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Simard v. Resolution Trust Corp.

March 15, 1994

DAVID SIMARD, APPELLANT
v.
RESOLUTION TRUST CORPORATION, APPELLEE. ANGELA M. PICKETT, APPELLANT V. FEDERAL DEPOSIT INSURANCE CORPORATION, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Colleen Kollar-Kotelly, Motions Judge, 91-CV-1307), (Hon. Peter H. Wolf, Motions Judge, 91-CV-1359)

Before Rogers, Chief Judge, and King and Sullivan, Associate Judges.

The opinion of the court was delivered by: King

KING, Associate Judge: During the preliminary stage of these appeals from grants of summary judgment, both the Resolution Trust Corporation ("the RTC"), appellee in No. 91-CV-1307, and the Federal Deposit Insurance Corporation ("the FDIC"), appellee in No. 91-CV-1359, (collectively referred to as "the receivers") filed motions to dismiss for lack of subject-matter jurisdiction. The motions were denied by a motions division of this court; however, the merits division informed the parties that the issue of subject-matter jurisdiction would be addressed at oral argument. *fn1 Because the effect of federal legislation relating to failed financial institutions on the subject-matter jurisdiction of this court is common to these appeals, the court, sua sponte, has consolidated them for decision. Upon concluding that the court has subject-matter jurisdiction, we affirm the grant of summary judgment in both appeals.

I.

Appeal No. 91-CV-1307. On April 25, 1988, appellant David Simard ("Simard") executed an agreement to purchase Unit 426, a condominium located at 4000 Tunlaw Road, N.W., from Dominion Federal Savings and Loan Association ("Dominion Federal"). *fn2 The closing was scheduled for ninety days from the date of the purchase agreement; however, Dominion Federal granted Simard an additional sixty days to clear the title to Unit 426. *fn3 Thus, by the terms of the purchase agreement, settlement of the property was to occur on or before September 25, 1988. Settlement, however, did not occur by that date.

On June 27, 1989, Simard intervened in a lawsuit filed on December 12, 1988, by Robert W. Ayers II ("Ayers") against Dominion Federal. Ayers was seeking a determination of his statutory right, as an assignee of Edith Rogers, the tenant of Unit 426, to purchase that unit from Dominion Federal. Ayers v. Dominion Fed. Sav., C.A. No. 88-CA11682 (Super. Ct. Dec. 12, 1988). Simard, as intervenor, sought specific performance of his contract for the purchase of Unit 426, injunctive relief, and to quiet title. He filed a motion for partial summary judgment, and the RTC, as conservator, filed a motion for summary judgment, which Simard opposed. In response to the defendant's motion for summary judgment, Simard alleged in his statement of material facts as to which there exists a genuine dispute that he and Trustbank Savings, F.S.B. ("Trustbank Savings"), the successor of Dominion Federal, had extended the date of settlement for the purchase of Unit 426, and that he would settle as soon as Ayers' lawsuit was resolved. In support of his position, Simard offered evidence of correspondence, dated after the contract settlement date of September 25, 1988, between the bank and himself referring to Simard's pending purchase of Unit 426.

In granting the motion for summary judgment, the motions Judge ruled that "the contract had expired by its own terms and that no modification or extension was entered into by the parties sufficient to satisfy the statutory requirements" of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"), *fn4 specifically as set forth in 12 U.S.C.A. § 1823 (e) (1989). The motions Judge observed that:

allowing the modifications would clearly work to "diminish or defeat the right, title or interest" of the RTC. 12 U.S.C. § 1823 (e). The RTC took control of Trustbank with the understanding that the contract for the sale of Unit 426 was no longer valid. To allow intervenor to force a sale of the Unit would usurp the legislative purpose in enacting § 1823 (e).

Appeal No. 91-CV-1359. In June 1989, Angela M. Pickett ("Pickett"), who was then employed at Prosperity Mortgage ("Prosperity") as a "quality control coordinator," contacted Harold Fisher, the president of Theodore Roosevelt National Bank ("TRNB"), about the possibility of employment. *fn5 Fisher and a senior vice president then interviewed Pickett for the position relating to the establishment and management of TRNB's mortgage department, which would pay an annual salary of $26,000, plus commissions of $100 for each loan closed and one-half point for each loan originated. At that time, TRNB was in the process of organizing itself and was seeking authorization from the Office of the Comptroller of Currency ("OCC") to open as a depository institution. Fisher informed Pickett that TRNB was scheduled to open for business on or about August 14, 1989.

In her deposition, Pickett testified that she sought assurances of job security because joining TRNB would require her to leave a secure position at Prosperity. She testified that Fisher told her "the job was -- would be a stable one and there would be a long term, you know, possibility for growth and opportunity." To Pickett, Fisher's representation meant that the job "would exist for unless was terminated for some cause." Fisher, however, testified in his deposition that he and Pickett never discussed the tenure of her employment or the conditions of discharge.

On June 28, 1989, Pickett attended a meeting at TRNB during which she received a letter containing a formal offer of employment as mortgage department manager. The letter set forth a job description, salary, starting date of "approximately August 14, 1989," and explained that her "employment and our opening the bank are contingent upon our final approval from the Office of the Comptroller of Currency." The letter concluded: "we welcome you to the TRNB family and look forward to a long and mutually beneficial relationship." TRNB also provided a blank employment application, which Pickett completed and signed on June 30, 1989. A passage in the conditions of employment section of the application stated: "employment is for no definite period and may, regardless of the date of payment of wages and salary, be terminated at any time without previous notice."

On July 15, 1989, Pickett resigned from Prosperity. She began her employment at TRNB on August 14, 1989, even though it had not yet opened for business. Several months later, Fisher informed Pickett that he had decided to hire a more experienced manager and that her duties would be adjusted to manage only certain portions of the mortgage department. Although Fisher informed Pickett that she would be paid at the promised rate of salary in the new position, Pickett viewed the reassignment as a demotion, announced her intention to resign, and left TRNB's employment on November 20, 1989. The bank subsequently opened for business in January 1990. On July 13, 1990, Pickett filed a complaint against TRNB and Fisher seeking compensatory and punitive damages arising from her alleged wrongful discharge. Pickett's appeal is from the grant of summary judgment against her.

II.

We must first determine whether the court has subject-matter jurisdiction. The receivers contend that FIRREA divests a state court of subject-matter jurisdiction after the appointment of a receiver. *fn6 Specifically, they argue that after the administrative resolution of a claim by the receiver, jurisdiction over a pending action against receivership assets lies exclusively in the federal courts.

A. Overview of FIRREA's Administrative Claims Procedure

Congress enacted FIRREA to "establish organizations and procedures to obtain and administer the necessary funding to resolve failed thrift cases and to dispose of the assets of these institutions." H.R. REP. No. 101-54(1), 101st Cong., 1st Sess., 307 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 103. FIRREA sets forth an administrative procedure for resolving claims against an insolvent depository institution under receivership with either the RTC or the FDIC. *fn7 The receiver is required to notify a depository institution's creditors that they must present their claims to the receiver within ninety days after receipt of notice in any case involving the liquidation or winding up of a closed depository institution's affairs. 12 U.S.C.A. § 1821 (d)(3)(B) (1989). The receiver may request a stay of ninety days in any judicial action then pending. 12 U.S.C.A. § 1821 (d)(12)(A) (1989). After the claim is submitted, the receiver has 180 days to determine whether to allow the claim and to notify the claimant of its determination. 12 U.S.C.A. § 1821 (d)(5)(A) (1989).

If the claim is disallowed, the receiver's determination becomes final within sixty days after the denial of the claim, unless the claimant (1) seeks administrative review of the claim; (2) files suit in a United States District Court; or (3) "continue an action commenced before the appointment of the receiver." 12 U.S.C.A. § 1821 (d)(6) (1989). If the claimant files suit in the district court, the court determines the claim de novo. 12 U.S.C.A. § 1821 (d)(5)(E) (1989). Neither receiver contends that either appellant has failed to exhaust his or her administrative remedies under FIRREA. *fn8 See Marquis v. Federal Deposit Ins. Corp., 965 F.2d 1148, 1154 (1st Cir. 1992) (FIRREA requires all claimants to comply with its administrative procedures before litigating his or her claim in court).

B. Jurisdiction After the Exhaustion of Administrative Remedies

There is a presumption of concurrent jurisdiction among federal and state courts over claims arising under federal law. Tafflin v. Levitt, 493 U.S. 455, 458-59, 107 L. Ed. 2d 887, 110 S. Ct. 792 (1990); Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478, 69 L. Ed. 2d 784, 101 S. Ct. 2870 (1981) (citations omitted). This presumption is rebutted only by a clear expression by Congress vesting federal courts with exclusive jurisdiction. Tafflin, supra, 493 U.S. at 459; Gulf Offshore, supra, 453 U.S. at 478. The Supreme Court has observed that the presumption may be rebutted "by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests." Gulf Offshore, supra, 453 U.S. at 478 (citations omitted).

In support of their contention that federal courts enjoy exclusive subject-matter jurisdiction, the receivers rely on 12 U.S.C.A. § 1821 (d)(6)(A) and (d)(13)(D) (1989). Subparagraph (6)(A) provides that after disallowance of a claim by the receiver, a complainant:

may request administrative review of the claim . . . or file suit on such claim (or continue an action commenced before the appointment of the receiver) 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 ...


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