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WILSON v. FDIC

July 8, 1993

PATTON WILSON, Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for CROSSLAND SAVINGS, FSB, Defendant. GLORIA MASIELLO, as Administrator of the estate of SIMONE MASIELLO, and GLORIA MASIELLO, individually, Plaintiff, v. BRIAN L. DICKERSON, and FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for CROSSLAND SAVINGS, FSB, successor by merger of BROOKLYN SAVINGS BANK, Defendants.



The opinion of the court was delivered by: EUGENE H. NICKERSON

 NICKERSON, District Judge:

 These two actions originated in New York State courts. Plaintiff Patton Wilson filed suit pro se against Crossland Savings, FSB (Crossland). Plaintiff Gloria Masiello and her husband, Simone Masiello, now deceased, brought suit against Brooklyn Savings Bank, later merged into Crossland.

 After Crossland became insolvent the Federal Deposit Insurance Corporation (FDIC) was appointed receiver, and, pursuant to 12 U.S.C. § 1819(2) removed the cases to this court. It has moved for, among other things, dismissal in both cases for lack of subject matter jurisdiction.

 This court treats the motions in both cases together.

 I.

 The following are the essential facts.

 Wilson's pro se action, brought on June 3, 1991 in New York County Civil Court, by "Summons with Endorsed Complaint", alleged "failure to return money." Crossland's answer alleged that another person (identified in the motion papers as Wilson's wife) claimed an interest in the account in issue and that the funds claimed by Wilson were held because of a claim by that other person.

 Simone and Gloria Masiello brought their action on November 9, 1981, in New York Supreme Court, Kings County, against Brooklyn Savings Bank and Brian L. Dickerson, an officer of the bank. The complaint sought damages for wrongful discharge and intentional infliction of emotional distress because of the firing of Simone and for Gloria's loss of consortium. The defendants denied liability on December 24, 1981. Four days later Simone died. Gloria then became administratrix of his estate. The case was later remanded to the Civil Court of the City of New York.

 On January 24, 1992 the Office of Thrift Supervision appointed the FDIC as receiver for Crossland. Under 12 U.S.C. § 1821(d)(3) the receiver has authority to determine "claims" against a bank in liquidation and must over a two month period publish three notices to the bank's "creditors to present their claims, together with proof" by a specified date, not less than 90 days after the first publication. The receiver must also mail a similar notice to creditors shown on the bank's books.

 Within the prescribed times the receiver published notices reading, in pertinent part, as follows.

 
Creditors of such institution [Crossland] are notified to present their claims, together with proof thereof, to the Receiver by May 8, 1992, or such claims may be disallowed by the Receiver.
 
Claims filed after May 8, 1992, may be barred in accordance with 12 U.S.C. Section 1821 (d) (5) (c), as amended.
 
All claims, with proof, must be filed with the Receiver at [a New Jersey address].

 While the FDIC attaches to its motion papers receipts for the letters to Wilson and Johnson with alleged addressees' signatures on them, neither signature appears to be in the name of the addressee.

 Although the March 2, 1992 letter gave Wilson, the pro se plaintiff, and Johnson until May 8, 1992 to file claims, Cynthia Boyer Okrent, a lawyer representing the FDIC, sent a letter on April 9, 1992, to Wilson stating that "the Court lacks jurisdiction over the above-entitled action, as your client has not exhausted the administrative claims procedure prescribed in 12 U.S.C. § 1821(d)."

 The letter does not explain how this court had lost jurisdiction some thirty days before the final date for Wilson to file a claim. In support of the statement that the court had lost jurisdiction the letter cites five court decisions. None of them concerned a claim made in an action filed before receivership. In addition, two of the five cases were cited as unpublished cases and one was miscited as to the page in the reports.

 It is puzzling how the FDIC expected a pro se litigant to make a judgment based on this letter.

 The letter requests that Wilson voluntarily discontinue the action or the FDIC will "make an immediate appropriate motion to dismiss the action and to seek costs, as the FDIC views pleadings that are not founded upon existing law as a serious matter." The letter concludes by asking Wilson "to review the law in this area and discuss this issue with your client" and advise Ms. Okrent of "your client's position". Otherwise the "appropriate motion" would follow.

 Ms. Okrent mailed an identical letter, dated April 10, 1992, to Johnson.

 The letter to Wilson did not have the desired coercive effect. In November 1992 he wrote to this court referencing the title of his case in this court and saying:

 
"I am 92 years old and in April I will be 93. (if God permits[)]. My entire life savings is being with held in litigations. I am writing to you in hopes that you would expedite the monies that is being ...

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