinent to the charges herein, Respondent , Roque De
La Fuente II was a director of the Bank. Resp. Answer ¶ 5.
4. At all time pertinent to the charges herein, based on the Bank's
stock ledger, Respondent was a controlling shareholder of the Bank.
Resp. Answer ¶ 6.
5. According to the Bank's stock register as of December 15, 1995 for
common stock and December 31, 1995 for preferred stock, De La Fuente II
directly or indirectly controlled at least 2,737,507 of the Bank's
total voting rights, or 56.72 percent of the Bank's total outstanding
voting rights. Resp. Answer ¶ 6.
6. De La Fuente II owns 410,840 shares of the Bank's common stock
representing 410,840 voting rights, and 75,066 shares of the Bank's
Series C Preferred (5x) stock representing 375,330 voting rights. Resp.
Answer ¶ 6.
7. De La Fuente II's wife, Katayoun Yazdani de De La Fuente, owns
195,000 shares of the Bank's common stock representing 195,000 voting
rights, and 15,000 shares of the Bank's Series B Preferred (3x) stock
representing 45,000 voting rights. Resp. Answer ¶ 6.
8. De La Fuente II's three children, with De La Fuente II acting as
their custodian, own 474,287 shares of the bank's common stock
representing 474,287 voting rights, 50,000 shares of the Bank's Series
B Preferred (3x) stock representing 150,000 voting rights, and 160,000
of the Bank's Series D Preferred (5x) stock representing 800,000
voting rights. Resp. Answer ¶ 6.
9. De La Fuente II's three children, with Katayoun Yazdani De La
Fuente acting as their custodian, own another 167,050 shares of the
Bank's common stock representing 167,050 voting rights, and 20,000
shares of the Bank's Series B Preferred (3x) stock representing 60,000
voting rights. Resp. Answer ¶ 6.
10. De La Fuente II's five godchildren, with De La Fuente II acting as
their custodian, own 60,000 shares of the Bank's common stock
representing 60,000 voting rights. Resp. Answer ¶ 6.
11. The FDIC commenced examinations of the Bank on or about the
following dates: October 3, 1994 (utilizing financial information as of
September 30, 1994), and February 5, 1996 (utilizing financial
information as of December 31, 1995). FDIC Exhibit 1 (hereinafter cited
as "FDIC Exh. _"); FDIC Exh. 2.
12. Otay Mesa ("Otay Mesa") is an area in San Diego County,
California in which De La Fuente II related entities, De La Fuente II
family members and/or De La Fuente II business associates and/or
employees are landowners. Resp. Answer ¶ 18.
Related Interest Findings
Entities Involved
13. American International Enterprises, Inc. ("AIE") is a
California corporation owned 100% by De La Fuente II. Resp. Answer
¶ 9, 27; FDIC Exhs. 76A76H; Andreu, Vol. 7, p. 182 lines
1114.
14. Respondent was the president of AIE. FDIC Exh. 77; FDIC Exh. 79.
{{1-31-01 p.A-3211}}
15. De La Fuente II has had the power to exercise a controlling
influence over the management and policies of AIE from inception to
present. Resp. Answer ¶ 60.
16. American International Racing ("AIR") is Respondent's wholly
owned company. FDIC Exh. 76D; Shovlowsky, Vol. 1, pp. 16667.
17. Respondent was the president of AIR. FDIC Exh. 80; FDIC Exh. 81.
18. D' & D' partnership originated as an equal partnership composed
of De La Fuente II and his father's trust, the Roque De La Fuente
Alexander Revocable Trust No. 1. Resp. Answer ¶ 22.
19. D' & D' partnership was formed for the purpose of acquiring,
investing in, developing and selling real estate. Resp. Answer ¶ 22.
20. D' & D' partnership owns real property in Otay Mesa. Resp. Answer
¶ 22.
21. D&D Landholding ("D&D"), a California Limited Partnership, is
the successor to D' & D' partnership, and was listed by De La Fuente
II as one of his related interests in the 1994 FDIC Examination and the
1996 Examination. Resp. Answer ¶ 22.
22. Respondent was the managing partner of D&D Landholding. FDIC Exh.
76A.
23. AIR is a 75 percent owner of D&D. FDIC Exh. 76D; FDIC Exh. 256G Shovlowsky, Vol. 2, p. 235 lines 1319.
24. Bertha Guerra de De La Fuente, through offshore corporations, is
the sole shareholder of Rancho Vista Del Mar ("RVDM") and
International Industrial Park, formerly known as Rancho De La Fuente
(hereinafter referred to as "RDF/IIP"). Respondent's Response to
FDIC's Request for Stipulations ("Resp. Stip."), ¶ 39.
25. Bertha Guerra de De La Fuente is the mother of De La Fuente II.
Resp. Answer ¶ 29.
26. National Enterprises Inc. ("NEI") is a California corporation
which was 100 percent owned by De La Fuente II until he "gifted"
his stock in early 1995 to three irrevocable trusts established in 1995
by De La Fuente II for his children, the Ricardo G. De La Fuente
Yazdani 1995 Irrevocable Trust, the Roque De La Fuente III 1995
irrevocable trust, and the Katayoun De La Fuente Yazdani 1995
Irrevocable Trust (collectively referred to as the "1995 Irrevocable
Trusts"). Resp. Answer ¶ 21.
27. Fine Particle Technology Corporation ("FPTC") is a
corporation, 5.6% of which was owned by De La Fuente II as of June
1994. Resp. Answer ¶ 23.
28. The Roque De La Fuente Alexander Revocable Trust No. 1
("Alexander Trust"), is a trust created in 1979 by De La Fuente
II's father, Roque De La Fuente Alexander ("Alexander"). Resp.
Answer ¶ 24.
Individuals Involved
29. Isaias Zapata Oscoz ("Zapata") was Respondent's very close friend. Andreu, Vol. 8, p. 28586.
30. Zapata was a resident of Mexico City. Andreu, Vol. 8, pp. 28485.
31. From approximately 1969 forward, Respondent always vacationed over
Christmas time with Zapata. Andreu, Vol. 18, pp. 1112.
32. In March 1987, Respondent and Zapata, along with two other
individuals, filed a Change in Bank Control application to acquire
control of People's Bank. After the FDIC approved the application,
People's Bank was subsequently renamed First International Bank. FDIC
Exh. 307; Resp. Stip. ¶ 10.
33. Zapata was a director of the Bank from 1987 until 1992. He was also
a principal shareholder of the Bank, controlling 10.29\% of the Bank's
voting stock. Resp. Answer ¶ 51; Resp. Stip., ¶ 12.
34. Zapata was a shareholder in Witec Patents and Witec Services.
Shovlowsky, Vol. 2, pp. 24344.
35. As of March 17, 1987, Respondent owned 436,564 shares of FPTC
representing 5.53 percent of the total ownership. Zapata owned 391,564
shares of FPTC representing 4.96 percent of the total ownership. Resp.
Stip., ¶ 14.
36. Zapata was one of the two original co-trustees of the 1995
Irrevocable Trusts. Resp. Answer ¶ 51; FDIC Exh. 138; Schwarz,
Vol. 16, pp. 13839.
37. Jose Luis Andreu ("Andreu") is and has been vice president of
AIE for the past ten years. Resp. Answer ¶ 25, 55; Andreu, Vol.
7. pp. 16768.
38. Jose Luis Andreu is vice president of
{{1-31-01 p.A-3212}}
AIR. FDIC Exh. 82; Shovlowsky, Vol. 2, pp. 3233.
39. Jose Luis Andreu is the agent for RVDM. Andreu also testified as
RVDM's representative when RVDM filed a petition in bankruptcy. Resp.
Answer ¶ 55; FDIC Exh. 91; Andreu, Vol. 7, pp. 15859.
40. Jose Luis Andreu is the agent for RDF/IIP. Resp. Answer, ¶ 25, 55; FDIC Exh. 120, at 12; Andreu, Vol. 7, pp. 15859.
41. Jose Luis Andreu is the agent for D&D. Andreu, Vol. 7, p. 167 lines
216; Shovlowsky, Vol. 2, pp. 3233.
42. Jose Luis Andreu is the agent for the Alexander Trust. Andreu, Vol.
7, pp. 155157.
43. Jose Luis Andreu was vice president and president of NEI, and is
the chairman of the board of NEI. Resp. Answer, ¶ 25, 55; FDIC
Exh. 128; Andreu, Vol. 7, pp. 16364; Shovlowsky, Vol. 2, pp. 3233.
44. Jose Luis Andreu has been associated with FPTC, first as director,
then as chairman of the board and then as president, his current
position. Resp. Answer ¶ 25, 55; Andreu, Vol. 7, pp. 16263.
45. Jose Luis Andreu is vice president of Witec Cayman Patents
("Witec Patents"). Andreu, Vol. 7, pp. 15960.
46. Jose Luis Andreu is vice president of Witec Cayman Services
("Witec Services") Andreu, Vol. 7, pp. 161 lines 1121.
47. Jose Luis Andreu is chairman of the board of C.T. Produce. Andreu,
Vol. 7, p. 164 lines 1524.
48. Sidney Schwarz ("Schwarz") was an employee of the De La
Fuente Family's longtime accountants, * * * , Vol. 11, pp.
68.
49. Sidney Schwarz testified as an expert witness on behalf of
Respondent's father in a case against Schwarz's former employer,
* * * Schwarz, Vol. 16, p. 246 lines 1119.
50. Sidney Schwarz, while an employee of * * * , provided
professional services to RVDM, RDF/IIP, D&D, AIE, AIR and possibly the
Alexander Trust. Schwarz, Vol. 16, p. 223224.
51. After Sidney Schwarz left * * * , he continued to
provide professional services to the same De La Fuente interests that
he had served while employed with the firm, only the number of entities
grew larger. Schwarz, Vol. 16, p. 225 lines 320.
52. Sidney Schwarz is chairman of the board and a director of the Bank.
Schwarz, Vol. 26, p. 227 lines 1524.
53. Sidney Schwarz is co-trustee of the children's trusts. Schwarz,
Vol. 16, pp. 227228; Shovlowsky, Vol. 2, p. 242 lines 721.
54. In 1993, Schwarz was acting as consultant for NEI. Schwarz, Vol.
16, p. 191 lines 612.
55. Sidney Schwarz is a director of NEI. Schwarz, Vol. 16, p. 22728.
56. Sidney Schwarz has formed limited liability companies for the De La
Fuentes and their entities. FDIC Exh. 258; FDIC Exh. 261; Schwarz, Vol.
16, pp. 22527.
57. Sidney Schwarz, on the recommendation of Jose Luis Andreu, was
hired to perform services for FPTC. * * * Vol. 17, pp.
10405.
58. Sidney Schwarz formed the limited liability company that Gabriel
Arce used as a vehicle to acquire Bank collateral and later assume
* * * loan at the Bank. Schwarz, Vol. 16, pp. 25456.
Intercompany Transactions
59. D&D and AIR had option agreements to purchase the real
property of RVDM. FDIC Exh. 129, at 6, 9; * * * , Vol. 10,
pp. 14143.
60. D&D and AIR had option agreements to purchase the real property of
RDF/IIP. FDIC Exh. 100; FDIC Exh. 101; Shovlowsky, Vol. 2, p. 6264.
61. NEI entered an option agreement with C.T. Produce to purchase C.T.
Produce stock. FDIC Exh. 255; Shovlowsky, Vol. 2, pp. 23526.
62. RVDM pledged collateral for the benefit of AIR and D&D so that AIR
and D&D could receive the bulk of the proceeds of a County condemnation
case. FDIC Exh. 104; Shovlowsky, Vol. 2, pp. 9091.
63. The property pledged by RVDM so that the defendants in the County
condemnation case could receive a distribution of the $21 million
deposit was supposedly worth more than $21 million. * * *
Vol. 8, pp. 9394.
64. RDF/IIP pledged collateral for the benefit of RVDM to secure
RVDM's $1.6 million loan at the Bank. Shovlowsky, Vol. 2, p. 93 lines
622.
65. RDF/IIP pledged collateral for the benefit of RVDM to secure
RVDM's loan at the * * * Shovlowsky, Vol. 2, pp. 9394.
66. NEI pledged its assets to secure C.T.
{{1-31-01 p.A-3213}}
Produce's loan at * * * in December 1996. FDIC Exh. 255; Shovlowsky, Vol. 2, pp. 22526.
67. D&D pledged collateral (93.09 acres of raw land in Otay Mesa) to
secure the Alexander Trust's $1 million loan from the Bank. Resp.
Answer, ¶ 64; Shovlowsky, Vol. 2, pp. 22729.
68. RVDM owed funds to NEI as a result of NEI's purchase of RVDM's
loan from * * * Shovlowsky, Vol. 2, 95 lines 1022.
69. RVDM's note to * * * had been in the principal amount
of $550,000. * * * , Vol. 10, pp. 13840.
70. NEI purchased a loan that RDF/IIP owed to a third party.
Shovlowsky, Vol. 2, pp. 9697.
71. The amount of RDF/IIP's loan that NEI purchased was $1.225
million. FDIC Exh. 31, at 3.
72. As of May 31, 1993, RDF/IIP owed RVDM $465,000. FDIC Exh. 124 Shovlowsky, Vol. 2, pp. 9899.
73. As of May 31, 1993, RVDM owed AIE $500,577. FDIC Exh. 124 Shovlowsky, Vol. 2, p. 99 lines 1324.
74. As of October 19, 1994, RDF/IIP owed RVDM $3,683,000. Exh. 91 Shovlowsky, Vol. 2, p. 100 lines 323.
75. As of December 31, 1994, NEI owed D&D $187,342. FDIC Exh. 155, at
8; Shovlowsky, Vol. 2, pp. 13637.
76. As of December 31, 1994, NEI owed AIE $296,515. FDIC Exh. 155, at
8; Shovlowsky, Vol. 2, p. 137 lines 917.
77. As of December 31, 1994, NEI owed the Alexander Trust $1,404,908.
FDIC Exh. 155, at 8; Shovlowsky, Vol. 2, pp. 13738.
78. As of February 24, 1995, NEI received approval from its lender to
advance the total of $483,587 to D&D and AIE, with the advances to be
repaid no later than May 31, 1995. FDIC Exh. 162, Shovlowsky, Vol. 2,
pp. 14142.
79. During the time period December 7, 1995 to January 5, 1996, C.T.
Produce received by check the following sums from the named entities:
from NEI through AIE - $35,000; from NEI - $150,000; from NEI through
AIE (d.b.a. American International Realty)-$50,000, $50,000 and
$50,000, for a total of $335,000. FDIC Exhs. 242245; Shovlowsky, Vol.
2, pp. 20008.
80. In the space of less than a year, beginning in March 1996, FPTC had
increased its lending to C.T. Produce from $250,000 to $1.7 million.
Andreu, Vol. 7, pp. 24446.
81. In June 1994, AIR and D&D wrote a check for $5,000 that was
deposited to the account of Witec Patents. FDIC Exh. 334; Shovlowsky,
Vol. 2, pp. 23839.
82. FPTC and NEI jointly purchased problem loans from the * *
* FDIC Exhs. 202206; Shovlowsky, Vol. 2, pp. 19194.
83. AIE and the Alexander Trust participated in a joint venture. FDIC
Exh. 76A; Shovlowsky, Vol. 2, p. 232 lines 1021.
84. AIE was a 1 percent owner of certain limited liability companies of
which NEI was the 99 percent owner. Shovlowsky, Vol. 2, p. 234 lines
415.
85. AIR served as agent for service of process for NEI. Shovlowsky,
Vol. 2, pp. 23637.
86. The Bank permitted NEI to assume Respondent's loan at the Bank in
November 1995, but left Respondent as the guarantor on the loan and
took collateral pledged by Respondent and his interests. FDIC Exh. 141 Shovlowsky, Vol. 2, pp. 12731.
87. NEI purchased loans from the Bank at year-end 1993 and 1994.
Shovlowsky, Vol. 2, pp. 14243.
88. At year-end 1995 FPTC bought a loan from the Bank thus permitting
the Bank to recognize a gain that improved the Bank's income numbers
and capital ratios. FDIC Exhs. 191194; Shovlowsky, Vol. 2, pp.
18186.
89. Most of the De La Fuente business entities have offices in 5540
Morehouse, a building owned by the Alexander Trust. Resp. Answer,
¶ 56; FDIC Exhs. 7787, 90, 152, 230, 234, 235, 303; Schwarz,
Vol. 16, p. 246 lines 710; Shovlowsky, Vol. 2, pp. 1331.
90. The books and records of RVDM were at 5440 Morehouse Drive.
* * * Vol. 11, p. 28 lines 312.
91. The bankruptcy examiner found the books and records of RVDM at 5440
Morehouse Drive. * * * Vol. 10, p. 131 lines 38.
92. To pay the proceeds of the County condemnation case, the County
drew checks as instructed by Respondent. FDIC Exh. 125; * *
* Vol. 8, pp. 12425, 133 lines 1117.
93. It was the opinion of * * * RVDM's bankruptcy
examiner, that RVDM should have received at least $420,000 more than it
{{1-31-01 p.A-3214}}
did with respect to the County condemnation case. FDIC Exh. 129, at 10 * * * Vol. 10, pp. 14546.
94. * * * found RVDM's related party transactions to be
pervasive and significant. * * * Vol. 10, p. 134 lines
318.
95. According to * * * of the * * * firm,
Respondent has been the controlling influence behind all of the De La
Fuente entities, including RVDM and IIP, since Respondent's father has
suffered a stroke. * * * Vol. 11, pp. 1213, 1719,
2526, 28 lines 1316, 9495.
96. Respondent's father had a stroke in September 1990. Andreu, Vol.
8, p. 226 lines 815.
97. Respondent represented that he was the controlling authority for
all the entities involved in the County condemnation case. He made all
the decisions for them. * * * , Vol. 8, pp. 4445, 47
lines 1522.
98. * * * RVDM's bankruptcy examiner, found RDF/IIP, NEI,
First International Bank, AIE, AIR and D&D, among others, to be related
parties of RVDM. * * * Vol. 10, pp. 13436.
99. * * * testified: "As I say, I don't recall the
exact change in title in all these entities. It's like a spider
web." * * * Vol. 11, p. 86 lines 2223.
100. * * * testified: "As you get into this report [on
the RVDM bankruptcy], you're going to find a lot of names, and I feel
it's very important to have a road map of who is who, and in this
particular case, it was like a bowl of spaghetti. There is so many
companies, so many individuals, so many related-party transactions,
that it's very confusing. As I say, a bowl of spaghetti is the best
way I can describe it." * * * Vol. 10, pp. 13132.
101. In * * * opinion, the numerous De La Fuente entities
were essentially meaningless and were used to create obstacles for
creditors. * * * , Vol. 11, pp. 10304.
102. It was the opinion of * * * auditor that: "Roque
transferred funds amongst his affiliates whenever and wherever
needed." FDIC Exh. 31, at 3; * * * Vol. 7, pp. 12223.
103. The RVDM bankruptcy examiner's report stated: "The Debtor
[RVDM], throughout the time that the Examiner has had some occasion
to look at its records, has had significant dealings with related
parties, including providing liens on its assets without
consideration to itself, but for the benefit of related parties.
Thus demonstrating that this debtor has been unable or unwilling to act
independently and in a manner as a fiduciary for its own true creditors
who are not related parties." FDIC Exh. 129, at 22; * *
* , Vol. 10, p. 153 lines 417.
RVDM-RDF/IIP
104. RVDM is the successor to 3250 Corporation. Resp. Stip.,
¶ 37.
105. IIP is the successor to RDF, which was the successor to 275
Corporation. Resp. Stip, ¶ 38.
106. RVDM and RDF/IIP, successor corporations of 3250 Corporation and
275 Corporation, respectively, acquired a single piece of real estate
in the Otay Mesa area of San Diego. FDIC Exh. 326, at 1518.
107. RVDM's only asset was land. Andreu, Vol. 17, pp. 29293.
108. RDF/IIP's only asset was land. FDIC Exh. 123, at Schedules A & B.
109. Respondent negotiated the purchase of the Otay Mesa property on
behalf of the De La Fuente family. FDIC Exh. 325, at 10, lines 1824 FDIC Exh. 326, at 17, lines 511; Shovlowsky, Vol. 2, pp. 3438.
110. The De La Fuente family acquired the Otay Mesa property in 1982
and at that time there was virtually no development. * * *
, Vol. 17, pp. 19799.
111. Respondent's parents executed a post-nuptial agreement in
anticipation of the purchase of the Otay Mesa property. Respondent's
father took the operating companies and Respondent's mother took the
raw land, or passive investments. * * * , Vol. 16, pp.
10709.
112. RVDM and RDF/IIP were structured so as to obtain favorable tax
treatment, which was afforded to RVDM and RDF/IIP as a result of
Respondent's mother's non-resident status. * * * , Vol.
16, pp. 5658.
113. Similar favorable tax treatment would not have been available to
Respondent or his father. * * * , Vol. 16, p. 76, lines
918.
114. Up until 1980, Respondent's father basically had the final say on
all matters. After the family moved to Otay Mesa, however, he became
less active and Respondent became more active. At that point,
Respondent basically made all the decisions. FDIC Exh. 330, at 9293.
115. Respondent determined what part of the Otay Mesa property would be
allocated to the predecessors of RVDM and RDF/IIP.
{{1-31-01 p.A-3215}}
FDIC Exh. 330, at 19697, 199200; Shovlowsky, Vol. 2, pp. 3845.
116. After the Otay Mesa property was purchased, AIE was given
contracts to manage the property of RVDM and RDF/IIP and their
predecessors. FDIC Exhs. 9799; Shovlowsky, Vol. 2, pp. 4650 Andreu, Vol. 7, p. 158 lines 515, 159 lines 310, 17778, 182 lines
1519.
117. Respondent testified in 1990 that the owners of RVDM and RDF/IIP
did "not want to have the day-to-day responsibility to managing the
company. . . . They want to be completely 100 percent
passive investors." FDIC Exh. 326, pp. 3132.
118. The ostensible owner of RVDM, Respondent's mother, had no
involvement in the operations of that entity. * * * Vol.
11, p. 26 lines 821.
119. As a non-resident alien, Respondent's mother was subject to
severe restrictions on the amount of time that she could be in the
United States and would have suffered adverse tax consequences if she
had actually been running the operations of RVDM. * * * ,
Vol. 11, p. 2627.
120. Jose Luis Andreu, in RVDM's bankruptcy proceeding, stated that
Bertha Guerra de De La Fuente was not involved in the operations of
RVDM. FDIC Exh. 120, at 39 lines 920.
121. Bertha Guerra de De La Fuente is "a full-time housewife and
[is] not otherwise employed outside [her] home on a regular
basis." Further, Bertha Guerra de De La Fuente has maintained her
residence in Mexico City for 35 years and only visits California
occasionally. FDIC Exh. 121, ¶ 2 & 3.
122. Andreu testified in RVDM's bankruptcy proceeding that
"management of the assets of the debtor [i.e., RVDM] are conducted
as per the agreement between the two companies [i.e., AIE and
RVDM]." FDIC Exh. 120, at 44 lines 1424.
123. With respect to RVDM's property, AIE was "involved from the
inception of acquiring the property, managing the property, selling the
property, processing different permits through the governing bodies,
and eventually is selling to sell the property." FDIC Exh. 326, at
810.
124. AIE supplied the same services to RDF/IIP as it did for RVDM.
Id.
125. Pursuant to AIE's management contract with RVDM, AIE
proposed all decisions regarding purchase, sale, trade, investment and
development to RVDM for ratification. Andreu, Vol. 7, pp. 17879.
126. Respondent single-handedly caused to be taken a series of steps
that caused Otay Mesa to be developed, adding great value to the
property because of utilities, roads and other development. * *
* , Vol. 17, pp. 19799.
127. Respondent exchanged portions of the Otay Mesa property for a
state prison. As a consequence of the prison development, utilities
were brought to the property. * * * Vol. 17, pp. 19799.
128. AIR was formed to develop an international automobile racetrack,
but that never occurred. FDIC Exh. 330 at pp. 2021.
129. Respondent entered into a contract with * * * to
develop a private detention facility on the Otay Mesa property involved
in the County condemnation case. * * * Vol. 17, pp.
198200.
130. * * * was involved with Respondent in trying to get
the private detention business started in San Diego. * * *
Vol. 17, pp. 198200.
131. Respondent, as president of AIE, represented to * * *
Inc., in an agreement dated April 22, 1985, that AIE had exclusive
authorization and approval to propose construction and lease of a
private detention facility on property owned by RVDM. Resp. Stip.
¶ 57.
132. AIR, rather than AIE, had the option to acquire RVDM's property
in Otay Mesa area. FDIC Exh. 330 at pp. 2022.
133. Before 1986, Respondent approached County of San Diego officials
in an attempt to sell RDF/IIP property to the County for a jail site.
Resp. Stip., ¶ 73.
134. From 1987 to May 27, 1992, De La Fuente II was the Vice President
of RVDM. Resp. Answer ¶ 30; Resp. Stip., ¶ 8081.
135. From 1987 to 1992 De La Fuente was the Vice President of RDF/IIP.
Resp. Answer ¶ 35; Resp. Stip. ¶ 8081.
136. In 1989, Respondent, on behalf of RVDM, negotiated a loan of $2
million from the * * * and executed a commercial guarantee
in connection with the loan. Resp. Stip. ¶ 59.
137. Respondent personally guaranteed RVDM's 1989 debt to * *
* Resp. Stip., ¶ 62.
{{1-31-01 p.A-3216}}
138. * * * approached Respondent, not his mother, with
regard to the RVDM loan. There were "extensive negotiations" over
the loan. Resp. Exh. 738, ¶ 2.
139. As of March 1989, Respondent was "running the day to day
operations in developing the Otay Mesa holdings." Resp. Exh. 799, at
3; Richins, Vol. 15, p. 292 lines 1121.
140. As of March 1989, Respondent's mother was "essentially
non-active in business transactions but [was] respected for her
opinions." Resp. Exh. 799, at 3; Richins, Vol. 15, p. 293 lines
15.
141. Respondent was the individual principally responsible for
retaining the * * * firm with respect to the defense of the
County condemnations case. * * * , Vol. 17, pp. 16263.
142. Respondent was a constant participant on behalf of the defendants
throughout the entire County condemnation proceeding. * * *
Vol. 8, p. 15 lines 1523.
143. Respondent negotiated with the County, attended meetings,
discussed the acquisition prior to litigation, attended all the
depositions and testified on behalf of the defendants. * *
* , Vol. 8, pp. 1518.
144. Mr. * * * defendants' attorney in the County
condemnation case, thought that Respondent should be the individual to
testify in that case on behalf of the defendants. * * *
Vol. 17, p. 201 lines 1523.
145. De La Fuente II testified in 1990 as "principal" of RDF/IIP
and RVDM in a condemnation suit by the County of San Diego. Resp.
Answer ¶ 33, 38; FDIC Exh. 96; Vol. 8, pp. 18 lines 1113, 47
lines 1522; Vol. 17, pp. 23839.
146. Respondent testified as a representative of the property owners,
including RVDM. There was no one else that Mr. * * * wanted
to testify. Respondent was the appropriate person to testify under all
the circumstances. * * * Vol. 17, pp. 20304.
147. When the County of San Diego took, by the power of eminent domain,
certain real property that was owned by RVDM and RDF/IIP, Respondent
testified as the principal of RVDM and RDF/IIP in the trial that began
in 1990. County of San Diego v. Rancho Vista Del Mar, 20
Cal. Rptr. 2d 675, 677, fn. 1 (Cal. App. 4 dist. 1993), FDIC Exh. 96,
official notice taken, Tr., Vol. 2, p. 56 lines 1021.
148. The settlement of the County condemnation case resulted in a $38
million payment to the defendants. * * * , Vol. 17, pp.
21112.
149. On May 27, 1992, Respondent wrote a letter resigning his position
as Vice President of RVDM. FDIC Exh. 136; Resp. Stip., ¶ 81.
150. In 1992, during the same time frame as his resignation from RVDM,
Respondent wrote a letter resigning his position as Vice President of
RDF/IIP. Resp. Stip., ¶ 82; [Respondent's] Supplemental
Responses to FDIC's Request for Documents No. 5 at p. 6.
151. Prior to October 1992, the * * * firm had prepared tax
returns and provided tax advice to the De La Fuente family and related
business entities for approximately 10 years. Resp. Stip., ¶ 71.
152. FDIC Exhibit 133 contains a January 7, 1993 engagement letter from
the * * * firm to RVDM signed by Respondent. FDIC Exh. 133,
at Exh. II; * * * Vol. 11, pp. 1416.
153. FDIC Exhibit 134 contains engagement letters from the * *
* firm for RDF/IIP signed by Respondent dated January 20, 1989 and
March 9, 1987. It also contains transmittal letters to Respondent for
RDF/IIP's tax returns for the tax years 1988, 1989, and 1990. FDIC
Exh. 134; * * * Vol. 11, pp. 1922.
154. Engagement letters are, in essence, contracts to provide
accounting services and they are important documents. * * *
Vol. 11, pp. 1416.
155. The * * * firm generally sends transmittal letters for
tax returns to the person who is perceived to be in charge of the
filing entity. * * * Vol. 11, pp. 2122.
156. Respondent corresponded with the * * * firm as vice
president on behalf of RDF/IIP in 1989. FDIC Exh. 134; * *
* , Vol. 11, p. 22 lines 716.
157. In October 1992, Respondent and * * * , principal of
the accounting firm of * * * compromised a dispute
concerning fees owed to the * * * firm by De La Fuente
family entities. * * * Vol. 11, pp. 810.
158. In connection with the compromise with the * * * firm,
Respondent executed three promissory notes and a guarantee letter.
* * * , Vol. 11, pp. 1011.
159. One of the promissory notes, executed on October 15, 1992, was
signed by Respondent, as Vice President of RVDM,
{{1-31-01 p.A-3217}}
and litigated RVDM to pay $17,000 to RVDM's accountants, the Levitz firm. Resp. Stip.,
¶ 83; FDIC Exh. 133, at Exh. II; * * * Vol. 11, p. 13
lines 919.
160. On October 15, 1992 Respondent, on behalf of RDF/IIP also reached
a settlement on behalf of RDF/IIP, obligating RDF/IIP to pay the
* * * firm $4,000. Resp. Stip., ¶ 84; Basney, Vol.
11, p. 12 lines 112.
161. Twenty acres of property on which the Bank had a lien was sold in
1993 to * * * for environmental mitigation purposes.
Richins, Vol. 15, pp. 23132, Vol. 16, pp. 910.
162. Respondent negotiated the sale of environmental mitigation
property to Andreu, Vol. 18, p. 80 lines 39.
163. Respondent requested that the County release RVDM property that
was included in the County's $21 million blanket lien. * *
* , Vol. 8, p. 11 lines 119.
164. * * * has known Respondent professionally for
approximately 12 to 13 years. * * * Vol. 9, pp. 12627.
165. * * * was hired by Respondent to do appraisals for
RDF/IIP. He was not aware that Respondent's mother owned the company
or what Respondent's title was at that point. * * * Vol.
9, p. 164 lines 318.
166. * * * was appointed examiner of the affairs of RVDM by
the bankruptcy court in May 1996. * * * Vol. 10, p. 125
lines 817.
167. * * * looked at RVDM's books and records back to
1987. * * * , Vol. 10, p. 134 lines 1921.
168. * * * , concluded that Respondent's mother had
nothing to do with the day-to-day operations of RVDM and that
Respondent's company was running RVDM. * * * Vol. 10, p.
157 lines 411.
169. RVDM had no employees on its payroll. * * * Vol. 10,
p. 131 lines 911.
170. Eventually the bankruptcy examiner had to go to Respondent to get
answers concerning RVDM when * * * and Andreu were unable
to provide information. * * * Vol. 10, pp. 12829,
13637, 184 line 314.
171. The bankruptcy examiner was told that Respondent's mother lived
in Mexico City and was not active in the operations of RVDM. * *
* Vol. 10, p. 152 lines 621.
172. The bankruptcy examiner was informed that RVDM was being managed
by AIE, a company owned by Respondent. * * * Vol. 10, pp.
15253.
173. * * * formed the opinion that Respondent controlled
RVDM and that all of the related companies were in common control.
* * * Vol. 10, pp. 173 lines 218, 255 lines 1520.
174. Respondent did not disclose RVDM or RDF/IIP as his related
interests in any filing that he made with the Bank. FDIC Exhs.
76A76H.
175. Respondent has represented to the FDIC that RVDM and RDF/IIP were
his mother's companies and that he had nothing to do with them.
Ankenbrand, Vol. 11, pp. 19899.
Irrevocable Trusts
176. The children's trusts have only invested in NEI-related
assets and FPTC assets. Schwarz, Vol. 16, p. 244 lines 2125.
177. Schwarz does not know who negotiated a contract payable to
purchase additional FPTC stock on behalf of the children's trust.
Schwarz, Vol. 16, pp. 24344.
178. Pursuant to the trust agreement, supposedly, only a trustee can
select a successor trustee. FDIC Exh. 138, at 10.
179. * * * first met the De La Fuentes in 1976 or 1977. He
had a professional relationship with the De La Fuentes until the early
1990's. * * * , Vol. 16, pp. 2627, 7985.
180. * * * served as one of the original co-trustees of the
children's trusts as an accommodation to Respondent. FDIC Exh. 138 * * * Vol. 16, p. 102 lines 312.
181. * * * reluctantly agreed to be the co-trustee of the
children's trust on a temporary basis but after approximately one
year, he told Respondent to find someone else to act as trustee.
* * * , Vol. 16, p. 85 lines 1624.
182. Respondent found Sidney Schwarz to act as co-trustee of the
children's trust. Vol. 16, pp. 8586.
183. Respondent asked Sidney Schwarz if he would succeed Waring as
co-trustee of the children's trust. Schwarz, Vol. 16, p. 228 lines
916.
184. * * * served as co-trustee of the children's trust
from December 1994 to August 1, 1995. Schwarz, Vol. 16, p. 140 lines
1015.
185. In May, 1996, * * * executed a declaration in which he
stated that as co-trustee
{{1-31-01 p.A-3218}}
of the children's trust: he had no recollection of the specific nature of the trusts' acquisitions; had
not made copies of any of the documents that he had signed in his
capacity as trustee; and had never requested or received any documents
relevant to the transfer of NEI stock to the children's trusts.
* * * Vol. 16, pp. 8689.
186. * * * could not remember that NEI was the major asset
of the children's trusts. * * * Vol. 16, p. 102 lines
312.
187. * * * could not remember when he became a trustee of
the children's trusts, when he resigned as co-trustee of the
children's trusts, or that he had to choose his successor trustee.
* * * Vol. 16, p. 102 lines 1322.
188. At the time that Schwarz succeeded * * * he and
* * * had a few minor conversations, characterized as brief
and without any details. Schwarz, Vol. 16, pp. 22829.
189. At the time that * * * resigned, he only provided
Schwarz with his resignation and appointment of successor. He did not
give Schwarz any other documents, including the executed trust
agreements. Schwarz, Vol. 16, p. 229 lines 212.
190. Schwarz received a copy of the executed trust agreements from
* * * , an employee of NEI. Schwarz, Vol. 16, p. 229 lines
1623.
191. * * * an NEI employee, kept the vast majority of the
records associated with the children's trust, but Schwarz did keep
some. Schwarz, Vol. 16, p. 232 lines 520.
192. NEI serves as the actual day-to-day manager of the trust
activities, with Schwarz's contact being Andreu or Wick (i.e., the
president of NEI). Schwarz, Vol. 16, p. 231 lines 1325.
193. Essentially when trust transactions occur, they were faxed
simultaneously to Schwarz and Zapata and if both agreed they signed the
agreement and there would be no need to discuss the decision. Schwarz,
Vol. 16, p. 231 lines 18.
194. Schwarz did not discuss all the decisions that had to be made with
respect to the children's trusts with Zapata before the decisions were
made. Schwarz, Vol. 16, p. 230 lines 2125.
195. Schwarz can not recollect if he had ever met in person his
co-trustee, Zapata, before August 1997. Schwarz, Vol. 16, p. 230 lines
620.
196. Schwarz was more involved in the day-to-day activities of the
trust than Zapata. Schwarz, Vol. 16, p. 232 lines 14.
197. Zapata died in 1998. Schwarz, Vol. 16, p. 142 lines 612.
198. Schwarz selected a co-trustee to replace Zapata approximately ten
days before he testified in the section 8(e) proceeding. Schwarz, Vol.
16 p. 143 lines 1121.
199. Schwarz could not remember the last name of the trustee that he
selected as a replacement for Zapata. Schwarz, Vol. 16, p. 144 lines
1523.
200. Schwarz knows that the successor trustee that he selected is the
godfather to one of the Respondent's children and a businessman of a
large business in Mexico City. He does not know if he is a lawyer.
Schwarz, Vol. 16, pp. 14445.
NEI
201. De La Fuente II had the power to exercise a controlling
influence over NEI from inception through October 1995. Resp. Answer
¶ 60.
202. De La Fuente II reportedly resigned as president of NEI on or
about October 25, 1995. FDIC Exh. 139; Resp. Answer ¶ 21.
203. Zapata signed a resolution adopted by unanimous written consent of
the shareholders appointing Andreu as president and Schwarz and Andreu
as directors on November 15, 1995. The resolution was effective as of
October 26, 1995. Exh. 140; Schwarz, Vol. 16, pp. 23738.
204. Respondent was the sole director of NEI until October 24, 1995.
FDIC Exhs. 44, 139.
205. NEI is probably worth in excess of $40 million. Andreu, Vol. 9,
pp. 5960.
206. NEI was Respondent's "bread and butter." Richins, Vol. 15,
pp. 11516.
207. Sidney Schwarz recommended that Respondent and his wife consider
making gifts to their children since Congress considered decreasing the
deduction for estate tax purposes from $600,000 to $200,000. This
change never occurred. Schwarz, Vol. 16, pp. 13336.
208. There was an oral management agreement between AIE and NEI as of
December 31, 1994, December 31, 1995 and December 31, 1996. The sums
charged under the agreement were: $1,386,100 (1994); $1,160,000 (1995) and $1,560,000 (1996). FDIC Exhs. 155157; * * * Vol. 7,
pp. 9798; Shovlowsky, Vol. 2, pp. 13436.
{{1-31-01 p.A-3219}}
209. Respondent was not paid by NEI for his duties as president; rather
he was paid by AIE to provide services to NEI. Andreu, Vol. 9, p. 60
lines 1422.
210. Andreu's salary as vice president or president of NEI was never
more than $86,000, while on the other hand, Respondent made $450,000
while he was president of NEI. FDIC Exhs. 148, 150; Shovlowsky, Vol. 2,
pp. 11521.
211. Respondent continued to guarantee NEI's lines of credit with
* * * after he had transferred his ownership to the 1995
Irrevocable Trusts. * * * Vol. 7, p. 28 lines 314.
212. * * * a loan officer with * * * , would
have considered recommending the release of Respondent's guaranty of
the NEI line in 1996 and 1997. * * * Vol. 7, pp. 7475.
213. Respondent continued to meet with * * * after he had
transferred his ownership of NEI and was no longer president. *
* * Vol. 7, pp. 9496.
214. The main purpose of the * * * lines was so that NEI
could purchase loans from RTC. * * * , Vol. 7, pp. 4041.
215. NEI was alleged to be a prohibited purchaser from the RTC because
of a judgment the FDIC had on a guarantee given by Respondent. Andreu,
Vol. 18, pp. 9596.
216. Respondent discussed with * * * his concerns regarding
pending litigation involving Respondent's guarantee. * * *
Vol. 9, pp. 7374.
217. NEI was involved in litigation over a debt allegedly owed by a
partnership in which * * * was involved. * * *
Vol. 9, pp. 8687.
218. Mr. * * * an attorney of the De La Fuente family aware
of the dispute, put together a luncheon for * * *
Respondent, and others, in an effort to see if "they could avoid
some contested thing." * * * Vol. 17, pp. 22527.
219. The luncheon meeting was held on October 6, 1996. FDIC Exh. 154 * * * Vol. 9, p. 73 lines 29.
220. Respondent discussed with * * * that NEI was one of
any number of entities that he owned and controlled and that in many
cases he had to put the entities into irrevocable trusts for his
children so that he could still act on behalf of the companies.
* * * Vol. 9, pp. 7374.
221. Respondent represented to * * * that NEI was owned by
the childrens' trusts as a matter of administrative convenience.
* * * Vol. 9, p. 94 lines 29.
222. Respondent represented to * * * that he had complete
control and authority to settle litigation between Mr. * *
* interest and NEI. * * * Vol. 9, pp. 7173.
223. Respondent represented to Mr. * * * that he could
resolve the litigation between NEI and Mr. * * * , interest
"here and now." * * * Vol. 9, pp. 92 lines 1825, 96
lines 912.
224. * * * assumed that Respondent was the president of
NEI. * * * , Vol. 9, p. 73 lines 1018.
225. * * * had never met the then president of NEI, Jose
Luis Andreu, until the day that he testified in the FDIC's section
8(e) proceeding. * * * , Vol. 9, p. 96 lines 38.
226. In statements filed with the Bank up until 1995, Respondent
acknowledged that NEI was his related interest. FDIC Exhs. 76B76D.
227. In statements filed with the Bank in 1996 and after, Respondent
did not report NEI as his related interest. FDIC Exhs. 76F76H.
FPTC
228. As of June 1994, De La Fuente II owned 5.6% of FPTC.
According to Bank records, De La Fuente II "gifted" his ownership
in FPTC to his children. Resp. Answer ¶ 43.
229. De La Fuente II signed checks drawn on accounts controlled by De
La Fuente II and made payable to FPTC for the purchase of additional
stock in FPTC as custodian of the children to be given to the 1995
Irrevocable Trusts for the benefit of the children. Resp. Answer
¶ 44.
230. Respondent was a director of FPTC from 1983 to 1989.
[Respondent's] Supplemental Response to FDIC's Request for
Production No. 16.
231. On May 6, 1989, Jose Luis Andreu and Respondent both ran for the
board of directors of FPTC. FDIC Exh. 212; Andreu, Vol. 7, pp. 18889.
232. Isaias Zapata and Respondent voted their shares, respectively 2,
182, 820 and 1,957,820 on a cumulative basis, for Andreu at the May 6,
1989 election for FPTC's board of directors. FDIC Exh. 213; Andreu,
Vol. 7, pp. 18890.
{{1-31-01 p.A-3220}}
233. As of January 6, 1990, Andreu was the chairman of FPTC. FDIC Exh.
215, at 2.
234. At the January 6, 1990 FPTC board meeting, Andreu asserted that he
represented approximately 20 percent of the shareholders of FPTC. FDIC
Exh. 215, at 2.
235. The twenty percent of the shareholders that Andreu represented
would have included Respondent and Zapata. FDIC Exh. 215; Andreu, Vol.
7, pp. 19394.
236. By March 11, 1991, Andreu was the president of FPTC. FDIC Exh.
167.
237. As of March 11, 1991, Andreu and * * * reported that
FPTC was no longer active and was in the process of liquidating. Exh.
167; Shovlowsky, Vol. 2, pp. 15556; Andreu, Vol. 8, pp. 17779.
238. After it sold its high-tech business, FPTC was a shell corporation
that owned real property which was being leased to a third party.
Shovlowsky, Vol. 2, pp. 15254; Andreu, Vol. 8, pp. 17879, 19192.
239. FPTC has no employees. * * * Vol. 17, p. 103 lines
1315.
240. Sometime after June 30, 1994, Andreu began acquiring stock in
FPTC, using checks drawn on Witec Patents' checking account. Andreu,
Vol. 7, pp. 26466.
241. As of July 21, 1995, Andreu had allegedly acquired over 1.9
million shares, or 24.42 percent of FPTC's stock. FPTC Stock 2 Ankenbrand, Vol. 11, pp. 20405.
242. The purpose of the checks drawn on Witec Patents' account which
were included in Exhibit 233 was to purchase shares of FPTC from
certain individuals. FDIC Exh. 237; Andreu Vol. 7, p. 237 lines 1622.
243. The Witec Patents checks were used to purchase the stock of
* * * (June 1994 - 1,083,885 shares), * * *
(July 1994 - 112,500 shares), * * * (June 1994 through
January 1995 - 660,000 shares) and * * * (March 1995 -
50,000 shares), which was transferred to the name of Jose Luis Andreu.
FDIC Exh. 233; FPTC Stock 1 & 2; Andreu, Vol. 7, pp. 26466 Ankenbrand, Vol. 11, p. 26 lines 1825.
244. Checks drawn on the account of Witec Cayman Patents, totaling
$175,600, were used to purchase * * * 660,000 shares of
FPTC. * * * Vol. 11, pp. 11012.
245. * * * , a shareholder in FPTC, had conversations with
Andreu prior to June 1994 in which they discussed gaining control of
FPTC. * * * , Vol. 11, pp. 10910.
246. * * * subsequently offered to sell his FPTC shares to
Andreu and Andreu agreed to buy them. * * * Vol. 11, p. 110
lines 59.
247. In 1981, the shareholders of Witec Cayman Patents and Witec Cayman
Services agreed that Respondent and Zapata would each receive a 30
percent interest in the combination of the two companies, but since it
was necessary for a non-U.S. citizen to own at least 50 percent of
Witec Cayman Patents for tax reasons, Zapata would own 50 percent of
Witec Cayman Patents. FDIC Exh. 227; Ankenbrand, Vol. 11, pp. 20708.
248. In 1981, the shareholders of Witec Cayman Patents and Witec Cayman
Services agreed that the profits and equity of the combination of the
companies would be distributed 30 percent to Respondent and 30 percent
to Zapata. FDIC Exh. 227; Ankenbrand, Vol. 11, pp. 20809.
249. In a November 18, 1981 memorandum, the shareholders of Witec
Cayman Services agreed that the shares of the company would be
distributed as follows: Zapata (50 shares); * * * (650
shares); Respondent (650 shares); and * * * (200 shares).
FDIC Exh. 227.
250. On April 15, 1982, the board of directors agreed to distribute the
shares of Witec Cayman Services as follows: Zapata (500 shares) * * * (650 shares); Respondent (650 shares); and * *
* (200 shares). FDIC Exh. 228.
251. In a November 18, 1981 memorandum, the shareholders of Witec
Cayman Patents agreed that the shares of the company would be
distributed as follows: Zapata (1000 shares); * * * (400
shares); Respondent (400 shares); and * * * (200 shares).
FDIC Exh. 227.
252. On April 15, 1982, the board of directors agreed to distribute the
shares of Witec Cayman Patents as follows: Zapata (1000 shares) * * * (400 shares); Respondent (400 shares); and * *
* (200 shares). FDIC Exh. 333.
253. On April 15, 1982 Respondent was appointed vice president of Witec
Cayman Services. FDIC Exh. 228, 333.
254. The 1987 change in control application for People's Bank states
that Zapata is a shareholder in "Witec and Fine Particles." FDIC
Exh. 307, at 8.
255. On August 18, 1989, at a special meeting of the shareholders of
Witec Patents in San Diego, Respondent, Zapata, and An-
{{1-31-01 p.A-3221}}
dreu were all in attendance. Respondent acted as chairman of the meeting, and Zapata
acted as secretary. Zapata was elected president and Andreu was elected
vice president and secretary of Witec Patents. FDIC Exh. 229.
256. At the September 11, 1989 FPTC Board meeting, Andreu announced
that he had been appointed a director of "Witec." FDIC Exh. 214,
at 2.
257. As of January 30, 1990, Respondent was the President of Witec
Cayman Services. Resp. Stip., ¶ 35.
258. As of January 30, 1990, Respondent wrote a letter as president of
Witec Services to FPTC in which the "Witec Cayman Group," which
included both Witec Cayman Patents and Witec Cayman Services, offered
to buy a division of FPTC. FDIC Exh. 216; Andreu, Vol. 7, pp. 19496,
Vol. 8, pp. 29899.
259. As of May 22, 1990, Andreu informed FPTC's board "that he is
Vice President of Witec and that he holds the proxies of all four
shareholders of Witec, who are also shareholders in FPTC." Exh. 218,
p. 3; Andreu, Vol. 8, pp. 30405.
260. Zapata and Respondent did not care about Witec Patents because it
had "no assets whatsoever" and "it was zero." No one was
paying the fees to keep it in good standing. Andreu, Vol. 8, p. 295
lines 117.
261. In 1995, FPTC changed its business strategy to begin investing in
promissory notes secured by real estate, primarily from the FDIC, RTC,
and banks. This is the same business in which NEI is engaged. Resp.
Answer ¶ 52; Andreu, Vol. 7, pp. 20405.
262. On July 14, 1995, the United States District Court for the
Southern District of California found the Bank and the Bank's
directors, including De La Fuente II, guilty of contempt of court for
failure to comply with the FDIC's 1992 Cease and Desist Order which
had been entered as an order of the District Court in December 1994.
Resp. Answer ¶ 245; Ankenbrand, Vol. 11, pp. 15556.
263. As a result of the contempt finding, the Bank's directors were
ordered to pay daily fines of $500 until the contempt was purged. Resp.
Answer ¶ 245; Ankenbrand, Vol. 11, pp. 15556.
264. The imposition of fines was delayed until July 24, 1995. Resp.
Answer ¶ 245.
265. As of July 17, 1995, Andreu, on behalf of FPTC, had done due
diligence on three loans being offered for sale by the Bank and he was
recommending that FPTC purchase the loans. FDIC Exh. 222; Andreu, Vol.
7, pp. 20203.
266. FPTC purchased the * * * and * * * loans
from the Bank on July 20 or 21, 1995. FDIC Exh. 223; Ankenbrand, Vol.
11, pp. 15152.
267. The purchase of the * * * and * * * loans
permitted the Bank to recognize a gain to income of approximately
$445,000 and, thus, to claim that it had come into compliance with the
district court's order. Resp. Answer, ¶ 248; FDIC Exhs. 174,
178; Ankenbrand, Vol. 11, pp. 15658.
268. The Bank provided financing in the amounts of $186,750 and
$576,000 to permit FPTC to purchase the * * * and *
* * loans. Resp. Answer, ¶ 246, 247; FDIC Exhs. 173175 Ankenbrand, Vol. 11, pp. 15458.
269. The purchase of loans from the Bank in July 1995 was a "brand
new business" for FPTC. Andreu, Vol. 8, pp. 19398.
270. The July 1995 extensions of credit were paid off by the proceeds
of a new Bank loan in the amount of $1,350,000. Resp. Answer ¶ 250.
271. The Bank's $1,350,000 extension of credit [to FPTC] was paid
off by the proceeds of a third party loan to FPTC. Resp. Answer ¶ 252.
272. On September 20, 1995, the third party lender's escrow agent
wired excess loan proceeds in the amount of $620,579 to the Bank for
the account of FPTC. Resp. Answer ¶ 253.
273. In September 1995, FPTC did not have a deposit account with the
Bank. Resp. Answer ¶ 254.
274. Andreu, as president of FPTC, instructed the Bank to deposit
$600,000 into the account of CA SM No. One, LLC ("CA SM"). Resp.
Answer ¶ 255.
275. CA SM is wholly owned by the 1995 Irrevocable Trusts. Resp. Answer
¶ 255.
276. On September 20, 1995, a check for $600,000 was drawn on CA SM's
account. De La Fuente II was both the payee and the signor of the
check. Resp. Answer ¶ 256.
277. The proceeds of the $600,000 CA SM check were used by De La Fuente
II to
{{1-31-01 p.A-3222}}
pay down his adversely classified loan at the Bank. Resp. Answer
¶ 257.
278. Jose Luis Andreu represented to * * * of * *
* that FPTC was one of the "De La Fuente" companies.
* * * Vol. 7, pp. 3334.
279. Andreu was a full time employee at AIE, while devoting around 10
percent of his time to FPTC. Andreu, Vol. 8, pp. 20102.
280. Andreu's wife is also a director of FPTC. Andreu, Vol. 7, p. 169
lines 815.
281. Respondent prior to 1995 disclosed that he had a 5.46 percent
ownership interest in FPTC. FDIC Exh. 76B; FDIC Exh. 76C.
282. By July 21, 1995, the 1995 Irrevocable Trusts owned 5.60\% and
Isaias Zapata Oscoz owned 5.02% of FPTC. Resp. Answer ¶ 51.
283. Respondent disclosed his interest in Witec Patents and Witec
Services in the 1987 change in control application for Peoples Bank,
indicating that he owned 400 shares of Witec Patents and 650 shares of
Witec Services, valuing his interests respectively at $530,000 and
$2,120,000. FDIC Exh. 307, at Exh. 3 to the application, Notes to
Financial Report.
284. As of November 26, 1991, Respondent reported to the Bank that he
had a 20 percent interest and Zapata had a 50 percent interest in Witec
Patents. FDIC Exh. 76B.
285. As of November 26, 1991 and October 6, 1992, Respondent reported
to the Bank that he had a 20 percent interest in Witec Patents and a
32.5 percent interest in Witec Services. FDIC Exhs. 76B, 76C.
286. Witec Cayman Patents was identified by De La Fuente II as one of
his related interests in the FDIC's 1992 examination of the Bank.
Resp. Answer ¶ 48.
287. Respondent reported to the Bank the "paper" allocation of
stock in Witec Patents and Witec Services, respectively 20 and 32.5
percent, rather than his true beneficial interest of 30 percent of both
companies. Ankenbrand, Vol. 11, pp. 21215.
Alexander Trust,
288. De La Fuente II is a beneficiary of the Alexander Trust.
Resp. Answer ¶ 61.
289. Respondent's future interest in the Alexander Trust is 25
percent. Pursuant to paragraph 2.04 of the Alexander Trust, Respondent
and his sister are entitled to a 25 percent distribution during the
life of Bertha Guerra de De La Fuente (i.e., Bertha receives
$200,000/year and Respondent and his sister each receive $100,000/year
after the death of the trustor). Pursuant to ¶ 2.05, after
Bertha's decease, Respondent and his sister split the trust residue
equally. FDIC Exh. 298; Ankenbrand, Vol. 11, p. 185 lines 17.
290. Respondent, as a beneficiary of his father's revocable trust,
would have a contingent beneficial interest. * * * Vol. 16,
p. 35 lines 1518.
291. In a March 25, 1985 letter to the FDIC, Respondent represented
that he had a 25 percent interest in De La Fuente Inc., indirectly as a
beneficiary of his father's trust. FDIC Exh. 300; Ankenbrand, Vol. 11,
pp. 17275.
292. In the 1987 change of control application for People's Bank,
which he represented to be true and complete, Respondent claimed to
have a 25 percent interest in De La Fuente, Inc. by virtue of a family
trust held by his father. FDIC Exh. 307, at Exh. 3 to the application,
Notes to Financial Report; Ankenbrand, Vol. 11, pp. 16770.
293. In the 1987 non-disapproval of the change in control application
for People's Bank, the FDIC stated that Respondent reported that he
had a one-quarter interest in a trust established by his father. FDIC
Exh. 308, at 2; Ankenbrand, Vol. 11, pp. 17071.
294. In Respondent's January 31, 1990 financial statement, he claimed
to have a 25 percent interest in De La Fuente, Inc. FDIC Exh. 309 Ankenbrand, Vol. 11, pp. 17577.
295. In Respondent's June 30, 1990 financial statement, he claimed to
have a 25 percent interest in De La Fuente Inc. FDIC Exh. 310 Ankenbrand, Vol. 11, pp. 17578.
296. De La Fuente Inc. was in the car dealership business. FDIC Exh.
76A; Ankenbrand, Vol. 11, pp. 17980.
297. In depositions in 1990 and 1995 Respondent testified that he had a
25 percent beneficial interest in the family car dealerships by virtue
of his father's trust. FDIC Exh. 326, at 78; FDIC Exh. 330, at 71
lines 115; Ankenbrand, Vol. 11, pp. 18083.
298. $500,000 of the proceeds of the $1 million extension of credit to
the Alexander Trust were disbursed to De La Fuente, Inc. FDIC Exh. 311 Ankenbrand, Vol. 11, pp. 17879.
299. The credit authorization for the Alexander Trust extension of
credit does not disclose Respondent's 25 percent contingent
{{1-31-01 p.A-3223}}
interest in the trust. FDIC Exh. 299. This would be the primary document that
the Bank would look at in authorizing the loan. Ankenbrand, Vol. 11,
pp. 18586.
C.T. Produce
300. * * * was the president of C.T. Produce in 1995.
FDIC Exh. 237, at 2.
301. A December 8, 1995 Bank document from loan officer, * *
* , to president, Jim Redman, concerning an extension of credit to
C.T. Produce states: "Mr. * * * informs me that his
company is doing a Joint Venture with Roque and Jose Luis (not reduced
to a written document) verbally to trade in fruit/produce which will
involve a $1MM worth of sales, 1,250 semi truck loads of produce all
over the next seven months period of time." FDIC Exh. 236 Shovlowsky, Vol. 2, pp. 19697.
302. On February 13, 1996, Jose Luis Andreu wrote to the Bank
concerning NEI's relationship with C.T. Produce. Mr. Andreu stated
that NEI had engaged C.T. Produce to act as broker since NEI did not
have expertise in the sale of perishable items. FDIC Exh. 241 Shovlowsky, Vol. 2, pp. 19899.
303. In the February 13, 1996 letter, Jose Luis Andreu also stated that
NEI had made further advances to the grower either directly or through
C.T. Produce. FDIC Exh. 241; Shovlowsky, Vol. 2, pp. 199200.
304. On December 18, 1995, the Bank increased the extension of credit
to C.T. Produce from $50,000 to $200,000. FDIC Exh. 237; Shovlowsky,
Vol. 2, pp. 19798.
305. Using its line of credit at the Bank, FPTC sent $250,000 to C.T.
Produce in February 1996. FDIC Exhs. 246250; Shovlowsky, Vol. 2, pp.
20911.
306. Documents produced by NEI (contracts and assignments of deeds of
trust) dated between October and December 1995 indicate that NEI, FPTC
and C.T. Produce were involved in some type of joint venture related to
* * * and its property in Nogales, Arizona. FDIC Exhs.
252254; Shovlowsky, Vol. 2, pp. 21216.
307. In October 1995 Respondent, using his line of credit at the Bank,
wired $500,000 to * * * the principal of * * *
FDIC Exh. 335; Shovlowsky, Vol. 2, pp. 21618.
308. In a FDIC visitation of the Bank, the FDIC noted that Respondent
had personally brought a proposal to the Bank to make a loan to
* * * Resp. Exh. 860, at 10; Ankenbrand, Vol. 11, pp.
14951.
309. Even though the Bank management determined that the * *
* loan was not within the Bank's policy, Respondent brought the
loan to the full board of directors for consideration. Resp. Exh. 860,
at 10; Ankenbrand, Vol. 11, pp. 15051.
310. Jose Luis Andreu and Respondent approached * * *
through * * * the account officer on the NEI line at
* * * for financing of C.T. Produce, a produce company that
they were starting that was in some way related to NEI. * *
* Vol. 7, pp. 3436.
311. Respondent represented to the Court that C.T. Produce had in the
prior year sold $40 million of produce and had a $10 million line of
credit, facts that were confirmed by Andreu, C.T. Produce's chairman
of the board. Andreu, Vol. 7, pp. 16566.
Extensions of Credit
312. On or about May 17, 1990, the Bank extended a loan of
$1,000,000 to the Alexander Trust. Resp. Answer ¶ 74.
313. The Alexander Trust loan was secured by: a) real property in the
Otay Mesa area pledged by D&D; and b) the personal guarantee of De La
Fuente II's father. Resp. Answer ¶ 74.
314. On or about October 8, 1990, RDF/IIP assumed a loan in the
amount of $1,000,000 that the Bank had originally extended to RVDM.
Resp. Answer ¶ 75.
315. Due to a participation, the Bank's loan to RDF/IIP was reduced to
$700,000 in December 1990. Resp. Answer ¶ 75.
316. On or about December 26, 1990, the Bank extended a revolving line
of credit in the amount of $400,000 to RVDM. Resp. Answer ¶ 76.
317. The RVDM loan was secured by: a) real property in the Otay Mesa
area pledged by RVDM; and b) the personal guarantee of De La Fuente
II's mother. Resp. Answer ¶ 76.
318. On or about January 24, 1992, the Bank renewed the $400,000
revolving line of credit to RVDM and increased it to $800,000. Resp.
Answer ¶ 77.
319. On or about July 15, 1992, the Bank increased the RVDM revolving line of credit to $1,600,000. Resp. Answer ¶ 78.
320. $700,000 of the increased RVDM
{{1-31-01 p.A-3224}}
loan amount was used to pay off the RDF/IIP loan at the Bank. Resp. Answer ¶ 78.
321. The collateral securing the RDF/IIP loan was transferred to secure
the RVDM revolving line of credit. Resp. Answer ¶ 78.
322. On or about September 9, 1992, the Bank extended a revolving line
of credit of $800,000 to De La Fuente II. Resp. Answer ¶ 79.
323. On or about July 20, 1995, the Bank extended a loan to FPTC in the
amount of $763,250, using two separate notes, on an unsecured basis.
Resp. Answer ¶ 82.
324. The July 1995 extension of credit [to FPTC] was paid off by the
proceeds of a new Bank loan in August 1995. Resp. Answer ¶ 82.
325. On or about August 11, 1995, the Bank extended a loan to FPTC in
the amount of $1,350,000. Resp. Answer ¶ 83.
326. The Bank's $1,350,000 extension of credit [to FPTC] was paid
off by the proceeds of a third party loan to FPTC. Resp. Answer ¶ 83.
327. On or about October 27, 1995, the board of directors of the Bank
approved the assumption by NEI of De La Fuente II's existing $800,000
line of credit, with a committed amount of $750,000. Resp. Answer
¶ 84.
328. On or about November 8, 1995, the Bank extended a line of credit
in the amount of $600,000 to FPTC for unspecified investments. Resp.
Answer ¶ 85 [first].
329. On or about December 28, 1995, the Bank extended a commercial loan
to FPTC in the amount of $800,000 to facilitate the purchase of a loan
from the Bank. Resp. Answer ¶ 85 [second].
330. On or about December 12, 1995, the Bank advanced a revolving line
of credit in the amount of $50,000 to C.T. Produce for the stated
purpose of "accelerat[ing] cash flow of accounts receivable."
Resp. Answer ¶ 70, 86.
331. Six days later, on or about December 18, 1995, the Bank increased
the C.T. Produce line of credit to $200,000. Resp. Answer ¶ 87.
332. By December 27, 1995, C.T. Produce had drawn on its line of credit
at the Bank three times, totaling $200,000. Resp. Answer ¶ 89.
Lending Limits
333. As of March 31, 1990, the Bank's Call Report reported that
the Bank's capital stock and surplus equaled $4,203,000. Resp. Answer
¶ 92.
334. As of the March 31, 1990 Call Report, fifteen percent of the
Bank's unimpaired capital and surplus equaled $630,450. Resp. Answer
¶ 93.
335. The $1 million extension of credit to the Alexander trust on May
17, 1990 exceeded the fifteen percent lending limit of $630,000.
Ankenbrand, Vol. 12, pp. 1718.
336. As of September 30, 1990, the Bank's Call Report reported that
the Bank's capital stock and surplus equaled $4,678,000. Resp. Answer
¶ 95, 139.
337. As of the September 30, 1990 Call Report, fifteen percent of the
Bank's unimpaired capital and surplus equaled $701,700. Resp. Answer
¶ 96.
338. The $1 million extension of credit to RDF/IIP on October 8, 1990
exceeded the fifteen percent lending limit of $702,000. The aggregate
of the $1 million Alexander Trust and $1 million RDF/IIP extensions
also exceeded the $702,000 lending limit. Ankenbrand, Vol. 12, p. 18
lines 1023.
339. The $400,000 extension of credit to RVDM on December 26, 1990,
when aggregated with the $1 million extension of credit to the
Alexander Trust and the then outstanding $700,000 extension of credit
to RDF/IIP exceeded the fifteen percent lending limit of $702,000.
Ankenbrand, Vol. 12, pp. 2122.
340. As of the September 30, 1990 Call Report, ten percent of the
Bank's unimpaired capital and surplus equaled $467,800. Resp. Answer
¶ 140.
341. As of the September 30, 1990 Call Report, twenty percent of the
Bank's unimpaired capital and surplus equaled $935,600. Resp. Answer
¶ 163.
342. The $1 million extension of credit to RDF/IIP on October 8, 1990
exceeded the 10 percent lending limit of $468,000 to a single affiliate
and the 20 percent lending limit of $936,000 to multiple affiliates.
Ankenbrand, Vol. 12, p. 33 lines 822.
343. The $400,000 extension of credit to RVDM on December 26, 1990,
when aggregated with the then outstanding $700,000 extension of credit
to RDF/IIP exceeded the
{{1-31-01 p.A-3225}}
20 percent lending limit of $936,000 to
multiple affiliates. Ankenbrand, Vol. 12, pp. 3334.
344. The Bank's lending limit for December 31, 1991, as calculated by
the FDIC in the Notice, was stipulated to be correct by Respondent, for
the purposes of this proceeding only. Ankenbrand, Vol. 12, p. 22 lines
514.
345. As of December 31, 1991, the Bank's Call Report reported that the
Bank's Capital stock and surplus equaled $5,468,000.
346. As of the December 31, 1991 Call Report, fifteen percent of the
Bank's unimpaired capital and surplus equaled $820,200.
347. The $800,000 extension of credit to RVDM on January 24, 1992, when
aggregated with the $1 million extension of credit to the Alexander
Trust and the then outstanding $700,000 extension of credit to RDF/IIP
exceeded the fifteen percent lending limit of $820,000. Ankenbrand,
Vol. 12, pp. 2223.
348. As of December 31, 1991, ten percent of the Bank's unimpaired
capital and surplus equaled $546,800.
349. As of the December 31, 1991 Call Report, twenty percent of
the Bank's unimpaired capital and surplus equaled $1,093,600.
350. The $800,000 extension of credit to RVDM on January 24, 1992
exceeded the 10 percent lending limit of $547,000 to a single affiliate
and when aggregated with the then outstanding $700,000 extension of
credit to RDF/IIP exceeded the twenty percent lending limit of
$1,094,000 to multiple affiliates. Ankenbrand, Vol. 12, pp. 3435.
351. As of June 30, 1992, the Bank's Call Report reported that the
Bank's capital stock and surplus equaled $6,507,000. Resp. Answer
¶ 102, 145, 169.
352. As of the June 30, 1992 Call Report, fifteen percent of the
Bank's unimpaired capital and surplus equaled $976,050. Resp. Answer
¶ 103.
353. The $1.6 million extension of credit to RVDM on July 15, 1992
exceeded the fifteen percent lending limit of $976,000. The aggregate
of the $1 million Alexander Trust and $1.6 million RVDM extensions of
credit also exceeded the $976,000 lending limit. Ankenbrand, Vol. 12,
p. 23 lines 617.
354. The $800,000 extension of credit to Respondent on September 9,
1992, when aggregated with the $1 million Alexander Trust and $1.6
million RVDM extensions of credit also exceeded the fifteen percent
lending limit of $976,000. Ankenbrand, Vol. 12, pp. 2324.
355. As of the June 30, 1992 Call Report, ten percent of the Bank's
unimpaired capital and surplus equaled $650,700. Resp. Answer ¶ 146.
356. As of the June 30, 1992 Call Report, twenty percent of the Bank's
unimpaired capital and surplus equaled $1,301,400. Resp. Answer ¶ 170.
357. The $1.6 million extension of credit to RVDM on July 15, 1992
exceeded the ten percent lending limit of $651,000 to a single
affiliate and also exceeded the twenty percent lending limit of
$1,301,000 to multiple affiliates. Ankenbrand, Vol. 12, p. 35 lines
414.
358. As of June 30, 1995, the Bank's Call Report reported that the
Bank's capital stock and surplus equaled $5,427,000. Resp. Answer
¶ 106, 148 172.
359. As of the June 30, 1995 Call Report, fifteen percent of the
Bank's unimpaired capital and surplus equaled $814,050. Resp. Answer
¶ 107.
360. The $763,000 extension of credit to FPTC on July 20, 1995, when
aggregated with the outstanding $800,000 extension to RVDM and the
$800,000 extension to Respondent, exceeded the fifteen percent lending
limit of $814,000. Ankenbrand, Vol. 12, p. 24 lines 719.
361. The $1.35 million extension of credit to FPTC on August 11, 1995
exceeded the fifteen percent lending limit of $814,000. The aggregate
of the $1.35 million FPTC extension, the then outstanding $800,000 RVDM
extension and the $800,000 extension to Respondent, exceeded the
fifteen percent lending limit of $814,000. Ankenbrand, Vol. 12, pp.
2425.
362. As of the June 30, 1995 Call Report, ten percent of the Bank's
unimpaired capital and surplus equaled $542,700. Resp. Answer ¶ 149.
363. As of the June 30, 1995 Call Report, twenty percent of the Bank's
unimpaired capital and surplus equaled $1,085,400. Resp. Answer ¶ 173.
364. The $763,000 extension of credit to FPTC on July 20, 1995 exceeded
the ten percent lending limit of $543,000 to a single affiliate and,
when aggregated with the then
{{1-31-01 p.A-3226}}
outstanding $800,000 extension to RVDM,
exceeded the twenty percent lending limit of $1,086,000 to multiple
affiliates. Ankenbrand, Vol. 12, pp. 3536.
365. The $1.35 million extension of credit to FPTC on August 11, 1995
exceeded the ten percent lending limit of $543,000 to a single
affiliate and, when aggregated with the then outstanding $800,000
extension to RVDM, exceeded the twenty percent lending limit of
$1,086,000 to multiple affiliates. Ankenbrand, Vol. 12, p. 36 lines
418.
366. The Bank's lending limit for September 30, 1995, as calculated by
the FDIC in the Notice, was stipulated to be correct by Respondent, for
the purposes of this proceeding only. Ankenbrand, Vol. 12, p. 25 lines
918.
367. As of September 30, 1995, the Bank's Call Report reported that
the Bank's capital stock and surplus equaled $5,690,000. Resp. Answer
¶ 110, 120.
368. As of the September 30, 1995 Call Report, fifteen percent of the
Bank's unimpaired capital and surplus equaled $853,500. Resp. Answer
¶ 111.
369. The $750,000 extension of credit to NEI (by virtue of its
assumption of Respondent's loan) on October 27, 1995, when aggregated
with the then outstanding $800,000 extension to RVDM, exceeded the
fifteen percent lending limit of $854,000. Ankenbrand, Vol. 12, pp.
2526.
370. The $600,000 extension of credit to FPTC on November 8, 1995, when
aggregated with the then outstanding $800,000 RVDM extension and the
$750,000 NEI extension, exceeded the fifteen percent lending limit of
$854,000. Ankenbrand, Vol. 12, p. 26 lines 821.
371. The $200,000 extension of credit to C.T. Produce on December 18,
1995, which was for the tangible economic benefit of NEI, when
aggregated with the existing $750,000 extension of credit to NEI,
exceeded the fifteen percent lending limit of $854,000. When the
$200,000 extension to C.T. Produce and the $750,000 extension to NEI
are aggregated with the then outstanding $800,000 extension to RVDM and
the $600,000 extension to FPTC, the total exceeds the fifteen percent
lending limit of $854,000. Ankenbrand, Vol. 12, pp. 2627.
372. The additional $800,000 extension of credit to FPTC on December
28, 1995, when aggregated with the existing $600,000 extension to FPTC,
exceeded the fifteen percent lending limit of $854,000. When the total
$1.4 million extension to FPTC is aggregated with the then outstanding
$800,000 extension to RVDM and the $950,000 extension to the
combination of C.T. Produce and NEI, the total exceeds the fifteen
percent lending limit of $854,000. Ankenbrand, Vol. 12, pp. 2728.
373. As of the September 30, 1995 Call Report, ten percent of the
Bank's unimpaired capital and surplus equaled $569,000.
374. As of the September 30, 1995 Call Report, twenty percent of
the Bank's unimpaired capital and surplus equaled $1,038,000. Resp.
Answer ¶ 177.
375. The $750,000 extension of credit to NEI (by virtue of its
assumption of Respondent's loan) on October 27, 1995, exceeded the ten
percent lending limit of $569,000 to a single affiliate and, when
aggregated with the then outstanding $800,000 extension to RVDM,
exceeded the twenty percent lending limit of $1,040,000 to multiple
affiliates. Ankenbrand, Vol. 12, pp. 3637.
376. the $600,000 extension of credit to FPTC on November 8, 1995
exceeded the ten percent lending limit of $569,000 to a single
affiliate and, when aggregated with the then outstanding $800,000
extension to RVDM and the $750,000 extension to NEI, exceeded the
twenty percent lending limit of $1,140,000 to multiple affiliates.
Ankenbrand, Vol. 12, p. 37 lines 517.
377. The $200,000 extension of credit to C.T. Produce on December 18,
1995, which was for the benefit of NEI, when aggregated with the
existing $750,000 extension of credit to NEI, exceeded the ten percent
lending limit of $569,000 to a single affiliate. When the $200,000
extension to C.T. Produce and the $750,000 extension to NEI are
aggregated with the then outstanding $800,000 extension to RVDM and the
$600,000 extension to FPTC, the total exceeds the twenty percent
lending limit of $1,140,000 to multiple affiliates. Ankenbrand, Vol.
12, pp. 3738.
378. The additional $800,000 extension of credit to FPTC on December
28, 1995, when aggregated with the existing $600,000 extension to FPTC,
exceeded the ten percent lending limit of $569,000 to a single
affiliate. When the total $1.4 million extension to FPTC is aggregated
with the then outstanding $800,000 extension to RVDM and the $950,000
extension to the combination of
{{1-31-01 p.A-3227}}
C.T. Produce and NEI the total exceeds
the twenty percent lending limit of $1,140,000 to multiple affiliates.
Ankenbrand, Vol. 12, pp. 3839.
379. The following extensions of credit, in violation of Regulation O,
were knowingly received by Respondent or his related interests,
directly or indirectly; July 15, 1992 RVDM - $1.6 million; September 9,
1992 Respondent - $800,000; July 20, 1995 FPTC - $763,000; August 11,
1995 FPTC - $1.35 million; October 27, 1995 NEI - $750,000; November 8,
1995 FPTC - $600,000; December 18, 1995 C.T. Produce - $50,000 December 26, 1995 C.T. Produce - $200,000; December 28, 1995 FPTC -
$800,000.
Loss to the Bank & Personal Gain to Respondent
380. The RVDM loan eventually went into default in 1994. Resp.
Answer ¶ 80.
381. In February 1995 the Bank foreclosed on 160 acres of the
collateral securing the $1.6 million RVDM loan for a bid amount of
$800,000. Resp. Answer ¶ 80.
382. The remaining $800,000 balance of the RVDM loan remained in
default while RVDM was in bankruptcy until the loan was purchased by
NEI in 1996. Resp. Answer ¶ 80.
383. The Bank expended $50,685 in direct expenses on the RVDM loan.
FDIC Exh. 75; Shovlowsky, Vol. 1, p. 272 lines 2023.
384. The Bank recognized a charge-off of $128,000 when the Bank
foreclosed on some of the RVDM collateral. FDIC Exh. 75; Shovlowsky,
Vol. 1, p. 273 lines 39.
385. The total amount of hard costs incurred by the Bank which arose
from the RVDM loan was $178,000. FDIC Exh. 75; Shovlowsky, Vol. 1, p.
274 lines 1417.
386. The Bank incurred $103,567 in carrying costs for the RVDM loan,
and $45,642 in carrying costs for the Other Real Estate acquired when
the Bank foreclosed on some of the RVDM collateral. FDIC Exh. 75 Shovlowsky, Vol. 1, p. 273 lines 2025.
387. The total amount of carrying costs arising out of the RVDM loan
was approximately $148,000. FDIC Exh. 75; Shovlowsky, Vol. 1, p. 274
lines 1718.
388. The Bank incurred $354,000 in opportunity costs for the RVDM loan,
and $148,000 in opportunity costs for the other real estate property.
FDIC Exh. 75; Shovlowsky, Vol. 1, p. 274 lines 1113.
389. The total amount of opportunity costs incurred by the Bank in the
RVDM loan was approximately $388,000. FDIC Exh. 75; Shovlowsky, Vol. 1,
p. 274 lines 1819.
390. The Bank incurred losses totaling approximately $716,000 on the
RVDM loan and other real estate. FDIC Exh. 75; Shovlowsky, Vol. 1, p.
274 lines 2022.
391. The Alexander Trust loan eventually went into default. Resp.
Answer ¶ 81.
392. On or about July 14, 1995, after initiating a foreclosure of the
[Alexander Trust pledged real] property, the Bank obtained title to
the real property collateral. Resp. Answer ¶ 81.
393. Bank losses on the Alexander Trust loan were categorized, similar
to the RVDM loan, as hard costs, carrying costs and opportunity costs.
Losses were only calculated as of December 31, 1996. FDIC Exh. 75 Ankenbrand, Vol. 12, pp. 4346.
394. The Bank recognized hard cost losses of $60,348 on the Alexander
Trust loan. FDIC Exh. 75, at 2.
395. The Bank further realized hard cost losses of $13,447 and $425,068
for charge-offs taken on the Alexander Trust ORE. FDIC Exh. 75, at 2.
396. The Bank's carrying costs on the Alexander Trust loan were
$16,329 and the carrying costs on the Alexander Trust ORE were $42,419.
FDIC Exh. 75, at 2.
397. The Bank's lost opportunity costs on the Alexander Trust loan
were $47,435 and the lost opportunity costs on the Alexander ORE were
$19,825. FDIC Exh. 75, at 2.
398. The Bank's total loss on the Alexander Trust extension of credit
was $624,871. FDIC Exh. 75; Ankenbrand, Vol. 12, p. 47 lines 14.
399. The Bank's total loss on the Alexander Trust and RVDM extensions
of credit was $1,341,141. FDIC Exh. 75; Ankenbrand, Vol. 12, p. 47
lines 912.
400. The gain to Respondent on the extensions of credit in violation of
Regulation O was $6.35 million. Ankenbrand, Vol. 12, pp. 4142.
401. The gain to Respondent on the extensions of credit in violation of
section 23A was $5.3 million. Ankenbrand, Vol. 12, pp. 4243.
{{1-31-01 p.A-3228}}
Collateral Substitution Transaction
402. On or about December 26, 1990, the Bank extended credit to
RVDM, in the amount of $400,000. Resp. Answer ¶ 189.
403. De La Fuente II's mother, Bertha Guerra de De La Fuente, executed
a personal guarantee for repayment of the Bank's loan to RVDM. Resp.
Answer ¶ 189.
404. The RVDM loan amount was increased twice in 1992, resulting in an
outstanding extension of credit in the amount of $1,600,000. Resp.
Answer ¶ 189.
405. As of July 1992, the RVDM loan was secured by real property. Resp.
Answer ¶ 190.
406. The Bank had a first deed of trust on 340 acres of land in the
eastern section of Otay Mesa owned by RDF. Resp. Answer ¶ 190.
407. The Bank also had first deeds of trust on a 160 acre parcel and a
40 acre parcel of land in Otay Mesa, and second deeds of trust on
various other parcels in the Otay Mesa area, all owned by RVDM. Resp.
Answer ¶ 190.
408. In November 1993, 20 acres of the 340 Otay Mesa parcel were sold
by RDF's successor, IIP, and the proceeds were applied to delinquent
interest on the RVDM loan and to the establishment of an interest
reserve for future interest payments. Resp. Answer ¶ 190.
409. The interest reserve was eventually exhausted and only two other
partial payments were received by the Bank. Resp. Answer ¶ 190.
410. On or about January 27, 1994, IIP entered into an agreement with
* * * Rey * * * , a partnership owned by
* * * (collectively referred to as * * * to
sell * * * 256 acres of land in the Otay Mesa area,
including 176 of the 320 acres which partially secured the Bank's $1.6
million loan to RVDM for a purchase price of $1.9 million. Resp. Answer
¶ 191; FDIC Exh. 10.
411. This transaction subsequently was expanded into a sale of the
entire 320 acres which served as a portion of the collateral on the
Bank's loan to RVDM. Resp. Answer ¶ 191; FDIC Exh. 20.
412. The original agreement and subsequent expansion were signed by
Andreu on behalf of IIP. Resp. Answer ¶ 191; FDIC Exh. 10; FDIC
Exh. 20.
413. * * * was seeking to purchase "environmental
mitigation" property in the San Diego County area to offset the loss
of land that it was developing elsewhere in the County. Resp. Answer
¶ 192.
414. State and Federal environmental authorities had the power to
determine if the environmental mitigation property that * *
* acquired would meet the requirements of law. Resp. Answer
¶ 192.
415. The initial agreement executed on January 27, 1994, between
* * * and IIP, was contingent upon the dismissal of IIP's
pending bankruptcy or approval of the sale by the bankruptcy court.
Resp. Answer ¶ 193; FDIC Exh. 10.
416. Since the Bank was a party to the IIP bankruptcy, the order of
dismissal was approved as to form by Bank counsel and was also served
on Bank's counsel. Resp. Answer ¶ 194.
417. On March 3, 1994, IIP's bankruptcy was dismissed. FDIC Exh. 14,
at 79; Shovlowsky, Vol. 1, pp. 18182.
418. On March 8, 1994, a copy of the document dismissing IIP's
bankruptcy was faxed to the escrow agent from NEI. FDIC Exh. 14, at
69; Shovlowsky, Vol. 1, pp. 18182.
419. From March 14, 1994 to March 30, 1994, the Respondent was engaged
in negotiations with * * * for additional alternatives for
open space mitigation. FDIC Exh. 16, 18 & 19; Shovlowsky, Vol. 1, pp.
18487.
420. On March 14, 1994, * * * of the * * *
wrote a letter to * * * indicating that "Roque wants us
to consider the attached parcels for the open space mitigation for
* * * FDIC Exh. 16.
421. On March 21, 1994, * * * wrote a memorandum regarding
a meeting held between the parties to the * * *
transaction, indicating that "RD - Proposed several alternatives to
the original mitigation parcel because of complications regarding the
ownership of the 80 acre." FDIC Exh. 18.
422. * * * wrote another memorandum dated March 30, 1994,
stating: "Based on recent negotiations with Roque De La Fuente (the
O'Neal [sic] Canyon property owner). |b5 |b5 ." FDIC
Exh. 19.
423. No individual other than the Respondent is identified in the March
memorandum from * * * and * * * as being
involved in the negotiations on behalf of the sellers of the property
in O'Neill Canyon. FDIC Exh. 16; FDIC Exh. 18; FDIC Exh. 19.
{{1-31-01 p.A-3229}}
424. On April 4, 1994, IIP entered an agreement with * * *
for the purchase by * * * of 300 acres of Otay Mesa
property for $1,968,750, 220 acres of which served as collateral for
the Bank's loan to RVDM, and for the right by * * * to
purchase an additional 100 acres of Otay Mesa property at $6,500 per
acre, all of which served as collateral for the Bank's loan to RVDM.
FDIC Exh. 20.
425. The 300 acre parcel owned by IIP is graphically displayed as the
yellow and green set of parcels on FDIC Exh. CS Maps #3. FDIC Exh. CS
Maps #3; Shovlowsky, Vol. 1, p. 190 lines 1124.
426. The 100 acre parcel owned by IIP is graphically displayed as the
red set of parcels labeled "IIP Option" on FDIC Exh. CS Maps #3.
FDIC Exh. CS Maps #3; Shovlowsky, Vol. 1, pp. 19091.
427. On April 4, 1994, De La Fuente II entered into an agreement with
* * * giving * * * an option to purchase an
additional 80 acres of Otay Mesa property owned personally by De La
Fuente II which was pledged as collateral to secure De La Fuente II's
continuing guarantee of a loan made by * * * to NEI, which
at that time was wholly owned by De La Fuente II. Resp. Answer ¶ 195; FDIC Exh. 21.
428. The 80 acres parcel owned by De La Fuente II is graphically
displayed as the red rectangular parcel labeled as "RDLF II
Option" on FDIC Exh. CS Maps #2. FDIC Exh. CS Maps #2. Shovlowsky,
Vol. 1, p. 190 lines 910.
429. On April 4, 1994, D&D entered into an agreement with * *
* giving * * * the right to purchase an additional
18.65 acres of Otay Mesa property for $131,250. Resp. Answer ¶ 196; FDIC Exh. 22.
430. The agreement between D&D and * * * was signed by De
La Fuente II on behalf of D&D. Resp. Answer ¶ 196; FDIC Exh. 22.
431. The 18.65 acre parcel owned by D&D is graphically displayed as the
red rectangular parcel to the far left labeled as "D & D Option"
on FDIC Exh. CS Maps #2. FDIC Exh. CS Maps #2; Shovlowsky, Vol. 1, p.
190 lines 68.
432. On April 4, 1994, RVDM entered into an agreement with * *
* giving * * * an option to purchase an additional 120
acres of Otay Mesa property for $780,000, which property served as
additional collateral for the Bank's loan to RVDM. Resp. Answer
¶ 197; FDIC Exh. 23.
433. The 120 acre parcel owned by RVDM is graphically displayed as the
L-shape red parcel labeled as "RVDM Option" on FDIC Exh. CS Maps
#2. FDIC Exh. CS Maps #2; Shovlowsky, Vol. 1, p. 190 lines 89.
434. As of April 4, 1994, the 300 acre parcel owned by IIP was the
primary piece of mitigation property being considered by * *
* FDIC Exh. CS Maps #2; Shovlowsky, Vol. 1, pp. 19091.
435. De La Fuente II was intimately involved with the sale of the IIP,
RVDM and D&D properties and his personal property from the date that
the respective escrows were opened. Resp. Answer ¶ 200.
436. On or about April 6, 1994, Andreu, on behalf of RVDM, executed a letter to the Bank informing the Bank of the RVDM option agreement with * * * and indicating that any payments received would be given to the Bank to reduce amounts owed by RVDM. Resp. Answer ¶ 198; FDIC Exh. 25.
437. * * * was the handling officer on the RVDM loan until
he left the Bank in September 1994. * * * Vol. 9, p. 238
lines 2324; Southwick, Vol. 20, p. 127 lines 1324, pp. 12930.
438. Mr. * * * maintained a contact sheet on the RVDM loan,
which was recorded at or near the time of the conversations noted.
* * * Vol. 9, pp. 18081.
439. When Mr. * * * referred to "RDLF" in the contact
sheet, he meant "Roque De La Fuente." * * * , Vol. 9,
pp. 182 lines 2122, 183 lines 1820.
440. "RDLF" did not stand for "Rancho De La Fuente," but
stood for "Roque De La Fuente." * * * , Vol. 9, pp.
182 lines 2125, 18384.
441. The RVDM contact sheet maintained by Mr. * * * states
the following for the date of April 7, 1994: "Jim Redman says he
received a request from RDLF to release collateral property and
substitute other property owned by RVDM. Details to follow." FDIC
Exh. 26, at 5; * * * Vol. 9, p. 182 lines 1220.
442. On April 7, 1994, the Bank's president, James Redman
("Redman"), indicated that he received a request from Respondent
to release collateral property and substitute
{{1-31-01 p.A-3230}}
other property by RVDM. FDIC Exh. 26, at 5; * * * Vol. 9, pp. 18182, 246 lines
1721.
443. On or about April 7, 1994, Andreu, on behalf of IIP, sent a letter
to the Bank suggesting a substitution of collateral on the RVDM loan.
Resp. Answer ¶ 202; FDIC Exh. 27.
444. On or about April 7, 1994, Redman, on behalf of the Bank, sent a
letter to IIP expressing concern about having collateral for a loan to
RVDM pledged by IIP, which he claimed was still in bankruptcy. Resp.
Answer ¶ 203; FDIC Exh. 28.
445. Redman proposed to permit a collateral substitution as long as the
collateral was equal to or superior in value and marketability than the
existing collateral. Resp. Answer ¶ 203; FDIC Exh. 28.
446. The collateral substitution proposed was subject to the approval
of the Bank's board of directors. FDIC Exh. 28.
447. On April 8, 1994, Andreu, on behalf of RVDM, executed a letter to
the Bank offering to substitute 92 acres of Otay Mesa property for the
320 acres pledged to the Bank by IIP which had been appraised at
$1,600,000. Resp. Answer ¶ 204; FDIC Exh. 29.
448. At that time, the Bank held a second deed of trust on the offered
property, behind NEI's trust deed which was stated to be in the amount
of $550,000. Resp. Answer ¶ 204.
449. The proposed arrangement was for NEI to subordinate its position
to the Bank's. Resp. Answer ¶ 204.
450. In October 1993, RVDM deeded property to NEI in satisfaction of
the $550,000 lien amount. FDIC Exh. 129, at 5 lines 2526; * *
* , Vol. 10, pp. 13840.
451. At the time of the proposed collateral substitution transaction,
the Bank had already moved into first position on the proposed
substitute property. Shovlowsky, Vol. 1, p. 210 lines 1213.
452. On April 12, 1994, * * * a loan reviewer for *
* * visited NEI's offices to review various loans, including the
loan from NEI to IIP. FDIC Exh. 30; Shovlowsky, Vol. 1, pp. 20203.
453. During this review, Mr. Robinson indicated in a memorandum to
* * * the account officer on the NEI line at * *
* , that "Rocky is in the middle of closing escrow on an
adjoining parcel and when this transaction closes * * *
will receive a paydown of $1.6 million." FDIC Exh. 30.
454. As of April 12, 1994, the Respondent's wholly owned company, NEI,
had already promised IIP proceeds in the amount of $1.6 million to
* * * FDIC Exh. 30; Shovlowsky, Vol. 1, p. 203 lines 717.
455. The RVDM contact sheet maintained by Mr. * * * on
April 14, 1994, states, in part: "Received letter request to
substitute collateral. According to JR, RDLF request we order appraisal
immediately on property he is requesting to be substituted." FDIC
Exh. 26, at 5; * * * Vol. 9, p. 183 lines 917.
456. On April 14, 1994, the Respondent requested that the Bank order an
appraisal immediately on the property requested to be substituted. FDIC
Exh. 26; * * * , Vol. 9, 183 lines 920.
457. The RVDM contact sheet maintained by Mr. * * * on
April 14, 1994, further states, in part: "Advised JR: (1) current
repayment program will provide a substantial paydown of principal in
the short termwhy substitute property? What would our repayment
program be and why would it be better than the existing program; i.e.,
what is best for the bank?" FDIC Exh. 26, at 5; * * *
Vol. 9, pp. 18485.
458. In an April 18, 1994 * * * internal memorandum, it is
noted that on April 15, 1994, "Rocky spent a lot of time describing
five transactions that have been reviewed by * * * FDIC
Exh. 31, at 2.
459. On April 15, 1994, Respondent personally discussed the IIP note
and related proceeds with * * * auditors. FDIC Exh. 31.
460. On April 29, 1994, * * * agreed to overadvance NEI
$2.45 million. FDIC Exh. 33; Shovlowsky, Vol. 1, pp. 20304; Chang,
Vol. 7, pp. 2123.
461. The sources of repayment of * * * overadvance to NEI
was $1.9 million in IIP escrow proceeds being assigned to * *
* FDIC Exh. 33; Shovlowsky, Vol. 1, p. 204 lines 1521; *
* * Vol. 7, p. 23 lines 1118.
462. Mr. * * * was not aware that the property subject of
the $1.9 million escrow was serving as collateral for a loan at the
Bank, nor was he ever made aware of that fact. * * * Vol.
7, pp. 2324.
463. There was never any representation to * * * that the
IIP escrow might not close. * * * Vol. 7, p. 24 lines 47.
464. * * * would most likely not have granted the
overadvance to NEI if the IIP
{{1-31-01 p.A-3231}}
proceeds had not been assigned to * * * Vol. 7, p. 24 lines 1215.
465. On May 1, 1994, the Bank received the appraisal on the property
requested to be substituted. Resp. Answer ¶ 206; FDIC Exh. 34.
466. The May 1, 1994 appraisal valued the 92 acre property at
$1,384,000. Resp. Answer ¶ 206.
467. On May 5, 1994, Respondent and * * * executed an
agreement whereby agreed to release its lien on Respondent's property.
Resp. Answer ¶ 208.
468. On May 27, 1994, * * * , Andreu and Respondent
executed a letter stating: "The net sales proceeds [of the IIP
escrow] are to be used in partial satisfaction of a loan made by
National Enterprises, Inc., to International Industrial Park, Inc., and
in partial satisfaction of a loan made by * * * to National
Enterprises." FDIC Exh. 40; Shovlowsky, Vol. 1, pp. 21719.
469. * * * negotiated with the Respondent to purchase the
land in O'Neill Canyon. Vol. 10, p. 10 lines 518.
470. Respondent was the primary decision-maker on behalf of the sellers
involved in the four escrows from the beginning to the end. * *
* Vol. 10, pp. 2426.
471. Respondent was the individual in control of negotiations with
* * * and State and Federal environmental authorities.
* * * Vol. 10, pp. 10 lines 518, 12 lines 79, 1618 FDIC Exh. 16, 18, 19, 41, 45, and 47.
472. On June 15, 1994, Respondent attended a meeting with * *
* and U.S. Fish and Wildlife Service personnel to negotiate an
alternate deal. FDIC Exh. 41, * * * Vol. 10, pp. 1618.
473. Respondent was the only individual in attendance at the June 15,
1994 meeting on behalf of the sellers of the property. * *
* Vol. 10, pp. 1718.
474. At the June 15, 1994 meeting, the Respondent was an advocate in an
attempt to convince the regulators to accept his offer of substitute
property. * * * Vol. 10, p. 18 lines 415.
475. At the June 15, 1994 meeting, Respondent offered the following
alternate transaction: the sale of 310 acres owned by IIP and 40 acres
owned personally by the Respondent. FDIC Exh. 41; FDIC Exh. 45,
Shovlowsky, Vol. 1, pp. 22427.
476. At the end of the June 15, 1994 meeting, Mr. * * *
indicated that the "thought [Respondent's proposal] might be an
acceptable route to go down." * * * , Vol. 10, p. 17
lines 2022.
477. On June 17, 1994, the Bank's board of directors held a meeting.
FDIC Exh. 43.
478. De La Fuente II was present at the Bank's board of directors'
meeting on June 17, 1994. Resp. Answer ¶ 211; FDIC Exh. 43.
479. At the June 17, 1994 meeting of The Bank's board of directors,
the board discussed the collateral substitution transaction. FDIC Exh.
43, at 2; Shovlowsky, Vol. 1, p. 232 lines 617.
480. Mr. * * * never prepared a credit memorandum for the
collateral substitution transaction because he never understood the
transaction enough and did not verify the details of the transaction.
* * * , Vol. 9, pp. 18586.
481. Mr. Redman asked Mr. * * * to prepare a proposal on
the collateral substitution transaction for the board meeting a day or
two before the meeting. While Mr. * * * told him that he
did not have the information to prepare it adequately, the meeting went
on as scheduled. * * * Vol. 9, p. 186 lines 515.
482. Mr. * * * made no recommendation to the board
concerning the collateral substitution transaction. * * *
Vol. 9, p. 186 lines 1622.
483. At the June 17, 1994 board meeting, Mr. * * * was
unable to explain the details of the collateral substitution
transaction, so the Respondent did instead. * * * Vol. 9,
pp. 18687; Richins, Vol. 15, pp. 22728; Schwarz, Vol. 16, p. 213
lines 2325; Southwick, Vol. 20, pp. 15354.
484. Mr. * * * was not fully aware of the details of the
transaction before the Respondent explained it to the board. * *
* Vol. 9, p. 187 lines 612.
485. At the June 17, 1994 board meeting, Respondent explained the
transaction as a three-way exchange of property involving * *
* and * * * FDIC Exh. 26 at 7; * * * Vol.
9, p. 187 lines 1622.
486. The RVDM contact sheet maintained by Mr. Hayes on June 17, 1994
states:
Board Meeting - Mr. De La Fuente said that RVDM was doing a three
way swap of property between * * * & * * * . At
the
{{1-31-01 p.A-3232}}
Board Meeting a substitution of property was approved to substitute
a 1st D/T (NEI to subordinate * * * position (They recently
purchased not) to FIB for the release of - 300 A which was appraised
11/93 @ $5M/Acre.
FDIC Exh. 26, at 7.
487. At the June 17, 1994 board meeting, no one explained or discussed
the mathematics of the subordination part of the transaction, nor were
any values placed on the property being subordinated. * * *
Vol. 9, pp. 18788.
488. Respondent knew that the value of the substitute collateral was
less than the existing collateral. Resp. Answer ¶ 211.
489. At the June 17, 1994 board meeting, the board approved the release
of the Bank's first deed of trust secured by the 320 acres of Otay
Mesa property and the substitution of a first deed of trust on 92 acres
of Otay Mesa property on which the Bank already had a second deed of
trust. Resp. Answer ¶ 210; FDIC Exh. 43, at 2.
490. The minutes of the June 17, 1994 board meeting state the following
with respect to the board's discussion of the collateral substitution
transaction:
Release/Subordination of Collateral
The request for release and subordination of the Rancho Vista Del Mar
collateral was discussed (refer to loan file). It was decided to
request a 125% fee and payment of the appraisal from the borrower. A
motion for approval was then made by Mr. Richins and seconded by Mr.
Redman. Motion carried. Mr. De La Fuente II abstained.
FDIC Exh. 43, at 2.
491. The June 17, 1994, board minutes do not reflect the extent of the
Respondent's involvement in the transaction, the near completion of
the sale of the IIP property, or the fact that the proceeds of the sale
of the IIP property were pledged by the Respondent to * * *
FDIC Exh. 43.
492. On June 17, 1994, $20,000 in funds were released to IIP from the
IIP escrow, and $10,000 in funds were released to Respondent from
Respondent's personal escrow. FDIC Exh. 42; Shovlowsky, Vol. 1, p. 231
lines 1018.
493. On June 22, 1994, Respondent executed a letter to * *
* on IIP letterhead. FDIC Exh. 45, at 45.
494. In Respondent's June 22, 1994 letter, Respondent indicated that
the only properties to be sold would be 320 acres owned by IIP, and 40
acres owned personally by Respondent. FDIC Exh. 45; at 5; Shovlowsky,
Vol. 1, pp. 22526; * * * , Vol. 10, pp. 11213.
495. The deal presented by the Respondent in his June 22, 1994 letter
was the final deal that was accepted. FDIC Exh. 45 at 5; FDIC CS Maps
#4; * * * , Vol. 10, p. 113 lines 215.
496. On June 22, 1994, Mr. * * * executed a letter to Mr.
* * * at the U.S. Fish and Wildlife Service. FDIC Exh. 45,
at 23.
497. In Mr. * * * letter of June 22, 1994, Mr. * *
* describes the 358.6 acre site "presently owned by Roque has
indicated he is willing to provide. . .", and that
"Roque also provided you with a letter at our meeting from the State
of California. . ." FDIC Exh. 45, at 2.
498. On June 23, 1994, Respondent executed a resolution on behalf of
NEI subordinating its first deed of trust to the Bank's second deed of
trust on the 92 acres of substitute collateral. FDIC Exh. 44.
499. On July 5, 1994, the U.S. Fish and Wildlife Service gave its
preliminary approval to the deal set forth by the Respondent at the
June 15, 1994 meeting and in Respondent's June 22, 1994 letter. FDIC
Exh. 47.
500. The July 5, 1994 approval letter from U.S. Fish and Wildlife
refers to the proposal coming from * * * [sic] and Mr. De
La Fuente". FDIC Exh. 47, at 1.
501. The Bank's lien on the 320 acres was formally released on July
21, 1994. Resp. Answer ¶ 210; Shovlowsky, Vol. 1, p. 238 lines
1521.
502. Ms. Southwick became the handling officer on the RVDM loan after
Mr. * * * left the Bank in the fall of 1994. Southwick,
Vol. 20, pp. 12729.
503. Other than ordering and reviewing the appraisal on the substitute
property, attending the board meeting and executing the reconveyance of
the property, Ms. Southwick had no other involvement with the
collateral substitution transaction. Southwick, Vol. 20, p. 193 lines
1723.
504. On October 27, 1994, Andreu, on behalf of IIP and RVDM; De La
Fuente II on his own behalf; and * * * executed a
{{1-31-01 p.A-3233}}
Global Amendment to Purchase Agreements. Resp. Answer ¶ 212; FDIC Exh. 56.
505. This global amendment contemplated that only the IIP and De La Fuente II escrows would close, and that deposits to the RVDM and D&D escrows would be released to RVDM and D&D respectively. Resp. Answer ¶ 212; FDIC Exh. 56.
506. Respondent determined how the deposits for the four escrows should be allocated. * * * Vol. 10, pp. 2425.
507. The IIP escrow with * * * and Respondent's escrow
with * * * closed on October 31, 1994. FDIC Exh. 57; FDIC
Exh. 59; Shovlowsky, Vol. 1, p. 239 lines 714.
508. The purchase price for the IIP property was $2,100,000. Resp.
Answer ¶ 212; FDIC Exh. 57.
509. * * * financed $233,980 of the purchase price by
executing a note in favor of IIP. FDIC Exh. 57; Shovlowsky, Vol. 1, p.
243 lines 1718, 244 lines 1622.
510. After deducting the broker's commission, escrow fees and other
charges, net cash proceeds of $1,549,581.61 were due IIP. FDIC Exh. 57 Shovlowsky, Vol. 1, p. 243 lines 1722.
511. On October 31, 1994, $1,549,581.61 was wired to * * *
from the IIP escrow. Resp. Answer ¶ 213; FDIC Exh. 58 Shovlowsky, Vol. 1, pp. 24344.
512. The $1,549,581.61 which was wired to * * * was applied
to NEI's loan at * * * FDIC Exh. 58; * * *
Vol. 7, pp. 2526.
513. The purchase price for the Roque De La Fuente II property was
$260,000. Resp. Answer ¶ 212; FDIC Exh. 59.
514. * * * financed $234,770 of the purchase price by
executing a note in favor of Respondent. FDIC Exh. 59; FDIC Exh. 60 Shovlowsky, Vol. 1, p. 244 lines 1314.
515. After deducting the broker's commission, escrow fees and other
charges, Respondent received net cash proceeds of $229.00. FDIC Exh.
59.
516. At the FDIC's 1994 examination of the Bank, bank management never
indicated that they were aware that the IIP transaction had closed.
Shovlowsky, Vol. 1, pp. 24950.
517. In a 1995 deposition on an unrelated matter, Respondent testified:
"I sold 300 acres to * * * FDIC Exh. 332, at 668 line 7 Shovlowsky, Vol. 1, pp. 26667.
518. On June 23, 1995, the Bank's board of directors held a meeting.
FDIC Exh. 66.
519. Respondent was present at the June 23, 1995 meeting of the Bank's
board of directors. FDIC Exh. 66.
520. At the June 23, 1995 board meeting, the board revisited the
collateral substitution transaction. FDIC Exh. 66, at 3.
521. At the June 23, 1995 board meeting, Mr. Redman expressed his
concern regarding the collateral substitution transaction. FDIC Exh.
66, at 3.
522. The minutes of the June 23, 1995 board meeting at which the
transaction was revisited provide a little more information:
Classified Loan Report
Relative to the Rancho Vista De Mar loan, Mr. Redman expressed his
concern regarding the substitution of collateral which was done in
1994. Several months after the substitution, the original 320 acres
which had been released, was sold for $2.1 million. The Board requested
that Ms. Southwick bring the loan file to the meeting. A review
indicated that the Board, at the time of the release and substitution,
was aware of a pending escrow. However, it was explained that the
Bankruptcy issue concerning the property and the endangered species
issue regarding the Gnatcatcher and other problems, clouded the
possible sale. The proposed substitution property was of approximately
equal value with none of the clouded issues. After the substitution the
Federal issues were resolved and the escrow eventually closed.
FDIC Exh. 66, at 3.
523. There was no endangered species issue that clouded the possible
sale of the IIP property. Shovlowsky, Vol. 1, p. 254 lines 26 * * * Vol. 10, p. 19 lines 516.
524. The substitute property was not of equal value. Shovlowsky, Vol.
1, p. 254 lines 1016.
525. The June 23, 1995 board minutes do not reflect that the Respondent
pledged the proceeds of the IIP escrow to * * * before the
board ever considered the substitution request. FDIC Exh. 66.
526. The June 23, 1995 board minutes do not reflect that the Respondent
negotiated the final transaction two days before the board met to
consider the substitution request. FDIC Exh. 66.
{{1-31-01 p.A-3234}}
527. The June 23, 1995 board minutes do not reflect that Respondent,
through NEI, received the benefit of the proceeds of the sale to
* * * instead of the Bank. FDIC Exh. 66.
528. On November 9, 1995, * * * paid off its note to IIP by
issuing a check to IIP in the amount of $234,492.83. FDIC Exh. 67 * * * Vol. 10, p. 97 lines 112.
529. The $234,492.83 check made payable to IIP was deposited into
* * * account for the benefit of NEI. FDIC Exh. 67, at 2 * * * Vol. 7, p. 26 lines 1224.
530. On November 9, 1995, * * * paid off its note to
Respondent by issuing a check to Respondent in the amount of
$235,284.56. FDIC Exh. 68; * * * Vol. 10, p. 97 lines
1725.
531. On October 29, 1996, NEI purchased the remainder of the RVDM loan from the Bank, but not the RVDM Other Real Estate. Resp. Answer ¶ 218; FDIC Exh. 165.
532. A total of $1,784,073 in IIP sale proceeds was received by
* * * and applied to NEI's loan at * * * FDIC
Exh. 58; FDIC Exh. 67; Shovlowsky, Vol. 1, p. 260 lines 1023 * * * , Vol. 7, pp. 11819.
533. Respondent individually received a total of $235,513.56 from the
sale of his property. FDIC Exh. 59; FDIC Exh. 68.
534. The Bank's collateral value on the RVDM loan decreased by $1.6
million. Shovlowsky, Vol. 1, p. 210 lines 1821.
Transaction,
535. Respondent contacted * * * the owner of *
* * , to arrange for * * * purchase of a parking lot
from the Bank after the Bank foreclosed on the property. FDIC Exh. 271,
at 1; Shovlowsky, Vol. 2, p. 257 lines 1017; Southwick, Vol. 20, pp.
20304.
536. Respondent was the only individual at the Bank who approached Mr.
* * * about purchasing the property from the Bank.
Southwick, Vol. 20, p. 203 lines 1217.
537. Respondent was the individual who called Ms. Southwick to advise
her that Mr. * * * was interested in purchasing the
property. Southwick, Vol. 20, p. 204 lines 26.
538. On April 30, 1992, Respondent sent a soils report on that parking
lot property to Mr. * * * at * * * FDIC Exh.
264; Shovlowsky, Vol. 2, pp. 25859.
539. On or about June 29, 1992, the Bank extended credit in the amount
of $560,000 to * * * at a reduced interest rate in order to
facilitate the sale of Bank-owned Other Real Estate. Resp. Answer
¶ 221; FDIC Exh. 262.
540. The collateral for the loan consisted of a self-serve parking lot
located in San Diego, California. Resp. Answer ¶ 221.
541. The president of * * * also provided a personal
guarantee for the entire amount of the loan. Resp. Answer ¶ 221 FDIC Exh. 262.
542. At the time of * * * purchase, the parking lot
contained environmental problems. FDIC Exh. 267; FDIC Exh. 271, at 1.
543. On August 19, 1992, Mr. * * * at * * *
wrote a letter to Respondent at the Bank, claiming that a fraudulent
transaction was perpetrated by the Respondent, and requested that the
Bank rescind the transaction or * * * would pursue all
remedies available. FDIC Exh. 267; Shovlowsky, Vol. 2, pp. 25961.
544. On September 1, 1992, the Bank executed a hold harmless agreement
with * * * FDIC Exh. 268; Shovlowsky, Vol. 2, pp. 26263.
545. The Bank's minutes of the June 17, 1994 combined Board of
Directors and Loan and Investment Committee meeting indicate that the
Bank believed the parking lot site to be clean, even though the Bank
never undertook further remediation of the site and final certification
from environmental authorities was never sought or received. Resp.
Answer ¶ 224; FDIC Exh. 43, at 3; Shovlowsky, Vol. 2, pp.
26364; Southwick, Vol. 20, pp. 20405.
546. In September 1994, the FDIC's 1994 examination of the Bank
commenced. FDIC Exh. 1.
547. On December 16, 1994, Mr. * * * at * * *
wrote a letter to Respondent at the Bank, demanding rescission of the
transaction and threatening litigation, which letter was not in the
Bank files. FDIC Exh. 270; Shovlowsky, Vol. 2, pp. 22668; Southwick,
Vol. 20, pp. 20506.
548. In or about December 1994, Bank officials represented to the FDIC
that De La Fuente II was negotiating a release of any further liability
for environmental clean-up with principal. Resp. Answer ¶ 225 Shovlowsky, Vol. 2, p. 265 lines 58.
549. In January 1995, Bank President Redman indicated to FDIC Examiner
Shovlowsky that the Respondent had represented that he had met with the
owner of * * * and that had agreed to a $10,000 settlement
to
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release the Bank from any remaining liability. FDIC Exh. 1, at 3d.6 FDIC Exh. 271, at 2; Shovlowsky, Vol. 2, pp. 265 lines 811, 269 lines
815.
550. Mr. * * * never considered accepting the $10,000
settlement offer from Respondent. FDIC Exh. 271, at 2; Shovlowsky, Vol.
2, p. 269 lines 1520.
551. In early 1995, Mr. * * * met with the Respondent. FDIC
Exh. 271, at 2; Shovlowsky, Vol. 2, p. 269 lines 24.
552. At the early 1995 meeting between Mr. * * * and the
Respondent, Mr. * * * told Respondent that "he wanted
out of the property." FDIC Exh. 271, at 2; Shovlowsky, Vol. 2, p.
269 lines 2123.
553. The Respondent told * * * owner to continue making
payments to the Bank, and that he would find someone to assume the
loan. FDIC Exh. 271, at 2; Shovlowsky, Vol. 2, pp. 26970.
554. In mid-January 1995, the FDIC's 1994 examination of the Bank
concluded. Shovlowsky, Vol. 2, p. 268 lines 921.
555. At the 1994 FDIC Examination of the Bank, the FDIC listed the
* * * credit as special mention because of the unresolved
environmental liability and recommended that the Bank establish a
reserve account in the amount of $93,000. Resp. Answer ¶ 223 FDIC Exh. 1, at 3d.5; Shovlowsky, Vol. 2, pp. 26466.
556. If the December 1994 letter from Mr. * * * had been disclosed, the FDIC would have classified the * * * loan as "Substandard" instead of the improved "Special Mention. "Shovlowsky, Vol. 2, pp. 26768, Vol. 3, p. 28 lines 2025.
557. If the * * * loan was classified as "Substandard," the Bank would have needed to make an additional provision to its allowance for loan and lease losses to adequately reserve for the risk in the loan. Shovlowsky, Vol. 3, pp. 2829.
558. De La Fuente II found someone to assume * * * at the Bank. Resp. Answer ¶ 227.
559. Gabriel Arce ("Arce") is an employee of NEI and was an employee of AIE. Resp. Answer ¶ 226.
560. Arce is the President of LJF Investments, Inc., ("LJF"), an entity whose sole director is Respondent's sister, Bertha Motaref, and is located at 5440 Morehouse Drive, Suite 4000. Resp. Answer ¶ 226; FDIC Exh. 257, at 2.
561. LJF was listed as having acquired a 24% partnership interest in D&D on January 1, 1994, in an unsigned limited partnership agreement. FDIC Exh. 256c.
562. De La Fuente II introduced Arce to * * * Resp. Answer ¶ 227.
563. On January 17, 1995 Gabriel & Gabriel, LLC was organized by Sidney Schwarz. FDIC Exh. 272, at 3.
564. On February 1, 1995 Gabriel & Gabriel, LLC's name was changed to Parking Lot Enterprises, LLC, by Sidney Schwarz. FDIC Exh. 272, at 2.
565. On February 15, 1995, Sidney Schwarz filed a Statement of
Information with the California Secretary of State's office as
attorney-in-fact for Parking Lot Enterprises, LLC. FDIC Exh. 272, at 1.
566. On or about February 15, 1995, * * * executed a grant
deed whereby it deeded the parking lot property to the LLC. Resp.
Answer ¶ 229; FDIC Exh. 273.
567. Mr. Schwarz was never paid by Mr. Arce for the organization of the
LLC. Schwarz, Vol. 16, p. 256 lines 1719.
568. In or around March 1995, Arce approached the Bank stating that he
now owned the parking lot property and requesting that he be allowed to
assume * * * loan. Resp. Answer ¶ 230.
569. Mr. * * * indicated that the Respondent had been
working on the assumption by Mr. Arce for some time, and seemed
surprised that the Bank did not know before March 1995. FDIC Exh. 271,
at 2.
570. The original * * * loan agreement provided that the
loan was assumable only by a qualified buyer at a principal balance of
not more than $500,000. Resp. Answer ¶ 231.
571. The loan balance at the time that Arce approached the Bank
was over $500,000. Resp. Answer ¶ 231.
572. Mr. Arce's personal financial statement as of March 21, 1995
listed total assets of $236,500, total liabilities of $157,400, and a
net worth of $79,100. FDIC Exh. 274; Shovlowsky, Vol. 2, p. 274 lines
15.
573. Mr. Arce's assets consisted of his residence valued at $145,000,
the LLC valued at $50,000, personal property valued at
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$39,000, and cash amounting to $2,500. FDIC Exh. 274.
574. Mr. Arce's tax return reflected total income of only $24,504,
including wages of $23,100. FDIC Exh. 275; Shovlowsky, Vol. 2, p. 274
lines 2425.
575. The credit report obtained by the Bank reflected that Mr. Arce had
a poor credit record, including a bankruptcy filing in 1994. FDIC Exh.
276; Shovlowsky, Vol. 2, pp. 27576.
576. NEI is listed as having inquired into Mr. Arce's credit on
February 16, 1995. FDIC Exh. 276; Shovlowsky, Vol. 2, p. 276 lines
915.
577. The LLC's financial statement as of March 22, 1995 listed total
assets of $851,060, total liabilities of $554,370, and net worth of
$296,690. FDIC Exh. 279.
578. The LLC's assets consisted of the parking lot valued at $850,000,
and cash of $1,060. FDIC Exh. 279.
579. The parking lot was appraised at $850,000 three years prior to the
assumption, and the appraised value did not consider the toxic problems
on the property. Southwick, Vol. 20, pp. 21213.
580. Mr. Arce used very aggressive assumptions for income on the
property without indicating how he arrived at such assumptions.
Shovlowsky, Vol. 3, pp. 1011.
581. Neither Mr. Arce nor the LLC were qualified to assume the $550,000
* * * loan at the Bank. Shovlowsky, Vol. 3, pp. 18 lines
618, 40 lines 1418; Southwick, Vol. 20, p. 210 lines 59, p. 214
lines 14.
582. On or about March 27, 1995, the Bank informed Mr. Arce by letter
that due to his poor financial condition it would not approve the
assumption of * * * debt until Arce had made twelve
consecutive payments within the grace period, obtained proof of
liability insurance, and signed a release of the Bank's liability for
the environmental clean-up of the subject property. Resp. Answer
¶ 235; FDIC Exh. 281.
583. From March 1995 through July 1995, the LLC's payments on the
* * * loan were consistently delinquent, and delinquency
letters were sent by the Bank to the LLC. FDIC Exh. 282 - FDIC Exh.
285; FDIC Exh. 287; Shovlowsky, Vol. 3, pp. 1922.
584. On or about July 11, 1995, the Bank informed both * *
* and the LLC, by letter, that the loan was delinquent. Resp.
Answer ¶ 236; FDIC Exh. 285.
585. On or about August 11, 1995, the LLC signed a release agreement
with the Bank through which it released the Bank from any liability for
the environmental clean-up of the subject property. Resp. Answer
¶ 237; FDIC Exh. 288.
586. On September 22, 1995, the Bank's board of directors approved the
assumption of the * * * loan by the LLC, FDIC Exh. 290, at
34.
587. On September 26, 1985, the Bank released Mr. * * *
from his personal guarantee. FDIC Exh. 271, at 4.
588. From September 29, 1995 through November 30, 1995, Mr. Arce
received approximately $12,800 in financial support from NEI. FDIC Exh.
292; FDIC Exh. 293; Shovlowsky, Vol. 3, p. 38 lines 414.
589. One of the checks from NEI directly provided Mr. Arce with the
funds needed to make his $3,250 payment to the Bank. FDIC Exh. 292 Shovlowsky, Vol. 3, pp. 3435.
590. At the 1996 FDIC Examination of the Bank, the loan assumed by the
LLC was seriously delinquent, and was adversely classified as
"Substandard" in the amount of $533,000. Resp. Answer ¶ 239; FDIC Exh. 2, at 3c17.
591. The Bank forestalled recognizing the risk of loss in the *
* * loan for two years. Shovlowsky, Vol. 3, pp. 2829.
592. On July 19, 1996, the board of directors approved increasing the
Bank's reserve allocation for environmental liability to $93,000 over
the Respondent's objection. FDIC Exh. 294, at 5.
593. The Bank forestalled recognizing a $93,000 capital adjustment for
an environmental clean-up reserve for eighteen months. Shovlowsky, Vol.
3, p. 31 lines 2025.
594. If the Bank had been forced to rescind the transaction with
* * * and take the parking lot property back, the Bank
would have incurred losses of several hundred thousand dollars, as well
as having been responsible for the environmental remediation work.
Shovlowsky, Vol. 3, p. 32 lines 718.
595. On October 29, 1996, the LLC loan was sold to NEI as part of a
package of loans. FDIC Exh. 165; Shovlowsky, Vol. 3, p. 28 lines 715 Ankenbrand, Vol. 11, pp. 13940.
596. At the time of the sale of the LLC loan to NEI, the LLC loan was
still delinquent. Shovlowsky, Vol. 3, p. 28 lines 1517; Southwick,
Vol. 20, pp. 21415.
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597. The Bank forestalled recognizing losses on the parking lot
property. Shovlowsky, Vol. 3, p. 32 lines 718.
598. By releasing * * * from its loan at the Bank,
Respondent relieved himself of any potential liability to * *
* Mayher, Vol. 14, p. 24 lines 1224.
599. By releasing * * * from its loan at the Bank,
Respondent was able to avoid making capital injections at the Bank.
Shovlowsky, Vol. 3, pp. 4142.
VI. Conclusions of Law
600. The Bank is subject to the provisions of the Act, 12 U.S.C.
§ 1811 through 1831u, and the FDIC's Rules and Regulations, 12
C.F.R. Chapter III.
601. The FDIC has jurisdiction over the Bank. 12 U.S.C. §1813(e)(2).
602. Respondent is an institution-affiliated party of the Bank. 12
U.S.C. §1813(u).
603. Respondent is subject to the FDIC's jurisdiction. 12 U.S.C.
§ 1813(e)(2), (u).
604. The FDIC has jurisdiction over the subject matter of this
proceeding. 12 U.S.C. §1818(e)(1).
605. The Bank is subject to section 22(h) of the Federal Reserve Act,
as amended 12 U.S.C. §375(b), and Regulation O of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Part 215,
promulgated thereunder and made applicable to insured State nonmember
banks by section 18(j)(2) of the Act and section 337.3 of the FDIC
Rules and Regulations, 12 C.F.R. §337.3.
606. Respondent is an "insider" of the Bank as that term is
defined by section 215.2(h) of Regulation O, 12 C.F.R. §215.2(h).
607. The Bank is subject to section 23A of the Federal Reserve Act, 12
U.S.C. §371c, which is made applicable to insured State nonmember
banks by section 18(j)(1) of the Act, 12 U.S.C. §1828(j)(1).
608. As a director and controlling shareholder, Respondent owed the
highest fiduciary duty to the Bank, its creditors, including
depositors, and other shareholders. Resp. Answer ¶ 12.
Related Interest Conclusions
609. By virtue of Respondent's failure to disclose his related
interests, Respondent committed violations of law. 12 U.S.C.
§1818(e)(1)(A)(i).
610. By virtue of Respondent's failure to disclose his related
interests, Respondent engaged or participated in unsafe or unsound
practices in connection with the Bank. 12 U.S.C. §1818(e)(1)(A)(ii).
611. By virtue of Respondent's failure to disclose his related
interests, Respondent breached his fiduciary duty as a director of the
Bank. 12 U.S.C. §1818(e)(1)(A)(iii).
612. By reason of these violations, unsafe or unsound practices,
and breach of fiduciary duty, the Respondent received financial gain or
other benefit. 12 U.S.C. §1818(e)(1)(B)(iii).
613. By reason of these violations, unsafe or unsound practices,
and breach of fiduciary duty, the Bank suffered financial loss or other
damage. 12 U.S.C. §1818(e)(1)(B)(i).
614. Respondent's actions demonstrate his willful or continuing
disregard for the safety and soundness of the Bank, and evidence his
personal dishonesty. 12 U.S.C. §1818(e)(1)(C).
Collateral Substitution Conclusions
615. By virtue of Respondent's participation in the collateral
substitution transaction, Respondent engaged or participated in unsafe
and unsound practices in connection with the Bank. 12 U.S.C.
§1818(e)(1)(A)(ii).
616. By virtue of Respondent's participation in the collateral
substitution transaction, Respondent breached his fiduciary duty as a
director of the Bank. 12 U.S.C. §1818(e)(1)(A)(iii).
617. By reason of these unsafe or unsound practices and breach of
fiduciary duty, the Respondent received financial gain or other
benefit. 12 U.S.C. §1818(e)(1)(B)(iii).
618. By reason of these unsafe or unsound practices and breach of
fiduciary duty, the interests of the Bank's depositors were
prejudiced. 12 U.S.C. §1818(e)(1)(B)(ii).
619. By reason of these unsafe or unsound practices and breach of
fiduciary duty, the Bank suffered financial loss and other damages. 12
U.S.C. §1818(e)(1)(B)(i).
620. Respondent's actions demonstrate his willful or continuing
disregard for the safety and soundness of the Bank, and evidence his
personal dishonesty. 12 U.S.C. §1818(e)(1)(C).
Transaction Conclusions
621. By virtue of Respondent's participation in the * *
* transaction, Respondent engaged or participated in unsafe or
un-
{{1-31-01 p.A-3238}}
sound practices in connection with the Bank. 12 U.S.C. §1818(e)(1)(A)(ii).
622. By virtue of Respondent's participation in the * * *
transaction, Respondent breached his fiduciary duty as a director of
the Bank. 12 U.S.C. §1818(e)(1)(A)(iii).
623. By reason of these unsafe or unsound practices and breach of
fiduciary duty, the Respondent received financial gain or other
benefit. 12 U.S.C. §1818(e)(1)(B)(iii).
624. By reason of these unsafe or unsound practices and breach of
fiduciary duty, the interests of the Bank's depositors were
prejudiced. 12 U.S.C. §1818(e)(1)(B)(ii).
625. By reason of these unsafe or unsound practices and breach of
fiduciary duty, the Bank suffered potential financial loss and other
damage. 12 U.S.C. §1818(e)(1)(B)(i).
626. Respondent's actions demonstrate his willful or continuing
disregard for the safety and soundness of the Bank, and evidence his
personal dishonesty. 12 U.S.C. §1818(e)(1)(C).
627. An order should be issued against Respondent pursuant to the
provisions of section 8(e) of the Act, 12 U.S.C. §1818(e), removing
Respondent as an institution-affiliated party of the Bank and
prohibiting Respondent from further participation in the conduct of the
affairs of the Bank, and any other insured depository institution or
organization listed in section 8(e)(7) of the Act, 12 U.S.C.
§1818(e)(7), without the prior written approval of the FDIC and such
other appropriate Federal banking depository institution regulatory
agency. 12 U.S.C. §1818(e)(4).
VII. Proposed Order
For the reasons set forth above, and pursuant to section 8(e) of
the Federal Deposit Insurance Act, 12 U.S.C. §1818(e), it is hereby
ORDERED, that:
1. Roque De La Fuente II shall not participate in any manner in the
conduct of the affairs of any insured depository institution, agency or
organization enumerated in section 8(e)(7)(A) of the FDI Act, 12 U.S.C.
§1818(e)(7)(A), without the prior written consent of the FDIC and
the appropriate Federal financial institutions regulatory agency, as
that term is defined in section 8(e)(7)(D) of the FDI Act, 12 U.S.C.
§1818(e)(7)(D); and
2. Roque De La Fuente II shall not solicit, procure, transfer, attempt
to transfer, vote, or attempt to vote any proxy, consent or
authorization with respect to any voting rights in any financial
institution, agency, or organization enumerated in section 8(e)(7)(A)
of the FDI Act, 12 U.S.C. §1818(e)(7)(A), without the prior written
consent of the FDIC and the appropriate Federal financial institutions
regulatory agency, as that term is defined in section 8(e)(7)(D) of the
FDI Act, 12 U.S.C. §1818(e)(7)(D); and
3. Roque De La Fuente II shall not violate any voting agreement with
respect to any insured depository institution, agency, or organization
enumerated in section 8(e)(7)(A) of the FDI Act, 12 U.S.C.
§1818(e)(7)(A), without the prior written consent of the FDIC and
the appropriate Federal financial institutions regulatory agency, as
that term is defined in section 8(e)(7)(D) of the FDI Act, 12 U.S.C.
§1818(e)(7)(D); and
4. Roque De La Fuente II shall not vote for a director, or serve or act
as an institution-affiliated party, as that term is defined in section
3(u) of the FDI Act, 12 U.S.C. §1813(u), or any insured depository
institution, agency, or organization enumerated in section 8(e)(7)(A)
of the FDI Act, 12 U.S.C. §1818(e)(7)(A), without the prior written
consent of the FDIC and the appropriate Federal financial institutions
regulatory agency, as that term is defined in section 8(e)(7)(D), of
the FDI Act, 12 U.S.C. §1818(e)(7)(D).
This ORDER will become effective thirty (30) days from the date of
its issuance.
The provisions of this ORDER will remain effective and in force except
to the extent that, and until such time as, any provision of this ORDER
shall have been modified, terminated, suspended, or set aside by the
FDIC.
Dated this 24th day of March, 2000.