memorandum in opposition to summary judgment

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I� THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT

I� A�D FOR WALTO� COU�TY, FLORIDA

CIVIL DIVISIO�

COASTAL COMMU�ITY BA�K,

Plaintiff, Case �o.: 09CA001577

vs.

JOH� CARROLL, JODIE CARROLL,

CHAMBERS STREET BUILDERS, I�C.,

TAU�TO� TRUSS, I�C., and DEPARTME�T

OF THE TREASURY I�TER�AL REVE�UE

SERVICE, et al

Defendants.

____________________________________

JOH� CARROLL,

Counter-Plaintiff

vs.

COASTAL COMMU�ITY BA�K and

MIKE BYERS

Counter-Defendants.

____________________________________________/

DEFE�DA�T and COU�TER-PLAI�TIFF JOH� CARROLL’S

MEMORA�DUM I� OPPOSITIO� TO

COASTAL COMMU�ITY BA�K and/or CE�TE��IAL BA�K’S

SUPPLEME�TAL MOTIO� FOR SUMMARY JUDGME�T

Defendant and Counter-Plaintiff John Carroll (“Carroll”), pursuant to Florida

Rule of Civil Procedure 1.510(c) moves for an Order Denying Coastal Community

Bank’s (“Coastal”) and/or Centennial Bank’s (“Centennial”) Supplemental Motion for

Summary Judgment for the following reasons and shows:

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1. To Centennial’s Paragraph 1, Carroll confirms that this is an accurate

representation of the facts of the case.

2. To Centennial’s Paragraph 2: a) Carroll disputes this, but has no specific response because

discovery continues.

b) Carroll alleges that there is a written agreement or

representation which supports Carroll’s defenses and counterclaims. Discovery is not

complete in this case, but already the record evidence shows that:

1) Counter-Defendant Mike Byers, Senior VP testified during deposition that

after the March 21, 2009 maturity date on the note which Centennial seeks to sue upon,

Coastal approved Carroll’s construction loan, and engaged Roger Clark Tax Specialist to

facilitate a subordination of Federal Tax Lien.

Q. How could you find out when we met Mr. Clark, what day

it was?

A. I'd probably go back to some notes or something.

Q. Do you keep any kind of a calendar?

A. I do.

*An e-mail from Byers to Carroll memorializes that the date was March 21, 2009 (Exhibit A). 2) Coastal Community Bank chose Roger Clark themselves to facilitate the

subordination of Federal Tax Lien:

Q. Do you remember how you and I came to meet Mr. Clark?

A. I guess we went down to his office and met him and--

Q. Do you know who introduced us?

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A. Roger was recommended by Russell.

Q. Mr. Clark is pretty nice, huh?

A. Yeah, he's a good guy.

Q. Would you say that we interviewed or we talked with him

for about an hour?

A. To the best of my recollection.

Q. Did he seem pretty knowledgeable?

A. Yeah, yeah. Of course, I'm not an IRS guy, though. I've

never dealt with the IRS. But from what I heard, he seemed

like he knew what he was doing.

Q. Do you think that Russell told us he was the best in Bay

County?

A. I don't remember that, John. But there's obviously a

reason why he recommended him. He had confidence in him for

some reason.

Q. You don't remember Russell telling us anything about his

qualifications?

A. Not specifically, other than he felt good about Roger

and that he was good at what he does.

3) Byers knew what a subordination of Federal Tax Lien was and why we

needed to achieve one for this loan:

Q. Okay. What is a subordination?

A. A subordination is where the IRS would relinquish their

lien to give the bank a position in front of them.

Q. Then the IRS would be able to put their lien behind the

additional new mortgage?

A. Correct.

Q. So that the bank would be in first position and the IRS

would be subsequent to?

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A. Right, subordinate, yeah.

4) August 10, 2009, 5 months after the maturity date of the note, Coastal’s

Senior Executive Vice President, Mike Byers continued to approve of the construction

loan if the parties could obtain the subordination of Tax Lien (Exhibit B). Excerpts:

“Put that energy and time into beating the IRS and finding work that pays or better yet a partner to buy it back with or save funds to service debt after we get IRS out and could sell it back to a new corp that maybe is owned by a family member. The bank can sell it to whoever and the IRS can't do anything unless you bought it back personally.” “I think Terry (Chairman of Coastal Community Bank), if handled correctly or presented correctly by you, would agree to somehow agree and document that based on getting our common enemy, the IRS, out as quickly as possible, that we'd sell it back the day we get it or wr finance to the winning bidder at the sale. The IRS won't show.” “I have never had someone show the character you have shown with the cards you're dealt. And we (Russell) hear you loud and clear. But unfortunately the FDIC and IRS don't care about character anymore.” “But John we won't look under rocks or play dirty, you're not the problem and neither are we, its the IRS. Put that offensive and energy toward them. Call the news. Glenn Beck would luv u. If they are out, everything changes.” 5) 16 days later, on August 26, 2009 Byers came to find that the IRS had

approved the subordination of Federal Tax Lien, and that Roger Clark was ordered by the

IRS to set up the closing and send them a HUD1 for signatures:

Q. Do you know what that document is dated?

A. It looks to be dated 8/26/2009, 7:23 a.m.

Q. What is the substance of that document?

A. It looks like -- it's stated the IRS approved the

subordination, that you had gotten a call from the

technical advisory unit in Jacksonville and that you had

called Roger from our team, I'm not sure who you're

referencing there, and he has made contact with the service

to coordinate a closing.

Q. Who was that written to?

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A. That would be written to me.

Q. By e-mail?

A. Correct.

*The document which memorializes this is attached as (Exhibit C).

6) Byers purposefully delayed sending the information to the IRS, but Carroll

stayed after him because the IRS Technical Services Division was in constant contact

with Carroll and anticipating the closing:

Q. Here you go. If you could just glance over that document

and tell me what is the substance of that document, please.

A. It looks like it's just an e-mail to me, copy to Roger

Clark, from you on August 27th, 2009, asking for an updated

HUD 1 for the existing payoff on the first. And then I

guess the second of 500,000.

*The document which memorializes this is attached as (Exhibit D).

7) Byers continued to delay sending the information to the IRS, but Carroll


with Carroll and anticipating the closing:

Q. If you could, just read that last sentence on there. I

think I said, Mike.

A. Which last sentence here, this one?

Q. Right here.

A. This is in reference to the e-mail from 9/8, which is

the one we've already went over. But basically, Mike, I

need a payoff letter sent to this e-mail ASAP. The IRS is

waiting and pressuring me for it. Mr. Clark will be waiting

as well, John Carroll.

*The document which memorializes this is attached as (Exhibit E).

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8) Byers continued to delay sending the information to the IRS, but Carroll


with Carroll and anticipating the closing. This time Byers acted upon the IRS’ request by

involving Russell Enfinger, Chief Compliance Officer for Coastal Community Bank:

A. Okay. It's an e-mail from you to me or to me CC'd you.

I'm not sure. It doesn't say who it's from on here. I need

a payoff letter sent ASAP. The IRS is waiting.

Q. Did I write my name on that anywhere or is my name on

there?

A. Yeah, John Carroll.

Q. Do you know if you acted on that letter; did you issue

the payoff?

A. I don't believe I would have been able to being that the

loan was in default at the time.

Q. Okay. Who would be able to issue that payoff?

A. That would either have to come through -- probably

Russell, I guess, would have been the final answer.

Q. What is Russell's position?

A. He is the chief credit officer. So he is over the entire

loan department.

*The document which memorializes this is attached as (Exhibit F).

9) Mr. Russell Enfinger testified that he took action on issuing the payoff’s to the IRS for the subordination and construction loan:

Q. If you could, this one is called number 71 on the Bates

Stamp, could you try and describe that document?

A. That is an e-mail from Roger Clark to me dated September

the 10th, 2009.

Q. If you need a second to review it that would be fine. I

was going to ask you what do you think the substance of

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that e-mail was. Was he asking you something or was he

telling you something?

A. Well, it says I think the IRS would probably require

this on bank letterhead. My fees, if Mr. Carroll does not

pay it today, are $2,900 for the three tax returns and

could be an additional $900 for the IRS on the

subordination of the federal tax lien.

*The document which memorializes this is attached as (Exhibit G). 10) Mr. Enfinger produced a document for the IRS which showed that the note

Centennial seeks to foreclose upon was replaced by a new loan, with new terms, a new

loan number, and a new principal balance. That document shows that the new Loan

number was 2570488350 which had a principal balance of $663,606.24 (Exhibit H).

11) The loan number Centennial seeks to foreclose is 2570488360 and has a

principal balance of $570,528.32 (Coastal’s Foreclosure Complaint).

12) Exhibit H is firm evidence that Coastal committed fraud against Carroll,

the IRS and this Court. That payoff letter which shows a new loan number, principal

balance and the fact that it is a construction loan, not the lot loan sued upon, is dated for

September 10, 2009 which predates Coastal/Centennial’s 1st Amended Complaint which

was filed on November 9, 2009.

13) This case held its first hearing on November 3, 2009 at 3:00 PM in Judge

Green’s chambers in DeFuniak Springs. During that hearing, Frank Baker informed

Judge Green that there were indeed future modifications to Carroll’s loan, but that

Coastal wished to pursue only the March 2008 modification. Judge Green asked

Coastal’s counsel, Frank Baker if he heard him correctly, and Mr. Baker replied directly

to Judge Green that indeed Coastal freely admits that there have been modifications

subsequent to the March 2008 note which Coastal is suing upon.

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14) Neither the Court nor Carroll has obtained all of the documents from the

loan file at this time, but the evidence shows that the Bank’s board of directors or loan

committee not only approved Carroll’s construction loan, but also reduced that approval

to writing. The board members memorialized their approval and signed the loan

documents. Per Chief Credit Officer, Russell Enfinger, Esq.:

Q. What is the appraised value?

A. The appraised value is $1,825,000.

Q. Okay. All right. Oh, it's on the next page up. Whatever

this section is, can you describe that?

A. Okay. This is the loan amount section. And the loan

amount is for 1,069,928.32.

Q. And the last thing on this. Go all the way down to the

bottom. I'm seeing a bunch of signatures. If you could just

describe whose signatures you think those are and what they

mean or reference?

A. This is signed by Mike Byers as the loan officer. And it

appears to be some signatures from the loan committee.

There is Mr. Dubeau has signed it, Mr. Daffin has signed

it, and I honestly can't tell you -- there's a signature

over Mr. Holsenback's space, whether or not that's his, I

don't know. But it's signed over his space, so it appears

to be a signature of Mr. Holsenback, although I don't

recognize it. I don't recognize his signature. I don't know

what it looks like.

Q. How many members of the loan committee are there if you

don't mind?

A. Are there now or back then?

Q. I guess back then.

A. That was a year before I got here, so I'm not sure.

Q. Okay. All right. I'll save that question. Do you know

why they signed that; what does that signature reference?

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A. They sign those once the loans are approved in loan

committee.

*The document which memorializes this is attached as (Exhibit I).

15) Some of the record evidence recovered thus far in the case includes

evidence of the $500,000 construction loan which has been only been partially paid over

to Carroll thus far. Those recovered documents are attached as (Exhibit J).

16) While Coastal’s construction loan was $500,000.00, Carroll only received

$49,200.00 of those funds against the completed work. All the while, Coastal had a

certified inspection report from their draw inspector/appraiser Heinz Falke (son-in-law of

Coastal’s Chairman, Terry DuBose, and brother-in-law to Coastal’s Senior Executive

Vice President Mike Byers) which showed the value of Carroll’s construction

improvements in place was actually $1,030,000.00. Per Heinz Falke:

A. Okay. This one was an as-is value. Because the home is unfinished as of this particular date where I was on site,

12/21/2009, it was partially completed. So there's a

balance. This is an as-is value.

Q. How do you figure out the value of something that's not

finished?

A. We would first find the market value as completed.

Q. Okay.

A. Okay? And then we would obtain some data from a

certified, or excuse me, a licensed builder and find that

cost to complete.

Q. Got you.

A. And then deduct that from the proposed value, which

would give you an estimate of what you would need to do to

complete that home to bring it to 100 percent.

Q. Can you tell me who gave you the estimate to complete?

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A. The cost data I had was provided by James Gortemoller, a

licensed contractor.

Q. Is that in that same appraisal?

A. The cost data?

Q. Yeah.

A. His findings?

Q. Uh-huh.

A. Yes. Were estimated at $385,000 to finish to the quality

that it had started at, using the same quality.

Q. I'll write it down. I hadn't seen that yet or anything.

Would it be any problem for me to get that from you? Do I

need to subpoena that?

A. Yeah, this is client specific. I cannot release this. It

has an intended use by an intended user.

Q. Got you. Do you know approximately when Mr. Gortemoller

indicated that value to you?

A. It was provided to me in the process of completing the

appraisal, which was December 21st, 2009. So anywhere in

the week prior to that when I was gathering all the data,

it would have been provided then.

Q. And that's probably because you don't want stale

information? If he gave you a price in August, but you did

the appraisal in --

A. Correct. Everything occurred, you know, within a one

month or less timeframe from when he compiled his data and

I transferred the necessary and pertinent data into the

appraisal. All occurred I'd say within a month, I'm sure.

In the work file, we have dated, everything is dated in the

work file. So my process takes usually a week or less, so

it would be the week of the 21st of December 2009.

Q. How do you figure something like that when you don't

know how long it's going to take? If it might take James

one year, do you factor that in or project in any way?

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A. There's no projections. Projections are too uncertain.

It's the value as of 12/21/2009. The as-is value was that

number as of 12/21/2009.

Q. And that was based on the full value minus the, more or

less, cost to complete?

A. That is correct. That is the as-is value in its current

condition.

Q. What did you come up with again?

A. 1.6 million as of 12/21/2009, as-is.

Q. So I get this right, that's because you backed out

James' 385,000?

A. The estimate provided by the licensed contractor was

backed out of the value.

Q. So the --

A. Of the proposed value to give us an as-is.

Q. When did you do the proposed value; on that day?

A. As of 12/21/2009, there was a proposed value determined.

Q. That was 1,985,000 minus 385,000?

A. That is correct.

Q. Okay. So I get this right I'll keep track of this. I

think that you're almost exactly right by the way. I think

today, believe it or not, that the prices are going up

there. That's what I think. There's only a few houses left

for sale over there, at that point, but... When you go

through, did you have to go inside the house?

A. I had a walk-through. I photographed and did a walk-

through.

Q. And do you know about construction; can you tell if the

construction was okay? How do I say it? I better clarify.

Can you tell if the construction was usual I would say?

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A. Typical for the area?

Q. Yeah, typical for the area.

A. Consistent with the other homes being built?

Q. Yes.

A. Okay. Yes. Now, are you speaking of the as-is condition?

Q. Yeah, the as-is.

A. Okay. Not what has been done or what is to be done?

Q. Right, not what is to be done.

A. The as-is construction, it was typical and consistent

with the neighborhoods' building trends and whatnot. And

that's stated as such in the appraisal. Part of the

valuation process is to make sure that the home is

consistent or will be consistent with the trends in that

particular neighborhood, the building trends, and similar

quality of construction and things like that.

Q. That was around four months ago?

A. Yes.

Q. Do you know, like, do you have any reference that says

if we had already put the roof on?

A. In the photograph addenda, it will show up.

Q. Is that with you now?

A. I just have the writing. The photographs are in the

original appraisal, the work file, and the copy that the

bank would have, or I can pull up. The photograph addenda

shows interior and exterior pictures as of 12/21/2009.

Q. That's great. Do you take a lot of pictures?

A. Yes.

*That inspection report on the value of Carroll’s construction in place is (Exhibit K).

c) Centennial Bank is plainly wrong about their assertion that the IRS did not

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approve the subordination agreement. As shown in part b)

Paragraph 1, the evidence shows that Coastal approved the construction loan and

their Senior VP, Mike Byers and John Carroll met with Mr. Roger Clark to obtain the

subordination.

Paragraph 2, the evidence shows that it was Coastal who selected Mr. Clark.

Paragraph 3, the evidence shows that Byers knew what a subordination was and

why we needed to obtain one from the IRS.

Paragraph 4, the evidence shows that long after the March 2009 maturity date of

the loan, Coastal approved of the efforts to obtain the subordination so that the

construction financing could close.

Paragraph 5, the evidence shows that Byers and Coastal knew that the IRS did

approve the subordination.

Paragraph 6, the evidence shows that Byers and Coastal attempted to stall Carroll,

the IRS and the closing.

Paragraph 7, the evidence shows that Byers and Coastal continued to attempt to

stall Carroll, the IRS and the closing.

Paragraph 8, the evidence shows that Byers finally involved Russell Enfinger,

Chief Credit Officer for Coastal to deliver the loan closing package to the IRS.

Paragraph 9, the evidence shows that Russell Enfinger provided a falsified loan

closing package to the IRS.

d) The evidence shows that Centennial’s assertion in paragraph 2, section d)

is a non issue and has been made in their Supplemental Motion for Summary Judgment in

bad faith.

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e) The evidence shows that Centennial’s assertion in paragraph 2, section e)

is a continued attempt to commit fraud against Carroll and this Court for the reasons

described in Carroll’s section b) and c) above. It’s very important to note however that

per Coastal’s own internal appraisals, Carroll’s equity in the completed Lot 24 is enough

to satisfy not only Coastal/Centennial’s mortgage, but also the IRS lien in its entirety.

3. Based on the foregoing and the fact that substantial discovery continues,

Centennial Bank is not entitled to final summary judgment over Carroll’s affirmative

defenses and counterclaims.

Additional Evidence of Fraud committed against Carroll, the IRS and this Court

4. Throughout this case Carroll has consistently pled that Coastal and Byers

committed Frauds against Carroll.

5. Carroll pled that Coastal and Byers used fraud to induce Carroll to sign the

November 2007 and March 2008 extensions.

6. Carroll also pled that Coastal and Byers committed fraud in the

performance of the November 2007 and March 2008 extensions.

7. Carroll also pled that Coastal and Byers committed a failure of

consideration, that failure is described by Carroll in the foregoing, and the record

evidence shows there remains a genuine issue of material fact regarding same.

8. Carroll also pled that Coastal and Byers Breached the Implied Covenant of

Good Faith and Fair Dealing in the performance of the loan at issue. The record evidence

shows that Byers and Coastal have engaged in unconscionable acts or practices as

implied by Florida Law by luring Carroll and his businesses into agreements which they

did not intend to honor.

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9. Carroll also pled that Coastal and Byers forced Carroll into Moral and

Economic Duress in their inducements and performance of the loan at issue. The record

evidence shows that Carroll’s actions were involuntary and not an exercise of his free

will by the time of the March 2008 endorsement of the note Coastal/Centennial seeks to

sue upon.

10. Carroll also pled that Coastal/Centennial and Byers should be held to

Promissory Estoppel. The record evidence meets Carroll’s burden of showing there

remains a genuine issue of material fact on this claim.

11. Carroll also pled that Coastal and Byers should be held to Equitable

Estoppel. The record evidence meets Carroll’s burden of showing there remains a

genuine issue of material fact on this claim. Coastal and Byers representations were

contrary to the current state of affairs; Carroll relied upon those misrepresentations and is

suffering detriment caused by the change of position as a result of the representations and

his reliance thereon.

12. Carroll also pled that Coastal/Centennial should be barred from enforcing

this action through Laches. The record evidence shows that Coastal, Byers and Chairman

DuBose intentionally slept on their right to initiate this action in order to be enriched by

Carroll’s equity infusions and enhancements to the value of the collateral.

13. Carroll also pled that Coastal came to the Court with Unclean Hands. The

record evidence shows that Byers and Coastal’s actions in this matter are condemned by

honest and reasonable people; the default and foreclosure would not have occurred but

for Coastal and Byers unclean hands; Coastal seeks a remedy but its inequitable conduct,

constituting unclean hands, bars the granting of relief which Coastal/Centennial seeks.

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14. Carroll also pled that the Plaintiff committed the act of Waiver. The

record evidence shows that Coastal engaged in conduct that constituted a waiver of their

rights under the agreements in place as implied by Florida Law. By reason of said

waiver, Carroll is excused from further performance of the obligations under the alleged

March 2008 contract at issue herein.

15. Carroll also pled Anticipatory Repudiation. The record evidence shows

that Carroll and Coastal had an oral contract with written memo’s whereby Coastal would

advance Carroll an additional $860,000.00 against Lot 24 guaranteed by the land and

home. Byers and Coastal instructed Carroll and his companies to commence construction

at Lot 24. Carroll constructed the approved residence on the land to 65% of completion.

Carroll satisfied his obligation to Coastal under the terms of the parties’ contract. Coastal

has failed to pay Carroll and his company according to Coastal’s draw schedule. Coastal

continues to refuse to close the loan and pay Carroll and his companies for their work

under the agreement. The agreement provided that Carroll and his companies would be

paid $559,000.00 for the present level of completion. Byers and Coastal’s affirmative

actions have rendered performance of the contract impossible or apparently impossible.

Coastal’s breach entitles Carroll to change his position under the contract, wiping out

Coastal’s claims against Lot 24 in this action.

16. Carroll also pled a setoff in this action. The record evidence shows that

after the institution of the amended agreement, Coastal falsely and fraudulently

represented to Carroll that it had approved and intended to close the enhanced loan to

Carroll. In reliance on this representation and Byers instructions to Carroll, Carroll

commenced construction on Lot 24 which was already encumbered by Coastal under its

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first mortgage. Carroll has been economically damaged by Coastal’s breach of the

agreement and has a right to offset any money that may be owed to Coastal.

17. Carroll also pled the defense of Unconscionability in this action. The

record evidence shows that Carroll has enhanced the current value of Lot 24 by at least

$1,000,000.00 as a result of his sacrifices and efforts. Byers personally guaranteed

Carroll that Coastal would never seek attorney’s fees of 10% of the outstanding principal

balance. Coastal’s ambitions and attempts to acquire Carroll’s equity without paying the

full value to Carroll are unconscionable for many of the same reasons described in Judge

Charles J. Kahn, Jr.’s 1st DCA opinion filed November 17, 2009 against Coastal in

Coastal Community Bank vs. Jones. Their complaint should be barred.

18. Discovery is not complete in this case, but already the record evidence

shows that:

a) Carroll made a certified request for an accounting of the loan balance and

production of all documents contained in the loan file on July 28, 2009 (Exhibit L).

b) Coastal did not respond to the certified request for accounting.

c) Instead, Coastal immediately began misappropriating funds from Carroll’s

loan into the bank account of bank insider and long time associate of Chairman DuBose,

James Gortemoller to cover his past due loan payments (Exhibit M).

d) Carroll served several requests for production upon Coastal through

Florida Rule of Civil Procedure 1.350, but Coastal withheld the documents.

e) Carroll filed a Motion to Compel the Production of said Documents, and 8

minutes prior to the January 8, 2010 hearing on the Motion, Coastal faxed Judge Green

what it purported to be a complete list of the documents from Carroll’s loan file along

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with a privilege log (Exhibit N).

f) The record evidence shows that Coastal had the inspection report of

Carroll’s construction in place (Exhibit K) in their possession at the time they faxed their

documents to Judge Green, but they purposefully omitted that evidence from their

documents and privilege log.

g) That inspection report, along with the other evidence in record, shows that

Coastal was over $400,000.00 behind in its payments to Carroll as of the time of the

filing of their 1st Amended Complaint.

h) The construction loan statement Russell Enfinger, Esq. transmitted to the

IRS (Exhibit H), shows an unexplained $100,000.00 increase in Carroll’s principle due.

There is no record evidence that explains this fraud which Coastal committed against

Carroll, the IRS and this Court.

i) The record evidence and future evidence which will be developed upon

completion of discovery in this action, shows that Coastal’s key executives and

construction draw inspectors purposefully delayed this action while Carroll continued to

improve that value of the subject property by over $1,000,000. Those key individuals

included no less than:

1) Senior Executive Vice President, Mike Byers

2) Chief Credit Officer, Russell Enfinger, Esq.

3) Construction draw inspector and certified appraiser, Heinz Falke

4) President of Coastal Community Insurance, Anthony DuBose

5) Loan Officer, Dustin Stokesberry

6) Coastal and Centennial’s Chief Counsel, Frank A. Baker, Esq.

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7) Board of Director, Steve Counts

8) Loan Officer, Daniel Jones

9) Assistant to the Chief Credit Officer, Lisa Whitman

10) Assistant to the Executive Vice President, Paula Moravec

11) Coastal Community Chairman of the Board, Terry DuBose

12) Assistant to the Chairman, Becky

13) Executive Vice President Coastal/Centennial, Troy Campbell

j) Carroll has not deposed James Gortemoller yet in this action, but the

record evidence shows that Gortemoller, Byers, DuBose and other unknown co-

conspirators combined their efforts to misappropriate over $10,000 of Carroll’s

construction loan proceeds and deposit those into Gortemoller’s accounts at Coastal

Community Bank. Carroll continuously held the building permit for the project and

worked the project everyday during the period the Counter-Defendants were charging

Carroll’s construction loan for Gortemoller’s fraudulent invoices (Exhibit O)(Exhibit M).

l) Byers testified during deposition that he personally signed off on the

misappropriations to Gortemoller:

Q. Does Mr. Gortemoller have any mortgages with Coastal

Community Bank?

A. Yes.

Q. Okay. I'm going to reserve those other questions. There

was an entry that we looked at a few minutes ago where

James Gortemoller turned in a bill for work he had

performed on lot 24. Do you remember him turning in any

invoices for lot 24?

A. Yeah, I remember him bringing in invoices.

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Q. Do you think that you okayed the payments of any of

those invoices?

A. I'm sure I okayed the ones that have my signatures on

them.

*Those documents are memorialized as Exhibit M m) Carroll’s loan principal balance ballooned over $100,000.00 with no

explanation. During deposition Byers explained that the loan statements Carroll received

which showed the balance reduced by $100,000.00 at the time were correct (Exhibit P).

Per Byers:

Q. If I was going to present a preliminary HUD or

preliminary payoff to the IRS, how accurate would a loan

statement from that time period be?

A. It depended on what was in the works. There may have

been something else out there that just hadn't gotten

posted to the loan yet. So fairly accurate.

Q. Those loan statements that come, do they tell you the

payoff on there or do they tell you the outstanding

principle balance?

A. They'll give you the outstanding principle balance. And

I believe they may give the interest due to that point, but

I'm not sure.

Q. Okay. Would it be reasonable for a customer to rely on

those?

A. Yes, fairly reasonable.

Q. Okay. What are some of the things that might not show up

on something like that; are there other things that could

have...

A. Any costs that had been incurred by the bank. It could

have been legal fees. Any sort of fees that, you know,

would have been on there. So when we give you a payoff

date, it's usually an as-of date.

Citations of Law

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19. In regard to D’Oench-Duhme:

a) Carroll first reminds the Court that discovery is not complete and that

Carroll has outstanding Motions against Coastal/Centennial for violating Florida Rules of

Civil Procedure regarding discovery. Centennial/Coastal cannot rest on the fact that

Carroll has not recovered 100% of the evidence in this case while it violates Florida’s

discovery rules.

b) Carroll reminds the Court that nowhere in D’Oench appear the elements

numbered 1 through 4 that Centennial claims are necessary. Further D’Oench makes no

reference whatsoever of Title 12 U.S.C. section 1823.

c) Centennial now seeks to use a Federal Law to try and defeat Carroll’s

claims and defenses in this Florida case. The wording Centennial uses is found buried at

U.S.C. Title 12, Chapter 16, Section 1823 (e) (1). The facts of this case defeat

Centennial’s argument in that the FDIC, and their assignee Centennial, acquired Coastal

with the pre-receivership liability and obligation to fund after this case was commenced,

and were completely apprised of all of the loan conditions prior to the assumption.

d) The evidence in record already recovered shows that the note which

Centennial/Coastal seeks to sue upon was replaced by a new note prior to the

receivership, that the Board of Directors voted upon it, approved it, signed their

signatures to it and commenced funding of it prior to purchase and assumption by

Centennial. Coastal/Centennial cannot revert back to an extinct note in order to seek

recovery by attempting to circumvent Carroll’s exceptions to D’Oench found in Howell v

Continental Credit Corp., 655 F2d 743 (7th Circuit 1981); Lassiter v Resolution Trust

22

Corp., 610 So. 2d 531 (Fla 5th DCA 1992) and Riverside Park Realty Co. v Federal

Deposit Inc. Corp., 465 F. Supp 305 (M.D. Tenn. 1978)

e) Frank Baker, Esq. who was a Board of Director for Coastal, general

counsel for Coastal and remains as attorney for Centennial comes to this Court with

unclean hands in that he has deliberately impeded Carroll’s recovery of the documents

needed to prosecute his counter-claims and defenses in this case, while simultaneously

attempting to avoid Carroll’s defenses through D’Oench.

f) Further, Carroll was at Coastal’s headquarters for 3 of the first 18 hours

that Coastal was being secured by the FDIC during the assumption by Centennial, and he

exchanged documents with the FDIC investigators which satisfied D’Oench. Those

investigators will be deposed in this case as discovery continues.

g) The written agreements Carroll has recovered thus far in his limited

discovery have all come directly from Coastal’s loan file. Some of which were certified

by Coastal’s Chief Credit Officer, Russell Enfinger, Esq. for delivery directly to the IRS.

As such, undoubtedly the Internal Revenue Service Technical Advisory Unit special

agent Larry McTaw and Revenue Officer Wanda Waters will both be deposed as

discovery progresses.

20. The foregoing facts defeat Centennial’s reference to D’Oench, Smania v

Mundaca and Sunchase v Sunbelt.

21. Centennial cannot rely on Savers v Amberley. Discovery must continue

prior to a final hearing on Carroll’s defense and counter-claims related to Coastal’s

Breach of Implied Covenant of Good Faith and Fair Dealing. The evidence in record also

shows that the Board and Loan Committee approved the $1,000,000+ construction loan

23

to Carroll and signed off on same. Carroll reminds the Court that Coastal certified to the

IRS that Carroll has a construction loan on the subject property with a different account

number than the loan Centennial is suing upon. Further, Coastal’s draw inspector

testified in his deposition that the value of Carroll’s construction improvements show that

Coastal/Centennial owes Carroll at least $400,000 in draw payments. Carroll’s defenses

and counter-claims demand that Carroll would not be in default if Coastal/Centennial

would simply pay Carroll the remaining funds currently due him under the note for the

work in place.

22. Centennial seeks to win Summary Judgment over Carroll’s Defenses and

Counter-Claims by citing Krebs v FDIC. Again, Centennial’s argument is misapplied.

Per Krebs:

“Krebs correctly asserts that the D'Oench, Duhme doctrine should not apply to the assertion of defenses based on a bilateral obligation appearing in the bank's records. Twin Construction, Inc. v. Boca Raton, Inc., 925 F.2d 378, 383 (11th Cir.1991). Where the FDIC is on notice of the bank's obligations based upon the bank's records the D'Oench, Duhme doctrine is inapplicable. Krebs argues that because Plymouth signed the construction loan agreement that bilateral obligations arose. However, Krebs misconstrues the application of the "bilateral obligation" exception to the doctrine on the facts in the immediate case; it is not the existence of just any bilateral obligation that precludes the doctrine's application. The bank's "obligation," on which Krebs bases his defenses and claims must appear in the bank's records such that the FDIC is on notice of the particular obligation.”

In the case at bar, Coastal has already turned over evidence directly from the

bank’s records which shows that Carroll was approved for the additional financing, the

bank’s inspector acknowledged and certified that Carroll performed the work and is

entitled to a draw in excess of $400,000.00 and that Coastal has not made the required

payments to Carroll, the bank has misappropriated Carroll’s funds over to bank insider

James Gortemoller and Carroll as a direct result Carroll is suffering moral and economic

24

duress, therefore Carroll has met his burden under his claims for Estoppel to defeat the

entry of Summary Judgment.

23. Centennial seeks to win Summary Judgment over Carroll’s defenses and

counter-claims counts VI, VII, VIII, and IX by again citing Sunchase v Sunbelt. This

time Centennial also attempts to apply FDIC v Morley as well. Again, Centennial is

attempting to squeeze their case citations into the case at issue herein when they are not

parallel. Carroll must therefore again remind this Court that the record evidence

recovered thus far, over Centennial and Coastal’s repeated aggressive and fraudulent

Discovery responses, does not apply to the cases which they cite. Carroll has recovered

his evidence, in writing, directly from the files of the former Coastal’s, and now

Centennial’s, own loan files. All of which were found present in the official records of

the bank having been born from the minutes of the Board of Directors.

24. Centennial closes out their “Supplemental Motion for Summary

Judgment” with an argument based on the theory of an “express condition precedent”.

Centennial has not even taken the time to inform the Court on what “condition precedent”

they are arguing on behalf of. Carroll cannot hope that this Court will strike this

argument though, and therefore is left to assume that again Centennial is referring to

some alleged failure by Carroll to obtain the subordination of Federal Tax Lien. Carroll

reminds the Court that although Coastal wished Carroll had not gained approval of the

subordination, Carroll did indeed win the approval of the IRS. The evidence in record

shows that the subordination was approved. Carroll will subpoena the special agents for

the IRS, who must comply in accordance with the IRC, because the IRS is a party to this

action.

25

WHEREFORE, Carroll respectfully requests that the court enter an Order

Denying Centennial and Coastal Community Bank’s Motion for Summary Judgment; and

granting such other or further relief as is appropriate.

I HEREBY CERTIFY that a copy of the foregoing was forwarded to Frank A. Baker, Esq., 4431 Lafayette Street, Marianna, FL. 32446, counsel for Coastal, and to Paul Alan Sprowls, Asst. U.S. Attorney, 111 North Adams Street, Tallahassee, FL 32301, counsel for the IRS, and to Mike Byers 12141 Panama City Beach, FL. 32407 by fax and regular mail this 13th day of June, 2011.

Respectfully submitted,

___________________________

John Carroll Box 613524 WaterSound, FL 32461 Phone (850) 231-5616 Fax (850) 622-5618

Exhibit A

From: [email protected] To: [email protected] Sent: 4/27/2009 2:58:24 P.M. Central Daylight Time Subj: (no subject)

John,

I’ll handle #2, #3, #4 for you so get as much as you can of the rest. Meet me at the office on Thursday @ 9:00.

See you then,

Mike Byers

This e-mail may contain data that is considered confidential personal information, proprietary and non-public in nature. The information is disclosed conditioned upon your agreement that you will treat it in confidence and in accordance with applicable law to ensure that such data and information is not used, disclosed or transfered to any third party except for the limited purpose for which it has been provided and only under the condition that you will notify and cooperate with us regarding any request for information or any unauthorized usage disclosure hereof. By accepting and reviewing the Confidential Information you hereby agree to indemnify us against any and all losses, expenses and attorney's fees that we result from any unauthorized use, disclosure or transfer of this data due to your unauthorized acts or omissions. If any party other than the intended recipient receives this e-mail please notify us without delay of the erroneous delivery and return to us all data so delivered.

Exhibit B

From: [email protected] To: [email protected] Sent: 8/10/2009 11:46:10 P.M. Central Daylight Time Subj: Re: Mike it's John

John, I copied Terry's assistant, Becky, so he'll get it tomorrow and I or we will call u before I go to sleep Tuesday. She's much faster and I need that time cuz I don't have his schedule. But John we won't look under rocks or play dirty, you're not the problem and neither are we, its the IRS. Put that offensive and energy toward them. Call the news. Glenn Beck would luv u. If they are out, everything changes. Again, you and I aren't the problems. Even with the roof, or even fully completed, the IRS still holds the cards. I have never had someone show the character you have shown with the cards you're dealt. And we (Russell) hear you loud and clear. But unfortunately the FDIC and IRS don't care about character anymore. Russell did hear u on costs and sent another guy to bid today. Look, I trust you'll not use this email since I'm writing this, I respect u as a man who's handling his business and fightin but you still have time to best case scenario this deal. You've come this far, don't let 30 to 40K more over what you could do it for cheaper cloud this scenario. The bank has to dry it in and/or roof it either way. Hell let us do it! Odds are pretty good someone could prove that $ to be behind the IRS anyway and an expense to the bank. Put that energy and time into beating the IRS and finding work that pays or better yet a partner to buy it back with or save funds to service debt after we get IRS out and could sell it back to a new corp that maybe is owned by a family member. The bank can sell it to whoever and the IRS can't do anything unless you bought it back personally. I think Terry, if handled correctly or presented correctly by you, would agree to somehow agree and document that based on getting our common enemy, the IRS, out as quickly as possible, that we'd sell it back the day we get it or wr finance to the winning bidder at the sale. The IRS won't show. Remember, their brother, the FDIC, is on our ass and we can't take anymore RE either. The order, if you read it or any others, all C&D's issued to banks use the exact same language and wording, but it reads that we have to reduce Substandard and ORE each quarter by a certain %. Think about what Russell said, "we want it paid off" and "we (you and the bank) are the only ones suffering here". We're just both running out of time and workin against each other only buys the IRS more time and forces u to take a deal that doesn't help you in the long term to get them paid either. I gave you a lot of hints here that are a better plan than where we are today. Long winded but I want to be sorta clear. If you want my advice or coaching on trying one of these hints with Terry, call me or Lisa, and I'll meet you to discuss and set up a time with u and T, but it'll be Wednesday b4 I can meet you. Its worth a try and can't get any worse. If not, email me back and I'll run it by Terry as is and see what happens. I didn't copy Becky after I got to rambling. Again, this is between you and I and respect we'll keep it that way. Let me know brother. By the way, James is on hold. Mike

This e-mail may contain data that is considered confidential personal information, proprietary and non-public in nature. The information is disclosed conditioned upon your agreement that you will treat it in confidence and in accordance with applicable law to ensure that such data and information is not used, disclosed or transfered to any third party except for the limited purpose for which it has been provided and only under the condition that you will notify and cooperate with us regarding any request for information or any unauthorized usage disclosure hereof. By accepting and reviewing the Confidential Information you hereby agree to indemnify us against any and all losses, expenses and attorney's fees that we result from any unauthorized use, disclosure or transfer of this data due to your unauthorized acts or omissions. If any party other than the intended recipient receives this e-mail please notify us without delay of the erroneous delivery and return to us all data so delivered.

Exhibit C

Subj: So................. Date: 8/26/2009 To: [email protected] Saturday, June 11, 2011 AOL: A Absolute The IRS approved the subordination. I got the call, talked to the technical advisory unit in Jacksonville and confirmed. I called Roger from our team and he has made contact with the Service to co-ordinate the closing. Regards, John ________________________________________________________________ Subj: Recent Sub-Ordination contact from IRS Jacksonville Date: 8/24/2009 To: [email protected] CC: A Absolute Saturday, June 11, 2011 AOL: A Absolute Mr. Clark, I hope this note finds you in good stead. The IRS contacted me via phone today. The Agent's name is Larry McTaw, 904-665-0896. He told me that my most recent Request for Subordination is approved with conditions. He gave me a description of the conditions/exceptions and they were well founded and I agree with your approval. He asked for a revised HUD 1 closing statement which is no problem. I called your office and your assistant asked me to not communicate with him for now and that you would advise. I'll attach the completed Request for Subordination that the Agent had reviewed. Best Regards, John Carroll

Exhibit D

Subj: Lot 24 Date: 8/27/2009 To: [email protected] CC: [email protected] Saturday, June 11, 2011 AOL: A Absolute Mike, The IRS is asking for an updated HUD 1 that shows the existing payoff of the 1st, then the 2nd of 500,000. I thought it would be best to show the first without the int. due as that int. due can come from the first disbursement instead of doing a payoff of the first then putting doc stamps and fees on the whole land and construction. Please advise, John Carroll

Exhibit E

Subj: Urgent Date: 9/8/2009 To: [email protected] CC: A Absolute Saturday, June 11, 2011 AOL: A Absolute Mike, I need a payoff letter sent to this e-mail ASAP. The IRS is waiting and pressuring me for it. Mr Clark will be waiting as well. John Carroll

Exhibit F

Subj: Fwd: Urgent Date: 9/9/2009 To: [email protected] CC: [email protected] Mike, Today is the deadline to get a properly built HUD 1 to the IRS. We have presented a complete HUD1 but had to mark it as "Preliminary" because it did not have an explanation from Coastal Community Bank of their disbursement and costs at closing on the construction for completion. (LIP) Please have it e-mailed to me so I can distribute to The Service today. John Carroll ________________________________________________________________ From: A Absolute To: [email protected] CC: A Absolute Sent: 9/8/2009 12:12:29 P.M. Central Daylight Time Subj: Urgent Mike, I need a payoff letter sent to this e-mail ASAP. The IRS is waiting and pressuring me for it. Mr Clark will be waiting as well. John Carroll ________________________________________________________________ Subj: Tax Specialist Date: 9/9/2009 To: [email protected] CC: [email protected], A Absolute Mike, The IRS Technical Advisory Unit approved the Sub-ordination of Federal Tax Lien so the Construction Loan for Completion could close. This was conditional on getting the Technical Advisory Unit an updated HUD 1 and filing the 2008

returns by 9/10/09. The tax specialist retained by Coastal Community Bank rushed the returns through despite the normal deadline of 10/15/09 to comply with the IRS agreement. There is a bill for this service of $2,900.00. I trust Coastal Community Bank will pay this invoice. We have complied with all the pre-requisites the IRS has asked for, but as of now, we still do not have a written closing statement from Coastal Community Bank. I have assembled a revised preliminary HUD 1 for submittal based on the information I have. Please stay in touch with me. I have not heard any update from Coastal Community Bank since the Sub-ordination was approved and the deadline is upon us. Thanks, John Carroll

Exhibit G

Exhibit H

Exhibit I

Exhibit J

Exhibit L

John Carroll Individually and for

J.M.B., L.L.C.

and Chambers Street Builders, Inc.

Box 613524

WaterSound Beach, FL 32461

J.M.B., LLC

July 28, 2009

Coastal Community Bank

Mike Byers, City President

12141 Panama City Beach Parkway

Panama City Beach, FL 32407

Re: J.M.B.,LLC and Carroll Loan #2570488350

I am writing to you individually and on behalf of my companies, J.M.B.,LLC and

Chambers Street Builders, Inc. Please treat this letter as a “qualified written request”

under the Federal Servicer Act, which is a part of the Real Estate Settlement Procedures

Act, 12 U.S.C. 2605(e). Specifically, I am requesting the following information:

1) A complete and itemized statement of the loan history from the date of the loan to the

date of this letter including, but not limited to, all receipts by way of payment or

otherwise and all charges to the loan in whatever form. This history should include the

date of each and every debit and credit to any account related to this loan, and the nature

and purpose of each such debit and credit, and the name and address of the payee of any

type of disbursement related to this account.

2) A complete and itemized statement of all advances or charges against this loan for any

purpose that are not reflected on the loan history transaction statement provided in the

response to item #1 above.

3) A complete and itemized statement of the escrow account of the loan, if any, from the

date of the loan to the date of this letter, including, but not limited to, any receipts for

disbursements with respect to real estate property taxes for Walton County, Florida, fire

or hazard insurance, flood insurance, mortgage insurance, credit insurance, or any other

insurance product.

4) Any information regarding any purchase or charge to the account of any Vendor’s

Single Interest Insurance.

5) A complete and itemized statement from the date of the loan to the date of this letter of

any forced-placed insurance and expense related thereto that is related in any way to this

loan.


any suspense account entries and/or any corporate advance entries related in any way to

this loan.


any property inspection fees, property preservation fees, broker opinion fees, appraisal

fees, bankruptcy monitoring fees, or other similar fees or expenses related in any way to

this loan.

8) Identify the provision under the Note or other document that authorizes charging each

and every such fee against the loan of the debtor.

9) Please attach copies of all property inspection reports and appraisals.

10) A complete and itemized statement of any and all arrears including each month in

which any alleged default occurred, and the amount of each such default.

11) A complete and itemized statement of any late charges to this loan from the date of

the loan to the date of this letter.

12) The current amount needed to pay off the loan in full.

13) A full and complete comprehensible definitional dictionary of all transaction codes

and other similar terms used in any of the statements requested above.

14) A complete and itemized statement of any funds deposited in any suspension account

or corporate advance account, including, but not limited to, the balance in any such

account or accounts and the nature, source and date of any and all funds deposited in such

account or accounts.

15) A complete and itemized statement from the date of the loan to the date of this letter

of the amount, payment date, purpose and recipient of all foreclosure expenses, NSF

check charges, legal fees, attorney fees, professional fees, and other expenses and costs

that have been charged against or assessed to this mortgage.

16) The full name, address, and phone number of the current holder of this debt including

the name, address, and phone number of any trustee or fiduciary.

17) The name, address, and phone number of any master servicers, servicers,

subservicers, contingency servicers, back-up servicers, or special servicers for the

underlying mortgage debt.

18) The full name, address, and phone number of the current owner of this debt including

the name, address, and phone number of any trustee or fiduciary.

19) Copies of all servicing, master servicing, sub-servicing, contingency servicing,

special servicing, or back-up servicing agreements with respect to this account.

20) All written loss-mitigation rules and work-out procedures related to any defaults

regarding this loan and similar loans.

21) The procedural manual used with respect to the servicing or sub-servicing of this loan

22) A summary of all fixed or standard legal fees approved for any form or legal services

rendered in connection with this account.

23) A copy of the transaction history report for the debtors’ mortgage loan account, with

a detailed description of all fee codes.

You should be advised that you must acknowledge receipt of this qualified written

request within 20 business days pursuant to 12 U.S.C. 2605(e)(1)(A) and Reg X Section

3500.21(e)(1).

Please deliver by mail to:

John Carroll, Individually and as

Managing Member J.M.B., L.L.C.

President Chambers Street Builders, Inc.

Box 613524

WaterSound Beach, FL

32461

Exhibit M

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Exhibit P