Federal Deposit Insurance Corp.-R v. Pedreira- Perez et al

Filing 34

OPINION AND ORDER re 23 Motion to Dismiss: GRANTED. The counterclaims are dismissed with prejudice. Judgment shall be entered accordingly. Because the Court no longer has subject matter jurisdiction over this case, it is remanded to the Court of First Instance, Fajardo Division. Signed by Judge Francisco A. Besosa on 07/11/2018. (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. 15-2590 (FAB)

WALTER RAFAEL PEDREIRA PÉREZ,
et al.,
Defendants.

OPINION AND ORDER 1
BESOSA, District Judge.
Plaintiff Federal Deposit Insurance Corporation, as receiver
for Doral Bank (“Doral”) (“FDIC-R”) filed a second motion to
dismiss counterclaims filed by defendants Walter Rafael PedreiraPérez

(“Pedreira”),

María

de

Lourdes

Blázquez-Arzuaga

(“Blázquez”), and the conjugal partnership constituted by them
(collectively, “defendants”) pursuant to Federal Rule of Civil
Procedure Rule 12(b)(1) (“Rule 12(b)(1)”).

(Docket No. 23.)

Id.

For the reasons set forth below, the Court GRANTS the FDIC-R’s
motion to dismiss the counterclaims, with prejudice.

(Docket

No. 23.)

1

Brett Uslaner, a second-year student at Fordham University School of Law,
assisted in the preparation of this Opinion and Order.

Civil No. 15-2590 (FAB)
I.

2

Background
Doral commenced a foreclosure action on October 10, 2014 in

the Puerto Rico Court of First Instance to recover the collateral
pledged by the defendants pursuant to the defendants’ mortgage
contract (“loan”).

(Docket No. 1, Ex. 3 at pp. 1 and 11.)

On

January 13, 2015, the defendants answered and filed counterclaims,
alleging “that Doral, in violation of various rules, regulations,
or law, refused or otherwise failed to properly process a loss
mitigation application through which the Defendants had sought
certain relief relating to the Loan.”

(Docket No. 23 at p. 2.)

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.

(Docket No. 23 at p. 2.)

“[T]he FDIC, in its

capacity as receiver, succeeded to all of Doral’s rights, titles,
powers, privileges, assets, and liabilities, including Doral’s
interest in this action.”

Id. (citing 12 U.S.C. § 1821(d)); see

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).
into

this

action

“only

as

the

counterclaim

The FDIC stepped
defendant,

not

plaintiff, so that it could defend the Counterclaims that had been

Civil No. 15-2590 (FAB)
filed against Doral.”

3
(Docket No. 23 at p. 2; Docket No. 25 at

p. 2.)
In May 2015, the FDIC-R notified the defendants that proof of
claims for consideration were to be submitted to it no later than
June 4, 2015.

(Docket No. 23 at p. 2.)

with this requirement.

Id. at p. 10.

proof of claim on June 4, 2015.

Pedreira did not comply

Blázquez submitted a timely

Id. at p. 8.

The FDIC disallowed

Blázquez’s claim and sent Blázquez notification of its decision on
November 13, 2015 (“disallowance letter”).

Id.

Blázquez did not

take any action in connection with this matter until April 25,
2016, when she filed a notice of appearance before this Court.
See Docket No. 7.
The FDIC-R removed the action to this Court on October 20,
2015.

(Docket No. 1.)

Defendants filed a motion in which they

indicate that Banco Popular de Puerto Rico acquired the note and
loan.

(Docket No. 11-1.)

In March 2018, the Court ordered the

FDIC-R to confirm whether “Banco Popular de Puerto Rico ha[d]
acquired the note and loan and, if so, whether this Court ha[d]
jurisdiction over the subject matter of this case.”
No. 13.)

(Docket

In response to the Court order, the FDIC-R filed a motion

to dismiss the defendants’ counterclaims for lack of subjectmatter

jurisdiction

because

the

defendants

“failed

to

submit

[their claims] to the FDIC for consideration by the claims bar

Civil No. 15-2590 (FAB)
date.”
R’s

4

(Docket No. 18 at p. 2.)

motion,

asserting

that

The defendants opposed the FDICBlázquez

did

submit

a

timely

administrative claim, Docket No. 19, and the FDIC-R withdrew its
motion.

(Docket No. 20.)

On April 27, 2018, the FDIC-R filed a second motion to dismiss
claiming on other grounds that the Court does not have subjectmatter jurisdiction.

(Docket No. 23 at p. 3.)

The FDIC-R moved

to dismiss the defendants’ counterclaims with prejudice “because
the

Defendants

did

not

properly

exhaust

the

mandatory

administrative claims process established under Title 12.”

Id. at

p. 4. It contends that the Financial Institutions Reform, Recovery
and Enforcement Act of 1989 (“FIRREA”) establishes a mandatory
administrative claims review process (“review process”) and that
failure to comply with this process precludes judicial review of
any claim against the FDIC.

Id. at p. 6.

The FDIC-R argues that

the defendants’ counterclaims should be dismissed because the
defendants did not exhaust the review process.

Id. at p. 5.

On May 11, 2018, the defendants opposed the FDIC-R’s motion,
contending that their failure to seek judicial review within the
60-day

period

is

not

dispositive

because

the

FDIC

sent

the

disallowance letter to the wrong address, which, the defendants
argue, constitutes insufficient notice.
4.)

(Docket No. 25 at pp. 3-

The defendants also assert that Blázquez fully complied with

Civil No. 15-2590 (FAB)

5

FIRREA by filing a timely proof of claim and that Blázquez’s filing
is applicable to Pedreira’s counterclaim.
II.

Id. at p. 4.

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 under” the United States Constitution
or federal law.

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).
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

Civil No. 15-2590 (FAB)

6

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).
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

Civil No. 15-2590 (FAB)

7

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

(ii)

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,

Civil No. 15-2590 (FAB)
965 F.2d at 1151).

8

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.

The FDIC-R’s Motion to Dismiss
The FDIC-R argues that the defendants’ counterclaims

should be dismissed for failure to comply with the review process.
(Docket No. 23 at p. 4.)

The FDIC-R contends that “all courts

lack subject matter jurisdiction over claims asserted against the
FDIC as receiver unless such claims have been timely submitted and
exhausted through the administrative claims process.”

Id. at p. 7

Civil No. 15-2590 (FAB)
(citing cases). 2
process

is

9

The FDIC-R concludes that because the review

mandatory,

the

defendants’

dismissal of the counterclaims.
1.

noncompliance

warrants

The Court agrees.

Blázquez’s Counterclaim
The FDIC satisfied its statutory duties both to

notify Blázquez of its receivership and to process Blázquez’s
claim. See 12 U.S.C. § 1821. Because the FDIC assumed its position
as receiver to Doral on February 27, 2015 and sent notification to
the defendants “sometime around May of 2015,” the FDIC complied
with

the

90-day

§ 1821(d)(3)(B)(i).
§ 1821(d)(3)(B)(i). 3

publishing
See
The

Docket
FDIC

requirement
No.

23

then

at

p.

mailed

pursuant
2;

12

to

U.S.C.

Blázquez

the

disallowance letter on November 13, 2015, complying with the 180-

2 The FDIC cites cases from the First, Third, Fifth, and Eighth Circuit Courts
of Appeals. (Docket No. 23 at p. 7 (citing Simon v. FDIC, 48 F.3d 53, 56 (1st
Cir. 1995) (“Section 1821(d)(13)(D)(i) bars all claims against the assets of a
failed financial institution which have not been presented under the
administrative claims review process (‘ACRP’) . . . [f]ailure to comply with
the ACRP deprives the courts of subject matter jurisdiction over any claim to
assets of the failed financial institution.”); Wujick v. Dale & Dale, Inc., 43
F.3d 790 (3rd Cir. 1994) (“Since the state court also lacked subject matter
jurisdiction for the same reason, a remand by the district court would be a
vacuous act. We will therefore direct the district court to dismiss the claims
against RTC.”); Meliezer v. RTC, 952 F.2d 879, 882-883 (5th Cir. 1992) (holding
that “section 1821(d)(13)(D) clearly establishes a statutory exhaustion
requirement . . .” and because plaintiffs “failed to exhaust the administrative
remedies as directed by FIRREA; the district court lacked subject matter
jurisdiction over their claims.”); Bueford v. RTC, 991 F.2d 481, 485 (8th Cir.
1993) (“Every court that has considered the issue has found exhaustion of
FIRREA’s administrative remedies to be a jurisdictional prerequisite to suit in
district court.”).)
3

The defendants do not contest that the FDIC met the 90-day publishing
requirement pursuant to section 1821(d)(3)(B)(i).

Civil No. 15-2590 (FAB)

10

day period after reviewing Blázquez’s proof of claim, which she
submitted on June 4, 2015.

(Docket No. 23 at p. 8; see 12 U.S.C.

§ 1821(d)(5)(A)(i).)
Blázquez, however, failed to exhaust the mandatory
review process.

See Acosta-Ramírez, 712 F.3d at 19.

Blázquez did

not seek judicial review or continue her case in court within the
“sixty (60) days after the disallowance of the claim, or 180 days
after the expiration of the administrative decision deadline.”
Sánchez-Castro, 2016 WL 4257336, at *2 (citing Acosta-Ramírez, 712
F.3d at 19); see Docket No. 23 at pp. 2-9.

Preexisting claims

that are not continued within the 60-day period are disallowed and
claimants are permanently barred from pursuing all rights or
remedies

in

connection

with

their

claims.

See

12

U.S.C.

§ 1821(d)(6)(B); Simon v. FDIC, 48 F.3d 53, 56 (1st Cir. 1995)
(“Failure to comply with the [review process] deprives the courts
of subject matter jurisdiction over any claim to assets of the
failed financial institution.”).
Blázquez’s

contention

insufficient notice is unavailing.

that

the

FDIC

provided

(Docket No. 25 at pp. 3-4.)

Blázquez relies on section 1821(d)(5)(iii), which states:
The requirements of clause (i) shall be deemed to be
satisfied if the notice of any determination with
respect to any claim is mailed to the last address of
the claimant which appears—

Civil No. 15-2590 (FAB)

11

(I) on the depository institution’s books;
(II) in the claim filed by the claimant; or
(III) in documents submitted in proof of the claim.”
12 U.S.C. § 1821(d)(5)(iii).

Blázquez argues that notice was

insufficient because the FDIC mailed the disallowance letter to
“the address of the mortgaged property not defendants’ address of
record.”

(Docket No. 25 at p. 4.)

She maintains that “a quick

search on the United States Postal Service website does not show
a status for the certified mail number shown on the [disallowance]
letter.”

Id. at p. 4.

Blázquez claims that the FDIC’s failure to

provide adequate notice nullifies the review process requirement
and that the Court has jurisdiction over her claim.

Id.

FIRREA, however, does not provide the opportunity
to waive the mandatory review process when notice is not mailed or
received.

See FDIC v. Beneficial Mortg. Corp., 858 F. Supp. 2d

196, 202 (D.P.R. 2012) (Besosa, J.) (“[FIRREA] does not provide
claimants a waiver or exception to completing the mandatory [review
process] if notice is not mailed.”).
provide

proper

notice

‘does

not

“[T]he FDIC’s failure to

relieve

the

claimant

of

the

obligation to exhaust administrative remedies, because the statute
does

not

provide

circumstances.’”

for

a

waiver

or

exception

under

those

RTC v. Haith, 133 F.3d 574, 579 (8th Cir. 1998);

see Tri–State Hotels, Inc. v. FDIC, 79 F.3d 707, 716 (8th Cir.

Civil No. 15-2590 (FAB)

12

1996) (same); see also Guglielmi v. FDIC, 863 F. Supp. 54, 58
(D.R.I. 1994) (“[FIRREA] does not require FDIC to ensure that
claimants actually receive mailed notice.”).

Consequently, the

Court has no jurisdiction to consider Blázquez’s claim.
2.

Pedreira’s Counterclaim
The

defendants’

arguments

counterclaim are similarly unpersuasive.
that

Pedreira’s

claim

is

entitled

regarding

Pedreira’s

The defendants contend
to

judicial

review

notwithstanding his failure to submit a timely proof of claim.
(Docket No. 25 at p. 4.)

The defendants assert that they “have

one claim that accrues to the benefit of the conjugal partnership
and that [f]iling two independent proof of claim [sic] with respect
to the same cause of action would only benefit redundancy.”
at p. 4.
of

It follows, the defendants argue, that Blázquez’s proof

filing

asserting
comply

covers
claims

with

the

Pedreira’s
against

review

(emphasis added). 4

4

Id.

counterclaim.

failed
process.

“[A]ll

institutions,”
Marquis,

965

parties

however,

must

F.2d

1151

at

Because Pedreira failed to comply with the

Because all parties asserting claims must comply with the review process, it
follows that Blázquez, Pedreira, and the conjugal partnership, as an entity
separate from its members, must file administrative claims.
See Morales
Figueroa v. Valdés, No. 15-1365, 2016 WL 1171512, at *5 (D.P.R. Mar. 24, 2016)
(Domínguez, J.) (“[A] conjugal partnership constitutes a separate legal entity
from its two spousal members.”) (citing Int’l Charter Mortg. Corp. v. El
Registrador de la Propiedad de P.R., 10 P.R. Offic. Trans. 1126, 1128 (P.R.
1981)).

Civil No. 15-2590 (FAB)
review

process,

the

13

Court

has

no

jurisdiction

to

hear

his

counterclaim.
III. Conclusion
For the reasons set forth above, the FDIC-R’s motion to
dismiss

the

counterclaims

(Docket

No.

23)

counterclaims are 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, Fajardo Division, case number NSCI 2014-00715
(303), to continue the foreclosure action by the holder of the
note (Banco Popular de Puerto Rico) against the defendants.
IT IS SO ORDERED.
San Juan, Puerto Rico, July 11, 2018.

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