did not proceed as he saw proper he could reinstate his court claim.
There is no prejudice to any party by this procedure. All parties knew the nature of plaintiff's claim. In fact it was preferable for all concerned that plaintiff simply reinstate his old action rather than have a new complaint and new answering papers filed. Particularly where the plaintiff is pro se it is appropriate to construe his actions liberally. Cf. Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (reading pro se plaintiff's complaint especially liberally); see also Dioguardi v. Durning, 139 F.2d 774 (2d Cir. 1944). This motion is thus an acceptable means for plaintiff to seek this relief.
The Act in 12 U.S.C. § 1821(d)(6)(A) provides, in pertinent part, that within sixty days of "the date of any notice of disallowance" of a claim or the end of the 180-day period within which the F.D.I.C. must decide a claim, a claimant may "file suit on such claim (or continue an action commenced before the appointment of the receiver)." The Act in 12 U.S.C. § 1821(d)(6)(B) treats the sixty-day period as a statute of limitations.
Defendants claim that the "date of any notice" means the "date on the notice," July 8, 1993, and that plaintiff's action is therefore time barred because it was not filed by September 6, 1993. At oral argument, plaintiff submitted a copy of what he alleges to be the certified mail envelope containing the F.D.I.C.'s denial. The date stamped on that envelope is July 20, 1993. Plaintiff claims he received the notice on July 24, 1993 and that an F.D.I.C. employee informed him that he had until September 24, 1993 to file in district court.
The Act does not define whether "notice" means actual notice or the letter giving notice. In section 1821(d)(5)(A) the Act requires the F.D.I.C. to decide whether to allow claims within 180 days after they are filed. The F.D.I.C. fulfills this requirement when it mails notice to the claimant's last address on file. 12 U.S.C. § 1821(d)(5)(A)(iii). But the section does not define when the sixty-day period begins to run.
While the denial letter itself informs plaintiff that he has 60 days "from the date of this letter" to file an action in district court, that letter is no authority for interpreting the phrase "the date of any notice." Moreover, it miscites the statute.
Defendants submit an unpublished opinion from Olsen v. F.D.I.C., No. 91 CV 3741 (E.D.N.Y. 1993), which holds that a June 4, 1991 filing was late when the F.D.I.C. denied the claim on October 4, 1990 and sent a second, explanatory letter on April 4, 1991. The court in that case did not rely on the date of the first denial notice, and the authority it cites does not specify the date on which the sixty-day period begins to run.
Defendants cite one Court of Appeals case, Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188 (7th Cir. 1993), to support the assertion that the date on the notice controls whether or not a claimant ever received the notice. In that case the F.D.I.C. said it mailed out a denial letter on the 180th day after the claim was filed. The claimant thus had 60 days from the date on the notice because that was the same as 60 days from the 180th day after a claim is filed, which is the outside time limit for filing a claim in district court. The case does not support the defendants' position here. Indeed, in dicta the opinion supports the plaintiff. The court said: "A creditor must take action on a claim either within 60 days of receiving any notice of disallowance or within 60 days after the expiration of the 180-day period for consideration of the claim." Id. at 192 (emphasis in original).
This makes good sense. It would be absurd to read "the date of any notice" to be the date on a notice and not the date it is received. Congress could hardly have provided that the F.D.I.C. could print a notice and not mail it for 60 days and thus comply with the notice requirement. Such a reading would prevent a claimant from receiving actual prior notice and filing suit.
In this case plaintiff received the notice 16 days after it was printed. Under the F.D.I.C.'s reading of the statute he had only forty-four days left to act. The F.D.I.C. may be entitled to an inference that claimants receive notice after the F.D.I.C. mails it. See Capital Data Corp. v. Capital Nat'l Bank, 778 F. Supp. 669, 675 (S.D.N.Y. 1991). But here the date of receipt is not disputed. This court holds that the 60 days runs from the date of receipt of notice.
Plaintiff received the notice of denial on July 24, 1993. He filed this motion on September 22, 1993, exactly 60 days after he received the F.D.I.C.'s notice. Plaintiff's motion was therefore timely.
The court grants plaintiff's motion to vacate the stipulation of dismissal and restore this action to calendar.
Dated: Brooklyn, New York
November 16, 1993
Eugene H. Nickerson, U.S.D.J.
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