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Bloom v. The Federal Deposit Ins. Corp.

United States Court of Appeals, Second Circuit

December 18, 2013

William BLOOM, Appellant,
The FEDERAL DEPOSIT INSURANCE CORPORATION, in its capacity as receiver for Washington Mutual Bank, such entity having incorporatedformer defendants Washington Mutual Bank, FA and Washington Mutual Home Loans, Inc., Defendant-Appellee, Denise Cassese, individually and on behalf of all others similarly situated, FKA Denise Caliguiri, George Scott Rush, Richard Schroer, Richard Melichar, Plaintiffs, Washington Mutual, Incorporated, Washington Mutual Bank, FA, Washington Mutual Bank, FSB, Washington Mutual Bank, Washington Mutual Home Loans, Incorporated, Defendants, John Henry Williams, Brenda S. Komar, Sidney Scholl, Objectors, Christopher Batman, Jo Batman, Kearney Dee Hutsler, Interested Parties.

Argued: April 3, 2013.

Page 59

Peter D. St. Phillip, Jr., Lowey Dannenberg Cohen & Hart, P.C., White Plains, NY (Joseph S. Tusa, Tusa P.C., Lake Success, NY, on the brief), for Appellant.

Joseph Brooks, Counsel (Colleen J. Boles, Assistant General Counsel, Lawrence H. Richmond, Senior Counsel, on the brief), Federal Deposit Insurance Corporation, Arlington, VA, for Defendant-Appellee.

Page 60

Before: B.D. PARKER, LOHIER, and CARNEY, Circuit Judges.

LOHIER, Circuit Judge:

William Bloom appeals from an order of the United States District Court for the Eastern District of New York (Spatt, J.), which principally (1) decertified a class of plaintiffs who asserted claims against the Federal Deposit Insurance Corporation (" FDIC" ), and (2) denied the plaintiffs' motion to permit Bloom, who was not a named party to the action before the District Court, to intervene. However, Bloom failed to notice an appeal of the denial of the motion to allow him to intervene. As a nonparty, he cannot otherwise challenge the decertification order on appeal. Accordingly, we DISMISS the appeal.


This appeal arises out of a lawsuit first filed in 2005 that eventually involved four named plaintiffs. The named plaintiffs asserted various state and federal causes of action against Washington Mutual Bank, FA (" WMB" ) and other entities affiliated with Washington Mutual. The named plaintiffs alleged that they and thousands of other customers had been charged modest but improper fees when they made early payments on their home mortgages. In 2007 the District Court dismissed several of the plaintiffs' claims, including a claim under the Truth in Lending Act (" TILA" ), 15 U.S.C. ยง 1601 et seq., because none of the named plaintiffs had alleged that the defendants charged them more than $100 in improper fees, as required to state a TILA claim. However, the District Court left open the possibility that the named plaintiffs could join other class members who met TILA's threshold requirement.

In 2008 WMB failed and the FDIC was appointed as receiver. Later that year, the District Court certified a class to proceed with non-TILA claims against the FDIC as receiver, and then stayed the litigation to allow the plaintiffs to exhaust their administrative remedies with the FDIC. The named plaintiffs then filed a " class claim" with the FDIC seeking, among other things, to exhaust their own administrative remedies and those of the unnamed class members, but the FDIC rejected the class claim as not reviewable under its administrative claims process. By contrast, the FDIC reviewed and processed but ultimately denied the administrative claims of the named plaintiffs.

After the stay was lifted, the FDIC moved to decertify the class and for partial judgment on the pleadings. The named plaintiffs separately moved to permit Bloom to intervene as an additional named plaintiff. Bloom's addition as a named plaintiff ostensibly would have enabled them to assert a new class claim under TILA based on an allegedly improper $120 fee charged to Bloom. The named plaintiffs also moved to add JPMorgan Chase Bank, NA (" JPMorgan" ) as a defendant.

By Memorandum of Decision and Order dated May 13, 2010, the District Court granted the FDIC's motion to decertify the class based on lack of numerosity because only the four named plaintiffs, and none of the unnamed class members, had exhausted administrative remedies with the FDIC. As relevant here, the District Court also denied the motions to add Bloom as an intervening named plaintiff and JPMorgan as a defendant. Bloom filed a timely notice of appeal. The named plaintiffs did not appeal.


As a threshold matter, we are asked to determine whether Bloom's appeal is properly before us ...

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