James Kelley v. Jpmorgan Chase Bank, N.A.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

JAMES M. KELLEY, No. 17-15489

Plaintiff-Appellant, D.C. No. 5:16-cv-01141-LHK

v.
MEMORANDUM*
JPMORGAN CHASE BANK, N.A.; et al.

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding

Submitted February 13, 2018**

Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.

James M. Kelley appeals pro se from the district court’s order affirming the

bankruptcy court’s summary judgment in Kelley’s adversary proceeding. We have

jurisdiction under 28 U.S.C. § 158(d). We review de novo. Suncrest Healthcare

Ctr. LLC v. Omega Healthcare Inv’rs, Inc. (In re Raintree Healthcare Corp.), 431

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
F.3d 685, 687 (9th Cir. 2005). We affirm.

The bankruptcy court properly granted summary judgment because Kelley

failed to exhaust his administrative remedies under the Financial Institutions

Reform, Recovery, and Enforcement Act (“FIRREA”). See 12 U.S.C.

§ 1821(d)(3)-(10) (setting forth FIRREA’s administrative claims process);

Rundgren v. Wash. Mut. Bank, FA, 760 F.3d 1056, 1060-61 (9th Cir. 2014)

(§ 1821(d)(13)(D) strips courts of jurisdiction over claims against certain failed

banks when such claims have not been exhausted through FIRREA’s claims

process); Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1209 (9th Cir.

2012) (“[A] claim asserted against a purchasing bank based on the conduct of a

failed bank must be exhausted under FIRREA.”). Because a dismissal for lack of

subject matter jurisdiction should be without prejudice, Kelly v. Fleetwood Enters.,

Inc., 377 F.3d 1034, 1036 (9th Cir. 2004), we remand to the bankruptcy court with

instructions to amend the judgment to reflect that the dismissal of claims barred by

FIRREA is without prejudice.

We reject as without merit Kelley’s contentions that he properly rescinded

under the Truth in Lending Act and his contentions in support of his objections to

defendants’ proof of claims.

We do not consider arguments raised for the first time on appeal or matters

not specifically and distinctly raised and argued in the opening brief. See Padgett

2 17-15489
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

All pending motions are denied.

AFFIRMED; REMANDED with instructions to amend the judgment.

3 17-15489