In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1595
C RAIG C AMPBELL, not individually but as
Trustee of the Lyle P. Campbell 1994 Irrevocable Trust,
Plaintiff-Appellant,
v.
F EDERAL D EPOSIT INSURANCE C ORPORATION, as Receiver
for the First National Bank of Danville,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 10 CV 02073—Harold A. Baker, Judge.
A RGUED S EPTEMBER 26, 2011—D ECIDED A PRIL 17, 2012
Before C UDAHY, P OSNER, and W OOD , Circuit Judges.
C UDAHY, Circuit Judge. This case revolves around notice
and administrative exhaustion requirements for the
Financial Institutions Reform, Recovery, and Enforce-
ment Act (FIRREA). The main issue, among the many
suggested by the plaintiff, is whether twelve days’ notice
2 No. 11-1595
provides a meaningful opportunity to submit a claim.
FIRREA sets out the claim process for creditors or deposi-
tors connected to failed banks. The scheme allows the
parties to preserve assets while avoiding complex litiga-
tion. FIRREA bars claimants from taking claims directly
to court without first going through an administrative
determination. The bar date is 90 days after the first
publication of notice of receivership. Plaintiff-Appellant,
Craig Campbell, learned of a potential claim against the
Federal Deposit Insurance Corporation (FDIC) receiver
twelve days before the bar date. Campbell did not
contact the FDIC till several months after the bar date, at
which time the FDIC denied his claim as time barred.
Campbell appealed to the district court, which dis-
missed the case for lack of subject matter jurisdiction
because the plaintiff had an opportunity to file a claim
before the deadline but did not do so. On appeal, Campbell
argues that his claim falls under § 1821(d)(5)(C)(ii), the
exception to the FIRREA deadline, and that failure to
find the authority to adjudicate would deprive him of
due process. While we agree with Campbell that it is
conceivable that a claim might arise so close to the bar
date as to deprive a plaintiff of due process, that eleventh
hour scenario is not present in this case.
Campbell is the Trustee of the Lyle P. Campbell 1994
Irrevocable Trust. Lyle Campbell was a senior execu-
tive at Southwest Bancorp and Chairman of First
National Bank of Danville (Bank). As part of a retention
package, the Bank purchased a split dollar life policy
for Lyle Campbell’s Trust from Northwestern Mutual
No. 11-1595 3
Life Insurance Company. The cash value of this policy
totaled over $662,000. The Bank paid a portion of the
premiums on the Policy. The Bank had a senior interest
in the Policy to the extent of these premiums paid. To
safeguard this senior interest, the Trust assigned the
Policy to the Bank as collateral. From the date of is-
suance to September 2009, the Bank paid $421,890 of the
premiums, while Lyle Campbell had paid the remaining
premiums. His interest in the Policy totaled approxi-
mately $240,000.
On July 2, 2009, the Bank failed. It was shut down
and placed under the receivership of the FDIC. Notices
of the receivership were sent out and the FIRREA
deadline for potential claims was set at October 7 (90 days
from the publication of notice). On August 25, the
receiver requested that the Insurer surrender the entire
value of the Policy to the FDIC. On September 1, the
Insurer surrendered the entire cash value of the policy
to the FDIC. On September 24, the Trustee called the
Insurer to discuss payment of the next premium and
learned of this surrender.
Two weeks later, on October 6, 2009, the Trustee wrote
the Insurer demanding return of the whole cash value of
the Policy with a $421,890 loan against it (the value
of the premiums paid by the Bank). The Trustee sent
follow-up letters on November 5 and November 11. The
Insurer replied at the end of November that it was not
liable for surrendering the policy to the FDIC and
pointed out that policy provisions imposing such
liability were stricken.
4 No. 11-1595
The Trustee contacted the FDIC receiver for the first
time on December 16. In January 2010, the FDIC advised
the Trustee of records that Lyle and Craig Campbell
received notice and proof of claim forms from the
FDIC, that no proof of claims were filed and that the
bar date for claims relating to the receivership, October 7,
had already passed.
FIRREA sets out the claim process for creditors
or depositors connected to failed banks. FIRREA bars
claimants from taking claims directly to court without
first going through an administrative determination.
12 U.S.C. § 1821(d)(13)(D) (“No court shall have juris-
diction . . .”). The receiver of the bank must publish
notice at three one-month intervals informing the
bank’s creditors of the procedural requirements of claim
filing. Claims must be presented within 90 days of the
first publication of the notice. The receiver must also
mail the publication notice to any creditor shown on
the bank’s books.
Claims filed after the bar date (90 days after first notice)
are disallowed. The only exception is for claimants
who “did not receive notice of the appointment of the
receiver in time to file such claim before [the bar] date.”
§ 1821(d)(5)(C)(ii). Courts have interpreted “in time to
file such claim” narrowly to mean “at a time when the
claimant could have filed such a claim.” Stamm v. Paul,
121 F.3d 635, 641 (11th Cir. 1997).
While in the past we have referred to “[c]ompliance
with the FIRREA process [as] a strict jurisdictional prereq-
uisite,” Maher v. Harris Trust & Sav. Bank, 75 F.3d 1182, 1190
No. 11-1595 5
(7th Cir. 1996), it is our belief that in light of the Supreme
Court’s more recent decisions, see, e.g., Henderson ex rel.
Henderson v. Shinseki, 131 S.Ct. 1197, 1202-03 (2011);
Reed Elsevier, Inc. v. Muchnik, 130 S.Ct. 1237, 1243-44
(2010); Union Pacific R.R. Co. v. Bhd. of Locomotive Eng’rs,
130 S.Ct. 584, 596-97 (2009), the proper characterization
of FIRREA’s rules for claims submission as claims pro-
cessing rules. We note that the Second Circuit employed
a similar approach in Carlyle Towers Condominium Associa-
tion v. FDIC, 170 F.3d 301, 310 (2d Cir. 1999). It is clear
that the Trustee did not submit a claim to the FDIC by
the October 7 bar date. We must therefore determine
if the Trust’s action falls under the FIRREA time bar
exception or not.
I.
The Trustee argues that his claim qualifies for this
limited exception because he did not have notice of a
potential claim until the Insurer’s refusal to refund the
policy to the Trustee in November, well after the bar
date. If this were in fact true, then the Trustee would
never have had a chance to file a claim and would be
entitled to an extension. See Carlyle Towers Condo. Ass’n,
170 F.3d at 310. But, the FDIC correctly points out
that the Trustee in fact learned of the surrender of the
policy to the FDIC on September 24, 2009, two weeks
before the bar date. At that point, the Trustee surely
realized that the receiver’s action adversely affected the
Trust; the Trustee need not have believed that the
FDIC was the only avenue for recovery in order to be
6 No. 11-1595
cognizant of a potential claim. Because it is clear that the
Trustee had notice of the potential claim in September,
and the filing window did not close until October, the
Trustee cannot argue he qualifies for an exception on
the theory that his claim arose post-bar date.
II.
Alternatively, the Trustee argues that his claim should
receive an extension because the claim arose in the 90-
day window after the appointment of the receiver. The
Trustee contends that failure to find the authority to
adjudicate will deprive him of due process and thus
FIRREA would be unconstitutional as applied to this
case. In effect, the Trustee advances two arguments that,
though he is not in technical compliance with the
statute and he had actual notice of a potential claim
before the bar date, he still ought to receive an exten-
sion because: his claim arose within the 90-day post-
receivership window; and he learned of his claim so
close to the bar date, twelve days, that he could not file
a claim.
The Trustee’s wider post-receivership argument (that
the extension ought to apply to claims which arose
within the 90-day window) is fairly easily disposed of.
The Trustee asks us to break new legal ground. See
Whatley v. RTC, 32 F.3d 905, 907 (5th Cir. 1994) (noting
that FIRREA does not provide federal jurisdiction to
claims filed post-receivership and after the bar date). No
court has ever interpreted the claims process exception
to apply to claims in existence within the 90-day
No. 11-1595 7
window post-receivership but pre-bar date. Rather,
courts that have granted extensions have done so only
when claims arose after the bar date had elapsed. See
Carlyle Towers Condo. Ass’n, 170 F.3d at 305-06. Because
the claim here arose at a time when submitting a claim
was still possible, case law granting exceptions is
easily distinguished from the case at hand. Id. at 309-10
(noting that FDIC-created time limits may only be
waived for claims arising after the bar date).
The Trustee’s narrower argument regarding claimants
learning of claims so close to the bar date as to preclude
meaningful response is far more compelling. This court
can imagine such a scenario. However, we are unwilling
to reinterpret 12 U.S.C. § 1821(d)(5)(C)(ii) to include
claims that arose and came to the notice of claimants
twelve days before the bar date. If we enlarged the excep-
tion so greatly, “claimant[s] would be able to bypass
the submission of a claim . . . ignoring the deadline . . . then
suing in district court.” Althouse v. RTC, 969 F.2d 1544,
1546 (3d Cir. 1992). The Trustee makes much of the fact
that a party who receives late notice may be ambushed
by the actions of the FDIC receiver. The Trustee is
correct when he points out that due process considera-
tions might conceivably require the extension of the
FIRREA exception in cases such as where the party
learns of the claim at 11:59 p.m. on the bar date.
The goals of FIRREA, as expressed in the Act’s opening
provision, include “deal[ing] expeditiously with failed
depository institutions,” and “strengthen[ing] the en-
forcement powers of Federal regulators of depository
8 No. 11-1595
institutions.” Financial Institutions Reform, Recovery,
and Enforcement Act of 1989, Pub. L. No. 101-73, § 101,
103 Stat. 183 (1989). The House Report of 12 U.S.C.
§ 1821(d) reveals that the dual purpose behind requiring
administrative exhaustion is (1) to minimize costs to the
receivership estate and to the legitimate claimants
who share in the distributions from the estate, and (2) to
minimize the burden on federal courts by avoiding need-
less litigation. H.R. R EP. No. 101-54, pt. 1, at 419
(1989), reprinted in 1989 U.S.C.C.A.N. 86, 215.
The legislative history of FIRREA, in addition to sub-
sequent promulgations by the FDIC, also indicates
that Congress gave considerable attention to the due
process implications of the claim filing and administra-
tive exhaustion requirements. See H.R. R EP. No. 101-54,
pt. 5, at 11-12 (“The Judiciary Committee amended
this subsection both to clarify its provisions and to
ensure that it comports with Supreme Court require-
ments for adjudication of claims as established in Colt
[sic] Independence Joint Venture v. FSLIC, No. 87-996, 57
L.W. 4347 (Slip opinion issued March 21, 1989).”). It
should be noted that members proposed a far more
lenient approach to claims arising post-receivership
than we currently follow. An Interim Statement of Policy
issued by the RTC (predecessor to the FDIC) reflects
the administrative agency’s own concern about the im-
plications for due process of the firm deadline for claim
filings. The Interim Policy stated that “[t]he bar date
pursuant to . . . 12 U.S.C. [§] 1821(d)(5)(C) for filing claims
against a receivership (the General Bar Date) does not
apply to any Post-Receivership Claim and the receiver
No. 11-1595 9
will not time bar any Post-Receivership Claim for failure
to be presented to the receiver by the General Bar
Date.” Interim Statement of Policy Regarding Procedures to
Be Used with Regard to Claims Based Upon Acts or Omissions
of the Receiver, 59 Fed. Reg. 10663 (March 7, 1994).1 This
rule, had it been officially promulgated, would seem to
support the Trustee’s argument. However, this rule
was never adopted.
This Interim Policy and the legislative record replete
with references to due process requirements demon-
strate that Congress was aware of due process concerns
when drafting FIRREA.2 Particularly in light of Congress’s
1
This interim policy alone, however, does not entitle the
Trustee to an exception. This policy was in effect in 1994 and
was the subject of a proposed administrative rule.
2
The legislative record includes Congressman Brooks’ report
on the markups made to the bill by the House Judiciary Com-
mittee. Financial Institutions Reform, Recovery and Enforcement
Act of 1989, 135 Cong. Rec. H2553-02, H2576, 61, 63 (emphasis
added) (“The Committee on the Judiciary was granted sequen-
tial referral on the bill for the purpose of reviewing those
provisions of the bill which are within the committee’s rule X
jurisdiction. Principally those matters related to law enforcement
and to the due process requirements of the Administrative Procedure
Act. . . . The committee amended several sections of the bill to bring
the procedures into line with the due process requirements of the
Administrative Procedure Act.”). The House Judiciary Committee
reviewed the deadline exception provisions. H.R. R EP . No. 101-
54, pt. 5, at 11-12 (“Subsection 212(5), ‘Notice Requirements’, as
(continued...)
10 No. 11-1595
attention to the possible due process implications of
the claim filing and administrative exhaustion require-
ments, a court would presumably be justified in
finding that a claim arising within the filing window
but so near the general bar date as not to afford a mean-
ingful opportunity to file a claim with the FDIC
is not subject to the bar date.
However, the near-midnight discovery scenario was
not present here. Trustee had twelve days to draft
and submit a claim. While this might not be an ideal
amount of time to craft a claim, the Trustee in fact
used this time to draft a detailed letter to the Insurer
demanding repayment. The district court was justified
in ruling that the Trustee could have presented
a written claim to the FDIC receiver within that
(...continued)
recommended by the Banking Committee, establishes a new
subsection (c)(3) in 12 U.S.C. [§] 1821 which sets forth the
procedures for notice to claimants, resolution of claims, and time
periods for the resolution of claims. The Judiciary Committee
made only technical amendments to this subsection to clarify
cross-references and to update the language of the provision.”).
The House Judiciary Committee’s review of the “Payment of
Insured Debts” provision to ensure compliance with due
process. H.R. R EP . No. 101-54, pt. 5, at 11-12 (“As recommended
by the Banking Committee, this subsection establishes proce-
dures for the payment of insured deposits; provides for the
approval or rejection of claims; authorizes the establishment
of rules and procedures for ‘due process’ as to such claims[.]”).
This shows Congress’s concern with due process.
No. 11-1595 11
two-week time period. Because Trust’s claim was not
filed within the bar window and the Trustee learned of
the claim with enough time to draft a claim, the
district court properly concluded that it did not have
authority over the present matter.
In order to more closely resemble the near-
midnight discoverer, the Trustee repeatedly mentions a
purported lack of formal notice, in accordance with
statutory prescriptions, provided by the FDIC. The
FDIC claims to have mailed notice to the Trustee in
his personal capacity as a depositor at the bank, but
the Trustee claims that the Trust never received such
a notice. The district court appears not to have ruled
on this matter directly, since the Trustee argued in
that court that he lacked notice of the need to file this
particular type of claim. In contrast, here the Trustee
argues that he lacked receipt of notice of the imposition
of receivership. If the Trustee did in fact lack ap-
propriate notice of receivership and the bar date would
serve to extinguish his claim, there would be an obvious
due process concern. See Elmco Props., Inc. v. Second
Nat’l Sav. Ass’n, 94 F.3d 914 (4th Cir. 1996). But that did not
happen here. The Trustee’s notice argument is undercut
by the fact that he is an executive at the Bank and
would surely know it is in receivership. See id. at 921
(noting that courts should consider “if . . . [plaintiff]
actually knew enough about the situation to place [him]
on ‘inquiry notice’ as to the details of the administra-
tive process”); Intercontinental Travel Mktg., Inc. v. FDIC,
45 F.3d 1278, 1286 (9th Cir. 1994) (finding claimant
with actual notice of receivership was on “inquiry notice
12 No. 11-1595
of the claims bar date”). Further, the Trustee admits he
had actual notice of the surrender of the policy twelve
days before the bar date.
The Trustee’s briefs devote a great amount of space to
the due process implications of a system that barred
relief and never gave a party a reasonable opportunity
to submit an action. These concerns are valid in
principle, but the district court made a justified deter-
mination that the Trustee’s knowledge of the surrender
of the policy twelve days before the bar date presented
him with a reasonable opportunity to submit a claim
and that he neglected to do so probably for strategic
purposes. We see no reason to disturb this judgment.
III.
Lastly, the Trustee offers an equal protection argument,
on the basis of the unequal treatment of claims arising
before the bar date and those arising after the bar date.
This argument is without merit. The Trustee is not part
of a protected class, so to sustain this claim he must
establish (1) he was intentionally treated differently than
others who are similarly situated, and (2) there is no
rational basis for this different treatment. Srail v. Vill. of
Lisle, Ill., 588 F.3d 940, 943 (7th Cir. 2009). There is clearly
a rational reason for treating these two types of claims
differently so this argument must fail.
For the foregoing reasons, we A FFIRM the judgment of
the district court.
4-17-12