                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 08-4229
                                    _____________

                               LAURIE L. DURANEY,
                                    Appellant

                                           v.

                FEDERAL DEPOSIT INSURANCE CORPORATION,
                   as Receiver for Washington Mutual Bank F.A.;
               SHAPIRO & KREISMAN LLC; KEVIN DISKIN, ESQ.;
                 MEGAN D.H. SMITH, ESQ.; LINDSEY HANSEN


                     Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civil No. 07-cv-00013)
                   District Judge: Honorable David Stewart Cercone


                     Submitted Under Third Circuit LAR 34.1(a)
                                      July 16, 2010

       Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges.

                                (Filed: August 2, 2010)


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      This case arises out of a mortgage foreclosure action filed in Pennsylvania state

court by Washington Mutual Bank against Laurie Duraney, and involves Duraney’s
claims regarding the conduct of Washington Mutual and its law firm in collecting the

money that Duraney owed the bank. Subsequent to the foreclosure, Duraney filed the

instant action in federal court against Washington Mutual, its law firm, Shapiro &

Kreisman LLC (“S&K”), and three S&K employees, asserting claims under the Fair Debt

Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p, and various state law

causes of action.

       On January 31, 2008, the District Court dismissed several of plaintiff’s claims

under Federal Rule of Civil Procedure 12(b)(6). The Court held that plaintiff’s breach of

contract and bad faith claims against Washington Mutual, her so-called claim for “joint

and several liability” against all defendants, and her claims against all defendants under

Pennsylvania’s Fair Credit Extension Uniformity Act, 73 Pa. Stat. §§ 2270.1-2270.6, and

Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat.

§§ 201-1 to 201-9, were barred by res judicata because of the state court’s disposition of

her mortgage foreclosure action. The Court further held that plaintiff’s claims for

injunctive relief were barred by the Rooker-Feldman doctrine, that her libel and slander

claims against Washington Mutual failed because the bank’s statements were truthful, and

that her libel and slander claims against all defendants were barred by Pennsylvania’s

doctrine of absolute immunity for statements made in the course of judicial proceedings.

       On September 11, 2008, the Court granted defendants’ motions for summary

judgment on the remaining claims, dismissing plaintiff’s FDCPA claims because



                                             2
Washington Mutual was not a “debt collector” under the FDCPA and because the

statements made by S&K and its employees were not deceptive. The Court also denied

plaintiff’s cross-motion for summary judgment.

       On September 25, two weeks after the District Court entered judgment in

defendants’ favor, the Office of Thrift Supervision closed Washington Mutual and

appointed the Federal Deposit Insurance Corporation (“FDIC”) as receiver pursuant to 12

U.S.C. § 1821(c). On October 11, plaintiff appealed the District Court’s judgment. The

FDIC moved to be substituted for Washington Mutual, and moved to stay proceedings

before our Court to allow plaintiff the opportunity to file an administrative claim against

Washington Mutual with the FDIC. We granted both motions.

       On December 24, plaintiff filed claims with the FDIC for attorneys’ fees related to

the state court foreclosure action and the instant case. The FDIC denied this claim on the

basis that plaintiff had not shown that Washington Mutual had violated any laws during

the foreclosure process. However, plaintiff’s administrative claim did not set forth any of

the claims being pursued by plaintiff in the instant litigation.

       On appeal, plaintiff contends that the District Court erred in granting defendants’

motions to dismiss and motions for summary judgment. Before reaching the merits of

these rulings, we must consider a jurisdictional argument raised by the FDIC for the first

time on appeal. Since the FDIC was appointed only after the District Court entered its

judgment, the FDIC did not have the opportunity to present this argument to the District



                                               3
Court. Nonetheless, as this argument goes to our jurisdiction, the FDIC is entitled to raise

it now. See In re Kaiser Group Int’l Inc., 399 F.3d 558, 565 (3d Cir. 2005) (“It is

well-settled law that subject matter jurisdiction can be challenged at any point before final

judgment, even if challenged for the first time on appeal.”).1

       The FDIC contends that we lack jurisdiction to review plaintiff’s claims against

Washington Mutual because she failed to assert them before the FDIC during the

administrative claims process. Under 12 U.S.C. § 1821(d), the statute that governs the

FDIC’s powers and responsibilities once it is appointed as receiver for a failed bank, the

FDIC has wide latitude to administer the bank’s assets, and claims against those assets.2

The statute requires the FDIC to give notice to the bank’s creditors to present their claims

to the FDIC by a deadline specified by the FDIC, and mandates that the FDIC “determine

whether to allow or disallow the claim” within 180 days of a claim being filed.

§ 1821(d)(3), (d)(5). Where a claimant has failed to make a timely claim, the claim “shall

be disallowed and such disallowance shall be final.” § 1821(d)(5)(C)(i). The statute also

contains a provision constraining judicial review of claims against the failed bank: “no

       1
         To the extent that the FDIC is correct that we lack jurisdiction to review
plaintiff’s claims against Washington Mutual and the FDIC, we nonetheless “have
jurisdiction to determine our jurisdiction,” Drakes v. Zimski, 240 F.3d 246 (3d Cir. 2001),
and we have jurisdiction under 28 U.S.C. § 1291 to review plaintiff’s claims against the
other defendants.
       2
         We have explained that this statute is designed to enable the receiver “to dispose
of the bulk of claims against failed financial institutions expeditiously and fairly.” Praxis
Props., Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49, 64 (3d Cir. 1991) (internal
quotation marks and citation omitted).

                                              4
court shall have jurisdiction over . . . any claim or action for payment from . . . the assets

of any depository institution for which the [FDIC] has been appointed receiver,” except as

otherwise provided for by statute. § 1821(d)(13)(D). However, judicial review is

permitted where the FDIC has disallowed a claim, but this exception applies only where

the specific claim under review was presented to, and disallowed by, the FDIC.

§ 1821(d)(7)(A); Rosa v. Resolution Trust Corp., 938 F.2d 383, 391-92 (3d Cir. 1991).

This exception thus does not apply to the claims here.

       The FDIC therefore argues that we lack jurisdiction to consider Duraney’s claims

against Washington Mutual (and, by extension, against the FDIC as receiver for

Washington Mutual) because she failed to raise them in the administrative claims process.

We agree. The elements of the bar on judicial review provided by § 1821(d)(13)(D) are

clearly satisfied here. There is no dispute that Washington Mutual is a “depository

institution” for which the FDIC “has been appointed receiver,” or that Duraney’s action

seeks “payment from” those assets. Duraney does not contend that she complied with the

FDIC’s administrative process with respect to the claims asserted in this case, and she

does not attempt to invoke the statutory provision for judicial review of claims denied by

the FDIC.3 To the contrary, there is no dispute that Duraney failed to file an

administrative claim with the FDIC based on the causes of action asserted before the




       3
        Duraney does not seek review of the FDIC’s decision to deny her claim for
attorneys’ fees related to the mortgage foreclosure action.

                                               5
District Court, or that the elements of the jurisdictional bar are satisfied in this case.

       Instead, Duraney raises the following three principal arguments against the

application of the jurisdictional bar, none of which have merit. First, she contends that

the jurisdictional bar should not apply because the District Court’s judgment predated

Washington Mutual’s entry into receivership and because the FDIC had notice of her

claims as a result of the litigation in the District Court. However, she cites no authority

that supports these propositions, and we have found nothing in § 1821 that precludes the

application of the jurisdictional bar under these circumstances. Second, she contends that

the application of this provision would undermine the finality of judgments. This concern

is adequately addressed by § 1821(d)(13)(A), which requires the FDIC to “abide by any

final unappealable judgment of any court of competent jurisdiction which was rendered

before the [FDIC’s] appointment.” However, this provision is not triggered here, as there

was no “unappealable judgment” rendered before the FDIC’s appointment. Third, she

cites to § 1821(d)(5)(F)(ii), which provides that “the filing of a claim with the receiver

shall not prejudice any right of the claimant to continue any action which was filed before

the appointment of the receiver.” However, this section of the statute is inapplicable here,

as the FDIC does not base its jurisdictional argument on the fact that Duraney filed an

unrelated claim with the FDIC. We therefore agree with the FDIC that we lack

jurisdiction to review Duraney’s claims against Washington Mutual or against the FDIC




                                               6
as receiver.4

         We also find Duraney’s arguments with respect to the S&K defendants to be

without merit, substantially for the reasons set forth by the District Court in its thoughtful

and well-reasoned opinions. Among other things, the District Court correctly found that

the S&K defendants’ communications to plaintiff and her attorney were not deceptive and

were protected by absolute immunity.5

         We have reviewed plaintiff’s remaining arguments and find them to be without

merit. We will therefore dismiss the appeal with respect to plaintiff’s claims against

Washington Mutual and the FDIC, and will otherwise affirm the orders of the District

Court.

         4
         Even if we were to consider plaintiff’s claims against Washington Mutual on
their merits, we would affirm the District Court’s judgment for substantially the reasons
set forth by the Court in its rulings on Washington Mutual’s motion to dismiss and motion
for summary judgment.
         5
         On March 9, 2010, the Superior Court of Pennsylvania reinstated plaintiff’s
appeal of the trial court’s decision in the mortgage foreclosure action brought by
Washington Mutual, and in a decision issued on July 7, the court remanded one issue
from that appeal for further proceedings. Although this result could arguably undermine
the District Court’s res judicata and collateral estoppel rulings, we conclude that it has no
effect on the outcome of this appeal, because the claims that were dismissed by the
District Court on the basis of res judicata or collateral estoppel were also subject to
dismissal on alternative grounds. First, as discussed above, we lack jurisdiction over the
claims against Washington Mutual. Second, we agree with the S&K defendants that
plaintiff’s claims under the Fair Credit Extension Uniformity Act and the Unfair Trade
Practices and Consumer Protection Law were without merit because the communications
that plaintiff challenges as deceptive were made “in connection with the filing or service
of pleadings or discovery or the prosecution of a lawsuit,” 73 Pa. Stat. § 2270.3, and are
thus outside the ambit of those statutes. Third, we agree with the District Court that “joint
and several liability,” which is labeled as the ninth count of plaintiff’s Complaint, is not
an independent cause of action.

                                              7
