Brewer et al v. Indymac Bank et al

Filing 49

MEMORANDUM AND ORDER signed by Judge Frank C. Damrell, Jr on 9/8/09 ORDERING defendant FDIC's motion to dismiss for lack of subject matter jurisdiction 39 is GRANTED. The Clerk of Court is directed to close this case. CASE CLOSED. (Becknal, R)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 78-230(h).
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo---BRIAN K. BREWER and SUZANNE L. BREWER, Plaintiffs, v. INDYMAC BANK, RESIDENTIAL MORTGAGE CAPITAL, JAMES CHAPMAN, Defendants.

No. 2:08-CV-01211-FCD-DAD MEMORANDUM AND ORDER

----oo0oo---This matter is before the court on defendant Federal Deposit Insurance Corporation's ("FDIC" or "defendant") motion to dismiss plaintiffs Brian K. Brewer and Suzanne L. Brewer's (collectively "plaintiffs") First Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3). Plaintiffs oppose the motions.1 For the

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reasons set forth below, defendant's motion to dismiss is GRANTED. This is a mortgage fraud action in which plaintiffs allege that Indymac Bank ("Indymac"), Residential Mortgage Capital ("RMC"), and James Chapman2 failed to disclose the material terms of plaintiffs' loans, unlawfully obtained higher loan origination fees from plaintiffs, and transferred plaintiffs' loans through a sham transaction. 2008.) (First Am. Compl. ("FAC"), filed Aug. 29,

On September 3, 2008, the FDIC filed a Notice of (Notice, filed

Receivership and Substitution of Party Defendant. Sept. 3, 2008.)

Specifically, the FDIC noted that on July 11,

2008, the Office of Thrift Supervision closed defendant Indymac and appointed the FDIC as the receiver thereof. (Id.) On

October 2, 2008, the FDIC filed an Answer on behalf of Indymac. "The party asserting federal jurisdiction bears the burden of proving the case is properly in federal court." In re Ford

Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)); Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990). The district court may review affidavits or

evidence relating to the jurisdictional issue and need not presume the truthfulness of the plaintiff's allegations.3 Safe

The court granted in part and denied in part defendants RMC and Chapman's motions to dismiss. (Mem. & Order, filed Mar. 16, 2009.) Subsequently, plaintiff stipulated to voluntary dismissal of all claims against these defendants with prejudice. (Stip. of Voluntary Dismissal, filed Apr. 24, 2009.) In this case, plaintiffs fail to set forth any allegations in their complaint regarding exhaustion of the (continued...) 2
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Air v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

The burden

then falls upon the party opposing the motion to present affidavits or other evidence to establish subject matter jurisdiction. Id.

Under the Financial Institutions Reform, Recovery and Enforcement Action of 1989 ("FIRREA"), claimants must comply with a pre-lawsuit claims-filing process, which must be exhausted before a lawsuit can be filed against the FDIC or against a failed institution in FDIC receivership. 1821(d). See 12 U.S.C. §

Pursuant to 12 U.S.C. § 1821(d)(13)(D), "no court shall

have jurisdiction over any claim or action for payments from . . . the assets of any depository institution for which the [FDIC] has been appointed receiver," unless the administrative claims process has been completed. 1078 (9th Cir. 2003). See McCarthy v. FDIC, 348 F.3d 1075,

This exhaustion requirement has been

interpreted broadly to apply to "any claim or action respecting the assets of a failed institution for which the FDIC is receiver," including those arising from post-receivership acts of the FDIC. Id. at 1081; Henderson v. Bank of England, 986 F.2d

319, 321 (9th Cir. 1993) ("The statute bars judicial review of any non-exhausted claim, monetary or nonmonetary, which is `susceptible of resolution through the claims procedure.'"). The statutory claims process provides that, "in any case involving the liquidation or winding up of affairs of a closed depository institution," the FDIC shall promptly publish notice

(...continued) claims-filing process described herein. 3

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to the institution's creditors "to present their claims, together with proof, to the receiver by a date specified in the notice." 12 U.S.C. § 1821(d)(3)(B). Upon receipt of the claim, the FDIC 12

has up to 180 days to review the claim, and grant or deny it. U.S.C. § 1821(d)(5)(A)(I).

In this case, the FDIC established October 14, 2008, as the last date for filing claims, pursuant to § 1821(d)(3)(B). By

letter dated August 8, 2008, the FDIC informed plaintiffs of the need to complete and submit the enclosed Proof of Claim Form by October 14, 2008. (Ex. B to Decl. of Dianne L. Mallory ("Mallory The same letter, also dated (Ex. C to

Decl."), filed June 17, 2009.)

August 8, 2008, was mailed to plaintiffs' counsel. Mallory Decl.)

Plaintiffs and plaintiffs' counsel were informed

that failure to file a claim on or before October 14, 2008 would result in disallowance of the claim. Decl.) (Exs. B & C to Mallory

Further, by letter dated September 6, 2008, counsel for

the FDIC informed plaintiff's counsel that the Proof of Claim Form must be received on or before the Claims Bar Date of October 14, 2008. (Ex. E to Decl. Of Timothy B. McGinity ("McGinity

Decl."), filed June 17, 2009.) Defendant FDIC presents evidence that plaintiffs failed to submit a Proof of Claim Form prior to October 14, 2008. Decl. ¶ 7.) (Mallory

By letter dated November 13, 2008, plaintiffs were

notified that due to their failure to submit their materials prior to the Claim Bar Date, all further proceedings on their claims were barred. (Ex. D to Mallory Decl.)

Plaintiffs do not dispute that compliance with FIRREA's claim-filing procedure is jurisdictional in nature. 4 Rather,

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plaintiffs conclusorily assert in their opposition, without the support of any admissible evidence, that they completed and mailed the Proof of Claim form by use of regular mail before the Claim Bar Date. Plaintiffs contend that the FDIC's form should

include a date and that defendant should have provided an envelope postmarked after the bar date. However, plaintiffs

misunderstand that they have the burden of establishing jurisdiction and have failed to submit any evidence that the Proof of Claim form was timely filed.4 Accordingly, defendant FDIC's motion to dismiss for lack of subject matter jurisdiction is GRANTED. directed to close this case. IT IS SO ORDERED. DATED: September 8, 2009 The Clerk of Court is

FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

The court also notes that plaintiffs concede they do "not believe that IndyMac Bank owns the loan" and that once the FDIC provides the name of the owner of the loan, "the complaint will be amended with the name of the new party and the FDIC dismissed." (Pls.' Opp'n, filed Aug. 20, 2009, at 1-2.) The court is deeply troubled by plaintiffs' blatant gamesmanship in maintaining an action against a defendant that it does not believe is the true party in interest. 5

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