999 F.2d 188 (7th Cir. 1993), 92-3016, Capitol Leasing Co. v. F.D.I.C.

Docket Nº:92-3016.
Citation:999 F.2d 188
Case Date:June 30, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 188

999 F.2d 188 (7th Cir. 1993)




No. 92-3016.

United States Court of Appeals, Seventh Circuit

June 30, 1993

Argued April 21, 1993.

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Scott E. Tuckman (argued), Kwiatt & Silverman, Chicago, IL, for plaintiff-appellant.

Kenneth K. Dort, William A. Spence, David V. Goodsir, Freeborn & Peters, Chicago, IL, Joan E. Smiley (argued), F.D.I.C., Washington, DC, for defendant-appellee.

Before CUMMINGS and FLAUM, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.


Capitol Leasing Company (Capitol) appeals from the district court's dismissal of its suit against the Federal Deposit Insurance Corporation (FDIC), the receiver for the Cosmopolitan National Bank of Chicago (Cosmopolitan). The only issue on review is whether the district court correctly determined that it lacked subject matter jurisdiction over Capitol's claim against the FDIC for breach of contract. We affirm.


Capitol leased computer equipment to Cosmopolitan under the terms of an agreement. The bank failed in 1991. When the FDIC took over as receiver, it instructed Capitol and other potential creditors to file any claims against the bank no later than August 21, 1991. Three notices appeared in the Chicago Daily Law Bulletin between May and July 1991 apprising creditors of some of their rights. The notices stated that the FDIC must allow or disallow claims within 180 days of timely filing. R. 7, Exhibit A-1. Absent from the notices were any references to other crucial time limits governing such claims under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"). 12 U.S.C. § 1821 (1989).

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Capitol filed a proof of claim on June 17, 1991, seeking $95,087.20 for alleged breach of contract. On August 23, 1991, the FDIC notified Capitol by mail that it had been appointed receiver for the bank. Like the published notices, that letter contained no reference to the applicable statute of limitations or to the relevant sections--any sections, for that matter--of FIRREA.

The FDIC disallowed Capitol's claim. In the district court and on appeal, the FDIC asserts that it advised Capitol of that decision in a letter dated December 17, 1991--the 180th and final day it was authorized to make such a ruling. See 12 U.S.C. § 1821(d)(5)(A)(i). Capitol denies ever having received notice of disallowance. The letter, in any event, informs Capitol that "[i]f you so choose to contest this decision, you have sixty (60) days from the date of this letter in which to take action against the FDIC as receiver. If action is not taken within sixty (60) days, this claim decision is considered final, with no further rights or remedies with respect to such claim." R. 7, Exhibit A-4. As with the publication and actual notices, the letter of disallowance also fails to cite to the statute.

Capitol did not file an action within 60 days of the adverse decision. Instead, it filed suit 86 days after the FDIC had denied its claim, and 26 days after expiration of the statute of limitations. In response, the FDIC filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). The district court granted the motion, ruling that Capitol had failed to file its action in accordance with the time frame established by FIRREA. That statute, which provides for agency review or judicial determination of claims, states in relevant part:

Before the end of the 60-day period beginning on the earlier of--

(i) the end of the [180-day] period described in paragraph (5)(A)(i) [during which the FDIC must decide any claims against a depository institution for which it] is receiver; or

(ii) the date of any notice of disallowance of such claim pursuant to paragraph 5(A)(i),

the claimant may request administrative review of the claim ... or file suit on such claim ... in the district or territorial court of the United States for the district within which the depository institution's principal place of business is located or the United States District Court for the District of Columbia


12 U.S.C. § 1821(d)(6)(A).

The district court held that compliance with the statutory claims process is mandatory. It rejected Capitol's argument that its claim should not be barred because it never received the disallowance notice. Also irrelevant, the court found, was any evidence tending to show insufficient compliance with the mailing requirements of § 1821(d)(5)(A)(iii). The court went on to observe that even if the FDIC had failed to notify Capitol that its claim had been disallowed, Capitol needed to bring suit within 60 days of either (1) the period beginning on the end of the 180-day determination period, or (2) the date of any notice of disallowance. Section 1821(d)(6)(A).

In this case, the two possible dates coincided. The 180th day after Capitol filed its claim fell on December 17...

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