Perik v. JPMorgan Chase Bank, N.A.

Illinois Official Reports

Appellate Court

Perik v. JPMorgan Chase Bank, N.A., 2015 IL App (1st) 132245

Appellate Court SHARON PERIK, Plaintiff-Appellant, v. JPMORGAN CHASE
Caption BANK, N.A., Defendant-Appellee (Early Warning Services, LLC,
Washington Mutual Bank and TCF National Bank, Defendants).

District & No. First District, Fifth Division
Docket No. 1-13-2245

Filed June 5, 2015

Decision Under Appeal from the Circuit Court of Cook County, No. 12-L-3606; the
Review Hon. William Gomolinski, Judge, presiding.

Judgment Remanded with directions.

Counsel on John N. Dore and Associates, of Chicago (John N. Dore, of counsel),
Appeal for appellant.

Ulmer & Berne, LLP, of Chicago (Kenneth F. Berg and Heidi
VonderHeide, of counsel), for appellee.

Panel PRESIDING JUSTICE PALMER delivered the judgment of the court,
with opinion.
Justices McBride and Gordon concurred in the judgment and opinion.
 OPINION

¶1 Plaintiff Sharon Perik appeals from an order of the circuit court denying her motion to
vacate the decision of the American Arbitration Association (AAA) dismissing her
arbitration claim against defendant JPMorgan Chase Bank, N.A. (Chase), as successor in
interest to Washington Mutual Bank (WaMu). Plaintiff had sought arbitration of her claim
that Chase, as the successor in interest to WaMu, was liable for WaMu’s libel per se. The
arbitrator dismissed plaintiff’s claim pursuant to the administrative exhaustion requirement
set forth in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989
(FIRREA) (12 U.S.C. § 1821(d)(13)(D) (2012)), finding it lacked jurisdiction to consider the
claim as plaintiff had not first filed her claim with the Federal Deposit Insurance Company
(FDIC), which had been named as the receiver for WaMu after the federal government
closed the bank. Plaintiff argues on appeal that the court erred in denying her motion to
vacate as (1) the AAA exceeded its authority in its appointment of the arbitrator and (2) the
arbitrator had no authority to dismiss the arbitration based on FIRREA. We remand and
direct the court to vacate its decision and dismiss the case for lack of jurisdiction.

¶2 BACKGROUND
¶3 Plaintiff maintained a bank account with Chase, a financial institution, from 1992 to
2008. When plaintiff opened her account, she agreed to be bound by Chase’s 1991 deposit
account rules and regulations. By continuing to use her account after the rules and
regulations were amended in 2006, she agreed to be bound by the new 2006 account rules
and regulations (2006 agreement). The 2006 agreement provided that “any dispute must be
resolved by binding arbitration” and the customer waived any right it had to bring claims
before a court or participate in a court case filed by others. The arbitration provision applied
“to all Claims relating to [the customer’s] account that arose in the past, which may presently
be in existence, or which may arise in the future” and would “survive termination” of the
account.
¶4 In March 2009, plaintiff filed a complaint alleging libel per se against Chase (direct
claim), WaMu and two other defendants. She asserted she had discovered in September 2008
that Chase had published a false fraud report in March 2008 regarding her use of her Chase
checking account. She claimed WaMu had received a copy of the false report in April 2008
and published it to third parties. Chase moved to compel arbitration of the claim against it.
The court granted the motion, staying all matters relating to plaintiff’s claim against Chase
pending the outcome of the mandatory arbitration provided for in the 2006 agreement.
¶5 On September 25, 2008, some five months before plaintiff filed her complaint, WaMu
had failed and been closed by the federal Office of Thrift Supervision, which named the
FDIC as receiver for the failed bank. On the same day, Chase had acquired the assets and
some of the liabilities of WaMu from the FDIC.
¶6 In March 2010, plaintiff filed a second amended complaint asserting the same libel per se
claims as in her original complaint, but instead of asserting a claim against WaMu, she

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 asserted a claim against Chase as successor in interest to WaMu (successor claim). Citing the
trial court’s earlier order staying the direct claim against Chase pending completion of
arbitration, Chase moved to enforce the stay and compel arbitration as to the successor claim
against it. The court granted the motion, finding the arbitration provision in the 2006
agreement between plaintiff and Chase applied to plaintiff’s successor claim against Chase.
Plaintiff appealed. In an unreported decision, Perik v. JP Morgan Chase Bank, U.S.A., N.A.,
2011 IL App (1st) 093088-U (Perik I), another division of this court affirmed the trial court’s
order, finding that “all” of plaintiff’s claims against Chase, i.e., both the direct claim against
Chase and the successor claim against Chase were subject to arbitration.
¶7 In May 2012, plaintiff filed two requests with the AAA seeking arbitration of her libel
per se claims against Chase and Chase as successor in interest to WaMu. Only the arbitration
claim against Chase as successor in interest to WaMu is relevant here.
¶8 Chase moved to dismiss the arbitration claim against it as successor in interest to WaMu.
It argued that FIRREA barred jurisdiction of plaintiff’s successor claim against Chase in any
forum as plaintiff had failed to first submit the claim to the FDIC for administrative review
and the time for such submission had expired. Chase asserted that, under FIRREA, neither
the trial court nor the AAA had jurisdiction to hear plaintiff’s claim that she was libeled by
WaMu “before it imploded in September 2008” and Chase was liable for WaMu’s conduct as
its successor. The arbitrator agreed and issued a decision granting Chase’s motion to dismiss.
¶9 Plaintiff filed a motion to vacate the arbitrator’s decision in the circuit court of Cook
County, asserting the arbitration proceeding was “invalid.” She argued the AAA had violated
its written procedures when it appointed the arbitrator and that the arbitrator had exceeded his
authority in dismissing her claim for lack of jurisdiction.
¶ 10 Following a hearing on June 21, 2013, the trial court denied plaintiff’s motion to vacate
the arbitration award. It held that plaintiff did not show that the AAA had violated its rules
and procedures in appointing the arbitrator and the arbitrator did not exceed his authority in
deciding the FIRREA issue. The trial court made an express written finding pursuant to
Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) that there was no just reason for
delaying either the enforcement or appeal or both of its order. On July 11, 2013, plaintiff
filed a timely notice of appeal from the court’s order denying her motion to vacate the
arbitrator’s award dismissing her claim against Chase as successor in interest to WaMu.

¶ 11 ANALYSIS
¶ 12 Plaintiff argues the trial court erred in denying her motion to vacate the arbitrator’s award
for two reasons: (1) the AAA exceeded its authority in its appointment of the arbitrator in
violation of its rules and without considering plaintiff’s objections to the arbitrator and (2)
the arbitrator exceeded his authority in dismissing the arbitration based on FIRREA. Neither
party raises the question of whether, under FIRREA, the trial court had jurisdiction to
consider the motion to vacate. Subject matter jurisdiction may be challenged “ ‘at any time
and may even be raised sua sponte by a reviewing court’ ” (Catom Trucking, Inc. v. City of
Chicago, 2011 IL App (1st) 101146, ¶ 27 (quoting Ruff v. Splice, Inc., 398 Ill. App. 3d 431,
435 (2010))). We, therefore, consider the matter independently and conclude that the trial
court did not have jurisdiction to consider the motion to vacate and should have dismissed
plaintiff’s action.

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¶ 13 The question here is whether a trial court has jurisdiction to consider a motion to vacate
an arbitration award where the arbitrated claim was based on the prereceivership conduct of a
failed bank and the plaintiff had failed to file the claim with the FDIC as required by
FIRREA. This is a matter of first impression in Illinois. As it concerns a federal statute, we
look to federal law in interpreting the statute. Twenty First Century Recovery, Ltd. v. Mase,
279 Ill. App. 3d 660, 663 (1996).
¶ 14 Enacted in response to the savings and loan crisis of the 1980s, one of FIRREA’s main
objectives is to facilitate the expeditious and efficient resolution of claims against failed
banks. Miller v. Federal Deposit Insurance Corp., 738 F.3d 836, 840 (7th Cir. 2013). To this
end, FIRREA provides that the FDIC may take over a failed bank and, as the bank’s receiver,
allow or disallow claims asserted against the bank. Id. In order that such claims are resolved
quickly and efficiently, “FIRREA establishes strict administrative prerequisites and deadlines
that claimants must follow to lodge their claims and challenge any denials.” Id. It requires
that any party wishing to pursue a claim against a failed institution or its assets must present
that claim to the receiver, the FDIC. Maher v. Harris Trust & Savings Bank, 75 F.3d 1182,
1190 (7th Cir. 1996) (citing 12 U.S.C. § 1821(d)(3)-(5)). 1 The receiver must allow or
disallow the claim within 180 days and the claimant then has 60 days to seek additional
administrative review or judicial review of the receiver’s decision. Id.
¶ 15 FIRREA gives the FDIC the authority to establish a deadline, also known as the “bar
date,” by which a failed bank’s creditors and claimants must submit their claims to the FDIC.
Miller v. Federal Deposit Insurance Corp., 738 F.3d 836, 842 (7th Cir. 2013) (citing 12
U.S.C. § 1821(d)(3)(B)(i)); Potter v. JPMorgan Chase Bank, N.A., No. CV 13-863 CAS,
2013 WL 1912718, at *3 (C.D. Cal. May 8, 2013). It requires that the FDIC publish notice of
this deadline once a month for three months and the deadline must be at least 90 days after
the date of the notice’s first publication. Miller, 738 F.3d at 842 (citing 12 U.S.C.
§ 1821(d)(3)(B)(i), (ii)). The FDIC is also required to mail a notice of the deadline “ ‘to any
creditor shown on the institution’s books.’ ” Miller, 738 F.3d at 842 (quoting 12 U.S.C.
§ 1821(d)(3)(C)). If a claimant fails to submit a claim by the FDIC’s deadline, then the claim
“ ‘shall be disallowed and such disallowance shall be final.’ ” 2 Id. (quoting 12 U.S.C.
§ 1821(d)(5)(C)(i)).
¶ 16 FIRREA provides for judicial review of claims where a claimant has exhausted the
administrative claim procedure. Farnik v. Federal Deposit Insurance Corp., 707 F.3d 717,
721 (7th Cir. 2013) (citing 12 U.S.C. § 1821(d)(6)(A)). Specifically, section 1821(d)(6)(A)
provides that, after the FDIC has made a determination on a claim, the claimant has 60 days

1
We have omitted the relevant years for the United States Code sections cited or quoted in the
federal cases cited herein as it is unclear from these cases on which year of the United States Code the
courts relied in analyzing section 1821(d) of FIRREA and as section 1821(d) has not been amended in
any manner relevant to our discussion since 1991.
2
Since such disallowance is “final,” this provision arguably means that no further litigation on an
untimely claim is authorized.
FIRREA does provide an exception to the finality requirement, permitting the FDIC to consider
untimely claims if “the claimant did not receive notice of the appointment of the receiver in time to file
such claim before such date” and “such claim is filed in time to permit payment of such claim.” 12
U.S.C. § 821(d)(5)(C)(ii) (2012). This exception does not apply here since, as held in paragraph 19
below, she received adequate notice of the bar date.

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 to request administrative review of the claim, file suit on the claim in the relevant district
court or continue an action commenced before the appointment of the receiver. 3 Jackson
Walker LLP v. Federal Deposit Insurance Corp., 13 F. Supp. 3d 953, 957 (D. Minn. 2014)
(citing 12 U.S.C. § 1821(d)(6)(A)). Further, if, “in lieu of filing or continuing any action,” a
claimant requests administrative review of the FDIC’s decision and the FDIC agrees to the
request, then the FDIC’s final determination with respect to such claim is also subject to
judicial review. 12 U.S.C. § 1821(d)(7)(A) (2012).
¶ 17 Although FIRREA specifically provides for judicial review of claims where a claimant
has exhausted the administrative claim procedure (12 U.S.C. §§ 1821(d)(6)(A), (7)(A)
(2012)), it also sets forth the following “Limitation on Judicial Review” in section
1821(d)(13)(D):
“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 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 institution or the
Corporation as receiver.” 12 U.S.C. § 1821(d)(13)(D) (2012).
¶ 18 Given that FIRREA provides in sections 1821(d)(6)(A) and 1821(d)(7)(A) that courts
have jurisdiction over claims against a failed bank after the administrative claims process has
been completed and after the FDIC had conducted an administrative review of its
allowance/disallowance of the claim, courts interpret section 1821(d)(13)(D) to mean that
“the administrative claims process is the exclusive remedy for claims against insolvent
banks.” Potter, 2013 WL 1912718, at *4. In other words, section 1821(d)(13)(D) “ ‘bars
claimants from taking claims directly to court without first going through an administrative
determination.’ ” Miller, 738 F.3d at 840 (quoting Campbell v. Federal Deposit Insurance
Corp., 676 F.3d 615, 617 (7th Cir. 2012)). It “requires that a plaintiff exhaust these
administrative remedies with the FDIC before filing certain claims.”4 Benson v. JPMorgan

3
If a claimant does not seek judicial or administrative review of the FDIC’s determination within
the 60-day period, then “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)(B) (2012). Further, no court may review the FDIC’s
determination to disallow a claim where the basis for the disallowance was that the claim was not
“proved to the satisfaction of the receiver [FDIC]” (12 U.S.C. § 1821(d)(5)(D)(i) (2012)). 12 U.S.C.
§ 1821(d)(5)(E) (2012).
4
FIRREA does not, however, completely strip a court of jurisdiction to consider a court claim filed
against a failed bank before the appointment of the receiver such that the case should be dismissed. As
our supreme court held in Armstrong v. Resolution Trust Corp., 157 Ill. 2d 49 (1993), one of the few
Illinois cases addressing state court jurisdiction under FIRREA, “Congress did not intend to preclude
all judicial review before the statutory claims process has been completed.” Armstrong, 157 Ill. 2d at
58. The court pointed out that FIRREA explicitly provides for suspension of “any judicial action or
proceeding to which an insured depository institution [a failed bank] is or becomes a party” (12 U.S.C.
§ 1821(d)(12)(A) (2012)) and “the filing of a claim with the receiver shall not prejudice any right of the
claimant to continue any action which was filed before the appointment of the receiver” (12 U.S.C.

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 Chase Bank, N.A., 673 F.3d 1207, 1211 (9th Cir. 2012). Relevant here is section
1821(d)(13)(D)(ii). Pursuant to this section, “[c]ourts lack authority to review FIRREA
claims ‘relating to any act or omission’ of a failed bank or of the FDIC as receiver of a failed
bank unless they are first subjected to FIRREA’s administrative claims process.” Farnik v.
Federal Deposit Insurance Corp., 707 F.3d 717, 722 (7th Cir. 2013) (quoting 12 U.S.C.
§ 1821(d)(13)(D)(ii)).
¶ 19 Here, the FDIC published the requisite three public notices on October 1, 2008, notifying
all claimants that any claims relating to WaMu’s prereceivership acts or omissions had to be
submitted to the FDIC for review by December 30, 2008. Plaintiff was not a known creditor
shown on WaMu’s books as she did not advance her claim for WaMu’s prereceivership
conduct until after WaMu had failed. She was, therefore, not entitled to mailed notice of the
bar date for submission of claims to the FDIC. Demelo v. U.S. Bank National Ass’n, 727 F.3d
117, 124 (1st Cir. 2013). Instead, as her claim was inchoate, the FDIC’s notice by publication
of the December 25, 2008, bar date was sufficient notice to plaintiff of the bar date for her
claim. Id.
¶ 20 It is uncontested that plaintiff did not file her claim for WaMu’s prereceivership libel
with the FDIC, let alone file the claim before the bar date on December 25, 2008. Instead she
filed her claim in the circuit court, first against WaMu in 2009 and then against Chase as
successor to WaMu in 2010, which latter claim went to mandatory arbitration. By failing to
file her claim with the FDIC, plaintiff failed to exhaust her administrative remedies under
FIRREA prior to filing suit and, given the expiration of the FIRREA filing period, plaintiff
will never be able to exhaust those administrative remedies. Thus, if plaintiff’s claim against
Chase as successor to WaMu for WaMu’s libel was subject to FIRREA’s exhaustion
requirement, the trial court’s only recourse when presented with an action on the claim would
be to dismiss the action for lack of jurisdiction.
¶ 21 Plaintiff’s claim against Chase as successor in interest to WaMu was a “claim” under
FIRREA. On September 25, 2008, WaMu failed and was closed by the Office of Thrift
Supervision and the FDIC was appointed as WaMu’s receiver. Plaintiff’s claim against
Chase as successor in interest to WaMu is based on WaMu’s pre-September 25, 2008,
conduct, specifically WaMu’s alleged libel of plaintiff when it published the fraud report it
received in April 2008 to third parties. Section 1821(d)(13)(D)(ii) bars judicial review of
“any claim relating to any act or omission” of a failed bank such as WaMu absent exhaustion
of administrative remedies. 12 U.S.C. § 1821(d)(13)(D)(ii) (2012). Plaintiff’s claim clearly
relates to an act of WaMu, specifically its alleged prereceivership libel. Her claim, therefore,
is subject to FIRREA.
¶ 22 The fact that plaintiff filed her claim against Chase as WaMu’s successor (rather than
against WaMu) does not change this determination. “[A]n entity that purchases a failed
lending institution’s assets from the FDIC acquires the administrative protections afforded by
section 1821(d).” Lazarre v. JPMorgan Chase Bank, N.A., 780 F. Supp. 2d 1320, 1325 (S.D.

§ 1821(d)(5)(F)(ii) (2012)). Armstrong, 157 Ill. 2d at 57-58. It concluded that, although FIRREA sets
out a jurisdictional bar precluding courts from considering a claim against the receiver until a claimant
has exhausted the administrative review process, state and federal courts retain subject matter
jurisdiction over suits filed prior to the appointment of the receiver and such cases need not be
automatically dismissed. Id. at 57-60.

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 Fla. 2011). “[A] claim asserted against a purchasing bank based on the conduct of a failed
bank must be exhausted under FIRREA.” Benson v. JPMorgan Chase Bank, N.A., 673 F.3d
1207, 1209 (9th Cir. 2012) (citing American National Insurance Co. v. Federal Deposit
Insurance Corp., 642 F.3d 1137, 1144 (D.C. Cir. 2011), Village of Oakwood v. State Bank &
Trust Co., 539 F.3d 373, 386 (6th Cir. 2008), and American First Federal, Inc. v. Lake Forest
Park, Inc., 198 F.3d 1259, 1263 n.3 (11th Cir. 1999)). “[T]he FIRREA administrative
exhaustion requirement is based not on the entity named as defendant but on the actor
responsible for the alleged wrongdoing.” Farnik, 707 F.3d at 722. “ ‘[W]here a claim is
functionally, albeit not formally, against a depository institution for which the FDIC is
receiver,’ it falls under FIRREA.” (Emphases in original.) Id. at 722-23 (quoting American
National Insurance Co., 642 F.3d at 1144). Plaintiff’s claim against Chase as successor to
failed bank WaMu is based solely on WaMu’s alleged prereceivership libel. Therefore,
section 1821(d)(13)(D)(ii) applies with equal force to Chase as successor to WaMu as it
would have to WaMu itself and plaintiff’s claim against Chase as WaMu’s successor is
subject to FIRREA’s administrative exhaustion requirement. Aber-Shukofsky v. JPMorgan
Chase & Co., 755 F. Supp. 2d 441, 447 (E.D.N.Y. 2010); Lazarre, 780 F. Supp. 2d at 1327.
¶ 23 As held previously, plaintiff did not exhaust the administrative review process that is a
prerequisite to judicial review before she filed her complaints asserting claims for WaMu’s
alleged libelous act. Therefore, under FIRREA, the trial court did not have subject matter
jurisdiction to consider the claim. Benson, 673 F.3d at 1209 (finding the plaintiffs’ claims
against Chase, WaMu’s successor in interest, were barred since the claims, as in the case at
bar, related to alleged acts and omissions of WaMu before its failure and seizure by the FDIC
and the plaintiffs had failed to exhaust the administrative process set forth in FIRREA before
filing their claims in court). The court did not have such jurisdiction when plaintiff filed her
original complaint asserting the claim against WaMu in 2009 or when she filed her second
amended complaint asserting the claim against Chase as successor to WaMu in 2010.
¶ 24 For the same reason, the court also lacked jurisdiction to consider plaintiff’s motion to
vacate the arbitrator’s award on the claim. Plaintiff’s failure to exhaust her administrative
remedies prior to filing her motion to vacate the arbitration award prevented the trial court
from acquiring subject matter jurisdiction to consider the motion. In Saffer v. JP Morgan
Chase Bank, 171 Cal. Rptr. 3d 111 (Cal. Ct. App. 2014), a case remarkably similar to the
case at bar, the plaintiff failed to submit his claims based on WaMu’s prereceivership
conduct with the FDIC before the bar date and, instead, had filed suit against WaMu and
Chase. The court, on Chase’s motion, compelled arbitration of the claims. Chase, as
successor to WaMu, moved to dismiss the arbitration action for lack of subject matter
jurisdiction under FIRREA. The arbitrator concluded that he (and the court) lacked subject
matter jurisdiction to hear the plaintiff’s claims and dismissed the case. The plaintiff filed a
motion to vacate the arbitrator’s ruling. The court confirmed the arbitrator’s ruling.
¶ 25 On review, the California Court of Appeal found the plaintiff’s failure to satisfy
FIRREA’s exhaustion requirements before filing suit prevented the trial court from acquiring
subject matter jurisdiction over his claims. Saffer, 171 Cal. Rptr. 3d at 129. It held the trial
court, therefore, had no jurisdiction when it compelled the suit “to an unauthorized
arbitration” and when it affirmed the arbitrator’s award dismissing the claim for lack of
jurisdiction under FIRREA. Id. It ordered that the matter be remanded to the trial court with
directions that the court vacate the judgment and enter an order dismissing the plaintiff’s case

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 for lack of subject matter jurisdiction. Id. We find Saffer persuasive. We are not bound to
follow decisions from other states. Fosse v. Pensabene, 362 Ill. App. 3d 172, 186 (2005).
However, to the extent that Saffer addresses the issue at bar and there is no Illinois authority
that speaks to this issue, we may look to Saffer as persuasive authority. Id.
¶ 26 We do not decide here whether, under FIRREA, the arbitrator had jurisdiction to consider
plaintiff’s claim despite her failure to exhaust her administrative remedies before filing the
arbitration claim. Although, arguably, he did not. See Multibank 2010-1 SFR Venture LLC v.
Saunders, No. 2:11-CV-1245 JCM, 2011 WL 5546960, at *3 (D. Nev. Nov. 14, 2011)
(finding the defendants were enjoined from engaging in arbitration of their claim against the
successor in interest to a failed bank until they had exhausted their administrative remedies
under FIRREA; “FIRREA requires the [defendants] to first submit their claim and exhaust
their administrative remedies prior to engaging in arbitration”). Rather, our holding here is
that the trial court lacked jurisdiction as a result of plaintiff’s failure to comply with
FIRREA.
¶ 27 Plaintiff argues, in the context of the arbitrator’s jurisdiction under FIRREA, that neither
the arbitrator nor the circuit court had the authority to overrule the appellate court’s direction
in Perik I that plaintiff’s claim against Chase as successor to WaMu (successor claim) must
proceed to arbitration. In Perik I, the appellate court affirmed the trial court’s order
compelling arbitration of both the direct claim against Chase and the successor claim against
Chase, holding that “all” of plaintiff’s claims against Chase were subject to mandatory
arbitration under the parties’ 2006 agreement. In Chase’s appellate brief in Perik I, it had
argued that the trial court’s decision to stay plaintiff’s direct and successor claims against
Chase pending arbitration should be affirmed on two bases: (1) the mandatory arbitration
provision in the 2006 agreement applied to both the direct and successor claims and, in the
alternative, (2) the court lacked jurisdiction to adjudicate the successor claim as plaintiff had
failed to comply with the administrative exhaustion requirement of FIRREA. The Perik I
decision addressed only Chase’s first argument. It does not mention Chase’s second
argument regarding the trial court’s jurisdiction under FIRREA. Perik I does not mention
FIRREA at all.
¶ 28 Plaintiff argues that, as Chase had raised the application of FIRREA to her successor
claim on appeal in Perik I, the court in Perik I would not have “remanded” the successor
claim to arbitration if FIRREA applied to the claim. She would have us infer from the court’s
silence regarding FIRREA that the court’s determination that “all” claims against Chase were
arbitrable is an implicit finding that the trial court and the arbitrator had jurisdiction to
consider the claims. She asserts that, when the court in Perik I “remanded the case, it held
that it had subject matter jurisdiction” and that Perik I is the law of the case. We reject
plaintiff’s argument.
¶ 29 First, Perik I did not “remand” plaintiff’s claims as she asserts here. Instead, the court
affirmed, without further instruction, the trial court’s finding that both claims against Chase
were arbitrable on the basis that the 2006 agreement between the parties applied to both the
direct and the successor claims. Second, the only law of the case to be gleaned from Perik I is
the court’s holding that “all” claims against Chase, including the claim against Chase as
WaMu’s successor, were subject to the mandatory arbitration provision in the 2006
agreement.

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¶ 30 “The law of the case doctrine bars relitigation of an issue that has already been decided in
the same case [citation] such that the resolution of an issue presented in a prior appeal is
binding and will control upon remand in the circuit court and in a subsequent appeal before
the appellate court [citation].” American Service Insurance Co. v. China Ocean Shipping Co.
(Americas), Inc., 2014 IL App (1st) 121895, ¶ 17. “The doctrine applies to questions of law
and fact and encompasses a court’s explicit decisions, as well as those decisions made by
necessary implication.” Id. In other words, the law of the case doctrine applies only to issues
that were actually decided, whether expressly or by necessary implication.
¶ 31 Here, the question of whether FIRREA barred the trial court and/or the arbitrator from
adjudicating plaintiff’s successor claim against Chase was not actually decided in Perik I.
The court explicitly decided only that the trial court should be affirmed as the 2006
agreement applied to plaintiff’s claim against Chase as successor to WaMu and the claim,
therefore, should be arbitrated. We do not find that a necessary implication of this
determination is that the arbitrator and/or the trial court had subject matter jurisdiction to
consider plaintiff’s successor claim against Chase despite plaintiff’s failure to comply with
FIRREA. Although Chase had raised the alternate argument that the trial court should be
affirmed as FIRREA stripped the trial court of jurisdiction to consider plaintiff’s successor
claim, the Perik I court did not address this argument. We do not infer that the court, by its
silence on this alternate argument, taken in context with its determination that the successor
claim was arbitrable, intended to convey that it had also decided that the appellate court, the
trial court and/or the arbitrator had subject matter jurisdiction to consider plaintiff’s successor
claim against Chase despite FIRREA. This is not a “necessary implication” from the court’s
decision to affirm the trial court’s decision on the first basis raised by Chase and therefore,
not the law of the case binding on this court.
¶ 32 What may be implied from the court’s silence on this matter was that it decided the
arbitrability question only and left the question of FIRREA compliance to the arbitrator.
However, to the extent that there is a necessary implication that the court and arbitrator had
jurisdiction to proceed, based on Saffer, we would necessarily find that this was palpably
erroneous. See id. (an exception to the law of the case doctrine exists for when “a reviewing
court finds that its prior decision was palpably erroneous”). As we noted earlier, subject
matter jurisdiction may be challenged at any time and be raised sua sponte by a reviewing
court. Catom Trucking, Inc., 2011 IL App (1st) 101146, ¶ 27.
¶ 33 Accordingly, as plaintiff failed to exhaust her administrative remedies prior to filing her
motion to vacate the arbitrator’s dismissal of her claim that Chase was liable for WaMu’s
prereceivership libel, pursuant to FIRREA, the trial court had no jurisdiction to consider the
motion. We direct the trial court to vacate its judgment and to dismiss the action. See Saffer,
171 Cal. Rptr. 3d at 129 (remanding to trial court for dismissal of administrative review
action upon finding lack of subject matter jurisdiction due to plaintiff’s failure to exhaust
FIRREA administrative remedies prior to filing suit); see also Interface Kanner, LLC v.
JPMorgan Chase Bank, N.A., 704 F.3d 927, 934 (11th Cir. 2013) (remanding to district court
for dismissal of action upon finding jurisdiction lacking due to failure to exhaust FIRREA
administrative remedies).

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¶ 34 CONCLUSION
¶ 35 For the reasons stated above, we remand to the trial court with directions to vacate its
judgment and dismiss the action.

¶ 36 Remanded with directions.

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