was not to be recorded unless problems with the stock purchase
agreement arose. See Bellucci Aff., Exh. 7.
On July 6, 1990, the Office of the Comptroller of the
Currency declared CNB insolvent and appointed the FDIC as
receiver. On July 12, 1990, pursuant to its statutory
obligations, the FDIC mailed CDC a notice of CNB's insolvency
and of CDC's right to file its claims against CNB, with proof,
by October 16, 1990.*fn3 See Affidavit of Frank J. Recca (July
12, 1990) (hereinafter "Recca Aff.") (attached as Exhibit A to
Affidavit of Marc E. Wieman in Further Support of the FDIC's
and the RTC's Motions for Summary Judgment (October 10, 1991)).
In addition, on July 13, 1990, August 12, 1990 and September
12, 1990, the FDIC published a general notice to creditors in
the New York Times, alerting them to the insolvency and to an
October 10, 1990 deadline for filing claims against CNB.
Gurfein Aff., Exh. E. The FDIC also examined CNB's records,
which failed to disclose the existence of the Mortgage, the
notice of exercise of the Option, or CNB's ownership of CDC
stock. Affidavit of Louis Vitolo ¶ 3 (Feb. 8, 1991).
On August 10 and August 15, 1990, the FDIC mailed letters to
CDC, informing CDC that it was exercising its right as receiver
to disaffirm certain contracts and leases to which CNB was a
party. The letters again notified CDC of its right to file a
claim based on the disaffirmances, and included an address at
which claims could be filed. Gurfein Aff., Exh. F; Bellucci
Aff., Exh. 10. Shortly thereafter, on August 21, 1990, CDC
recorded the Mortgage. Gurfein Aff., Exh. C; Bellucci Aff.,
On August 31, 1990, Javier Garcia, the Chairman of CDC, sent
a letter to Luciano Garcia, the Liquidator in Charge of the CNB
insolvency.*fn4 This letter, which CDC characterizes as a
formal claim for the $1,700,000 owed on the agreement to
purchase its stock, "implores" the liquidator to include CDC in
"whatever type of negotiations" the FDIC might have regarding
the building where CNB conducted its business. Bellucci Aff.,
Exh. 8. On September 25, 1990, the FDIC sent CDC another
letter, stating that it was disaffirming CDC's data processing
contract with CNB and advising CDC of the procedure for filing
a claim based on that disaffirmance. Bellucci Aff., Exh. 8. On
November 6, 1990, CDC's Chairman (Javier Garcia) sent another
letter to the FDIC liquidator (Luciano Garcia), explaining that
he was enclosing certain "payments" that he, his brother, and
CDC owed the FDIC for a "line of credit" they once had with
CNB. Bellucci Aff., Exh. 11. Despite the apparent lack of
connection between the FDIC's letter of September 25, 1990 and
either of Javier Garcia's letters, CDC characterizes the
November 6, 1990 letter as a "supplementation" of its August
31, 1990 "claim" based upon the Mortgage. See CDC's Memorandum
of Law in Opposition to FDIC's and RTC's Motions for Summary
Judgment at 4.
On November 23, 1990, CDC filed a notice of pendency on the
Premises and initiated this mortgage foreclosure action in the
New York State Supreme Court, New York County. In December
1990, the FDIC removed the action to this Court pursuant to
28 U.S.C. § 1446 and 12 U.S.C. § 1819(b)(2)(B).
On December 19, 1990, more than two months after the FDIC's
October 16, 1990 filing deadline, CDC submitted a formal claim
based on the Mortgage with the FDIC. Gurfein Aff., Exh. H. On
January 28, 1991, the FDIC notified CDC that its claim had been
disallowed, denied, and rejected on the basis of its
untimeliness. Gurfein Aff., Exh. J.
In deciding defendant's motion for summary judgment, this
Court must examine "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any," to determine whether there exists a
issue as to any material fact" or whether the moving party is
entitled to a judgment "as a matter of law." Fed.R.Civ.P.
56(c). The Court's role in such a context is not to resolve
disputed factual issues, but rather to determine whether the
record, taken as a whole, supports any issues that require a
trial. See Matsushita Elec. Indus. Co. v. Zenith Radio,
475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
Nevertheless, the very language of the summary judgment
standard provides that "the mere existence of some alleged
factual dispute will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d
202 (1986) (emphasis in the original). Materiality is
determined by reference to the substantive law applicable to
the case at hand, and factual disputes irrelevant to its
outcome "will not be counted." Id. at 248, 106 S.Ct. at 2510.
The above guidance is important in this case because CDC
contests a number of the FDIC's factual allegations. CDC
disputes the FDIC's claim that it mailed its July 12, 1990
Notice to Creditors (the "Notice"), and suggests that it should
not be bound by the FDIC's October 16, 1990 deadline for
submitting claims against CNB. See Affidavit of Javier Garcia
in Opposition to Summary Judgment Motion ¶ 4 (October 24, 1991)
(hereinafter "Garcia Aff."). In addition, CDC alleges that even
had it received the Notice, neither it nor any of the FDIC's
subsequent letters applied to the Mortgage at issue. Id. ¶¶ 9,
13, 14, 20. Finally, CDC challenges the FDIC's contention that
it did not file a claim until December 1990, arguing that its
August 31, 1990 and November 6, 1990 letters served as claims
based on the Mortgage. See CDC's Memorandum of Law in
Opposition to Motion for Summary Judgment at 4. As the
discussion below makes clear, while these factual issues may be
"material" to the question of whether we have subject matter
jurisdiction under FIRREA, they are not sufficiently "genuine"
to require resolution by trial. Summary judgment for the FDIC
must therefore be entered accordingly.
A. Lack of Subject Matter Jurisdiction Under FIRREA.
As its first basis for summary judgment, the FDIC maintains
that this Court lacks subject matter jurisdiction to review
plaintiff's claim. Specifically, the FDIC argues that plaintiff
has forfeited its right to judicial review by failing to adhere
to the mandatory administrative claim procedure set forth in
FIRREA's section 1821(d).
Congress enacted FIRREA in 1989 in response to the growing
crisis in the financial industry. Its goal, as described in
Circle Indus., Division of Nastasi-White, Inc. v. City Federal
Savings Bank, 749 F. Supp. 447 (E.D.N.Y. 1990), aff'd,
931 F.2d 7 (2d Cir. 1991), was to provide "a detailed regulatory
framework so as to restore the financial integrity of the
thrift industry's deposit insurance fund and to `provide funds
from public and private sources to deal expeditiously with
failed depository institutions.'" Id. at 451 (citing P.L.
101-73, 103 Stat. 183, § 101). In furtherance of that goal,
FIRREA granted the FDIC broad powers in its capacity as
receiver to determine claims against the failed institutions,
and established a comprehensive administrative claim process,
adherence to which is a prerequisite to judicial review of
those claims. Since an understanding of that administrative
structure is essential to the resolution of the FDIC's motion,
its relevant aspects are set forth below.
After the FDIC is appointed receiver of a failed institution,
the claims process begins with a directive that the FDIC
"promptly publish a notice to . . . creditors to present their
claims, together with proof, to the receiver" by a specified
date no less than 90 days from the date of publication.
12 U.S.C. § 1821(d)(3)(B). In addition to that generalized notice
obligation, the Act requires the FDIC to "mail a notice similar
to the notice" described above to all known creditors of the
institution at their last address appearing on the
institution's books. § 1821(d)(3)(C).
Once a claim is submitted with the requisite proof, the FDIC
is permitted 180 days
to determine whether to allow or disallow it. §
1821(d)(5)(A)(i). Upon disallowance, or in the event that the
FDIC fails to make a determination within the 180 day period,
claimants have the right to seek either administrative or
judicial review in a district court, provided they do so within
60 days of the disallowance or end of the 180 day period. §
While de novo judicial review is therefore available to a
diligent claimant, claimants who fail to adhere to the
statute's requirements may forfeit their right to that
procedure. If a claimant does not submit his claim until after
the date specified in the FDIC notice to creditors, section
1821(d)(5)(C) directs that the untimely claim "shall be
disallowed and such disallowance shall be final." Similarly,
where a claimant fails to seek review of an FDIC disallowance
within the allotted 60 day period, section 1821(d)(6)(B)
directs that the claim "be deemed to be disallowed . . . such
disallowance shall be final, and the claimant shall have no
other rights and remedies with respect to such claim." Finally,
the statute expressly limits the jurisdiction of the district
courts to claims that have first been presented to the
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 any
action seeking a determination of rights with
respect to, the assets of any depository
institution for which the Corporation has been
appointed receiver. . . .
Examining the parties' arguments in light of this statutory
backdrop, it is clear that if the FDIC can show that there is
no genuine issue of material fact as to either the FDIC's
compliance or CDC's non-compliance with the FIRREA procedures,
summary judgment dismissing CDC's complaint for lack of subject
matter jurisdiction should be granted. For the reasons that
follow, this Court finds that the FDIC has satisfied its burden
and is entitled to the relief sought.
The FDIC's compliance with FIRREA.
In the first place, the FDIC has adequately demonstrated its
own compliance with the notice requirements set forth in
section 1821(d)(3)(C). The FDIC's moving papers include a
"Notice to Creditors" dated July 12, 1990, which advised
creditors of CDC's insolvency and of the process for filing
claims against the failed institution. Gurfein Aff., Exh. D.
That letter, which enclosed a proof of claim form, explained
that the form had to be "completed in full, signed by a
properly authorized signatory, notarized and returned along
with supporting documents" by October 16, 1990 in order to
avoid forfeiting the claim pursuant to section 1821(d)(5)(C).
The FDIC has also submitted the affidavit of Frank J. Recca,
then an FDIC account officer, swearing that the notice was
mailed to general trade contractors, including CDC, on July 12,
1990. See Recca Aff. Thus, the FDIC has carried its burden of
demonstrating its own adherence to the statute's requirement of
prompt publication to creditors.
In an effort to rebut this threshold showing of compliance,
however, CDC offers several arguments to dissuade this Court
from granting summary judgment for the FDIC. CDC maintains: (1)
that the July 20, 1990 Notice to Creditors was not mailed; (2)
that even if mailed, it was not received; and (3) that even if
received, it did not apply to claims based on the Mortgage.
Each of these possibilities is addressed in turn.
In support of its first argument, that the Notice to
Creditors was not mailed, CDC points out that the July 20, 1990
letter reflects no specific addressee, and that the FDIC has
not presented any other proof that the document was sent to
CDC. Nevertheless, the affidavit of Marc E. Wieman, one of the
FDIC's staff attorneys, adequately explains the absence of such
"proof" in stating:
2. Due to the increase in volume of bank
insolvencies and the resulting increase in the
number of creditors, the FDIC no longer keeps
individual copies of Notice to File Claim letters
creditors. Rather, it is the usual business
practice for an FDIC account officer assigned to
an insolvent bank to prepare an affidavit
contemporaneous with the time of the mailing of
such notices swearing that the notices were mailed
to each creditor appearing on the bank records.
For expediency, the notice is not addressed to any
3. Pursuant to this practice, on July 12, 1990,
the date on which the Notice to the creditors of
Capital National Bank was mailed, Frank J. Recca,
then an FDIC account officer, prepared such an
affidavit, a copy of which is annexed hereto as
4. Annexed hereto as Exhibit B is the page of the
computer printout of the listing of all Capital
National Bank creditors on which Capital Data
An examination of the exhibits at issue confirms that Mr. Recca
prepared the mailing affidavit and that CDC was one of the
creditors listed on the attached computer printout. This
showing satisfies the Court that the required mailing was, in
fact, made by the FDIC, and that CDC's challenge as to that
issue is not a "genuine" one calling for resolution by trial.