Federal Deposit Insurance Corporation v. Laborde Corretjer

Filing 27

MEMORANDUM AND ORDER re 16 Motion to Dismiss for Lack of Jurisdiction. The FDIC-R's motion to dismiss the counterclaim is GRANTED. The counterclaim is dismissed with prejudice. Judgment shall be entered accordingly. Because the Court no lo nger has subject-matter jurisdiction over this case, it is remanded to the Court of First Instance, San Juan Division, case number KCD 2015-182 (905), to continue the foreclosure action by the holder of the note against Laborde. Signed by Judge Francisco A. Besosa on 09/03/2019. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

FEDERAL DEPOSIT INSURANCE
CORPORATION, as receiver for
DORAL BANK,
Plaintiff,
v.

Civil No. 15-1637 (FAB)

JORGE ANTONIO LABORDECORRETJER,
Defendant.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Plaintiff Federal Deposit Insurance Corporation, as receiver
for Doral Bank (“Doral”) (“FDIC-R”) filed a motion to dismiss
defendant

Jorge

counterclaim

Antonio

pursuant

to

Laborde-Corretjer
Federal

Rule

of

(“Laborde”)’s
Civil

Procedure

Rule 12(b)(1) (“Rule 12(b)(1)”). (Docket No. 16.) For the reasons
set forth below, the Court GRANTS the FDIC-R’s motion to dismiss
the counterclaims, with prejudice.
I.

(Docket No. 16.)

Background
Doral commenced a foreclosure action on January 21, 2015 in

the Puerto Rico Court of First Instance to recover the collateral
pledged
(“loan”).

by

Laborde

pursuant

to

Laborde’s

mortgage

(Docket No. 6, Ex. 1 at pp. 1 and 3.)

contract

On March 30,

Civil No. 15-1637 (FAB)

2

2015, Laborde answered and filed his counterclaim.

Id. at pp. 11-

16.
While the foreclosure action was pending in the Puerto Rico
Court

of

First

Instance,

the

Office

of

the

Commissioner

of

Financial Institutions closed Doral and appointed the FDIC as
Doral’s receiver.

See Docket No. 16 at p. 2; United States v.

Maisonet-González, 785 F.3d 757, 759 n.2 (1st Cir. 2015) (“On
February 27, 2015, Doral Bank was closed by the Office of the
Commissioner
appointed

of

the

receiver.”).

Financial
Federal

Institutions
Deposit

of

Puerto

Insurance

Rico,

which

Corporation

as

“[T]he FDIC-R succeeded to all rights, titles,

powers, and privileges of Doral Bank, including the power to
resolve outstanding claims against Doral Bank in receivership.”
See Docket No. 16 at p. 2 (citing 12 U.S.C. § 1821(c)-(d));
O’Melveny & Myers v. FDIC, 512 U.S. 79, 86 (1994) (holding that
pursuant to the language of 12 U.S.C. § 1821(d)(2)(A) the FDIC
“steps into the shoes” of a failed institution).
The FDIC-R filed a Notice of Substitution in the Puerto Rico
Court of First Instance to substitute Doral “exclusively as the
counterclaim defendant.”

(Docket No. 16 at p. 2.)

In March,

April, and May 2015, “the FDIC-R published a Notice to Creditors
and Depositors of Doral Bank on its website and in local newspapers
which states that Doral Bank was closed and that . . . claims

Civil No. 15-1637 (FAB)

3

against Doral Bank in receivership had to be filed with the
Receiver by a deadline.”

(Docket No. 16 at p. 2.)

Laborde “followed the administrative procedure and submitted
a Proof of Claim to the FDIC-R.”
No. 16, Ex. 2.)

(Docket No. 16 at p. 2; Docket

On September 22, 2015, the FDIC-R processed

Laborde’s claim and “rendered a determination to disallow the
claim” because it was “[n]ot proven to the satisfaction” of the
FDIC-R.

See id. at p. 3; Docket No. 16, Ex. 4. 1

The Notice of

Disallowance stipulated:
Pursuant to 12 U.S.C. Section 1821(d)(6), if you do not
agree with this disallowance, you have the right to file
a lawsuit on your claim (or continue any lawsuit
commenced before the appointment of the Receiver). Your
lawsuit must be filed within 60 days after the date of
this notice. You must file your lawsuit either in the
United States District (or Territorial) Court for the
District where the Failed Institution’s principal place
of business was located or in the United States District
Court for the District of Columbia.
Lawsuits: If you do not file a lawsuit (or continue any
lawsuit commenced before the appointment of the
Receiver) before the end of the 60-day period, the
disallowance of your claim will be final and you will
have no further rights or remedies with respect to your
claim.
Docket No. 16, Ex. 4 (citing 12 U.S.C. § 1821(d)(6)(B)(ii)).

As

of May 3, 2016, Laborde “did not take any affirmative action to
challenge the disallowance of his claim.” (Docket No. 16 at p. 4.)

1

Pursuant to 12 U.S.C. § 1821(d) and (f), the FDIC-R has authority to allow or
disallow claims in a bank receivership. See 12 U.S.C. § 1821(d), (f).

Civil No. 15-1637 (FAB)
On

May

3,

2016,

4
the

FDIC-R

moved

to

dismiss

Laborde’s

counterclaim for lack of subject-matter jurisdiction.
No. 16.)

(Docket

The FDIC-R argues that “[c]ompliance with [12 U.S.C.

§ 1821(d)]’s administrative claims procedure is a jurisdictional
prerequisite to subject-matter jurisdiction” pursuant to 12 U.S.C.
§ 1821(d)(13)(D).

Id. at p. 6.

According to the FDIC-R, Laborde

“has not made any efforts to request the administrative review of
the FDIC-R’s disallowance determination nor has he made any efforts
in

continuing

with

the

present

action,

commenced

before

the

appointment of the receiver, within the period allowed by the
federal statute.”
II.

Id.

Discussion
A.

Legal Standard
A party may move to dismiss an action for lack of

subject-matter

jurisdiction.

See

Fed.

R.

Civ.

P.

12(b)(1).

Subject-matter jurisdiction is properly invoked when a plaintiff
asserts

a

colorable

claim

“arising

Constitution or federal law.

under”

the

United

States

28 U.S.C. § 1331; Arbaugh v. Y&H

Corp., 546 U.S. 500, 513 (2006) (internal citation omitted).
“Generally, a claim arises under federal law within the meaning of
section 1331 if a federal cause of action emerges from the face of
a well-pleaded complaint.”

Viqueira v. First Bank, 140 F.3d 12,

17 (1st Cir. 1998) (internal citations omitted).

Civil No. 15-1637 (FAB)

5

In considering a Rule 12(b)(1) motion, the Court “must
credit the plaintiff’s well-pled factual allegations and draw all
reasonable inferences in the plaintiff’s favor.”

Merlonghi v.

U.S., 620 F.3d 50, 54 (1st Cir. 2010) (internal citations omitted).
Federal courts are courts of limited jurisdiction, Destek Grp. v.
State of N.H. Pub. Utils. Comm’n, 318 F.3d 32, 38 (1st Cir. 2003),
and a court “ha[s] the duty to construe [its] jurisdictional grants
narrowly.”

Fina Air, Inc. v. United States, 555 F. Supp. 2d 321,

323 (D.P.R. 2008) (Besosa, J.) (internal citations omitted).

The

party asserting jurisdiction carries the burden of showing the
existence of federal jurisdiction.

Viqueira, 140 F.3d at 16

(internal citations omitted).
B.

FIRREA Review Process
FIRREA sets forth a statutory claims process “designed

to create an efficient administrative protocol for processing
claims against failed banks.”
1154 (1st Cir. 1992).
required

“to

publish

Marquis v. FDIC, 965 F.2d 1148,

Pursuant to the review process, the FDIC is
notice

that

the

failed

institution’s

creditors must file claims with the FDIC by a specified date, which
must be at least ninety days after publication of the notice.”
Acosta-Ramírez v. Banco Popular de Puerto Rico, 712 F.3d 14, 19
(1st Cir. 2013) (citing 12 U.S.C. § 1821(d)(3)(B)(i)); FDIC v.
Kane, 148 F.3d 36, 38 (1st Cir. 1998).

Civil No. 15-1637 (FAB)

6

If a timely claim is filed, the FDIC must decide whether
to approve or disallow the claim within 180 days.

Acosta-Ramírez,

712 F.3d at 19 (citing § 1821(d)(5)(A)(i)); Simon v. FDIC, 48 F.
3d 53, 56 (1st Cir. 1995).

“Claimants then have sixty days from

the date of disallowance or from the expiration of the 180–day
administrative decision deadline to seek judicial review in an
appropriate federal district court (or to seek administrative
review).”

Acosta-Ramírez,

§ 1821(d)(6)(A)).

Once

712

the

F.3d

at

sixty-day

19

(citing

period

12

expires,

U.S.C.
“such

disallowance shall be final, and the claimant shall have no further
rights or remedies with respect to such claim.”

Id. at n.8 (citing

12 U.S.C. § 1821(d)(6)(B)).
FIRREA

restricts

“the

jurisdiction

of

courts

[from]

hear[ing] certain claims where the plaintiff has not complied with
the statutory claims process” in 12 U.S.C. § 1821 (“section 1821”).
Acosta-Ramírez, 712 F.3d at 19.

Section 1821(d)(13)(D) provides

that:
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 [FDIC] has been
appointed receiver, including assets which the
[FDIC] may acquire from itself as such receiver;
or

Civil No. 15-1637 (FAB)
(ii)

7

any claim relating to any act or omission of such
institution or the [FDIC] as receiver.

12 U.S.C. § 1821(d)(13)(D) (emphasis added).

“[T]he failure . . .

to comply with the sixty-day requirement to seek judicial review
of the denial of [] administrative claims also deprives courts of
jurisdiction.”

Acosta-Ramírez, 712 F.3d at 20.

Consequently,

“[c]ompliance with and exhaustion of the administrative procedure
is mandatory.”

FDIC v. Sánchez-Castro, No. 15-1954, 2016 WL

4257336, at *2 (D.P.R. 2016) (García-Gregory, J.) (citing Marquis,
965 F.2d at 1151).

If a claimant fails to comply with the review

process, no court has subject-matter jurisdiction to hear the case.
A

Court

should

dismiss

claims

with

claimants fail to exhaust the review process.

prejudice

where

See, e.g., FDIC v.

Estrada-Colón, 848 F. Supp. 2d 206, 212-13 (D.P.R. 2012) (DelgadoColón, J.); FDIC v. Estrada-Rivera, 813 F. Supp. 2d 265, 269-79
(D.P.R. 2011) (Gelpí, J.); FDIC v. Negrón-Ocasio, No. 15-1888,
2016 WL 3920173 (D.P.R. July 18, 2016) (Delgado-Hernández, J.);
FDIC

v.

Navarro-López,

No.

15-1914,

2016

WL

3461204

(D.P.R.

June 21, 2016) (Delgado-Hernández, J.).
C.

FDIC-R’s Motion to Dismiss
Because

Laborde

failed

to

challenge

the

FDIC-R’s

disallowance within the designated time pursuant to the review
process, the Court lacks subject-matter jurisdiction over his

Civil No. 15-1637 (FAB)
counterclaim.

8

See Acosta-Ramírez, 712 F.3d at 20; Sánchez-Castro,

No. 15-1954, 2016 WL 4257336, at *2 (citing Marquis, 965 F.2d at
1151).
III. Conclusion
For the reasons set forth above, the FDIC-R’s motion to
dismiss

the

counterclaim

(Docket

No.

16)

counterclaim is dismissed with prejudice.
entered accordingly.

is

GRANTED.

The

Judgment shall be

Because the Court no longer has subject-

matter jurisdiction over this case, it is remanded to the Court of
First Instance, San Juan Division, case number KCD 2015-182 (905),
to continue the foreclosure action by the holder of the note
against Laborde.
IT IS SO ORDERED.
San Juan, Puerto Rico, September 3, 2019.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE