IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-20164
Summary Calendar
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HOME CAPITAL COLLATERAL, INC.,
Plaintiff-Appellant,
versus
FEDERAL DEPOSIT INSURANCE CORPORATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(CA-H-95-4210)
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September 5, 1996
Before KING, WIENER, and STEWART, Circuit Judges.
PER CURIAM:
Home Capital Collateral, Inc. appeals the district court’s
dismissal of its complaint with prejudice for lack of subject
matter jurisdiction and failure to state a claim. Finding no
error, we affirm.
I. BACKGROUND
A. FACTS
In 1980 and 1981, Home Capital Collateral, Inc. (“Home
Capital”) originated loans in connection with first mortgage
loans originated by Unifirst Federal Savings and Loan Association
(“Unifirst”). Home Capital’s loans were secured by a second lien
on property on which Unifirst held a first lien. To induce Home
Capital to make loans secured by a junior lien, Unifirst agreed
to maintain private mortgage insurance (“PMI”) and to assign the
PMI proceeds on a priority basis to the junior loans owned by
Home Capital. Unifirst also serviced the loans on behalf of Home
Capital.
Thereafter, the Resolution Trust Corporation (“RTC”) placed
Unifirst into receivership, and the RTC as receiver for Unifirst
(“RTC Receiver”)and Home Capital entered the Mortgage Investment
and Servicing Agreement (the “Agreement”), which indicated that
RTC Receiver would assume Unifirst’s responsibility for servicing
the loans. The Agreement provided that the loans would be
serviced in accordance with mortgage industry standards and that
PMI would be maintained on the loans. RTC Receiver then
subcontracted its responsibilities under the Agreement to certain
mortgage companies.
Home Capital alleges that the RTC and/or its subcontractor
violated the Agreement by allowing the PMI to expire by failing
to pay the premium, by failing to timely notify the PMI issuer of
defaults on the loans, and by failing to act on events of
default, giving the PMI issuer a defense against payment under
the policy.
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B. PROCEDURE
In 1994, Home Capital filed a Proof of Claim with the RTC
against RTC Receiver and RTC in its corporate capacity (“RTC
Corporate”), to recover $ 578,160.03 in damages for the RTC’s
negligent servicing of the loans and failure to maintain the PMI
in violation of the Agreement. The 180-day period for RTC review
of Home Capital’s claim was twice extended by mutual agreement in
writing between the parties, in accordance with 12 U.S.C. §
1821(d)(5)(A)(ii). On January 19, 1995, the RTC requested
another extension, which would have enlarged the claims review
period to February 18, 1995. The January 19 letter advised Home
Capital that:
Pursuant to 12 U.S.C. § 1821(d)(6)(A), if you do not
agree to the extension of time, you may, on or prior to
March 20, 1995, file suit on your claim. . . . If you
do not agree to the extension of time and do not take
the appropriate action within the 60 day period, your
claim will be deemed disallowed, the disallowance will
be final, and you shall have no further rights or
remedies with respect to your claim.
Home Capital did not agree to the extension by signing and
returning the letter to the RTC. Home Capital made no further
response to the RTC.
On August 24, 1995, Home Capital filed a complaint in the
United States District Court for the Southern District of Texas
against the RTC alleging breach of contract and breach of
fiduciary duty based on the RTC’s failure to maintain the PMI and
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to properly service the loans. The RTC filed a motion to dismiss
Home Capital’s complaint for lack of subject matter jurisdiction
as against RTC Receiver and a motion to dismiss for failure to
state a claim against RTC Corporate. Home Capital responded to
the RTC’s motions to dismiss, and the district court held
argument on the motions.
On February 6, 1996, the district court dismissed Home
Capital’s complaint against RTC Receiver for lack of subject
matter jurisdiction and against RTC Corporate for failure to
state a claim. Home Capital filed a timely notice of appeal.
II. DISCUSSION
A. JURISDICTION
The district court concluded that it lacked subject matter
jurisdiction over Home Capital’s claims against RTC Receiver
because Home Capital failed to file its complaint within the time
limit required by the administrative claims review procedure
(“ACRP”) of the Financial Institution Reform, Recovery, and
Enforcement Act of 1989 (“FIRREA”) at 12 U.S.C. § 1821(d). Home
Capital argues that the district court erred because the ACRP
applies only to claims against the assets of the failed financial
institution and does not apply to post-receivership claims based
on the actions of RTC Receiver, such as Home Capital’s claim.
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We review the district court’s dismissal for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) de novo. Carney v. RTC, 19 F.3d 950, 954 (5th Cir.
1994). “Subject matter jurisdiction is determined at the time
the complaint was filed.” Id.
FIRREA, in 12 U.S.C. § 1821(d)(3), (5) and (6), establishes
the ACRP, which governs the filing, determination, and payment of
claims after the appointment of the RTC or the Federal Deposit
Insurance Corporation (“FDIC”) as receiver for a failed financial
institution. Upon appointment as receiver, the RTC or FDIC must
publish, as well as mail to known creditors, notice that the
failed financial institution’s creditors must file all claims
with the receiver by a specified date not less than ninety days
after the date of publication. 12 U.S.C. § 1821(d)(3)(B),(C);
see Simon v. FDIC, 48 F.3d 53, 56 (1st Cir. 1995). Another
provision allows the receiver to consider claims not filed by the
specified date in limited circumstances. 12 U.S.C. §
1821(d)(5)(C). The receiver has 180 days from the date of the
filing of a claim to allow or disallow the claim, although this
time period may be extended by written agreement between the
receiver and the claimant. 12 U.S.C. § 1821(d)(5)(A).
Section 1821(d)(6) allows judicial determination of claims
filed within a certain time period after a claim has been
disallowed by the receiver or after the 180-day period for the
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receiver to consider the claim has expired. This section
provides:
Provision for agency review or judicial determination
of claims
(A) In general
Before the end of the 60-day period beginning on the
earlier of--
(i) the end of the period described in
paragraph (5)(A)(i) with respect to any claim
against a depository institution for which
the Corporation is receiver [the 180-day
period]; or
(ii)the date of any notice of disallowance of
such claim pursuant to paragraph (5)(A)(i),
the claimant may . . . file suit on such claim . . . in
the district . . . court of the United States . . .
(B) Statute of Limitations
If any claimant fails to--
. . . .
(ii)file suit on such claim . . .
before the end of the 60-day period described in
subparagraph (A), the claim shall be deemed to be
disallowed . . . as of the end of such period, such
disallowance shall be final, and the claimant shall
have no further rights or remedies with respect to such
claim.
12 U.S.C. § 1821(d)(6).
The record reflects that Home Capital filed a proof of claim
with RTC Receiver and that the 180-day administrative review
period for Home Capital’s claim initially expired on November 28,
1994, but was extended by written agreement of the parties until
January 19, 1995. The sixty-day period for filing suit on this
claim under § 1821(d)(6)(A) thus ended on March 20, 1995. Home
Capital does not dispute these dates. As Home Capital did not
file its complaint in the district court until August 24, 1995,
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the suit was filed outside of the statutory time limits and, if
the ACRP applies to Home Capital’s claim, the district court
correctly concluded that it lacked subject matter jurisdiction
over Home Capital’s complaint. Under § 1821(d)(6)(B), “the claim
shall be deemed to be disallowed . . . , such disallowance shall
be final, and the claimant shall have no further rights or
remedies with respect to such claim.”
However, Home Capital argues that because its claim is
against the RTC Receiver and not the assets of Unifirst, and
because its claim arose after the commencement of the
receivership, the ACRP, specifically the time limitation for
filing suit of § 1821(d)(6)(A), does not apply to its claim.
We note that, even if Home Capital’s argument were true and
the ACRP does not apply to post-receivership claims based on the
acts of the receiver, the district court would still have lacked
subject matter jurisdiction over Home Capital’s complaint by
virtue of § 1821(d)(13)(D). See Hudson United Bank v. Chase
Manhattan Bank, 43 F.3d 843, 848 (3d Cir. 1994). Section
1821(d)(13)(D) expressly limits federal court jurisdiction over
such claims as follows:
Except as otherwise provided in this subsection, no
court shall have jurisdiction over--
(i) any claim or action for payment from, or
any action seeking a determination of rights
with respect to, the assets of any depository
institution for which the Corporation [RTC or
FDIC] has been appointed receiver, including
assets which the Corporation may acquire from
itself as such receiver; or
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(ii) any claim relating to any act or
omission of such institution or the
Corporation as receiver.
12 U.S.C. § 1821(d)(13)(D)(emphasis added). This provision has
been interpreted as imposing a statutory exhaustion requirement
rather than an absolute bar to jurisdiction. See Meliezer v.
RTC, 952 F.2d 879, 882 (5th Cir. 1992); Rosa v. FDIC, 938 F.2d
383, 391 (3d Cir.), cert. denied, 502 U.S. 981 (1991).
Home Capital’s claim against RTC Receiver for its actions in
negligently servicing Home Capital’s loans and breaching the
Agreement comes within the language of § 1821(d)(13)(D)(ii), as a
“claim relating to any act or omission of . . . the Corporation
as receiver”; therefore, the district court would have no
jurisdiction over Home Capital’s claim “except as otherwise
provided” in § 1821(d). As § 1821(d)(6) is the only provision of
subsection (d) “otherwise providing” for judicial determination
of claims, if § 1821(d)(6) does not apply, the district court
lacks subject matter jurisdiction over Home Capital’s complaint
irrespective of Home Capital’s compliance with the ACRP.
We agree with the district court that the weight of
authority indicates that all claims subject to the jurisdictional
bar of § 1821(d)(13)(D), including both claims against the
receiver and against the assets of the failed financial
institution, and both pre-receivership and post-receivership
claims, must comply with the ACRP established in § 1821(d),
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including § 1821(d)(6)(A)’s time limitations for filing in
district court. See Simon, 48 F.3d at 58 (dismissing claim for
damages arising from receiver’s repudiation of contract for
failure to exhaust administrative remedies); Hudson United Bank,
43 F.3d at 849 (holding that the ACRP of § 1821(d) applies to
claims against the receiver as well as claims against the failed
financial institution); Rosa, 938 F.2d at 392 (holding that
claims related to the RTC’s post-receivership termination of a
retirement plan for employees of failed institution were subject
to the ACRP of § 1821(d)); Office & Professional Employees Int’l
Union v. FDIC, 962 F.2d 63, 66 (D.C. Cir. 1992) (determining that
the ACRP applies to claims arising out of the receiver’s acts in
terminating bank operations and discharging employees).
Therefore, we conclude that the district court correctly
dismissed Home Capital’s claims against RTC Receiver for lack of
subject matter jurisdiction, as Home Capital’s complaint was not
filed within the time limitations established by § 1821(d)(6)(A).
B. FAILURE TO STATE A CLAIM
Home Capital contends that its complaint contains
allegations against RTC Corporate, which are not required to be
presented to the receiver through the ACRP of § 1821(d). The
district court dismissed Home Capital’s complaint as against RTC
Corporate for failure to state a claim, reasoning that RTC
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Corporate does not incur liability for actions taken by the RTC
in its capacity as receiver for a failed financial institution.
We review a dismissal for failure to state a claim under the
same standard used by the district court: a claim may not be
dismissed unless it appears certain that the plaintiff cannot
prove any set of facts in support of its claim that would entitle
it to relief. Carney, 19 F.3d at 954.
Home Capital makes no allegations of dealings between itself
and RTC Corporate; indeed, the allegations of its complaint are
based on breach of a contract entered into by Home Capital and
RTC Receiver. Home Capital does not claim that RTC Corporate is
even a party to this contract. Rather, Home Capital argues that
the distinction between RTC’s corporate and receivership
capacities is a “mere hyper technicality” that “in reality . . .
is just a blur.” However, we have held that “[t]he RTC, in its
corporate capacity, is not liable for claims against the RTC in
its capacity as conservator or receiver.” Howerton v. Designer
Homes by Georges, Inc., 950 F.2d 281, 283 (5th Cir. 1992); cf.
Stowell v. MacAndrews & Forbes, 956 F.2d 96, 98 (5th Cir.
1992)(stating that a suit based on a contract claim cannot be
brought against FDIC Corporate because all contractual
obligations remain with FDIC Receiver). Therefore, the district
court correctly dismissed Home Capital’s complaint as against RTC
Corporate for failure to state a claim.
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III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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