Clark v. Fed. Deposit Ins. Corp.

• Decision Date: 06 July 2011
• Docket Number: Civil Action No. H–09–3924.
• Parties: Daniel CLARK and Chastity Clark, Plaintiffs v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Washington Mutual Bank Servicing Agent and Washington Mutual Bank, FA, and JPMorgan Chase Bank, Defendants.
• Court: U.S. District Court — Southern District of Texas

849 F.Supp.2d 736

Daniel CLARK and Chastity Clark, Plaintiffs

v.FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Washington Mutual Bank Servicing Agent and Washington Mutual Bank, FA, and JPMorgan Chase Bank, Defendants.

Civil Action No. H–09–3924.

United States District Court,

S.D. Texas,

Houston Division.

July 6, 2011.

Daniel Clark, County Club Hills, IL, pro se.

Chasity Clark, County Club Hills, IL, pro se.

Deborah L. Sterling, Fred Gaona, III, Gayla C. Crain, Merrill Susan Daily, Spencer Crain Cubbage Mealy McNamara PLLC, Marcie L. Schout, Quilling, Selander, Lownds, Winslett & Moser, P.C., Dallas, TX, for Defendants.

OPINION AND ORDER GRANTING SUMMARY JUDGMENT

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced action, removed from the 61st Judicial District Court in Harris County, Texas,¹ seeking to void and set aside a wrongful foreclosure and to quiet title, are several motions: (1) a motion to dismiss for lack of subject matter jurisdiction, based on Daniel Clark and Chastity Clark's (“Plaintiffs' ” or “the Clarks' ”) failure to exhaust administrative remedies, pursuant to Federal Rule of Civil Procedure 12(b)(1), and alternatively, motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (instrument # 20), filed by Defendant Federal Deposit Insurance Corporation in its capacity as Receiver for WaMu (“FDIC”); (2) Defendant JPMorgan Chase Bank, N.A. (“JPMC's”) motion for summary judgment (# 21); and (3) FDIC's motion to strike (# 30).

I. Standards of Review

Rule 12(b)(1)

Rule 12(b)(1) allows a party to move for dismissal of an action for lack of subject matter jurisdiction. The parties asserting that subject matter exists, here Plaintiffs, must bear the burden of proof for a 12(b)(1) motion. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001). In reviewing a motion under 12(b)(1) the court may consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981).

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is characterized as either a “facial” attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a “factual” attack, i.e., the facts in the complaint supporting subject matter jurisdiction are questioned. In re Blue Water Endeavors, LLC, Bankr. No. 08–10466, Adv. No. 10–1015, 2011 WL 52525, *3 (E.D.Tex. Jan. 6, 2011), citing Rodriguez v. Texas Comm'n of Arts, 992 F.Supp. 876, 878–79 (N.D.Tex.1998), aff'd,199 F.3d 279 (5th Cir.2000). A facial attack happens when a defendant files a Rule 12(b)(1) motion without accompanyingevidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981). In a facial attack, allegations in the complaint are taken as true. Blue Water, 2011 WL 52525 at *3,citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir.1995).

If it is a factual attack, as is the case here, the Court may consider any evidence (affidavits, testimony, documents, etc.) submitted by the parties that is relevant to the issue of jurisdiction. Id., citing Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir.1989). A defendant making a factual attack on a complaint may provide supporting affidavits, testimony or other admissible evidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981). The plaintiff, to satisfy its burden of proof, may also submit evidence to show by a preponderance of the evidence that subject matter jurisdiction exists. Id. The court's consideration of such matters outside the pleadings does not convert the motion to one for summary judgment under Rule 56(c). Robinson, 2008 WL 4692392 at *10,citing Garcia, 104 F.3d at 1261. In resolving a factual attack on subject matter jurisdiction under Rule 12(b)(1), the district court, which does not address the merits of the suit,² has significant authority “ ‘to weigh the evidence and satisfy itself as to the existence of its power to hear the case.’ ” Robinson v. Paulson, No. H–06–4083, 2008 WL 4692392, *10 (S.D.Tex. Oct. 22, 2008), quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir.1997), and citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir.1986).

Because federal courts are courts of limited jurisdiction, they have the power to adjudicate claims only when jurisdiction is conferred by statute or the Constitution. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir.1998); Punzalan v. FDIC, 633 F.Supp.2d 406, 411 (W.D.Tex.2009). As recently stated by the Fifth Circuit, § 1819(b)(2)(a) of FIRREA proclaims that

all suits to which the FDIC is a party and all component claims in those suits are “ conclusively presumed to arise under the laws of the United States and thus ... within the original subject matter jurisdiction of the proper federal district court.” Because a suit and all its component claims are conclusively deemed to arise under federal law once the FDIC is a party, § 1819(b)(2) provides jurisdiction over suits whose causes of action may otherwise largely depend on state law and which may not otherwise be subject to federal-question jurisdiction under the general federal-question statute of 28 U.S.C. § 1331. Ultimately, in enacting FIRREA, “Congress used very strong language to afford the FDIC every possibility of havinga federal forum within the limits of Article III.”

Adair v. Lease Partners, Inc., 587 F.3d 238, 241–42 (5th Cir.2009), cert. denied,––– U.S. ––––, 130 S.Ct. 3326, 176 L.Ed.2d 1221 (2010).

Moreover, if Congress establishes an exhaustion requirement for a statute, the courts must enforce its express terms. Coit Independence Joint Venture v. FSLIC, 489 U.S. 561, 579, 109 S.Ct. 1361, 103 L.Ed.2d 602 (1989). In Meliezer v. RTC, 952 F.2d 879 (5th Cir.1992), the Fifth Circuit held that in 12 U.S.C. § 1821(d)(13)(D) Congress established an exhaustion requirement for claims under FIRREA.³ That provision states,

(D) Limitation on judicial review

Except as otherwise provided in this subsection, no court shall have jurisdiction over—

(i) any claim or action for payment from, or an 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). “ ‘Except as otherwise provided’ refers partially to § 1821(d)(6)(A), which provides [as the only exception] to courts jurisdiction to hear suits on claims after the receiver either disallows the claim or allows its 180–day review period to elapse.” First City Asset Servicing Co. v. FDIC, 158 B.R. 78, 80 (Bkrptcy.N.D.Tex.1993), citing Rosa v. Resolution Trust Corp., 938 F.2d 383, 391–92 (3d Cir.1991), cert. denied,502 U.S. 981, 112 S.Ct. 582, 116 L.Ed.2d 608 (1991).

In First City Asset Servicing Co. v. FDIC, 158 B.R. 78, 80 (Bkrptcy.N.D.Tex.1993), the bankruptcy judge quoted the summary description of FIRREA's statutory exhaustion framework in Lloyd v. FDIC, 812 F.Supp. 293, 297 (D.R.I.1993):

Under this [FIRREA] procedure, those with claims against either a seized depository institution or its receiver must first present their claims to the receiver, who decides the disputes according to the procedures contained in the statute. § 1821(d)(3)-(10). The receiver has 180 days in which to make a determination on the claim, then the claimant has 60 days after notice of the disallowance either to request an administrative review or to commence a de novo action in the appropriate federal district court. § 1821(d)(6)(A). If the receiver fails to give notice of disallowance within the claim determination period, then the claimant has 60 days from the end of that period to request an administrative review or file suit in the appropriate federal court. Id. If the claimant fails to do either, he loses all rights with respect to that claim. § 1821(d)(6)(B).

The administrative exhaustion requirement applies to all claimants, including those who filed suit against a financial institution prior to the appointment of a Receiver. Carney v. Resolution Trust Corp., 19 F.3d 950, 955 (5th Cir.1994) (“FIRREA makes participation in the administrative claim review mandatory, regardless of whether the claims were filed before of after the [Receiver] was appointed receiver of the failed institution.”).⁴

Rule 56

Summary judgment is proper when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The movant has the burden to demonstrate that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The substantive law governing the claims identifies the essential elements and thus indicates which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Where the non-movant bears the burden of proof at trial, the movant need only point to the absence of evidence to support an essential element of the non-movant's case; the movant does not have to support its motion with evidence negating the non-movant's case. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).

If the movant succeeds, the non-movant “must come forward with evidence such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. The non-mova...