Federal Deposit Insurance Corporation v. Echevarria-Crespo
Filing
11
OPINION AND ORDER re 10 MOTION to Dismiss/Lack of Jurisdiction as to Esther Echevarria-Crespo filed by Federal Deposit Insurance Corporation. The FDIC-R's motion to dismiss defendants' counterclaims, ECF No. 10, is GRANTED. The counterclaims are hereby DISMISSED WITH PREJUDICE. Clerk of the Court is to enter judgement accordingly. Signed by Chief Judge Aida M. Delgado-Colon on 7/14/2017.(wm)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver for Doral
Bank,
Plaintiff,
Civil No. 15-2135 (ADC)
v.
ESTHER ECHEVARRIA CRESPO,
Defendant.
OPINION & ORDER
Plaintiff Federal Deposit Insurance Corporation, in its capacity as receiver for Doral Bank
(“FDIC-R”), has moved the Court to dismiss the counterclaims brought forth by defendant
Esther Echevarría Crespo (“defendant”). ECF No. 10. Defendant has not filed an opposition to
FDIC-R’s motion to dismiss, thereby waiving any objection to it. See L. Civ. R. 7(b). For the
reasons explained below, FDIC-R’s motion to dismiss, ECF No. 10, is GRANTED.
I.
Background
On April 8, 2014, Doral Bank filed a mortgage-foreclosure action against defendant in the
Puerto Rico Court of First Instance, San Juan Superior Part. ECF No. 8-1 at 1-4. Defendant
answered the complaint and filed a counterclaim against Doral Bank on August 13, 2014,
alleging that defendant suffered an involuntary loss of income due to Puerto Rico’s fiscal crisis,
which affected defendant economically. Id. at 5-17. She further alleged that Doral Bank failed its
Civil No. 15-2135 (ADC)
Page 2
fiduciary duty by not complying with the Home Affordable Modification Program (HAMP) and
the Home Affordable Refinance Program (HARP), thus breaching federal and Puerto Rico laws
on loss-mitigation procedures for mortgage loans. Id. Defendant requested compensation for the
damages allegedly suffered because of Doral Bank’s actions. Id.
On February 27, 2015, while this action was still pending, the Office of the Commissioner
of Financial Institutions of the Commonwealth of Puerto Rico closed Doral Bank and appointed
the FDIC as receiver (FDIC-R). ECF Nos. 1 at 1, 10-1 at 2. As receiver, the FDIC-R took over all
of Doral Bank’s rights, titles, and interests in the assets pursuant to 12 U.S.C. § 1821(d). Id.
Once the FDIC-R took over as receiver, it published notice to all Doral Bank creditors in
various local newspapers. ECF No. 10-1 at 2. The aforementioned notice informed the customers
of the receivership and advised them that the time to submit any administrative claims for
recovery against the FDIC-R for the actions of Doral Bank would expire on June 4, 2015. On May
14, 2015, the FDIC-R also mailed to the defendant an individual Notice to Discovered Claimant
to Present Proof of Claim, as well as a Proof of Claim Form. ECF No. 10-2 at 3-9. Defendant did
not file a Proof of Claim Form. ECF No. 10-1 at 2.
On August 19, 2015, the FDIC-R removed this action to federal court under 12 U.S.C §
1819(b)(2)(B). ECF No. 1. Once the case was removed, the FDIC-R filed a Motion for Temporary
Waiver and Stay of Local Rule 5(g), requesting leave to file relevant documents in Spanish and
wishing to wait “until such a time, if any, when the administrative requirements under FIRREA 1
1
Financial Institutions Reform, Recovery and Enforcement Act (“FIRREA”), 12 U.S.C. § 1821, et seq.
Civil No. 15-2135 (ADC)
Page 3
are timely exhausted by the claimants and this court acquires subject-matter jurisdiction over
the claim.” ECF No. 3 at 7. On July 16, 2015, the Court denied the FDIC-R’s Motion for
Temporary Waiver and Stay of Local Rule 5(g), and requested that a status report be filed, which
the FDIC-R submitted on October 6, 2015. ECF Nos. 4, 6.
On October 3, 2016, the FDIC-R moved the Court to dismiss defendant’s counterclaims
with prejudice for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12 (b)(1). ECF No. 10.
In essence, the FDIC-R argues that the current action must be dismissed with prejudice because
defendant failed to file a Proof of Claim Form, which she was required to do within ninety (90)
days from the FDIC-R’s Notice to Discovered Claimant to Present Proof of Claim, pursuant to
U.S.C. § 1821 (d)(13)(D) and (d)(5)(C)(i).
II.
Legal Standard
Federal courts are courts of limited jurisdiction, and the party asserting jurisdiction has
the burden of demonstrating its existence. See Murphy v. United States, 45 F.3d 520, 522 (1st Cir.
1995). “Federal courts are obliged to resolve questions pertaining to subject-matter jurisdiction
before addressing the merits of a case.” Acosta-Ramírez v. Banco Popular de Puerto Rico, 712 F.3d
14, 18 (1st Cir. 2013). If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action. Fed. R. Civ. P. 12(h)(3); McCulloch v. Vélez, 364 F.3d 1, 5 (1st
Cir. 2004). Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss an
action for lack of federal subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). When a district
court is considering a motion to dismiss, it “must construe the complaint liberally, treating all
Civil No. 15-2135 (ADC)
Page 4
well pleaded facts as true and drawing all reasonable inferences in favor of the Petitioners.”
Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998) (citing Royal v. Leading Edge Prods., Inc., 833
F.2d 1 (1st Cir. 1987)). In evaluating a motion to dismiss for lack of subject-matter jurisdiction,
the court may look beyond the complaint and the motion to dismiss, and consider extrinsic
materials. Dynamic Image Technologies, Inc. v. U.S., 221 F.3d 34, 37 (1st Cir. 2000).
III.
Discussion
“FIRREA gives the FDIC authority to act as receiver or conservator for failed
institutions.” Acosta-Ramírez, 712 F.3d 14 at 18 (citation omitted). When the FDIC acts as a
conservator or receiver, it takes over the insured depository institution in all of its rights, titles,
powers, privileges and assets. 12 U.S.C. § 1821(d)(2)(A)(i). FIRREA also establishes a mandatory
statutory claims process, “designed to create an efficient administrative protocol for processing
claims against failed banks.” Acosta-Ramírez, 712 F.3d at 19. The administrative claims process,
set forth in 12 U.S.C. §§ 1821(d)(3)-(13), requires that all claims be submitted to the FDIC by a
date established by the receiver. Rodríguez v. F.D.I.C., No. 10-1656, 2011 WL 4529929 at *3 (D.P.R.
Sept. 27, 2011). It is mandatory to exhaust this administrative process, and a plaintiff’s failure to
comply with its terms deprives a court of subject matter jurisdiction. Acosta-Ramírez, 712 F.3d at
19.
The statutory claims regime has three steps with specific deadlines for each:
FIRREA's statutory claims process requires the FDIC, upon appointment as
receiver, to publish 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
Civil No. 15-2135 (ADC)
Page 5
publication of the notice. 12 U.S.C. § 1821(d)(3)(B)(i). If a claim is filed, the FDIC
has 180 days to determine whether to approve or disallow the claim. Id. §
1821(d)(5)(A)(i). 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). Id. § 1821(d)(6)(A).
Acosta-Ramírez, 712 F.3d at 19.
In the instant case, the FDIC-R sent a notice to defendant on May 14, 2015, informing her
that it had been appointed receiver of Doral Bank. ECF No. 10-2. Once the defendant received
notice of receivership which the FDIC-R sent her, along with a Proof of Claim Form, defendant
had ninety (90) days to file her Proof of Claim Form before the FDIC-R. To this day, defendant
has not filed a Proof of Claim. Accordingly, under FIRREA, the Court must dismiss defendant’s
claim against the FDIC-R. Inasmuch as the FDIC-R met its obligations regarding publication and
the mailing of notice of receivership to defendant, she lost the right to assert her claim in court
once she failed to submit a Proof of Claim Form by the deadline indicated in the notice. Marquis
v. FDIC-R, 965 F.2d 1148, 1151 (1st Cir. 1992).
In short, by not filing a Proof of Claim Form before the FDIC-R, defendant failed to
comply with the administrative procedure established in 12 U.S.C. § 1821, for which the Court
lacks subject-matter jurisdiction to consider defendant’s claim against the FDIC-R. See 12 U.S.C.
1821(d)(13)(D); F.D.I.C. v. Estrada-Colón, 848 F. Supp. 2d 206, 213 (D.P.R. 2012); F.D.I.C.. v.
Estrada-Rivera, 813 F. Supp. 2d 265, 270 (D.P.R. 2011), aff'd on other grounds, F.D.I.C. v. EstradaRivera, 722 F.3d 50 (1st Cir. 2013).
Civil No. 15-2135 (ADC)
IV.
Page 6
Conclusion
Given all of the above, the FDIC-R’s motion to dismiss defendants’ counterclaims, ECF
No. 10, is GRANTED. The counterclaims are hereby DISMISSED WITH PREJUDICE. Clerk
of the Court is to enter judgement accordingly.
SO ORDERED.
At San Juan, Puerto Rico, on this 14th day of July, 2017.
S/AIDA M. DELGADO-COLÓN
Chief United States District Judge
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