Free Motion for Summary Judgment - District Court of Federal Claims - federal

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 1 of 35

APPENDIX

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 2 of 35

INDEX TO APPENDIX Declaration of Don Wagoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Exhibit A to Declaration of Don Wagoner: Prepayment Package (August 3, 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Exhibit B to Declaration of Don Wagoner: Letter from David F. Dixon to Scott G. Campbell (August 27, 1992) . . . . . . . . . . . . . . 23 Exhibit C to Declaration of Don Wagoner: Letter from William H. Wood to Jackie Gleason (September 3, 1992) . . . . . . . . . . . . . 25 Plaintiff's Responses to Defendant's first Requests for Admission . . . . . . . . . . . . . . . . . . . . . 27

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 3 of 35

IN THE UNITED STATES COURT OF FEDERAL CLAIMS PARKWOOD ASSOCIATES LIMITED PARTNERSHIP, a Washington limited partnership, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 07-742C (Judge Allegra)

DECLARATION OF DON WAGONER I, Don Wagoner, declare as follows: 1. I am a Business Program Specialist with the United States Department

of Agriculture in Olympia, Washington. In the early 1990s, and at all times relevant to this declaration, I was responsible for handling the Farmers Home Administration ("FmHA") file relating to Parkwood Associates Limited Partnership ("Parkwood"). FmHA is now known as Rural Housing Service ("RHS"). I make this declaration based on my review of RHS's official loan file. 2. On August 4, 1992, FmHA received a prepayment request from

Parkwood, dated August 3, 1992. A true and correct copy of this prepayment request, with enclosures, is attached as Exhibit A. 3. Initially, FmHA believed the request could not be processed, because

Parkwood's files were impounded by the USDA Office of Inspector General ("OIG") due to an investigation concerning Parkwood's manager, National Partnership Management, Inc. However, on August 27, 1992, the OIG Regional Inspector General

1

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 4 of 35

advised the manager's attolaaey that the files would be available for FmHA to process the prepayment request. A true and con'ect copy of a letter dated August 27, 1992, from David F. Dickson, Regional Inspector General, to Scott G. Campbell regarding National Partnership Management, Inc. is attached as Exhibit B. 4. On August September 3, 1992, FrnI-IA received Parkwood's resubmitted

prepayment request, dated September 2, 1992. A ta~ae and correct copy of Parkwood's letter dated September 2, 1992 submission is attached as Exhibit C. 5. Upon a diligent investigation into the matter, including a review of the

pertinent agency's records concenaing this matter, I am unaware of any action having been taken in response to the resubmitted prepayment request, and, upon that basis, believe that no such action was taken. I declare under penalty ofpeljury that the foregoing is true and correct. Executed on this

~,,day

~)-oo

DON

2

2

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 5 of 35

EXHIBIT A

3

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 6 of 35

4

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 7 of 35

5

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 8 of 35

6

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 9 of 35

7

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 10 of 35

8

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 11 of 35

9

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 12 of 35

10

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 13 of 35

11

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 14 of 35

12

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 15 of 35

13

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 16 of 35

14

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 17 of 35

15

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 18 of 35

16

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 19 of 35

17

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 20 of 35

18

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 21 of 35

19

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 22 of 35

20

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 23 of 35

21

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 24 of 35

22

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 25 of 35

EXHIBIT B

23

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 26 of 35

24

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 27 of 35

EXHIBIT C

25

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 28 of 35

26

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 29 of 35

IN THE UNITED STATES COURT OF FEDERAL CLAIMS PARKWOOD ASSOCIATES LIMITED PARTNERSHIP, a Washington limited partnership, Plaintiff,
VS.

No. 07-742C (Judge Allegra)

PLAINTIFF'S RESPONSES TO DEFENDANT'S FIRST REQUESTS FOR ADMISSION

UNITED STATES OF AMERICA, Defendant.
COMES NOW the plaintiff, Parkwood Associates Limited Partnership, by and through undersigned counsel, and responds to defendant's first requests for admission as follows: GENERAL RESPONSE Plaintiff denies each request for admission to the extent it is not unconditionally admitted in each specific response below. SPECIFIC RESPONSES REQUEST FOR ADMISSION NO. 1: By letter dated August 3, 1992, Parkwood submitted to the Farmers Home Administration, United States Department of Agriculture ("FmHA"), a request to prepay the March 22, 1978 loan referenced in paragraph 4 of the complaint in this case. RESPONSE NO. 1 : Denied. On August 3, 1992, Plaintiff submitted an application to the Defendant for purposes of obtaining an equity loan incentive offer as authorized by defendant's then existing prepayment statutes and regulations. See documents

PLAINTIFF'S RESPONSES TO DEFENDANT'S FIRST REQUESTS FOR ADMISSION -1

Client:939144.1

27

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 30 of 35

Bates numbered P 0569-73 and P 0575-78 produced herewith. Plaintiff denies that it submitted its August 3, 1992, application for the purpose of prepaying its March 22, 1978 loan. REQUEST FOR ADMISSION NO. 2: The document attached as Exhibit 1 (bearing bates stamp number PATT 0001028 - 0001046) is a true and correct copy of Parkwood's August 3, 1992 prepayment request referenced in Admission No. 1. RESPONSE NO. 2: Plaintiff objects to this request to the extent the phrase "prepayment request" is vague and ambiguous. Without waiving this objection, plaintiff is without sufficient information to admit or deny this request and therefore denies the same. The letter bearing the Bates range PATT 0001028 is signed by William Wood. Mr. Wood is no longer affiliated with Parkwood Associates and his whereabouts are unknown. The current general partner of plaintiff, Diana Arms Management Company LLC and plaintiff's limited partner R.F. Taplett have no personal knowledge of the documents referenced in this request for admission and therefore cannot attest to their authenticity. REQUEST FOR ADMISSION NO. 3: Parkwood's August 3, 1992 letter, referenced in Admission No. 1, stated that Parkwood wished to prepay the March 22, 1978 loan on February 3, 1993. RESPONSE NO. 3: Plaintiff admits that its August 3, 1992, letter references a proposed prepayment date of February 3, 1993. However, as stated in Response No. 1, plaintiff's intent in filing this application was to obtain an equity loan incentive offer from the defendant and not to prepay the March 22, 1978 loan. To obtain an equity incentive loan offer, defendant's then existing statutes and regulations required plaintiff to complete an application that identified a prepayment date that was at least 6 months after the date of plaintiff's application.

PLAINTIFF'S RESPONSES TO DEFENDANT'S FIRST REQUESTS FOR ADMISSION - 2

Client:939144.1

28

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 31 of 35

REQUEST FOR ADMISSION NO. 4: By letter of September 2, 1992, Parkwood resubmitted its August 3, 1992 prepayment package. RESPONSE NO. 4: Plaintiff objects to this request to the extent the phrase "prepayment package" is vague and ambiguous. Without waiving this objection, plaintiff admits that on September 2, 1992, plaintiffresubmitted an application for purposes of obtaining an equity loan incentive offer from defendant. Plaintiff denies that it resubmitted its application for purposes of prepaying its March 22, 1978 loan. REQUEST FOR ADMISSION NO. 5: The document attached as Exhibit 2 (bearing bates stamp number PATT 0001026) is a true and correct copy of Parkwood's September 2, 1992 letter referenced in Admission No. 4. RESPONSE NO. 5: Plaintiff incorporates its objection to Request for Admission No. 4. Without waiving said objection, this request is admitted. REQUEST FOR ADMISSION NO. 6: Parkwood resubmitted its August 3, 1992 prepayment package for the reason stated in its September 2, 1992 letter, referenced in Admission No. 4. RESPONSE NO. 6: Plaintiff objects to this request to the extent the phrase "for the reason stated in its September 2, 1992 letter" is vague and ambiguous. Without waiving this objection, see Response No. 4. REQUEST FOR ADMISSION NO. 7: As of February 3, 1993, Parkwood had not withdrawn the prepayment request referenced in the preceding Admissions. RESPONSE NO. 7: Denied. Prior to May 29, 2003, plaintiff never made a request to prepay its March 22, 1978 loan. As stated previously, plaintiffs intent in filing its August 3, 1992 and September 2, 1992 applications were to obtain an equity loan incentive offer

PLAINTIFF'S RESPONSES TO DEFENDANT'S FIRST REQUESTS FOR ADMISSION - 3

Client:939144.1

29

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 32 of 35

from the defendant. To obtain such equity loan incentive offer, the defendant's then existing statutes and regulations required plaintiff to submit an application in the format contained in documents Bates numbered PATT 0001028 -1046. REQUEST FOR ADMISSION NO. 8: As of February 3, 1993, the FmHA had not granted the prepayment request referenced in the preceding Admissions, nor had the FmHA otherwise permitted Parkwood to prepay the March 22, 1978 loan. RESPONSE NO. 8: Denied. Plaintiff never made a request to prepay its loan until May 29, 2003. Therefore, it is plaintiff's position that until May 29, 2003, there was no prepayment request for the defendant to deny. REQUEST FOR ADMISSION NO. 9: The FmHA never granted the prepayment request referenced in the preceding Admissions, nor did the FmHA otherwise permit Parkwood to prepay the March 22, 1978 loan upon the terms stated in that request. RESPONSE NO. 9: Denied. See Response No. 8. REQUEST FOR ADMISSION NO. 10: As of February 3, 1993, Parkwood knew that the FmHA would not grant the prepayment request referenced in the preceding Admissions or otherwise permit Parkwood to prepay the March 22, 1978 loan upon the terms stated in that

request.
RESPONSE NO. 10: Denied. See Response No. 8. Respectfully submitted this ] ~'t't July, 2008. __ day of

C. Clayton Gill Attorneys for Plaintiff MOFFATT, THOMAS, BARRETT, ROCK &
FIELDS, CHARTERED

PLAINTIFF'S RESPONSES TO DEFENDANT'S FIRST REQUESTS FOR ADMISSION - 4

Client:939144.1

30

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 33 of 35

101 S. Capitol Blvd., 10th Floor Post Office Box 829 Boise, Idaho 83701 Telephone (208) 345-2000 Facsimile (208) 385-5384 [email protected] 23247.0000

PLAINTIFF'S RESPONSES TO DEFENDANT'S FIRST REQUESTS FOR ADMISSION - 5

Client:939144.1

31

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 34 of 35

STATE OF WASHINGTON ) County of ~ ,~_.i_~w )

R. F. TAPLETT, being duly sworn, deposes and says: He is the MANAGER OF DIANA ARMS MANAGEMENT COMPANY, LLC, the general partner of PARKWOOD ASSOCIATES LIMITED PARTNERSHIP, the limited partnership named in the above-entitled proceeding ~md is authorized to make this verification in its behalf. He has read the foregoing PLAINTIFF'S RESPONSES TO DEFENDANT'S I~RST REQUESTS FOR ADMISSION, knows the contents thereof, and the same are true to the best of his knowledge, information, and belief.

R. F. Taplett /
SUBSCRIBED AND SWORN to before me tJais ~ day of July, 2008.

NOTARY PUBLIC FOR Residing at My Commission Expires

PLAINTIFF'S RESPONSES TO DEFENDANT'S FIRST REQUESTS FOR ADMISSION - 6

Client:939144.1

32

Case 1:07-cv-00742-FMA

Document 13-2

Filed 09/12/2008

Page 35 of 35

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this i ~day of July, 2008, I caused a true and correct copy of the foregoing PLAINTIFF'S RESPONSES TO DEFENDANT'S FIRST REQUESTS FOR ADMISSION to be served by the method indicated below, and addressed to the following: Shalom Brilliant Senior Trial Counsel Commercial Litigation Branch Civil Division UNITED STATES DEPARTMENT OF JUSTICE 1100 L St., N.W., Room 7036 Attn: Classification Unit, 8th F1. Washington, D.C. 20530 Facsimile (202) 305-7643

( ) U.S. Mail, Postage Prepaid ( ) Hand Delivered (0"(~vemight Mail ( ) Facsimile

C. Clayton Gill

PLAINTIFF'S RESPONSES TO DEFENDANT'S FIRST REQUESTS FOR ADMISSION - 7

Client:939144.1

33