SETTLEMENT AGREEMENT, ASSIGNMENT~ 

AND COVENANT NOT TO EXECUTE 

This Settlement Agreement, Assignment and Covenant Not to Execute ("Agreement") is 

entered into as of January 30, 2015 (the "Effective Date"), by and betvveen the Federal Deposit 

Insurance Corporation (the "FDIC') in its capacity as Receiver of Carson River Community 

Bank (hereinafter "FDIC-R") and Charlie Glenn ·("Glenn"). The FDIC-R and Glenn are 

hereinafter referred to as "Settling Parties". 

RECITALS 

WHEREAS, Glerm is the former Chief Credit Officer for Carson River Community 

Bank ("Bank"); 

WHEREAS, Banclnsure, Inc. (now Red Rock Insurance Company hereinafter 

individually and collectively referred to as "Bancinsure") issued Extended Professional Liability 

(b)(4) lnsur.ancePolicy., ..... No.f ··········· k"Policy") with a policy period effective from October 8, 

2009 to October 8, 20 10 which provides coverage to, among others, former directors and officers 

of the Bank according to the terms, provisions, and exclusions of the Policy; 

WHEREAS, Glenn is an insured person under the Policy; 

WHEREAS, the Financial Institutions Division of the Nevada Department of Business 

and Industry closed the Bank on February 26, 2010 and the FDIC-R accepted appointment as 

the Bank's receiver; · 

WHEREAS, in accordance with 12 U.S.C. § 1821 (d), the FDJC-R succeeded to all rights, 

titles, powers, and privileges of the Bank and its stockholders, accountholders, and depositors~ 

WHEREAS, before the closure of the Bank and during the policy period of the Policy, 

the FDIC gave notice of circumstances to the Bank that might give rise to claims against Glenn 

relating to his conduct as a former officer of the Bank, and the Bank forwarded the letter to 

Banclnsure ("Notice of Circumstances Letter"); 

WHEREAS, Banclnsure acknowledged receipt of the Notice of Circumstances Letter; 

WHEREAS, on January 7, 2013, the FDIC-R asserted claims against Glenn relating to 

his conduct as a former officer of the Bank ("Claims Letter"), the potential of which was 

identified in the Notice of Circumstances Letter; 

WHEREAS, on January 31, 201 3, Banclnsure sent a letter to Glenn advising him that 

Banclnsure denied coverage for Glenn W1der the Policy for the claims assert~ by the FDIC-R in 

the Claim.s Letter; 

Pagel of 10 
WHEREAS, on June B, 2013, the FDIC-R fi led its First Amended Complaint and 

asserted the claims set forth in the Claims Letter against Glenn in a case. styled FDIC v. Jacobs, 

el al, 3: 13~CV -84 (Dist. Nevada) (the "FDIC-R Lawsuit"); 

WHEREAS, the FDlC-R seeks tort damages in the FDIC-R Lawsuit against Glenn; 

WHEREAS, Banclnsure refused to provide Glenn a defense, refused to pay for Glenn's 

costs of defense, and refused to indemnify Glenn for any adverse judgment entered in the FDICR Lawsuit; 

WHEREAS, on June 7, 2013, Bancinsure filed a lawsuit against Glenn and other officers 

and directors of the Bank in a case styled Banclnsure, Inc. v. Jacobs, et al, 3: 13-CV -302 (Dist. 

Nevada) (the "Insurance Coverage Action") wherein it seeks a determination that it is not 

obligated under the Policy to provide coverage for Glenn and the other officers and directors of 

the Bank; 

WHEREAS, the FDIC-R substituted into the Insurance Coverage Action as a defendant 

and counterclaimed for a determination that the Policy provided coverage for Glenn and the 

other officers and directors of the Bank; 

WHEREAS, on August 21, 2014, the District Court of Oklahom3: County, State of 

Oklahoma, placed Banclnsurc into receivership and ordered its liquidation in a case styled State 

of Oklahoma, ex ref. John D. Doak, Insurance Commissioner v. Red Rock Insurance Company, 

No. CJ-2014-4353; 

WHEREAS, this Agreement is entered into to settle (1) the clajms asserted by the FDICR against Glenn in the Claims Letter and (2) the FDIC-R Lawsuit against Glenn; . . 

WHEREAS, the FDIC-R and Gletm are also entering into this Agreement because of (1 ) 

Banclnsure's refusal to defend, to advance defense costs, and to indemnify G lenn in connection 

with the claims set forth in the Claims Letter and the FDIC-R Lawsuit, and (2) Banclnsure's 

failure to protect the interests of Glerm by fai!jng and refusing to settle. the. claims set forth in the . 

Claims Letter and the FDIC-R Lawsuit; 

WHEREAS, in reaching this Agreement, the FDIC-R and Glenn have specifically relied 

upon a letter written on behalf of Bancinsure by Ted Equals, dated January 31, 20l3,wherein 

Banclns ure ad vised thal it "has determined the FDIC's monetary demand arid lawsuit which the 

FDIC is threatening to file against you are not covered claims under [the Policy].'' Tbe FDJC-R 

and Glenn believe that the conduct of Bane Insure is wrongful and violates the principles of good 

faith and fair dealing under Nevada law and breaches the Policy; and · 

WHEREAS, the FDIC~R and Glenn deem it in their respective best interests to enter into 

this Agreement to avoid the uncertainty, trouble, risk and expense of further litigation. 

Page 2 of 10 
NOW, THEREFORE, in consideration of the promises, undertakings, assignments, and 

covenants stated herein, the sufficiency of which consideration is hereby acknowledged, the 

FDIC-R and Glenn agree, each with the other, as follows: 

1. Entry of F inal.Judgment Against Glenn. The FDIC-R and GlelUl agree to the 

entry of a final judgment in the FDIC-R Lawsuit in favor of the FDIC-R and against Glenn in the 

amount of $1,742,798.94 in the form attached hereto as Exhibit A, or in such other form as 

directed by the Court ("Final Judgment") based upon facts set fmth in the FDIC-R's Second 

Amended Complaint, attached hereto as Exhibit B. Within five (5) business days from the 

execution ofthisAgreement, counsel for the FDIC-R and Glenn shall file a joint motion for entry 

of the Final Judgment in the FDIC-R Lawsuit substantially in the form attached hereto as Exhibit 

C. The Settling Parties agree to take all reasonable steps to have the Final Judgment entered. 

Entry of the Final Judgment by the Court is a condition precedent to this Agreement and if 

the Court does not enter the Final Judgment, this Agreement is void. 

2. Waiver of Rights to Appeal. Upon entry of the Final Judgment, the FDIC-R and 

Glenn waive their rights of appeal and/or to vacate the Final Judgment on any grounds or legal 

theory whatsoever. 

3. Assignment of Claims by G1enn to the FDIC-R. For valuable consideration, 

receipt of which is hereby acknowledged by Glenn, and as set out in . the unconditional 

Assigrunent attached as Exhibit D, Glenn irrevocably assigns to the FDIC-R all of his rights, 

interests, claims, defenses, and causes of action. (hereinafter collectively "rights") against 

Banclnsure, its receiver, any state insurance guaranty insurance associations, any insurers or 

reinsurers, and their respective agents, brokers, employees, and officers wit~ respect to the 

following matters: (A) any rights arising out of the Policy, including but not limited to Glenn's 

right to coverage under the Policy; (B) any rights arising out of Banclnsure's conduct regarding 

the Policy, including but not limited to, Bancinsure's conduct in denying coverage under the 

Policy, and Banclnsure's refusal to settle and pay on behalf of Glenn the claims asserted in the 

Claims Letter and the FDIC-R Lawsuit; (C) any rights to insurance coverage or payment for the 

claims asserted in the Claims Letter and FDIC-R Lawsuit; (D) any rights to prosecuteor defend 

the Insurance Coverage Action; and (E) any rights to be indemnified or insured for the Final 

Judgment. In addition, to the extent, if any, that Glenn is or was a shareholder of the Bani( and 

by virtue thereof is or may have been entitled to a dividend; payment, or other prorata 

distri bution upon resolution of the receivership of the Bank, Glenn hereby knowingly assigns to 

the FDIC-R any and all rights, titles and interest in and to any and all such dividends, payments 

or other prorata distributions. The foregoing assigned rights are hereinafter referred to as the 

"Assigned Claims." The Assigned Claims shall be effective upon entry ofthe Final Judgment. 

Upon the entry of Final Judgment, the FDJC-R shall have sole and unfe'ttered discretion, 

ownership, and control of the prosecution of the Assigned Claims, including without limitation, 

the right to settle and dismiss the Assigned Claims. The FDIC-R also may, in ·its sole discretion, 

continue to prosecute the Assigned Claims in the name of Glenn unless otherwise required by 

federal or state law. The FDIC-R shall have the sole right to select counsel to prosecute the 

Assigned Claims. The FDIC-R is solely responsible for all efforts relating to tbe Assigned 

Claims and such efforts, fees and costs will be undertaken solely at its· own risk and exp ense. 

Page 3 of 1.0 
Nothing in this paragraph is intended to affect Glenn's obligations and/or the FDIC-R's rights 

under Paragraph 11. 

4. Covenant Not to Execute. In consideration for the Assigned Claims and other 

good and valuable consideration, the FDIC-R and its successors, assignees, agents, and any other 

person or entity acting on or in the FDIC-R's behalf, do hereby covenant and agree not to take or 

attempt any action of any kind to collect the Final Judgment against Glenn personally, including 

any action to document, record, register as a lien, or report to any credit agency the Final 

Judgment in .an effort to collect the Final Judgment from Glenn personally. Rat[.ler, the FDIC-R 

will attempt to recover and col1ect the Final Judgment from Banclnsure, its receiver, any state 

insurance guaranty association, any insurer or reinsurer, and ariy of their respective agents, 

brokers, employees, and officers. The FDIC-R is solely responsible for all efforts to colJect the 

Final Judgment. The FDfC-R agrees that all such eff01ts will be undertaken solely at its own risk 

and expense. Nothing in this paragraph is intended to affect Glenn's obligations and/or the 

FDIC-R's rights under paragraph 11 . This covenant not to execute shall be effective 

immediately after the Final Judgment is entered by the Court. 

5. Recitals. The Recitals are incorporated into and constitute a part of this 

Agreement. 

6. Covenant Not To Sue. Effective as of the Effective Date, Glenn on behalf of 

himself individually and his heirs, executors, administrators, representatives, agents, attorneys, 

successors and assigns, hereby covenants and agrees not to bring any judicial proceeding or 

make any claims, demands, obligations, damages, actions, and causes of action, direct or 

indirect, in law or in equity, against any person arising out of the Assigned Claims·. 

Upon entry of the Final Judgment, the FDIC-R for itself, its· successors and assigns, 

hereby stipulates, promises, and covenru1ts not to pursue any of the claims ass~1ted in the Claims 

Letter or the FDIC-R Lawsuit against Gleim and his heirs, executors, representatives, agents an·d 

successors or any other claims that are or could have been at issue in the FDIC-R Lawsuit, 

whether known or unknown, with the following exceptions: 

A. The FDIC-R expressly preserves fully and to the same extent as if.the Agreement had 

not been executed, rights to sue upon any claims or causes· of action: (a) against any 

person or entity for liability, if any, incurred as the maker, endorser or guarantor of 

any promissory note or indebtedness payable or owed by them to the FDIC-R, the 

Bank, other financial institutions, or any other person or entity, including without 

limitation any claims acquired by the FDIC-R as successor in interest to the Bank or 

any person or entity other than the ank~ (b) against any person or entity not 

expressly subject to the covenant in this Agreement; and (c) which ar:e expressly 

provided in paragraph 11 . · · 

B. Notwithstanding any other provision, this Agreement does not preclude any claims or 

actions that could be brought by any agency or instrumentality of the United States 

government, other than the FDIC-R. 

Page 4 of 10 
C. Notwithstanding any other provision herein, this Agreement does not purport to 

waive or release, or intend to waive or release, any claims which could be brought by 

the FDIC-R against any other individual or entity and the FDIC-R expressly reserves 

such claims. 

7. Execution in Counterparts. This Agreement shall not be binding on any party 

until signed and delivered by all Settling Parties; provided, however, it may be executed in one 

or more counterparts and deli vered by facsimile or email, and each such. counterpart, upon 

execution and delivery, shall be deemed a complete original, binding the party subscribed thereto 

upon execution by all Settling Parties ro this Agreement. Such counterparts when so executed 

shall together constitute the tina] Agreement. Photocopies and/or facsimile and/or e-mail 

transmissions of original signatures shall be considered in all respects equivalent to original 

signatures. 

8. Binding Effect. The FDIC~R and Glenn represent and warrant that they are a 

party hereto or the persons executing this Agreement are authorized to sign this Agreement on 

behalf of the respective party, and that the persons executing this Agreement have the full power 

and authority to bind such pa~ty to each and every provision of this Agreement. This Agreement 

shall be binding upon and inure to the benefit of the undersigned Settling Parties and their 

respective heirs, executors, administrators, representatives, successors and assigns. · 

9. Choice of Law. This Agreement shall be interpreted, c6ns.trued and enforced 

according to applicable federal law, or in its absence, the laws of the State of Nevada. 

1 0. Entire Agreement and Am endments. This Agreement, including exhibits, 

constitutes the entire agreement and understanding between the FDIC-R and Glenn concerning 

the matters set forth herein. This Agreement may not be amended or modifittd except by another 

written instrument signed by the Settling Parties, or by their respective authorized attorney(s) or 

other representative(s). This Agreement shall survive and not be merged in the Final Judgment. 

11. Specific Representations Warranties and Disclaimer. The Settling Parties 

expressly acknowledge that in determining to settle the claims here, the FDIC-R has reasonably 

and justifiably relied upon the accuracy of financial information in the financial statements 

and/or affidavits submitted. If, in his financial statements and/or affidavits, Glenn has 

intentionally or recklessly failed to disclose any material interest, leg(!.!, equitable, or beneficial, 

in any material asset, the FDIC-R in its sole discretion; may exercise one or more·. of all· of the 

following remedies: (i) the FDIC-R may declare any covenant not to execute granted to Gleru1 as 

null and void; and (ii) the FDJC-R may sue Gleru1 for damages, an injunction> and specific 

performance for the breach of this Agreement. Glenn agrees that if, in his financial statement 

and/or affidavits, he bas failed to disclose any interest, legal, equitabJe, or beneficial, in any 

material asset, GJenn waives any statute of limitations that would bar any of the FDIC-R's claims 

against him that \Vere otherwise not time barred as of the Effective Date. 

12. No Prior Transfer of Claims. Glenn warrants and covenants .that he has not 

assigned, sold, or otherwise transferred or disposed of, and will not assign, sell, .or otberwjse 

transfer or dispose of, any interest in the Policy or Assigned Claims to any person or ~ntity other 

Page 5 of 10 
than the FDIC-R. The FDIC-R warrants and represents that it (i) owns the claims asserted 

against Glenn in the Claims Letter and in the FDIC-R Lawsuit, and (ii) has not assigned, sold, or 

otherwise transferred or disposed ofany of thoseclaims. 

13. Reasonable Cooperation. The Settling Parties agree to coope1ate in good faith 

to effectuate all the terms and conditions of this Agreement, including doing or causing their 

agents and attorneys to do whatever is reasonably necessary to effectuate the signing, delivery, 

execution, filing, recording, and entry of any documents necessary to perform the terms of this 

Agreement. ln addition, Glenn will, upon request of the FDIC-R or its attorneys, provide the 

FDIC-R with reasonable cooperation and assistance in the FDIC-R Lawsuit ag~nst others, the 

Insurance Coverage Action and/or in the FDIC-R's efforts to collect the Final Judgment from 

Bancinsure, its receiver, any state insurance guaranty association, any insurer or reinsurer, and 

their respective agents, brokers, employees, and officers. This cooperation shall include but is 

not limited to responding to discovery requests, providing access to relevant non-privileged 

documents, giving truthful affidavits and deposition testimony upon reasonable notice and at 

convenient locations and times, and testifying truthfully at trial and hearings. Glenn will refrain 

from taking any actions that will prejudice the FDIC-R's ability to prosecute the FDJC-R 

Lawsuit against others, to prosecute the Insurance Coverage Action and/or to collect the Final 

Judgment. 

14. Advice of Counsel. Each party hereby acknowledges that such party has 

consulted with and obtained the advice of counsel prior to executing this Agreement, and that 

this Agreement has been explained to that party by his or her counsel. Furthermore, Glenn 

agrees, after consultation with his attorneys, that reasonable and prudent insureds in his position 

would enter into this Agreement to avoid the risk of liability to the FDJC-R as alleged 'in the 

Claims Letter and the FDIC-R Lawsuit. 

15. Notices. Any notices relating to or arising out of this Agreement shall be sent by 

regular mail and e-mail, shall be conside.red delivered when received by the party to wi10m it was 

sent, and shall be addressed to the following recipients: 

Page 6 of 10 
)(6)~-

To the FDIC~R: 

Bob J. Rogers, Esq. 

Senior Attorney 

Professional Liability Unit, Legal Division 

Federal Deposit Insurance Corporation 

160 1 Bryan Street 

Room 15068 

Dallas, Texas 7520 I 

--l---------··----·-····-··· 

with a copy to 

Joel R. Hogue, Esq. 

SprouseShrader Smith PLLC 

701 S. Taylor;Suite 500 

Amarillo, TX 7910 1 

(b)(6) __ ....... .. . .............! ......... _ ..... -----------J 

To Charlie Glenn: 

2610 West Wren Avenue 

Visalia, California 93291 

16. Pr eparation of Agreement. This Agreement has been prepared by the combined 

efforts of the Settling Parties and their respective attorneys. The Settling Parties represent and 

warrant that each of them has had the unfettered opportunity to fully consult with an attorney of 

their own choice. This Agreement shall, therefore, be construed without regard to the authorship 

of the language and without any presumption or interpretation or construction in favor of any 

person, entity or patty. 

17. Costs and Expenses. All costs and expenses incurred in closing and carrying out 

the transactions contempiated by this Agreement shall be borne by the respective party incurring 

such costs and expenses. 

18. Survjval. All representations and warranties made herein shall continue and 

survive the execution of this Agreement, and remain binding upon the person or persons making 

the representation or warranty, even after this Agreement is executed. 

19. Severability. In the event that any provision of this Agreement is declared or 

deemed to be invalid or unenforceable, such invalidity or unenforceability shall not affect the 

validity or enforceability of the remaining portions of this Agreement. Notwithstanding this, if 

the Court does not enter the Final Judgment> this Agreement is void as specified in paragraph 1. 

Page 7 of 10 
20. Attorneys' Fees. If any lawsuit is brought to enforce any term or provision of 

this Agreement, or in connection with any dispute arising from or relating to this Agreement or 

to the alleged breach of this Agreemen(, the prevailing party shall be entitled to recover its 

reasonable and necessary attorneys) fees and costs incurred in cormection with any such lawsuit 

or proceeding, throughout trial and all appeals. 

(Remainder of Page Intentionally Blank] 

Page 8 of 10 
IN WITNESS WHEREOF, the Parties have executed this Agreement to be etiective as 

of the Effective Date. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, AS RECEIVER FOR 

CARSON RIVER COMMUNITY BANK 

(b)(e) o~;~F;:z~ :iQtf s; ..... l_·· _________ ___J.._ 

Printed Name.J(,,L, evt S, S ft:Jc.LJ"G'n 

Title L e So /u-b OJ'\ s_-...{ U Q$1,: .. 

(b)(6) 

:::;;;;;--

Date: /-3o -,;?tJ/.J ByL..-~"":"'!"""~::-"'7"'------.....J 

Page 9 of 10 
(b)(6) ____ _ 

APPROVED AS TO FORM. AND CONTENT: 

Date: 1 f"?>v }[ ( ---'+r..:=.....J --

Date: 1- 3-o-- ts ··················- ···--

SPROUSESHRADER SMITH, PLLC 

By __ ~~~------~----_j-----­ e . Hogue 

rney for Federal Deposit Insurance 

Corporation, as Receiver of Carson River 

Community Bank 

SUTTON HAGUE LAW CORPORATION 

- By ·1 t---- I ~ fCQ 

Brett Sutton or Jared Hague 

Attorneys for Chariie Gle1m 

Page 10 oflO 
Gregory F. Wilson, Esq. 

Nevada Bar No. 25 I 7 

GREGORY F. WILSON & ASSOCIATES, P.C. 

1495 Ridgeview Dl"ive, Suite 120 

Reno, NV 89519 

(775) 360-49 10 Telephone 

(775) 360-4911 Facsimile 

(b)(6) 1 ......... .. .......... I 

and 

Joel R. Hogue, Esq., (pro hacvice) 

Texas Bar No. 09809720 

M. Chase Hales, Esq., (pro hac vice) 

Texas Bar No. 24083 ! 24 

Andrew Evans, Esq., (pro hac vice) 

Texas Bar No. 007965 19 

SPROUSESHR.ADER SMITH, PLLC 

701 Taylor, Suite 500 

Amarillo, TX 79 101 

(806) 468-3300 

(806) 373-3454 Facsimile 

(b )(6) I ------·-- - ATTORNEYS FOR PLAINTIFF' 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEVADA 

FEDERAL 

DEPOSITINSURANCECORPORATION, as 

RECEIVER OF CARSON RIVER 

COMMUNITY BANK 

Plaintiff and Counter Claim Defendant, 

vs. 

JAMES M. JACOBS, 

Defendant and Counterclaimant, 

CHARLIE GLENN, 

Defendant, 

JAMES M. JACOBS, Crossclaimant 

vs. 

DANIEL DYKES, CHARLIE GLENN, 

RICHARD MCCOLE, AND BYRON WAITE 

Crossclaim Defendants. ~ 

Case No.: 3:13-CV-00084-RCJ (VPC) 

FINAL JUDGMENT AGAINST 

DEFENDANT CHARJ..IE GLENN 

This matter comes before the Court on the Joint Motion for Entry of Judgment 

("Motion") filed by Plaintiff Federal Deposit Insurance Corporation, as Receiver of Carson River 

Community Bank ("FDIC~R") and Defendant Charlie Glerm ("Glenn") base~ upon a settlement 

STIPULATION JUDGMENT Page 1 of3 
agreement entered into between the FDIC-R and· Glenn. Having considered the Motion and the 

exhibits thereto, the Court FINDS AS FOLLOWS: 

1. Defendant GJenn stipulates to the truth of the allegations against him contained in 

the Second Amended Complaint ftled by the FDIC-R; 

2. The FDTC-R's aJtegations against Glenn state a claim upon which relief may be 

granted; 

3. This Court has jurisdiction of the subject matter of this action and personal 

jurisdiction over the FDIC-R and Glenn. Venue in the District ofNevada is proper; 

4. The damages sustained by the FDJC-R on the Merrill Construction loan, after 

giving credit for settlements achieved with others, is $1,842,798.94; 

5. Entry of this judgment is fair, reasonable, and equitable and does not violate the 

law or public policy; and 

6. Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, there is no just 

reason to delay entry of judgment against Glenn. 

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that this motion is 

granted and judgment is entered against Glenn in favor of the FDIC-R in the amount of 

$1 ,842>798.94, with post judgment interest accruing at the rate of_% per annum, along with 

costs. This judgment is final as to all claims between the FD1C-R and Glenn·. All relief between 

the FDIC-R and Glenn not addressed herein is denied. 

DATED: 

Honorable United States District Judge 

FINAI,JUOGMENT PAGE2 OF 3 
823367 _l.doc 

APPROVED AS TO FOR..t'\11 AND CONTENT: 

Authorized Agent for Federal Deposit 

Insurance Corporation, As Receiver for 

Carson River Community Bank 

Joel R. Hogue, Attorneys for Plaint if)' 

Federal Deposit 1nsurance Corporation, as 

Receiver for Carson River Community Bank 

SPROUSESHRADER SMITH, PLLC 

701 Taylor, Suite 500 

Amarillo, TX 791 01 

(806) 349-4711 

Charlie Glenn 

(b)(6) IL..······· ______ ____. 

Brett Sutton or Jared Hague 

SUTTON HAGUE LAW CORPORATION 

9600 Gateway Dr., Suite 1 00 

Reno, NV 89521 

(775) 284-2770 

Auorneysfor Charlie Glenn 

FlNALJUDGMf.NT PAGF.3 OF 3 
Case 3:13~cv~00084-RCJwVPC Document 140 Filed 06/05/14 Page 1 of 23 

Gregory F. Wilson, Esq. 

Nevada Bar No. 2517 

GREGORY F. Wn.soN & AssociATES, P.C. 

1495 .Ridgeview Drive, Suite 120 

Reao, Nevada 89519 

Telephone: 775.360.4910 

Facsimile: 775.360.4911 

(b )(6).................................. 1 I 

and 

Joel R. Bogue, Esq. {Admitted Pro Hac Jib) 

Texas Bar No. 09809720 

M. Chase Bales (Admitted Pro Hac Y.u:e) 

Teus Bar No. 24883124 

Andrew R.. Evans (Admitted Pro Hac Y~ee) 

Teus Bar No. 00796519 

SPROUSE SBRADERSMITII, PLLC 

701 Taylor, Suite 500 

~ariDo,~ 79101 

Telephone 806M8.3300 

Facsimile 806.373.3454 

(b)(6) ···········L········-·········-···· ..... _ ...... _ .... _ ... _.. ___ ____. ························ ..... . 

UNITED STATES DISTRICI' COURT 

DISTRICI' OFNEV ADA 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, AS RECEIVER OF 

CARSON RIVER COMMUNITY BANK 

Plaia tiff, 

vs. 

JAMES M. JACOBS AND CHARLIE 

GLENN 

Defenclan~ 

Case No.: 3:1J..CV..00084 

SECOND AMENDED COMPLAINT 

.JURY DEMAN» 

The Federal Deposit lnsumnce Corporation ("FDIC"), in its capacity as Receiver 

of Carson River Community Bank ("Carson Rivet" or "the Bank"), files its Second Amended 

Page 1 of23 

782901_1.DOC 
Case 3:13-cv-00084-RCJ-VPC Document 140 Filed 06105/14 Page 2 of 23 

Complaint against the defendants James M. Jacobs and Charlie Glenn (collectively referred to 

hereinafter as the Defendantsj. 

L JURISDicnON AND VENUE 

1. This Court has jurisdiction over this action pursuant to 12 U.S.C. § 1819(bXl)-

(2){a) and 28 U.S.C. §§ 1331 and 1345. Supplemental jurisdiction over the FDIC's state law 

claims may be exercised by the Court under 28 U .S.C. § 1367. 

2. Pu.tsuant to 28 U.S.C. § l39l(b), venue is proper in the District of Nevada 

because the claims and causes of action asserted in this Second Amended Complaint arose in this 

district. 

D. THE PLAINTIFF 

3. The FDIC is an instrumentality of the United States, established under the Federal 

Deposit Insurance Act, 12 U.S.C. §§ 1811-1833(e). 

4. Carson River was chartered on October 16, 2006 by the State ofNevada. Carson 

River was a state nonmember bank whose shares of stock were widely held. The Baok operated 

out of a single location in Carson City, Nevada. Since its iooeptio~ the Bank was jointly 

examined by the FDIC and the State of Nevada. 

S. On February 26, 2010, the Nevada Department of Business and lndustiy, 

Financiallnstitutions Division closed the Bank, and the FDIC accepted appointment as receiver 

pursuant to 12 U.S.C. § 182l(c). As set forth in 12 U.S.C. § 1821(d)(2)(A)(i1 the FDIC 

succeeded to all rigbts, titles and privileges of Carson River, and its stockholders, account 

holders and depositors. 

Page2of23 

'182901_l.DOC 
Case 3:13-cv-00084-RCJ-VPC Document 140 Filed 06/05/14 Page 3 of 23 

m. DEFENDANTS 

6. Defendant James M. Jacobs ("Jacobs") was a co-founder and stockholder of the 

Bank. He served as a director and member/chairman of 1he Senior Loan Committee of the Bank 

from its inception until his resignation from both positions in December 2008. Jacobs also 

served as a member of the boards of directors and bad ownership interests in three Oklahoma 

banks that participated in the loan sued upon in tbis case. Jacobs is also an attorney. Jacobs bas 

been served and bas appeared in this case. 

7. Defendant Charlie Glenn ("Glenn") served as the Bank,s Chief Credit Officer and 

member of the Senior Loan Committee from the inception of the Bank until his resignation from 

both positions in December 2008. Glenn has been served and bas appeared in this case. 

IV. NATURE OF THE SUIT 

8. By this sui~ the FDIC seeks to recover approximately $2 million in damages for 

losses incurred by Carson River in connection with a loan transaction as descn"bed more 

particularly below. The losses were caused by the grossly negligent breaches of fiduciary duties 

of the Defendants Jacobs and Glenn, acting jointly and in concert with other members of the 

Senior Loan Committee. as well as their independent conduct, all of which were substantial 

factors in proximately causing the losses sued upon in this case. 

9. Defendants Jacobs and Glenn, as members of the Bank•s Senior Loan Committee, 

acted in concert with other members of the Senior Loan Committee to approve the loan to a noncreditworthy borrower for the pmpose of paying off an existing troubled loan at another bank. 

The prior lender did not desire to renew the matured and already-extended Joan. 

I 0. Through their votes to approve this loan, the Defendants Jacobs and Glenn, and 

other members of the Senior Loan Committee, departed from the Bank's business plan and loan 

Page3 of23 

782901_l.DOC 
Case 3:13-cv-00084-RCJ-VPC Document 140 Filed 06/05/14 Page 4 of 23 

polici~ violated regulatory and Bank loan policy requirements relating to appraisals, and chose 

to proceed despite substantial and accumulating known risks. 

11. A1ter loan approval but before funding, Defendant Jacobs, who owned interests in 

three Oklahoma banks, helped arrange for two of his Oklahoma banks to buy loan participations 

in the loan, but Jacobs sacrificed the interests of Carson River by voting in the Oklahoma bank 

board meetings in favor of a provision in the participation agreement that assured repayment to 

his two Oklahoma banks before Carson River. The consequence of this was tha~ the two 

Oklahoma banks were paid in full and Carson River shouldered the bulk of the loss on the loan. 

Defendant Glean helped facilitate these preferential arrangements. None of the other Senior 

Loan Committee members or the Bank's Board of Directors were advised of this arrangement 

until well after the loan was fimded. 

12. Furthermore, Defendant Glenn ordered and received an appraisal after loan 

approval, but well in advance of loan funding, that complied with federal regulations and the 

Bank's loan policy that revealed a value that was approximately $1 million less than the 

approved loan amOWlt and $2 million less than the eppmisals relied upon to approve the loan. 

Glenn did not share the results of this appraisal with other members of the Senior Loan 

Committee or the Board of Directors. 

V. FACI'UAL BACKGROUND 

A. Carson River Baekground 

13. Carson River received its charter on October 16. 2006. It failed a little over three 

years later on February 26,2010. 

14. The seeds of the Bauk•s failure were planted almost immectiately after it was 

chartered. The Bank•s Board of Directors created a committee called the "Senior Loan 

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Committee" and delegated lending authority to it The Defendants Jacobs and Glenn constituted 

two of the members of the five-member Senior Loan Committee and Defendant Jacobs served as 

chairman. 

15. Between February 22, 2007 and August 23, 2007, the Senior Loan Committee 

approved four large residential real estate multi-lot loans to real estate developers 1hat were 

refinances of acquisition and development loans extended by other lenders who wished not to 

renew the matured loans. These four loans were extended in succession to Dayton Valley Land, 

LLC ("Dayton Valley"), Building Energetix Cotp. ("Building Bnergetix"), C Grant 

Development, LLC C'C Grant''), and Merrill Construction. Inc. ("Merrill Construction"). While 

the FDIC only sues to recover for losses incurred on the last of these four loans, Merrill 

Construction, all four resulted in substantial losses to tbe Bank and all four fit into a similar 

pattern. With the approval of each of the loans, the Bank's risk profile increased These four 

loans constituted, in dollar amount, over one-quarter of the Bank's loan portfolio at lhe end of 

2007. 

16. The Defendants Jacobs and GlCDD knew by the time of the August 23, 2007 

approval of the Merrill Construction loan and by the time of its funding on or about December 

19, 2007 that there were significant problems associated with the proposed loan. The Senior 

Loan Commit1ee minutes and the credit memos presented to the committee before approval of 

the fom loans include comments such as the following: 

782901_1.DOC 

• The prior lender "is discouragjng the renewal of contractor lot loans."' 

• "Real estate market is uncertain right now." 

• "We are feeling (sic) the need for developers in the community seeking bridge 

loans to get them by during slow times." 

• The market has "softened." 

• The prior lender ••no longer bas an appetite for this type ofloan." 

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17. Carson City newspaper articles in late 2006 through 2007 also painted an 

uncertain and dismal view for the residential housing market in Nevada in general, and in the 

Carson City area in particular, as reflected by the following representative statements: 

· • "Fewer Carson City homes sold in August [2006] than a year ago .•• The data also 

shows houses are also spending more time on the market and costing 11 percent 

less than a year ago. "-Nevada Appeal, October 2, 2006. 

78290U.DOC 

• "Industry analysts predict prices will continue to decrease as sellers become more 

desperate and buyers hold out for more competitive pricing while interest rates for 

a 30-year mortgage stay under 7 percent "-Nevada Appeal, October 2, 2006. 

• ".After a five··year national housing boom the market had scatted to slow over the 

year into a hot pool ofuncertainty."'-Nevada Appeal, October 7, 2006.. 

• "House flippers in Carson City are in trouble, acconling to a forecast by Moody•s 

Economy.com, a private research firm. Its predictions are called, 'one of the 

starkest views yet of the housing slow-down."'-Nevada Ap[Jlal, October 7, 

2006. 

• "Boom areas ofNevada could have the most dismal price slump in the nation."-

NetJada Appeal, October 7. 2006. 

• "Carson City is on the list of metropolitan areas projected to have the largest 

decline in median housing prices. "-Nevada Appeal, October 7, 2006. 

• "The U.S. will dodge the recession bullet, but a weakening national housing 

market will oontinue to be felt throughout the nation in 2007 ... ,._ Nevada 

Appeal, November 29, 2006. 

• "The number of mortgage defaul1s by Carson City homeowners increased 4'/0AI 

ftom 2004 to 2006, ... '[The real estate market in Carson City] was way over 

priced and people got in on interest only loans and 1 OOOA> loans and got in way 

over their heads' ... In late 2005 and 2006, the speculators ran out of buyers ••. 

'[I]n 2006 things got worse, most people shrugged their shoulders. they couldn't . 

find a buyer~ so they let the lender take it' ... 'I do believe we are going to see 

more defaults and foreclosures due to lending, the 100 percent loans and the 

ARMs (adjustable rate mortgages), because people are overburdened with interest 

rates that have gone up .. .l think for the next six months we'll be seeing that 

Then we'D see bow the economy does.'"-_Nevada Appeal, January 13,2007. 

• "Lest year, Carson City's housing market saw the fewest amount of homes sold in 

18 years .. . "-Nevada Appeal, Janumy 28,2007. 

• "The market is full of homes from speculators who bought intending to resell 

soon after at a huge profit that they'll never see. Many of those homes are likely 

to become rental properties."-Nevada Appeal, January 30,2007. 

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• ''Nevada's foreclosme rate led the nation when it rose 2200/o from a year earlier to 

4~ 738 filings. or one in every 183 houseboJds."-Nevada Appeal, April28, 2007. 

• "Booms are always followed by busts, and those who don't heed this reality are 

doomed to be busted the worst •.• Now, the boom-and the bust-is in the housing 

market."-Nevad!J Appeal, August 11,2007. 

• "Nevada now leads the nation in the percentage of foreclosures, with one out of 

every forty homeowners losing their home."-Nevodo Appeal, August 11~ 2007. 

• "Now that the party is over, all that's left is the mess, and the mess threatens to 

take down the entire economy. It could make the dot com meltdown look like a 

picnic."-Nevada Appeal, August 11, 2007. 

B. MerriO Construction. Inc. 

1. Tile Loan Request 

18. Merrill Construction requested a $4,000,000 loan from Carson River on August 

16, 2007. The pUtpOse of the loan was to refinance the development of 25 lots in Saratoga 

Springs Estates in Minden, Nevada. The loan was to pay off an existing loan extended by 

Business 8aDk: ofNevada (now City National Bank). City National wanted out of the loan or at 

least wanted to reduce its exposure on the loan. While the lots were located in an established 

development, it represented yet another large residential lot loan and, if approved, would add 

substantially to the Bank's accumulation of risk in the refinancing of stalled residential real 

estate developments. 

2. The Loan Underwriting 

19. Defendant Glenn prepared the credit authorization memo for circulation to the 

members of the Senior Loan Committee, including Defendant Jacobs, and stated that, "The 

market is slow, but there is sign of increased buyers' activity for newly constructed homes." The 

memo also stated that the loan would be "written for 24 months with review of matmity for an 

extension." 

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20. The proposed loan provided for an interest reserve so that the interest only 

payments (no principal was due unless lots were sold or the loan matured) were made from the 

loan, as opposed to the borrower's independent funds, for a period that could extend up to two 

years. 

21. The loan was to be collateralized by a deed of trust lien covering the 2S lots. 

Defendant Glenn obtained individual retail appraisals of each of the lots totaling $5,000~000. 

The calculated loan to value ratio, using this appraisal, was 80%, an amount that exceeded both 

the Bank•s loan policy and federal regulations. No bulk value appraisal was obtained before the 

loan was presented to the Senior Loan Committee and this fact was noted in Glenn's credit 

authorization memo. 

22. The Bank's business plan submitted in connection with its application for FDIC 

insurance indicated the Bank's intention to market to "contractors and developers in order to 

capitalize on the area's primary growth sector," but it made no mention of the Bank~s intention 

to market to ttoubled developers and contractors whose loans were rejected by other lenders. 

The business plan expressly stated that the "Bank bas no plans to engage in speculative activities 

or high risk lending, such as sub-prime. high loan-t~value or speculative lending." Yet, the 

Merrill Construction loan described herein relied for its success almost solely on speculation that 

the real estate market would turnaround and that Merrill Construction, with the benefit of up to 

two years of deferred interest, would ultimately be able to service the debt to the Bank. 

23. The Bank's loan policy recognized the value of the following loan attributes: 

78:29C>t _I .DOC 

• "The value of having a diversified loan portfolio as a method of minimizing risk 

is recognized by the Board of Directors!• 

• "It is prudent to diversify assets so that a recession in one industry will have only 

a limited impact on the total assets of the Bank." 

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• Acquisition and development loans "an: to be granted on a very selective basis to 

qualified developers of substantial net worth and considerable experience." 

24. The Bank's loan policy also included a section on appraisals. The appraisal 

policy required that the Bank's standards for appraisals meet federal regulations and guidelines. 

The Bank relied on individual retail lot appraisals. Under the cireumstances of tbe MeniJJ 

Construction 1~ a "bulk value"' appraisal was more appropriate since the loans were to real 

estate developers and not individual owners. A bulk value appraisal was particularly important 

in the circumstances of the Menill Construction loan because the loon was to a troubled 

developer dming a time when there were recognized problems in the residential real estate 

market. 

25. The .fiillure of the Defendants Jacobs and Glenn, as members of the Senior Loan 

Committee, to require a bulk value appraisal in the case of the Menill Construction loan violates 

the minimum appraisal standards that require the bank to "[a)nalyze and report appropriate 

deductions and discounts for •.. tract developments with unsold units ... 12 C.F.R §323.4 (c). 

This specific language is carried over into the Bank's loan policy manual. This is further 

explained by Interagency Appraisal and Evaluation Guidelines (1994) that states with respect to 

the above standard as follows: 

This standard is designed to avoid having appraisals prepared using unrealistic 

assumptions and inappropriate methods in aniving at the property's market wlue 

••. For proposed developments that involve the sale of individual houses~ units, 

or lots, the appraiser must analyze and report appropriate deductions and 

discounts for holding costs, marketing costs and entrepreneurial profit. 

Bulk value appraisals take these deductions and discounts into account, whereas retailapprmsals, 

do not 

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26. The secondary sources for repayment were the borrower and the guarantors. 

Defendant Glenn compiled financial information in the credit authorization memo about the 

borrower and guarantors. 

27. This compiled information reflected that the borrower, Merrill Construction, lost 

$153,000 in 2005 and lost another $379,000 in 2006. By the end of2006, Merrill Construction 

reported a negative net worth of $29,000. Hence, Merrill Construction was not a viable 

secondary source for repayment 

28. The principals of Merrill Construction, a husband and wife, guaranteed the loan. 

Defendant Glenn compiled financial information in the credit authorization memo on the 

guarantors which oddly showed an identical balanee sheet for the guarantors for each of tbe 

years ending December 31, 2004, 2005, and 2006. The summary reflected a net worth of 

$3,753,000 for each of those y~ but the VBSt majority of this reported net worth was tied up in 

assets such as 1heir homestead and retirement accounts that were exempt from execution and 

therefore were not available to satisfy the guaranties. The rest of their reported net worth was 

tied up in two pieces of real estate with outstanding li~ debt owed by Merrill Construction to 

the guanmtors, and various personal belongings. Little analysis of the guarantors' financial 

situation was performed to determine the validity or accuracy of the information supplied and, 

even if accepted at face value, collection would have been difficult, expensive, and likely 

fruitless. 

3. The Approval 

29. The Senior Loan Committee meeting minutes for August 23, 2007 reflect that 

Defendants Jacobs and Glenn and other members of the Senior Loan Committee, who were 

acting jointly and in concert with one another, voted unanimously to approve the loan. They did 

Page 10 of23 

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so despite knowledge of the information described above, as weU as a caution from fellow 

committee member and Bank president, Dan Dykes, that the bank was growing too quickly in 

the number and amount of lot loans and despite the fact the minutes also reflect that "City 

National Bank is discouraging the renewal of contractor lot loans. Loan will be written for 24 

months to include interest reserve." The loan was approved, along with two oth~ in a meeting 

that lasted one hour and 45 minutes. 

4. Post Approval Events 

a. The Conflid &C Interest and the Oklahoma Loan ParticipatioDI 

30. While the Senior Loan Committee approved the loan on August 23, 2007, there 

was no binding commitment with the borrower to fund the loan unless and until all the fotmal 

loan documents were approved and signed. Because the proposed loan amount exceeded the 

Bank's legal lending limit to one bonower, it required selling Joan participations to other 1endets. 

Consequently, after approval of the loan Defendant Glenn undertook to find loan participants. 

At least four potential participants rejected the opportunity. 

31. Defendant Glenn worked with Defendant Jacobs in an effort to line up Jacobs' 

three Oklahoma banks as participants. The three hanks were Fust Pryority Bank. Pryor, 

Oklahoma (which did business in Nevada through an affiliate known as Nevada Lenders, Inc.), 

Bank of Locust Grove, and Lakeside Bank of Salina. Defendant Jacobs and his family held 

majority ownership interest in all three Oklahoma banks and he sat on the boards of directors of 

all three banks. These banks typically conducted their board meetings in succession on the same 

date in the same location. 

32. Late in the afternoon of September 11, 2007 ~ Defendant Glenn faxed the form of a 

proposed participation agreement to the Oklahoma banks on a standard form utilized in the past 

Page 11 of23 

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by the Bank that provided for an equal sharing. based on their respective pro rata percentage, of 

the obligations to fund and the rights to receive payments and recoveries. Glenn requested that 

the Oklahoma bankers C4sign and fax back" when they were ready. 

33. The following day, on September 12, 2007~ in the first of the regularly-scheduled 

Oklahoma bank board meetings, the president of Lakeside Bank of Salina rigbtly determined that 

the loan was risky for his bank and conditioned approval on receiving a preferential right to 

repayment. Consequently, participation in the Merrill Construction loan by Lakeside Bank of 

Salina in the amOUDt of $250,000 (i.e. 6.25% of the approved loan amount) was approved with 

the board minutes reflecting "with our part last in and first out" meaning Lakeside Bank would 

be last to participate, but be the first to be paid. On that same date, the board of directors of the 

second Oklahoma bank, Bank of Locust Grove, approved its participation on the same basis. 

Defendant Jacobs attended both meetings via video teleconference and voted in favor of both 

loan participations on the "last in, first out" basis in direct contravention of the interests of 

carson River and in violation of federal banking conflict of interest regulations and Jacobs' 

fiduciary duties of care and loyalty. Defendant Glenn helped facilitate these breaches of 

fiduciary duty by revising the loan participation agreement to include the p~eferential rights for 

the two Oklahoma banks. 

34. When the Merrill Construction loan was considered by Carson River's Senior 

Loan Committee it was understood that loan participants would be required and that Defendant 

Jacobs• Oklahoma banks might participate, but it was not discussed or wtderstood by other 

members of the Senior Loan Committee that some of the loan participants, including two of 

Defendant Jacobs' banks would be granted the right to be paid first in the event of default to 1he 

prejudice of Carson River. 

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35. In January 2009, it became apparent to Carson River,s Senior Loan Committee 

that the Merrill CoDS1:rUCtion loan would soon be in default so the loan documents were reviewed 

in preparation for attempts to collect the debt. By this time, Defend~mt Jacobs and Defendant 

Glenn bad resigned from their positions with Carson River. As a result of the review, it was 

discovered that Lakeside Bank, Bank of Locust Orove, and City National Bank (the prior lender) 

were entitled to be paid their collective $1,000,000 contributions_ before Carson River was paid 

anything. 

36. This shocking revelation was revealed to Carson River's Board of DUectors by 

May 2009. The Bank's Executive Vice President was directed by the Board of Directors to send 

a letter to Defendant Jacobs about the matter. Among other things, the Executive Vice President 

stated 1hat, Wfhe Board and Loan Committee members were unaware [the last in. first out 

language] had been inserted into the participation agreement and stated they did not approve this 

clause at all." The tone of the letter was respectful but direct as she advised tbat the Bank had 

cousulted with outside counsel who raised conflict of interest issues and possible "mterested 

directof> violations. The Executive Vice President further requested Defendant Jacobs' 

cooperation in hopes that they might avoid the need "to determine if there is a reportable event 

for potential [directors and officers, liability insurance coverage) as well as notice to the 

regulators by all of the banks involved." 

37. Defendant Jacobs responded vigorously by e-mail. Amoog other things, Jacobs 

stated as follows: 

[lhe Bank's attorney] makes these interested director accusations based upon his 

theory that I knew about the [last ~ first out] contract and that I should have 

complied with various Nevada requirements relating to a conflict of interest If I 

did have the advance knowledge, then I would Jegally agree. Once ~ the 

facts bear me out that I had no knowledge of this arrangement until long after the 

participation agreement had been arranged between Oklahoma and [the chief 

Page 13 of23 

78l90)_J.DOC 
Case 3:13-cv~00084 RCJ-VPC Document 140 Filed 06/05/14 Page 14 of 23 

credit officer] ..• If my recollection is faulty relating to the time sequence and 1 

was asked about participation in advance of approval by the loan committe (sic), I 

can assure you that ABSOLUTELY NOTHING was ever discussed about 

preferential treatment for CitiBank, Salina or Locust Grove. • . I do not and can 

not agree that this requires a [directors and officers] insurance claim and I take 

stringent exception to notifying regulators and bonding companies that I violated 

ANY conflicts of interest. I have to have bad knowledge in advance and you are 

sorely lacking in the ability to prove a non existent knowledge. 

38. Defendant Jacobs' strident denials are belied by the board minutes of Lakeside 

Bank of Salina, the testimony of the presidents of Lakeside Bank of Salina and Bank of Locust 

Grove, Jacobs' signature on the participation agreement, and his now-grudging admission 1hat 

he was present in the two Oklahoma bank board meetings when the issue was discussed. The 

best Jacobs can now say is that he was perhaps .. day dreaming," "looking at something else," 

"considered it inconsequentia4" or was "in the bathroom." 

39. Carson River's Board of Directors believed Defendant Jacobs' denials of 

knowledge of the preferential arrangement and pursued no further investigation. Neither was 

any report made to regu)ators, nor was any sort of claim pursued on the Bank's directors and 

officers liability~ or fidelity bond. 

b. The City Bank Participation and Bulk Value Appraisal 

40. Even with the Oklahoma loan participations procured in September 2007, the 

Bank still needed another $500,000 participant in order to bring the loan into lending limit 

compliance. Defendant Glenn tried several of his banking contacts, but no one was interested. 

With few, if any prospects, City National (the current lender to Merrill Construction) agreed to 

participate the remainder of the }08J4 but it also requested that it be granted last in, first out 

protection. City National was a willing participant because the participation arrangement. even 

without the last in, first out arrangement. reduced its exposure on its loan from $3.500,000 to 

$500,000. 

Page 14of23 

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41. City National, however, insisted that a bulk value appraisal be obtained before it 

would agree to participate. Hence, Defendant Glenn ordered a bulk value appraisal. That 

appraisal. as of November 5, 2007, and which was received by Glenn within days thereafter, 

valued the property at $3,050,000, or an amount that· was $950,000 less than the $4,000,000 

approved loan amount and almost $2 million less than the retail appraised amount 

42. Defendant Glenn chose not to share the results of this appraisal with anyone else 

on the Senior Loan Committee or the Bank's Boaro of Directors. 

43. Had this type of appraisal been relied upon to underwrite the loan, as it should 

have been, the Defendants would have seen that the loan-to-value ratio was 131%, 1Br in excess 

of the maximum permitted under the Bank'sloan policy and by federal regulation. The loan had 

been approved, but there was nothing that prevented the Senior Loan Committee from 

withdmwing approval and halting funding of the loan. 

44. Notwithstanding this clear red flag, the loan to Merrill Construction was closed 

and funded on or about December 19, 2007. Had all the relevant information regarding the 

preferential rights to repayment to the two Oklahoma banks and the bulk value appraisal been 

known to the entire Senior Loan Committee the loan approval would have been reversed, the 

loan would have never been funded, and the losses would have been averted. Hence. the 

accumulated conduct of the Defendants Jacobs and Glenn were substantial factors in proximately 

causing the losses BS50Ciated with the Merrill Construction loan. 

e. The Collection Efforts 

45. The Bank sold the collateral securing the debt at a foreclosure sale conducted on 

January 14,2010. The Bank made a credit bid of$1~800~000 and was the only bidder at the sale. 

In a letter to the loan participants, the Bank's new chief credit officer, stated as follows: 

Page 15of23 ~l_l.DOC 
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We now have a six month period to seek a deficiency if we wish. •• [W)e suspect 

the enforcement of a large judgment will result in a bankruptcy filing and that the 

deficiency effort is not worth the additional fees/costs. 

Because a deficiency judgment is necessary under Nevada law in order to pursue guarantois, lliis 

was tantamount to saying the guanmties were worthless. 

S. The Gross Negligellce and Breaches of Fiduciary Duties 

46. The Defendants Jacobs and Gleno, acting jointly and in concert with one another 

and with the other members of the Senior Loan Committee, approved the Merrill CoDStmction 

loan on August 23, 2007 despite at least the foDowing: 

• No bulk appraisal of the 25 lots was obtained prior to the loan approval, in violation of 

the Bank's loan policy and baDldng regulations, under circumstances where lot sales in 

the market area had slowed, the boiiOwer was experiencing financial trouble and the 

prior lender wanted out of the loan, and the likelihood that foreclosure would be required 

was high. 

• The appraisals relied upon by the Defendants Jacobs and Glenn and the other members of 

the Senior Loan Committee were retail in nature. 

• Bank president, Dan Dykes, previously warned about the accumulation of too many lot 

loans end made this point again in the August 23nl Senior Loan committee meeting. 

• Contemporaneous Carson City news accounts reflected record residential foreclosure 

rates, declining values, historically slow sales rates, and other disquieting news. 

• The guarantors, financial statements reflected a $3.7 million net wol'fh, but that was 

composed almost entirely of property that was exempt from execution or was illiquid, 

reported equity in real estate and miscellaneous personal items. 

Following approval of the loan, but before funding Defendants Jacobs and Glenn engaged in the 

following conduct: 

• Defendant Jacobs subordinated the interests of Carson River in favor of his Oklahoma 

banking interests in breach of his duties of loyalty and care. He did so by voting to 

approve the two Oklahoma bank's participations on terms that granted them preferential 

rights to repayment and without disclosing this clear conflict of interest to anyone other 

than Defendant Glenn. 

• Defendant Glenn helped facilitate the preferential rights to repayment by the two 

Oklahoma banks by revising the loan participation agreement with the preferential rights 

and signing on behalf of Carson River, all without advising other members of the Senior 

Loan Committee or the Board of Directors. 

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Defendant Glenn ordered and received a bulk value appraisal after loan approval, but before 

execution of any contract documents and funding of the loan. The appraisal clearly demonstrated 

the ooUateral was of inadequate value to cover the approved loan amom~ yet Defendant Glenn 

chose not to share the results of this appraisal with other members of the Senior Loan Committee 

thus facilitating the closing and funding of the loan. 

d. The Damages 

47. The estimated losses associated with the Merrill Construction loan proximately 

caused by the actions and failures to act of the Defendants Jacobs and Gleun as members of the 

Seoior Loan Committee are approximately $2,000t000. 

VI. CLAIMS FOR RELIEF 

(CoUDt ODe-Gross Negligeaee Based oa Breaeh of Fiduciary Duty of Care) 

48. The FDIC realleges and incoipOrates by reference each of the allegations 

contained in paragraphs 1-47. 

49. Defendants Jacobs and Glenn, as directors and officers of the Bank had fiduciary 

obligations to the Bank. As fiduciaries, Defendants Jacobs and Glenn had a duty of care to act as 

a reasonably prudent person would act in a similar position under similar circumstances. 1be 

duty of care includes an obligation to act on an informed basis. The failure to act as a reasonably 

prudent person on an infonned basis constitutes ordinary negligence. 

50. Officers and directors of a bank are liable if their conduct is grossly negligent. 12 

U.S.C. §182l(k). Gross negligence is much more than ordinary negligence. Gross negligence 

demonstrates a failure to exercise even a slight amount of care. Gross negligence is very 

aggravated and extreme negligence that demonstrates that the person gave little. if any thought to 

Page 17 of23 

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the consequences of his behavior. The failure to exercise a slight amount of care may be proved 

by an accumulation of ordinary acts of negligence. 

51. Although the conduct of Defendants Jacobs and Glenn is described in detail 

abovet the conduct by Defendants rendering them liable includes, but is not limited 1o, the 

following: 

Jacobs 

52. Voting to approve the Merrill Construction loan to a troubled borrower on a 

residential real estate project whose loan was rejected for renewal by a prior lender, based on an 

appraisal that did not meet Bank and regulatory requirements resulting in violations of loan-to--

value requirements and otherwise failing to satisfy the fiduciary standard of due care. 

53. Failing to review or acquaint himself with the Bank's loan poUcies or take.steps 

to familiarize himself with the local real estate market. 

54. Failing to require the use of an appmisal that took into account appropriate 

deductions and discounts given the circumstances of 1he troubled loan the Bank was 

retinancmg. 

55. Failing to adequately analyze financial information associated with the secondary 

souroes for repayment for the above-described loan. 

56. Failing to recognize the increasing risk to the Bank with the approval of the 

Merrill Construction loan, and subsequent funding of the Joan. particularly in view of the 

crumbling IeSidential real estate market and warnings ftom the Bank's president about the 

accumulation of too many lot loans. 

57. Failing to disclose to the other members of the Senior Loan Committee and the 

Board of Directors all material facts surrounding the preferential participation rights of Jacobs' 

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Oklahoma banks in the Merrill Construction loan and thus subordinating the interests of Carson 

River to the two Oklahoma Banks. 

58. The decisions made by Defendant Jacobs as described above were not good faith 

business decisions made on an informed basis and deliberate manner. As a direct and proximate 

result of the grossly negligent breach of his fiduciary duty of care, Defendant Jacobs' actions and 

inactions were a substantial factor in proximately causing the losses sustained by the Bank on the 

Merrill Construction loan. 

Glean 

59. Recommending and voting to approve the Merrill Constroction loan to a 1roubled 

boaower on a residential real estate project whose loan was rejected for renewal by the prior 

lender, based on an appraisal that did not meet Bank and regulatory requiremems resulting ·in 

violations ofloan-to-value requirements and otherwise failing to satisfy the fiduciary standard of 

due care. 

60. Failing to require the use of an appraisal that took into account appropriate 

deductions and discounts given the circumstances of the troubled loan the Bank was retina:ncing. 

61. Failing to adequately analyze financial information associated with the secondary 

sources for repayment for the above-described loans. 

62 Failing to recognize the increasing risk to the Bank with the approval of the 

Merrill Construction loan and subsequent funding of the loan, particularly in view of the 

crumbling residential real estate market and warnings from the Bank's president about the 

accumulation of too many lot loans. 

63. Failing to disclose to the other members of the Senior Loan Committee and the 

Board of DirectoiS all material facts surrounding the preferential participation rights of 

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Defendant Jacobs~ two Oklahoma banks in the Merrill Construction loan and the fact that this 

subordinated the interests of Carson River to the two Oklahoma banks. 

64. Failing to disclose to the other members of the Senior Loan Committee and the 

Board of Directors about 1he results of the bulk value appmisal obtained in November 2007. 

65. The decisions made by Defendant Glenn as described above were not good taith 

business decisions made on an informed basis and deliberate manner. As a direct and proximate 

result of the grossly negligent breach of his fiduciaty duty of care, the Defendant Olenn?s actions 

and inactions were a substantial factor in proximately causing the losses sustained by the Bank 

on the Menill Construction loan. 

(Count Two-Gross Negligence Against Defendant Jacobs Based on Breacb of Fidueiary 

Duty of Loyalty) 

66. The FDIC reaJleges and incorporates by reference each of the allegations 

contained in paragraphs 1-65. 

67. As a fiduciary, Defendant Jacobs also had a duty of loyalty to the Bank that 

imposed upon him an obligation to act in good faith, with honesty, and to make full disclosure. 

He was also obligated to exercise his powers in good faith with a view to the interests of the 

corporation. 

68. Defendant Jacobs breached his duty ofloyalty by failing to fully disclose to all the 

members of the Senior Loan Committee and the Board of Directors the material facts 

surrounding the preferential participation rights that he voted to approve on behalf of two of his 

Oklahoma banks in the Merrill Construction loan and the fact that this subordinated the interests 

of Carson River to the two Oklahoma Banks. 

69. The decisions made by Defendant Jacobs not to disclose the conflict of interest 

regarding the superior interest granted to his two Oklahoma to the prejudice of the Bank as 

78»01_ J.l)()C 

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Case 3:13-cv-00084-RCJ-VPC Document 140 Filed 06/05/14 Page 21 of 23 

described above was not a good faith business decision made on an informed basis and deliberate 

manner. As a direct and proximate result of the grossly negligent breach of his fiduciary duty of 

loyalty, the· Defendant Jacobs' actions and inactions were a substantial factor in proximately 

causing the losses sustained by the Bank on the Merrill Construction Joan. 

VB. STA11JTE OF LIMITATIONS 

70. The claims asserted herein agaiDst Defendant Glenn might otherwise be barred by 

applicable statutes of limitation, except that prior to the expiration of the applicable limitations 

period the FDIC and Defendant Glenn entered into an agreement to suspend the running of the 

statute of limitations. In aooorclance with the provisions of that agreement, the claims asserted 

herein against Defendant Glenn are deemed to bave been filed as ofFebmaey 22, 2013. 

VID. JURY DEMAND 

71. The FDIC respectfully demands a trial by jury for all issues in this case that are 

triable by the jury. 

IX PRAYER 

WHEREFORE, the FDIC prays for relief as follows: 

A. For a joint and several judgment awarding compensatory and consequential 

damages (together with prejudgment interest and post judgment interest) against Defendants 

Jacobs and Glenn for their grossly negligent breaches of fiduciary duty associated with the 

Merrill Construction loan; 

B. For its costs of suit against Defendants Jacobs and Glenn; and 

C. For such other and further relief as this Court deems just and proper. 

Page21 of23 
(b)(6) 

Case 3:13"cv-00084-RCJ"VPC Document 140 Filed 06/05114 Page 22 of 23 

Respectfully submitted, 

Gregory F. Wilson, NV No. 2517 

0RBOORY F. WILSON & AssOCIATES, P.C. 

1495 Ridgeview Drive, Suite 120 

Reno,Nevada 89519 

Telephone: 775.360.4910 

Facsimile: 775.360.4911 

----- -- I 

SPROUSE SHRADER SMrm, PLLC 

Joel R. Hogue, TX No. 09809720 

701 S. Taylor, Suite 500 

Amarillo, Texas 79101 

Main: (806) 468"3300 

Fax: (806) 373-3454 

(b)(6) _________ _,.._ ______ ___. 

By: 

182901_l.OOC 

lsi Joel Ji. Hogue. 

Joel R. Hogue 

ATTORNEYS FOR PLAINTIFF 

FEDERAL DEPOSIT INSURANCE CORPORATION As 

RECEIVER OF CARSON RivER CoMMUNITY BANK 

Page22 of23 
Case 3:13-cv-00084-RCJ-VPC Document 140 Filed 06/05/14 Page 23 of 23 

CERTIFICATE OF SERVICE 

I hereby certify that on this 5th day of June, 2014, a copy of the foregoing has been sent 

first class and electronic mail to: 

James M. Jacobs 

(b)(6) ___ 1--- (b )(6)..... ...1,.-J ......... -........... -.......... -.......... -....... -....... --L...----, 

Brett Sutton 

StnTON HAGUE LAW CORP., PC 

9600 Gateway Dr., Suite 100 

(b )( ---a:::~::: ::.. __ ·NY ___ s9_s_21 _ ____J 

Daniel Dvkes. Pro Se 

(b)(6) -=~-~ II 

(b)(6).................... .. . 

(b)(6)__ I Byron Waite, Pro Se 

(b)(6) __ t:, ===------_J 

Richard MeCole, Pro Se 

(b)(6) ..... f I 

(b)(6) ................... J ...... .... I ............... 

7829{)1_t.DOC 

By: Is/ Liz L '&perance 

Liz L 'Esperance, an employee of 

SPROUSE SHRADER SMITII, PLLC 

Page23 of23