Case 1:11-cv-00408-ABJ Document 70-1

Filed 01/19/12 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________________ ) UNITED WESTERN BANK, ) ) Plaintiff, ) ) v. ) ) OFFICE OF THE COMPTROLLER OF THE ) CURRENCY, et al., ) ) Defendants. ) _______________________________________)

1:11-cv-00408 The Honorable Amy Berman Jackson

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION TO EXPEDITE CONSIDERATION OF PENDING MOTION TO COMPEL Almost one year ago, on January 21, 2011, Defendants, in cooperation with the Federal Deposit Insurance Corporation (FDIC), abused their enormous powers and seized an economically viable institution in the midst of a $200 million private-sector recapitalization. Defendants actions were not based on any reasonable concern about United Western Banks viability but rather were based on an arbitrary and capricious decision by Defendants that they no longer approved of the banks proven 17 year old business model. On February 18, 2011, Plaintiff United Western Bank brought this case pursuant to 12 U.S.C. 1464(d)(2)(B) for an order requiring Defendants, the Office of Thrift Supervision (OTS) and OTS Acting Director John E. Bowman (the Acting Director), to remove the FDIC as receiver of the Bank. As Plaintiff has maintained since the filing of the instant suit, time is of the essence. Section 1464(d)(2)(B) provides for only one

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remedy for an unlawful seizure: removal of the receiver and return of the Bank to its rightful owner. As time passes, the possibility of effective relief in the form of an order setting aside the receivership becomes significantly more difficult. In the year that has passed since the unlawful seizure, United Western Banks operations were taken over and fundamentally altered by a third-party to whom the FDIC sold the bank. Additionally, Defendant OTS has ceased to exist, its responsibilities, documents and personnel transferring to the Office of the Comptroller of the Currency (OCC). Defendants most recent failure to comply with the Courts orders and produce a complete administrative record is just another in a string of delay tactics intended to preclude the Court from engaging in meaningful judicial review of Defendants unlawful, arbitrary and capricious seizure of the bank. On September 9, 2011, the Court ordered that Defendants respond to a Court-edited and approved version of Plaintiffs discovery requests seeking production of the complete administrative record, specifically all information and documents provided to, directly or indirectly considered by, or relied upon by the Acting Director in making the Seizure Decision (the September 9 Order). Order on Proposed Disc., Sept. 9, 2011, ECF No. 56; Not. of Pl.s Filing of Disc. Proposal, Sept. 1, 2011, ECF No. 55-1. On October 11, 2011, Defendants violated the Court's discovery order by failing to provide documents responsive to the Plaintiffs court approved discovery request, failing to adequately respond to clearly written interrogatories, and withholding documents under an inappropriate claim of privilege. On November 2, 2011, Plaintiff filed the Renewed Second Motion to Compel Production of the Complete Administrative Record (Motion to Compel) requesting that the Court order Defendants to comply with the September 9 Order and other relief intended to

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ensure and confirm that Defendants finally produce the complete administrative record. Second Mot. to Compel Produc. of the Complete Administrative R., Nov. 2, 2011, ECF No. 60. Plaintiff wishes to emphasize the importance of an expeditious judicial determination as to whether the statutory grounds for appointment of a receiver existed. The Courts ability to grant meaningful relief is being eroded with the passage of time. Defendants should not be permitted to violate the Courts orders and delay scrutiny of their unlawful actions any longer. Accordingly, Plaintiff respectfully requests expedited consideration of the pending Motion to Compel.

Respectfully submitted,

_/s/ Andrew L. Sandler ______________ Andrew L. Sandler (DC Bar No. 387825) Samuel J. Buffone (DC Bar No. 161828) Liana R. Prieto (DC Bar No. 987287) BUCKLEYSANDLER LLP 1250 24th St., NW, Suite 700 Washington, DC 20037 (202) 349-8001 (Telephone) (202) 349-8080 (Facsimile) Attorneys for Plaintiff United Western Bank _/s/ Kirby D. Behre _____________ Kirby D. Behre (DC Bar No. 398461) Lawrence D. Kaplan (DC Bar No. 415186) PAUL HASTINGS LLP 875 15th Street NW Washington, DC 20005 (202) 551-1719 (Telephone) (202) 551-0119 (Facsimile) Attorneys for Plaintiff United Western Bank

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_/s/ Theodore J. Abariotes____________ Theodore J. Abariotes Deputy General Counsel United Western Bancorp, Inc. 700 17th Street, Suite 2100 Denver, Colorado 80202 (720) 932-4216 (Telephone) (720) 946-1218 (Facsimile) Attorney for Plaintiff United Western Bank

Dated: January 19, 2012