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STEPNEY, LLC v. JP MORGAN CHASE BANK, N.A.
(AC 35188)
Lavine, Alvord and Bear, Js.*
Argued April 22—officially released July 1, 2014
(Appeal from Superior Court, judicial district of
Fairfield, S. Richards, J.)
Andre Cayo, for the appellant (plaintiff).
Daniel J. Krisch, with whom, on the brief, was Brian
D. Rich, for the appellee (defendant).
Opinion
PER CURIAM. The plaintiff, Stepney, LLC, appeals
from the judgment of the trial court granting the motion
to dismiss its complaint for lack of subject matter
jurisdiction filed by the defendant, JP Morgan Chase
Bank, N.A. On appeal, the plaintiff claims that the court
erred in its determination that under the Financial Insti-
tutions Reform, Recovery, and Enforcement Act of
1989 (FIRREA), 12 U.S.C. § 1821 (d), the plaintiff was
required to exhaust its administrative remedies before
bringing this action. We disagree, and affirm the judg-
ment of the court.
The record reveals the following facts and procedural
history.1 Sometime prior to June 2007, the plaintiff
applied to Washington Mutual Bank (Washington
Mutual) for a $1.2 million commercial mortgage on an
apartment and commercial building located in Bridge-
port. Thereafter, on June 18, 2007, the plaintiff received
an ‘‘Application Fee Agreement’’ from Washington
Mutual, which provided in its terms and conditions of
approval the following conditions: ‘‘The loan contains
a Yield Maintenance prepayment premium, minimum
of 1 [percent] for the first ten years of the loan. Refer
to the loan document for further details. Prepayment
premium is subject to change if the loan program is
changed.’’ At the closing of the mortgage loan on August
22, 2007, the plaintiff claims it was required to execute
a ‘‘Prepayment Addendum to Promissory Note’’ (adden-
dum), which provided for an alternative method of cal-
culating the prepayment premium.
Sometime thereafter, Washington Mutual experi-
enced bank failure, and the institution was placed into
the receivership of the Federal Deposit Insurance Cor-
poration (FDIC). The FDIC then entered into a ‘‘Pur-
chase and Assumption Agreement’’ with the defendant,
by which the defendant acquired certain assets and
liabilities from Washington Mutual, including the plain-
tiff’s mortgage. In 2011, the plaintiff applied for and
obtained a mortgage commitment from another bank
at a lower mortgage interest rate. The plaintiff sought
to pay off its mortgage with the defendant, which had
an outstanding principal balance of approximately $1.1
million. The defendant informed the plaintiff that such
a payoff would be subject to a prepayment premium
of $349,343.03, which was calculated pursuant to the
alternative method included in the addendum.
On December 7, 2011, the plaintiff commenced this
action against the defendant. In its complaint, the plain-
tiff challenged the validity of the alternative method of
calculating the prepayment premium, and asserted that
‘‘[a]t the time of the closing, it was never disclosed to the
plaintiff the significance of this alternative prepayment
[premium] or the potential enormity of its impact since
the language was neither plain nor understandable and
was treated as being insignificant.’’ The plaintiff claimed
that the alternative method of calculating the pre-
payment premium ‘‘inserted in the addendum on August
22, 2007, and which was not contained in the original
mortgage commitment agreed to on June 18, 2007, was
illegal on the part of the lender and constituted an
unconscionable and deceptive practice that renders
that clause both illegal and unenforceable.’’ The plaintiff
asked the court to declare the prepayment premium
contained in the addendum ‘‘illegal and void.’’2
On February 14, 2012, the defendant filed a motion
to dismiss, in which it asserted that the court lacked
subject matter jurisdiction because the plaintiff failed
to exhaust its administrative remedies under FIRREA
prior to bringing this action against the defendant.3 The
plaintiff objected. The court granted the defendant’s
motion to dismiss on October 5, 2012. In its memoran-
dum of decision, the court agreed that under 12 U.S.C.
§ 1821 (d) (13) (D) it lacked subject matter jurisdiction
over the plaintiff’s claim, and noted that the plaintiff
had ‘‘not [pleaded] the exhaustion of [its] administrative
remedies’’ or ‘‘alleged that it had even filed a claim with
the FDIC, which would be the first step in complying
with FIERRA’s requirements.’’ This appeal followed.
The plaintiff argues that the court erred in granting
the motion to dismiss, and asserts that its claim against
the defendant does not fall under FIRREA’s jurisdic-
tion.4 We are not persuaded.
Our review of the court’s decision granting a motion
to dismiss on the ground of subject matter jurisdiction
is plenary. Hinde v. Specialized Education of Connecti-
cut, Inc., 147 Conn. App. 730, 737, 84 A.3d 895 (2014).
‘‘[FIRREA], among other things, establishes administra-
tive procedures for bringing claims against institutions
for which the FDIC is receiver.’’ Bank of New York v.
First Millennium, Inc., 607 F.3d 905, 920 (2d Cir. 2010).
The plain language of FIRREA outlines the administra-
tive process that must be followed before a court can
exercise jurisdiction over a matter involving a failed
bank, and provides, in relevant part, that ‘‘no courts
shall have jurisdiction over—(i) any claim or action for
payment from, or any action seeking determination of
rights with respect to, the assets of any depository insti-
tution for which the Corporation has been appointed
receiver, including assets which the Corporation may
acquire from itself as such receiver; or (ii) any claim
relating to any act or omission of such [failed] institu-
tion or the Corporation as receiver.’’ 12 U.S.C. § 1821
(d) (13) (D). The Second Circuit repeatedly has ‘‘held
that [§] 1821(d) (13) (D) . . . creates a requirement
that all claims must be presented to the FDIC before
a claimant may seek judicial review.’’ Carlyle Towers
Condominium Assn., Inc. v. Federal Deposit Ins.
Corp., 170 F.3d 301, 307 (2d Cir. 1999); see also Resolu-
tion Trust Corp. v. Elman, 949 F.2d 624, 627 (2d Cir.
1991).
It is not disputed that Washington Mutual is a failed
institution for which the FDIC was appointed as
receiver, and it is clear from the complaint that all
of the plaintiff’s claims relate to the finalization and
issuance, as well as the terms, of a mortgage that the
plaintiff entered into with Washington Mutual before it
failed.5 In other words, although purporting to assert a
claim against the defendant, the plaintiff’s allegations
are wholly premised on its contractual relationship with
Washington Mutual. As the broad language of 12 U.S.C.
§ 1821 (d) (13) (D) (ii) makes clear, a court does not
have jurisdiction over ‘‘any claim relating to any act
or omission of such [failed] institution or the Corpora-
tion as receiver.’’ (Emphasis added.) Accordingly the
plaintiff’s claim, as it is currently pleaded, is susceptible
to resolution under FIRREA. The plaintiff cannot cir-
cumvent FIRREA’s jurisdictional bar and mandatory
administrative exhaustion requirement simply by
directing its claims against the defendant. We therefore
agree that the court lacked subject matter jurisdiction
because the plaintiff failed to exhaust its administra-
tive remedies.
The judgment is affirmed.
* The listing of judges reflects their seniority status on this court as of
the date or oral argument.
1
‘‘The procedural posture of this case governs our recitation of the facts
underlying the appeal. When a . . . court decides a . . . question raised
by a pretrial motion to dismiss, it must consider the allegations of the
complaint in their most favorable light. . . . In this regard, a court must
take the facts to be those alleged in the complaint, including those facts
necessarily implied from the allegations, construing them in a manner most
favorable to the pleader. . . . Further, in addition to admitting all facts well
pleaded, the motion to dismiss invokes any record that accompanies the
motion, including supporting affidavits that contain undisputed facts.’’ (Inter-
nal quotation marks omitted.) Deutsche Bank National Trust Co. v. Torres,
149 Conn. App. 25, 26–27, 88 A.3d 570 (2014).
2
The plaintiff initially sought monetary damages as well as equitable relief,
but withdrew its additional claim for monetary damages after the defendant
filed its motion to dismiss.
3
The defendant raised two additional grounds in support of its motion
to dismiss. The trial court did not address those grounds in its decision,
and they are not properly before us.
4
To support its position, the plaintiff relies heavily on Bank of New York
v. First Millennium, Inc., 607 F.3d 905 (2d Cir. 2010), and Federal Housing
Financial Agency v. JPMorgan Chase & Co., 902 F. Supp. 2d 476 (S.D.N.Y.
2012). Neither of those cases is on point. Bank of New York v. First Millen-
nium, Inc., supra, 607 F.3d 905 (2010), is factually distinct because it did
not involve a claim against either the failed institution or the FDIC, therefore
the court, under those circumstances, held that FIRREA did not apply. Id.,
920. Here, the plaintiff has asserted a claim against a failed institution.
Similarly, Federal Housing Financial Agency v. JPMorgan Chase & Co.,
supra, 902 F. Supp. 2d 476 is inapposite because the holding and analysis
in that case were premised on the plaintiff’s allegation that the defendant
successor bank had assumed liability with respect to the claim at issue. Id.,
501–502. No such allegation has been made in the present case.
5
The plaintiff argues that its claim does not fall under FIRREA because the
defendant ‘‘has chosen’’ to enforce the alternative calculation prepayment
premium instead of the 1 percent prepayment premium. The plaintiff, how-
ever, has offered no relevant legal authority to support this proposition.