                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 4 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KIRK M. CARMICHAEL,                             No. 16-56525

                Plaintiff-Appellant,            D.C. No. 3:15-cv-01064-JAH-DHB

 v.
                                                MEMORANDUM*
JPMORGAN CHASE BANK, N.A.,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Southern District of California
                    John A. Houston, District Judge, Presiding

                          Submitted September 26, 2017**

Before:      SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

      Kirk M. Carmichael appeals pro se from the district court’s order denying

Carmichael’s motion to alter the judgment dismissing for failure to state a claim

his action alleging violations of the Truth in Lending Act. We have jurisdiction

under 28 U.S.C. § 1291. We have an independent duty to determine whether the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court had subject matter jurisdiction. Wash. Envtl. Council v. Bellon, 732

F.3d 1131, 1139 (9th Cir. 2013). We may affirm on any basis supported by the

record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir.

2008). We affirm.

      Dismissal of Carmichael’s action was proper because the district court

lacked subject matter jurisdiction, as Carmichael failed to exhaust the

administrative claim process under the Financial Institutions Reform, Recovery,

and Enforcement Act (“FIRREA”). See 12 U.S.C. § 1821(d)(3)-(10) (setting forth

the FIRREA administrative claim process); Rundgren v. Wash. Mut. Bank, FA, 760

F.3d 1056, 1060 (9th Cir. 2014) (12 U.S.C. § 1821(d)(13)(D) strips courts of

jurisdiction over claims that have not been administratively exhausted under

FIRREA); Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1209 (9th Cir.

2012) (holding that “a claim asserted against a purchasing bank based on the

conduct of a failed bank must be exhausted under FIRREA”). We treat the

judgment as a dismissal without prejudice. See Kelly v. Fleetwood Enters., Inc.,

377 F.3d 1034, 1036 (9th Cir. 2004) (dismissal for lack of subject matter

jurisdiction should be without prejudice).

      Because the district court lacked subject matter jurisdiction over the action,

                                          2                                    16-56525
we do not consider Carmichael’s contention that the district court abused its

discretion by denying Carmichael’s motion to alter the judgment.

      AFFIRMED.




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