Robertson, et al. v. American Bankshares, Inc., et al.
Filing
15
MEMORANDUM OPINION AND ORDER granting defendant Federal Deposit Insurance Corporation's, as Receiver for Ameribank, Inc., 11 MOTION to Dismiss. Signed by Senior Judge David A. Faber on 2/6/2012. (cc: counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JERRY ROBERTSON, et al.,
Plaintiffs,
v.
CIVIL ACTION NO. 1:08-1429
AMERICAN BANKSHARES, INC.,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is the motion to dismiss filed by
defendant Federal Deposit Insurance Corporation ("FDIC"), as
Receiver for Ameribank, Inc.
(Doc. # 11).
For reasons expressed
more fully below, that motion is GRANTED.
Background
On June 15, 2007, plaintiffs filed this civil action, in
the Circuit Court of McDowell County, against various defendants,
including Ameribank, alleging that defendants constructively
discharged plaintiff Bonnie Robertson and discriminated against
her on the basis of her age and gender.
See Complaint generally.
On September 19, 2008, the Office of Thrift Supervision closed
Ameribank and appointed the FDIC as Receiver.
Pursuant to 12 U.S.C. § 1821(d)(3)(B)(i) and (ii), the FDIC
published notice of its appointment to all creditors of Ameribank
in various publications, including The Welch News, a newspaper in
McDowell County, West Virginia, on September 26, 2008; October
27, 2008; and November 26, 2008.
to Dismiss.
See Exhibit A to FDIC's Motion
These notices also advise creditors of Ameribank to
submit all claims to the Receiver by the Claims Bar Date of
December 26, 2008.
Id.
On December 17, 2008, the FDIC filed a Motion to Substitute,
in the McDowell County Circuit Court,
FDIC as Receiver for Ameribank.
seeking to substitute the
On that same day, the FDIC
removed the case to federal court.
On January 20, 2009, the FDIC
moved to stay this action for a period of 90 days, pursuant to
the statutory stay provisions of 12 U.S.C. § 1821(d)(12)(A)(ii).
That motion was granted on May 7, 2009, and the case was stayed
until June 3, 2009.
During this stay, the FDIC mailed a Notice of Discovered
Creditor and Proof of Claim Form to plaintiffs, care of their
attorney, on May 14, 2009.
Dismiss.
See Exhibit B to FDIC's Motion to
In the Notice to Discovered Creditor, the FDIC states
that it published notice in The Welch News and The Times Leader
that any claims against Ameribank must be filed with the FDIC by
the Claims Bar Date of December 26, 2008.
The Notice further
stated, however, that if a Claimant could satisfy certain
statutory exceptions contained in 12 U.S.C. § 1821(d)(5)(C), the
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Receiver may consider a late-filed claim.*
Id.
The Notice gave
Wright a deadline of August 12, 2009, to file a claim.
Id.
In response to the Notice, plaintiffs filed their Proof of
Claim with the FDIC prior to August 12, 2009.
FDIC's Motion to Dismiss.
See Exhibit C to
The only supporting documentation
offered with respect to the Proof of Claim was a copy of
plaintiffs' Complaint.
See id.
As to any lack of notice of the
appointment of the Receiver, plaintiffs' counsel provided the
following statement:
I, Lacy Wright, Jr., hereby state, based upon
information and belief, that The Welch News in Welch,
McDowell County, West Virginia, only publishes three
(3) days per week. Additionally, I am unfamiliar with
The Times Leader, and state emphatically that if this
is a newspaper, it has a circulation of less than 100
in McDowell County, West Virginia.
*
Specifically, the Notice stated:
However, for the Receiver to consider your claim, you
must prove to the Receiver's satisfaction that you did
not have knowledge of the appointment of the Receiver
in time to file a claim before the Claims Bar Date.
Therefore, you must do ALL of the following:
!
Complete the enclosed Proof of Claim Form
!
Sign the Proof of Claim Form
!
Provide supporting documentation both regarding your
claim and your lack of knowledge of the appointment of
the Receiver (for example, evidence that someone was on
active military duty stationed overseas at the time of
the appointment of the Receiver)
Exhibit B to FDIC's Motion to Dismiss.
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Therefore, I, Lacy Wright, Jr., feel that insufficient
notice was given to all those, including myself, who
might have a claim against Ameribank, Inc., and/or
American Bancshares, Inc.
Id.
Significantly, counsel's statement does not state that
plaintiffs were unaware of the FDIC's appointment as Receiver
prior to the Claims Bar Date.
In its motion to dismiss, the FDIC argues that the court
lacks subject matter jurisdiction over plaintiffs' complaint as
to it based on plaintiffs' failure to pursue its administrative
remedies.
Plaintiffs contend that they never saw the notices
published in the newspapers.
See Plaintiffs' Memorandum in
Opposition to FDIC's Motion to Dismiss at p. 2 (hereinafter
"Plaintiffs' Memo at ___").
Plaintiffs also contend that the
failure of the FDIC to provide them with timely written notice,
pursuant to 12 U.S.C. § 821(d)(3)(C), should excuse their failure
to file a timely proof of claim.
Analysis
"[The Financial Institutions Reform, Recovery and
Enforcement Act ("FIRREA")] was enacted in 1989 as an emergency
measure to enable the RTC and the Federal Deposit Insurance
Corporation ("FDIC") to resolve and liquidate expeditiously the
hundreds of failed financial institutions throughout the
country."
Tillman v. Resolution Trust Corp., 37 F.3d 1032, 1035
(4th Cir. 1994).
Section 1821(d) of FIRREA sets forth an
administrative process for the receiver of a failed financial
4
institution to settle claims against the institution and
liquidate its assets."
12 U.S.C. § 1821(d); Elmco Properties,
Inc. v. Second National Federal Savings Assoc., 94 F.3d 914, 919
(4th Cir. 1996); see also
Brady Development Co., Inc. v.
Resolution Trust Corp., 14 F.3d 998, 1002 (4th Cir. 1994) (FIRREA
"sets forth a detailed series of rules under which all claims
involving an insolvent institution are received and handled.")
(citing 12 U.S.C. § 1821(d)).
Upon becoming receiver, the RTC [or FDIC] must promptly
publish notice to the institution's creditors that they
must present their claims before a certain date - - the
"bar date" - - which is to be at least ninety days
after publication of the notice. § 1821(d)(3)(B)(i).
Furthermore, the RTC must mail a similar notice to (1)
creditors appearing on the institution's books, and (2)
claimants not appearing on the books but whose names
and addresses the RTC later discovers.
Elmco Properties, 94 F.3d at 919.
"Congress required persons
making claims against a failed financial institution or seeking
to adjudicate rights against them to present their claims first
to the receiver for resolution.
More specifically, under 12
U.S.C. § 1821(d), a claimant must present his claim to the
receiver for an initial determination of whether the claim should
be allowed within 90 days of the publication of notice by the
receiver."
Tillman v. Resolution Trust Corp., 37 F.3d 1032, 1035
(4th Cir. 1994).
After a claim is submitted, the receiver has 180 days from
the date of filing to allow or disallow the claim.
5
21 U.S.C.
§ 1821(d)(5)(A)(i).
If the FDIC disallows the claim or fails to
make a determination within 180 days, the claimant may seek
judicial review.
Elmco Properties, 94 F.3d at 919.
But, unless a claim is first presented to the RTC for
resolution, no court has jurisdiction over it. These
provisions combine to create an exhaustion requirement
that, [the Fourth Circuit has] concluded, is "absolute
and unwaivable." Importantly, FIRREA does not allow
waiver of the exhaustion requirement even for claimants
to whom the [FDIC] failed to mail the required notice
of the claims process and bar date.
Id.
The Fourth Circuit has "held that a plaintiff's failure to
exhaust the administrative process deprives the courts of subject
matter jurisdiction."
Tillman v. Resolution Trust Corp., 37 F.3d
1032, 1035 (4th Cir. 1994).
Courts make a distinction between the consequences of a
receiver's failure to notify a claimant of its appointment as
receiver and the receiver's failure to mail the notice required
by 21 U.S.C. § 1821(d)(3)(C).
One exception exists to the rule presented in 12 U.S.C.
§ 1821(d)(5)(C)(i). Section 1821(d)(5)(C)(ii) provides
that if a claimant establishes that she did not receive
notice of the appointment of the receiver in time to
file her claim before the bar date, a receiver may
consider her late-filed claim. [Claimants] have never
alleged that they were not aware of the appointment of
a receiver; they alleged in their filing of claim with
the FDIC only that they had no notice of a time bar to
their filing a claim . . . .
This contention does not
suffice:
By its terms . . . the exception [in §
1821(d)(5)(C)(ii) ] only applies to claimants
who do not receive notice of the fact of the
appointment of a receiver. The exception
makes no reference to claimants who are aware
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of the appointment of a receiver but who do
not receive notice of the filing deadline.
Therefore, a claimant's assertion that he or
she was not made aware of the filing
deadline, as distinct from an assertion that
the claimant was not aware of the fact of
receivership, does not bring the claimant
within the exception.
FDIC v. Atchison & Keller, 913 F. Supp. 19, 25 (D.D.C. 1996)
(quoting McLaughlin v. FDIC, 796 F. Supp. 47, 49 (D. Mass. 1992)
(internal citations omitted)).
Fatal to plaintiffs' argument herein, the courts have made
clear that the FDIC's failure to mail notice of the bar dates
does not excuse a plaintiff from exhausting its administrative
remedies.
RTC Mortg. Trust 1994-N2 v. Haith, 133 F.3d 574, 579
(8th Cir. 1998) ("The only exception to the strict requirement of
exhaustion of remedies, [is] where the claimant does not receive
notice of the appointment of the receiver in time to file his
claim.
This exception will only apply to the appellants if they
did not receive notice of the fact of the appointment of a
receiver.
The exception does not apply to claimants who are
aware of the appointment of a receiver but who do not receive
notice of the filing deadline.”) (citations omitted);
Intercontinental Travel Marketing, Inc. v. FDIC, 45 F.3d 1278,
1284-86 (9th Cir. 1994) ("While this section seems to make the
mailing requirement imperative for the FDIC, the statute imposes
no consequence on the FDIC for failure to do so.").
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In Elmco, one of the chief cases upon which plaintiffs
rely,** the Fourth Circuit accepted a claimant's argument that
the dismissal of its claim based on failure to exhaust violated
the claimant's right to due process where the claimant had no
knowledge of the failed financial institution's entry into
receivership.
Elmco Properties, 94 F.3d at 921-22.
In so
ruling, the Elmco court acknowledged that a claimant "may not
complain of its lack of formal notice if it actually knew enough
about the situation to place it on `inquiry notice' as to the
details of the administrative process."
Id.
("Accordingly, if
Elmco had timely, actual knowledge that FSA had entered
receivership, its due process argument might be defeated by its
own failure to act on that knowledge to protect its rights.").
According to the Elmco court, "a claimant's knowledge that a bank
has entered receivership triggers such inquiry notice."
Id.
The instant case is distinguishable from Elmco because the
record makes clear that plaintiffs had actual knowledge of the
receivership.
On October 3, 2008, the FDIC sent a letter to
plaintiffs' counsel, Lacy Wright, in an unrelated matter which
**
The other case upon which plaintiffs rely is Greater
Slidell Auto Auction v. American Bank & Trust Co., 32 F.3d 939,
942 (5th Cir. 1994). For the reasons expressed in Greater
Slidell's dissent, 38 F.3d 180, which acknowledges that the
majority opinion is at odds with the Fourth Circuit's holding in
Brady Development Co. v. RTC, 14 F.3d 998, 1005 (4th Cir. 1994),
the court does not find the reasoning of the majority opinion
persuasive herein.
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began:
"As you know, the FDIC formally closed Ameribank
effective Friday, September 19, 2007.
As such, your landlord
under the above referenced lease is now the FDIC as Receiver for
Ameribank, Inc."
See Exhibit F to FDIC's Motion to Dismiss.
In
addition, the notice of removal and motion to substitute the FDIC
as receiver for Ameribank, filed on December 17, 2008, also put
plaintiffs on notice of the receivership before the claims bar
date of December 26, 2008.
Because the plaintiffs had notice of the FDIC's appointment
as Receiver of Ameribank prior to the Claims Bar Date and failed
to file a claim before expiration of that date, this court is
without jurisdiction to consider plaintiffs' claims against the
FDIC as Receiver for Ameribank.
Conclusion
For the reasons discussed above, the motion to dismiss is
GRANTED.
The Clerk is requested to send a copy of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED this 6th day of February, 2012.
ENTER:
David A. Faber
Senior United States District Judge
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