Seaway Bank and Trust Company v. MVF Properties LLC et al

Filing 19

ORDER signed by Judge J.P. Stadtmueller on 10/11/2017: GRANTING 7 FDIC's Motion to Dismiss; DISMISSING MVF Properties LLC, James C. Fazio, and Fazio Automotive Inc.'s counterclaims; and DISMISSING FDIC from this action. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SEAWAY BANK AND TRUST
COMPANY,
Plaintiff,
v.
MVF PROPERTIES, LLC, JAMES C.
FAZIO, FAZIO AUTOMOTIVE INC.,
AMANDA MAY REITZ,
JOHN DOES A THROUGH N and
JANE DOES A THROUGH N,

Case No. 17-CV-578-JPS

ORDER

Defendants,
v.
FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver for Seaway
Bank and Trust Company,
Counterclaim Defendant.
1.

INTRODUCTION
This case was originally filed in Milwaukee County Circuit Court

by plaintiff Seaway Bank and Trust Company (“Seaway”) against
defendants MVF Properties, LLC (“MVF”), James C. Fazio (“Fazio”) and
Fazio Automotive Inc. (“FA”). (Docket #1 at 1-2, #4). Subsequent to the filing
of the case in Milwaukee County, Seaway Bank was closed and the Federal
Deposit Insurance Corporation (“FDIC”) was appointed as its Receiver.
(Docket #1 at 2). The defendants in the state court action filed counterclaims
against Seaway, and the FDIC stepped into that action in Seaway’s shoes to

defend against the counterclaims. Id. The FDIC then removed the case to
this Court, id. at 1-2, and moved for dismissal of MVF, Fazio, and FA’s
counterclaims, on the basis that this Court lacks jurisdiction over the
counterclaims because MVF, Fazio, and FA did not first exhaust a statutory,
mandatory pre-litigation claims process established by the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”),
(Docket #7). MVF, Fazio, and FA did not oppose the FDIC’s motion. For the
reasons stated below, the Court will grant the FDIC’s motion.
2.

STANDARD OF REVIEW
The FDIC has moved to dismiss the defendants’ counterclaims

pursuant to Federal Rule of Civil Procedure 12(b)(6). This rule provides for
dismissal of pleadings which fail to state a viable claim for relief. Fed. R.
Civ. P. 12(b)(6). To state a viable claim, a pleading must provide “a short
and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). In other words, the pleading must give “fair
notice of what the . . . claim is and the grounds upon which it rests.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The
allegations must “plausibly suggest” a right to relief, “raising that
possibility above a speculative level.” Kubiak v. City of Chicago, 810 F.3d 476,
480 (7th Cir. 2016) (citation omitted).
In reviewing the counterclaims of defendants MVF, Fazio, and FA,
the Court is required to “accept as true all of the well-pleaded facts . . . and
draw all reasonable inferences in [the defendants’] favor[.]” Id. at 480-81.
However, a counterclaim that offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

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The Court must identify allegations “that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at 679.
3.

RELEVANT ALLEGATIONS
The facts relevant to the pending motion are few and

straightforward. They are taken from the notice of removal and exhibits
thereto, relevant pleadings from the state court action, the FDIC’s
memorandum in support of its motion to dismiss, and the affidavit filed in
support of the FDIC’s motion. (Docket #1, #4, #6, #7-1, #7-2).
Plaintiff Seaway filed an action in Wisconsin state court on
September 12, 2016 alleging that defendant MVF defaulted on certain loan
and security agreements entered into between Seaway and MVF that were
guaranteed by defendants Fazio and FA. On March 10, 2017, MVF, Fazio
and FA asserted various counterclaims against Seaway for breach of
contract, breach of fiduciary duty, breach of the implied covenant of good
faith and fair dealing, violation of Wisconsin’s Deceptive Trade Practices
Act and for an accounting of an escrow account.
Before MVF, Fazio, and FA lodged their counterclaims against
Seaway, though, the Illinois Department of Financial & Professional
Regulation—Division of Banking closed Seaway and appointed the FDIC
as its Receiver, pursuant to 12 U.S.C. §§ 1464(d)(2) and 1821(c)(5). The FDIC
set a “claims bar date” of May 3, 2017, meaning that creditors were required
to submit claims pertaining to Seaway to the FDIC by that date. The FDIC
published a notice in the Federal Register about its appointment, as well as
notices in Chicago and Milwaukee newspapers about the Claims Bar Date.
Notice of the claims bar date was mailed to MVF, Fazio, and FA on February
7, 2017—before those parties filed their counterclaims against Seaway.

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MVF, Fazio, and FA did not submit claims to the FDIC against Seaway, the
receivership, or the receivership estate by the Claims Bar Date.
On March 30, 2017, the FDIC filed a notice of substitution as
counterclaim-defendant in Seaway’s place in the Milwaukee County case.
On April 24, 2017, the FDIC removed the case to this Court, and
subsequently filed the instant motion to dismiss the counterclaims filed by
MVF, Fazio, and FA against Seaway.
4.

ANALYSIS
The Financial Institutions Reform, Recovery and Enforcement Act of

1989 (“FIRREA”) established an administrative claims process for resolving
claims against a failed financial institution. 12 U.S.C. §§ 1821(d)(3)-(13). As
part of that process, the FDIC may set a “claims bar date” for claims against
the failed financial institution, after which the FDIC has 180 days to review
and grant or deny each claim. 12 U.S.C. §§ 1821(d)(3), (d)(5)(C), (d)(5)(A)(i).
According to the exception allowing federal jurisdiction, a claimant may
then “file suit on such claim (or continue an action commenced before the
appointment of the receiver)” in district court, within sixty days of either
the FDIC’s initial determination or conclusion of the 180–day period in
which the FDIC may make a determination. 12 U.S.C. § 1821(d)(6)(A).
The statute mandates use of the administrative claims process before
a federal court may hear a claim against a failed bank for which the FDIC
acts as receiver. See 12 U.S.C. § 1821(d)(13)(D) (no jurisdiction over claims
against an institution for which the FDIC is appointed receiver, except as
otherwise provided). As the Seventh Circuit has noted, “FIRREA contains
a clear jurisdictional bar against suits seeking payment of claims against
failed banks taken over by the FDIC[.]” Miller v. F.D.I.C., 738 F.3d 836, 844
(7th Cir. 2013); see also Maher v. F.D.I.C., 441 F.3d 522, 525 (7th Cir. 2006)
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(“Under FIRREA, a claimant can file an administrative claim with the
receiver, which then has 180 days to allow or deny the claim. If the receiver
denies or does not render a decision within 180 days, the claimant has 60
days to file suit. Federal courts lack jurisdiction to address claims that fail
to comply with FIRREA’s administrative claims process.”).
In this case, MVF, Fazio, and FA failed to submit their claims
regarding Seaway to the FDIC on or before the Claims Bar Date of May 3,
2017. Because MVF, Fazio, and FA have failed to submit their claims to the
FDIC for review, they have failed to exhaust the mandatory administrative
claims procedure established by FIRREA and cannot assert their claims
against the FDIC or the assets of Seaway in this action. The Court will,
therefore, grant the FDIC’s motion and dismiss the counterclaims brought
by MVF, Fazio, and FA against Seaway.1 Because the FDIC appears in this
action only to defend against those counterclaims, it will be dismissed from
the action as well.
5.

CONCLUSION
For the reasons stated herein, the FDIC’s motion to dismiss the

counterclaims brought by MVF, Fazio, and FA against Seaway will be
granted. The FDIC will be dismissed as well.

In some cases, rather than dismissing unexhausted claims, courts have
interpreted FIRREA as allowing for entry of a stay pending exhaustion. See, e.g.,
Brown Leasing Co. v. F.D.I.C., 833 F. Supp. 672, 675 (N.D. Ill. 1993), aff’d sub nom.
Brown Leasing Co. v. Cosmopolitan Bancorp, Inc., 42 F.3d 1112 (7th Cir. 1994)
(“Generally, a district court exercises its discretion and stays the proceedings to
permit exhaustion of the mandatory administrative claims review process.”)
(internal quotation omitted). However, entry of a stay in this case would be futile,
because MVF, Fazio, and FA have missed entirely their opportunity to exhaust
their claims within the prescribed timeline.
1

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Accordingly,
IT IS ORDERED that the Federal Deposit Insurance Corporation’s
motion to dismiss (Docket #7) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the counterclaims asserted by
MVF Properties, LLC, James C. Fazio, and Fazio Automotive, Inc. against
Seaway Bank and Trust Company be and the same are hereby
DISMISSED; and
IT IS FURTHER ORDERED that the Federal Deposit Insurance
Corporation be and the same is hereby DISMISSED from this action.
Dated at Milwaukee, Wisconsin, this 11th day of October, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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