Dane et al v. IndyMac Bank,FSB, et al

Filing 15

OPINION AND ORDER: Because I find that this Court lacks subject matter jurisdiction, OneWests motion to dismiss 9 is GRANTED. Leave to amend is denied. Signed on 10/11/13 by Judge Michael W. Mosman. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

MARGI R. DANE AND FRANCIS
V. DANE,
No. 3:13-cv-00746-MO
Plaintiffs,
OPINION AND ORDER
v.
INDYMAC MORTGAGE SERVICES
and INDYMAC BANK, FSB, both now
known as OneWest Bank, FSB,
Defendant.
MOSMAN, J.,
Plaintiffs Margi and Francis Dane filed a complaint [1] against IndyMac Mortgage
Services and IndyMac Bank, FSB (“IndyMac”), 1 on May 2, 2013. The Danes assert a claim
under Oregon’s Unfair Trade Practices Act (“UTPA”), claims of breach of contract and breach
of the implied covenant of good faith and fair dealing, and a claim for reformation. OneWest

1

IndyMac and IndyMac Mortgage Services no longer exist, having gone into receivership and their assets sold to
OneWest Bank, FSB, in 2009.

1 – OPINION AND ORDER

Bank, FSB (“OneWest”), moved [9] to dismiss the complaint on June 17, 2013. Because I find
that this Court lacks subject matter jurisdiction over these claims, I grant OneWest’s motion.
DISCUSSION
The Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”)
empowers the FDIC to “act as receiver or conservator of a failed institution for the protection of
depositors and creditors.” Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1211 (9th Cir.
2012) (internal quotation omitted). FIRREA lays out a scheme for asserting claims against a
financial institution subject to FDIC receivership or conservatorship. 12 U.S.C. § 1821(d)(3)–
(13). Where a financial institution has failed and the FDIC has assumed receivership, “no court
shall have jurisdiction over . . . (ii) any claim relating to any act or omission of such institution or
the [FDIC] as receiver” unless that claim was first exhausted before the FDIC. 12 U.S.C.
§ 1821(d)(13)(D)(ii); Benson, 673 F.3d at 1211–12.
FIRREA’s jurisdiction-stripping provision “distinguishes claims on their factual bases
rather than on the identity of the defendant.” Benson, 673 F.3d at 1212. A plaintiff is required to
exhaust her claim before the FDIC whenever it is based on the conduct of a failed institution,
even where the plaintiff does not name that institution as a defendant. Id. The jurisdictional bar
applies even where the failed bank or some of its assets are transferred to another bank by the
FDIC. Id.at 1214–15. 2

2

Other circuits in addition to the Ninth have reached the same conclusion. See Farnik v. FDIC, 707 F.3d 717, 723
(7th Cir. 2013) (“[T]he FIRREA administrative exhaustion requirement is based not on the entity named as
defendant but on the actor responsible for the alleged wrongdoing.”); Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137,
1144 (D.C. Cir. 2011) (“Where a claim is functionally, albeit not formally, against a depository institution for which
the FDIC is receiver,” it is subject to the jurisdictional bar for failure of exhaustion) (emphasis in original); Village
of Oakwood v. State Bank and Trust Co., 539 F.3d 373, 386 (6th Cir. 2008) (holding that the exhaustion requirement
applied to claims against a purchasing bank that were “directly related to acts or omissions of the FDIC as receiver”
of a failed bank); Am. First Federal, Inc. v. Lake Forest Park, Inc., 198 F.3d 1259, 1263 n.3 (11th Cir. 1999)
(holding that claims against a purchasing bank based on actions of the receiver are subject to exhaustion because the
purchasing bank “stands in the shoes” of the receiver).

2 – OPINION AND ORDER

Defendant IndyMac is a failed institution, and claims based on its conduct before entering
receivership are subject to FIRREA’s exhaustion requirement. The FDIC was appointed receiver
of IndyMac on July 11, 2008. (Master Purch. Agr. [10] at 44.) In March of 2009, OneWest and
the FDIC executed a purchase agreement for certain of IndyMac’s assets and liabilities. (Id.;
Serv. Purch. Agr. [10] at 49.) Claims based on IndyMac’s conduct before the FDIC took control
are subject to the exhaustion requirement notwithstanding OneWest’s purchase of IndyMac’s
assets.
The Danes do not allege in their complaint that they have ever presented their claims
against IndyMac to the FDIC. This Court therefore lacks subject matter jurisdiction under
FIRREA.
CONCLUSION
Because I find that this Court lacks subject matter jurisdiction, OneWest’s motion to
dismiss [9] is GRANTED. Leave to amend is denied.
IT IS SO ORDERED.
DATED this

11th

day of October, 2013.

/s/ Michael W. Mosman
MICHAEL W. MOSMAN
United States District Judge

3 – OPINION AND ORDER