[Cite as Bank of Am. v. Macho, 2011-Ohio-5495.]


               Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 96124



                                 BANK OF AMERICA
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                               JUNE MACHO, ET AL.
                                                        DEFENDANTS-APPELLANTS




                                          JUDGMENT:
                                           AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-696021


        BEFORE:         Celebrezze, P.J., Sweeney, J., and Keough, J.

        RELEASED AND JOURNALIZED:                       October 27, 2011
ATTORNEY FOR APPELLANT JUNE MACHO

Mark S. Shearer
8193 Avery Road
Suite 201
Broadview Heights, Ohio 44147


FOR APPELLEES

For Bank of America
Bryan Kostura
Bricker & Eckler, L.L.P.
1001 Lakeside Avenue
Suite 1350
Cleveland, Ohio 44114
-and-
Nelson M. Reid
Anne Marie Sferra
Bricker & Eckler, L.L.P.
100 South Third Street
Columbus, Ohio 43215-4291

For Federal Deposit Insurance Corporation, as Receiver for
Washington Mutual Bank, f.k.a. Washington Mutual Bank, FA
Gregory J. O’Brien
Michael J. Zbiegien, Jr.
Taft Stettinius & Hollister, L.L.P.
3500 BP Tower
200 Public Square
Cleveland, Ohio 44114-2302

Oak Mortgage Co., pro se
c/o Darren Rose
33250 N. Burr Oak Drive
Solon, Ohio 44139

Bob Tengler, pro se
15901 Evening Star Avenue
Maple Heights, Ohio 44137
FRANK D. CELEBREZZE, JR., P.J.:

       {¶ 1} Appellant, June Macho, brings the instant appeal challenging the trial

court’s dismissal of her cross-claim against Washington Mutual Bank, F.A. (“WaMu”)

and the Federal Deposit Insurance Corporation (“FDIC”), a substituted party as receiver

for WaMu.

       {¶ 2} In October 2006, Macho agreed to refinance her home for $149,250 with

WaMu and signed a note and mortgage evidencing the debt. The loan was originated by

Oak Mortgage Company (“Oak”) and its employee, mortgage broker Bob Tengler.

Macho alleges that the loan application was fraudulently completed by Tengler to show

that Macho received more income from social security and her pension than she stated

and that she received conflicting and inaccurate disclosure statements from WaMu, Oak,

and the title company involved in the transaction, Anthem Escrow (“Anthem”).1 Macho

also agreed to a second loan from WaMu in the amount of $15,000.

       {¶ 3} On September 25, 2008, WaMu was taken over by the Office of Thrift

Supervision, and the FDIC was appointed as receiver over WaMu’s assets, which

JPMorgan Chase Bank, N.A. (“Chase”) purchased.

       {¶ 4} By June 17, 2009, Macho had become delinquent on her mortgage, and

Bank of America N.A. (“BofA”), assignee of the primary note and mortgage, filed a

foreclosure suit on that date. After a title search, BofA named WaMu as a party because



        Macho also alleged that Anthem was closely associated with Oak and violated Truth in
       1


Lending Act regulations.
it may have had an interest in the property as a result of the $15,000 loan. BofA served

WaMu at the address of a Chase office in Ohio.           Macho then filed an answer,

cross-claim, counterclaim, and third-party complaint against BofA, WaMu, Oak, Tengler,

and Anthem.

       {¶ 5} On July 8, 2010, the FDIC made a limited appearance to file a motion to be

substituted for WaMu and moved to dismiss the complaint against it. A hearing was held

regarding the motion to dismiss where the FDIC argued that the trial court did not have

subject matter or personal jurisdiction over it, relying on provisions of the Financial

Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”),            Pub.L.

101-73, 103 Stat. 183. The trial court ultimately agreed with the FDIC and dismissed the

complaint against it for lack of subject matter jurisdiction. Macho timely filed a notice

of appeal assigning a single error.

       {¶ 6} I. “The trial court erred when it found that it had no subject matter

jurisdiction over the FDIC.”
                                      Law and Analysis

                              I. Subject Matter Jurisdiction

       {¶ 7} After a party files a Civ.R. 12(B)(1) motion to dismiss, the trial court must

determine whether the complaint contains allegations of a cause of action that the trial

court has authority to decide. Crestmont Cleveland Partnership v. Ohio Dept. of Health

(2000), 139 Ohio App.3d 928, 936, 746 N.E.2d 222. The Ohio Supreme Court has

further noted that the “trial court is not confined to the allegations of the complaint when

determining its subject-matter jurisdiction pursuant to a Civ.R. 12(B)(1) motion to

dismiss, and it may consider material pertinent to such inquiry.” Southgate Dev. Corp. v.

Columbia Gas Transm. Corp. (1976), 48 Ohio St.2d 211, 358 N.E.2d 526, paragraph one

of the syllabus. We apply a de novo review to the trial court’s decision on a motion to

dismiss for lack of subject matter jurisdiction. Crestmont Cleveland Partnership at 936.

       {¶ 8} FIRREA was enacted in 1989 after the savings and loan scandals of the

1980’s to allow the expeditious seizure of a failing bank to limit its effect on the financial

system and individual depositors. Brady Dev. Co., Inc. v. Resolution Trust Corp. (C.A.4,

1994), 14 F.3d 998, 1002-1003. This system allows the FDIC to be appointed receiver

over a failing or failed financial institution’s assets for the purpose of resale or

distribution in a fair and orderly manner. 2 Id. at 1003. FIRREA also establishes a

mandatory claims procedure for creditors seeking monetary redress from the defunct



         The Resolution Trust Corporation (“RTC”) was the statutory predecessor to the FDIC, and
       2


case law dealing with the RTC is generally applicable to the FDIC. Resolution Trust Corp. v. First
Am. Bank (C.A.9, 1998), 155 F.3d 1126, 1127; Nasoordeen v. F.D.I.C. (Mar. 17, 2010), C.D. Cal.
No. CV 08-05631, fn.5.
financial institution for all claims. Robbins v. Foothill Nissan (1994), 22 Cal.App.4th

1769, 1783-1785, 28 Cal.Rptr.2d 190.

                              A. The FIRREA Claims Process

       {¶ 9} The trial court does not have authority to determine Macho’s claims against

WaMu because provisions in FIRREA limit jurisdiction and mandate a claims process,

which Macho had not undertaken at the time she filed her complaint.

       {¶ 10} 12 U.S.C. 1821(d)(3)-(13) provides for a mandatory claims procedure.

12 U.S.C. 1821(d)(3) and (4) vest the FDIC with authority to promulgate rules for the

determination of all claims against the assets of failed financial institutions. 12 U.S.C.

1821(d)(6) provides for very limited judicial review with jurisdiction restricted to the “the

district or territorial court of the United States for the district within which the depository

institution’s principal place of business is located or the United States District Court for

the District of Columbia * * *.”3

       {¶ 11} Macho’s claims against WaMu are of the type constituting “claims” under

FIRREA. In a federal bankruptcy case, In re Shirk (Bankr.Ct.S.D.Ohio 2010), 437 B.R.

592, similar claims alleging fraud and violations of state and federal lending laws were

brought against Chase as successor to WaMu after the FDIC had been appointed receiver

of WaMu’s assets. The Shirk court held that “[t]he Shirks’ claims for misrepresentation

(Complaint, ¶ ¶ 9 & 10), TILA violations (15 U.S.C. § 1601, et seq.) (Complaint, ¶ ¶

11–17), and negligence (Complaint, ¶ 20) constitute claims ‘relating to any act or



         In order for these provisions to take effect, the FDIC as receiver, must comply with notice
       3


requirements set forth in 12 U.S.C. 1821(d)(3)(B) and (D).
omission of [a failed institution] or the Corporation as a receiver’ and, therefore, are

subject to FIRREA’s jurisdictional bar.” Id. at 601, citing 12 U.S.C. 1821(d)(13)(D);

Jackson v. F.D.I.C. (Feb. 19, 2010), E.D. Mich. No. 09-10991. See, also, IndyMac

Bank, F.S.B. v. MacPherson (E.D.N.Y. 2009), 672 F.Supp.2d 313, 316.

       {¶ 12} The present case is factually similar to Shirk. In both instances, parties

asserted claims against a failed financial institution or its successor after the FDIC had

been appointed receiver alleging improprieties in the origination of a home loan. The

conclusion of the court in Shirk is equally applicable to the present case and is dictated by

the need of the FDIC “to dispose of the bulk of claims against failed financial institutions

expeditiously and fairly.”      H.R. Rep. No. 54(I), 101st Cong., 1st Sess. 419 (1989),

reprinted in 1989 U.S.C.C.A.N. 86, 215. Congress has established a claims process for

the orderly administration of the liquidation of the assets of failed banks and has

determined that those asserting claims against those institutions shall go through a claims

process before seeking judicial intervention.4 This process is mandatory in the present

case, and the trial court is without jurisdiction to address Macho’s claims against WaMu.

                                           B. Notice




         Some federal courts recognize a distinction between cases filed before a receiver is
       4


appointed and those filed after the FDIC has been appointed receiver. See, e.g., Marquis v. F.D.I.C.
(C.A.1, 1992), 965 F.2d 1148, 1152-53. In the latter cases, these courts have held that suit can be
maintained or stayed pending exhaustion of the claims process. But, see, MacPherson, supra, at
317-318 (holding that federal courts do not retain subject matter jurisdiction once a receiver is
appointed pursuant to FIRREA).
       {¶ 13} Macho attempts to get around these jurisdictional hurdles by claiming she

did not receive notice of the appointment of the FDIC, and therefore, the provisions of

FIRREA do not apply.

       {¶ 14} FIRREA has strict notice requirements in 12 U.S.C. 1821(d)(3)(B) to

preserve the due process rights of creditors of and those with claims against institutions

where the FDIC has been appointed receiver. Accordingly, the FDIC uses a bank’s

records to notify all listed creditors on its books. 12 U.S.C. 1821(d)(3)(C). Some

claims, such as the one at issue here, would not be listed in such records as WaMu, or the

FDIC was not notified about the claim until Macho filed her cross-claim in 2009. 5

However, pursuant to 12 U.S.C. 1821(d)(3)(B), the FDIC published notice of its

appointment as receiver in the Seattle Times, a publication circulated in WaMu’s

principle place of business, and a national publication, the Wall Street Journal.

Additionally, after receiving notice of Macho’s claims, the FDIC alleges that it sent her

notice of the mandatory claims process.

       {¶ 15} The Southern District Court of Ohio has determined that a party could not

escape the claims process by arguing a lack of notice when the FDIC published its

appointment in the same fashion and sent notice of the claims process after it learned of

the claim following the filing of suit. White v. Chase Bank USA, NA (Sep. 28, 2010),

S.D.Ohio No. 3:10CV021. The Northern District of Ohio has held similarly, finding the

provisions of FIRREA applied to claimants who were unknown creditors when notice by



         The FDIC argues that it was not properly notified at that time either because the complaint
       5


was not served upon it, but upon Chase bank addressed to WaMu.
publication in the same manner was accomplished by the FDIC. Brandow v. F.D.I.C.

(Dec. 22, 2008), N.D.Ohio 2008 No. 1:08-CV-02771.

      {¶ 16} In the present case, the FDIC accomplished notice by publication in the

Seattle Times and the Wall Street Journal. Further, the FDIC sent a notice of the

administrative claims procedure to Macho on July 16, 2010, as stated in its July 23, 2010

reply to Macho’s opposition to its motion to dismiss.

      {¶ 17} Here, as in Shirk, Macho argues that she should not be made to exhaust

administrative remedies when she did not receive proper notice. The Shirk court held

that even if proper notice was not received, “Congress did not intend for the FDIC to lose

jurisdiction based on its failure to mail a takeover notice as FIRREA itself delineates the

parameters within which claimants are exempt from strict compliance with administrative

claims process. Specifically, FIRREA provides the receiver discretion to allow late-filed

claims if the claimant did not receive notice of the appointment of the receiver * * *.

Thus, even if the Shirks failed to receive notice of the FDIC’s takeover of [WaMu], they

were still not relieved of their obligation to follow FIRREA’s administrative claim

process.” (Internal citations omitted.) Id. at 603-604.

      {¶ 18} Addressing a claim unknown to the FDIC while it was appointed receiver,

similar to the claim here, the Shirk court found, “‘common sense dictates that actual

notice cannot be given to those with inchoate claims of lender malpractice.’ F.D.I.C. v.

James J. Madden, Inc., 847 F.Supp. 374, 375 (D.Md.1994). At the time of the FDIC

takeover of [WaMu], the Shirks had not filed any claims against [WaMu]. Therefore,

any potential claim they may have had at that time was inchoate and publication notice
was sufficient under the circumstances. Id. Accordingly, a lack of actual notice does

not relieve the Shirks from exhausting FIRREA’s administrate remedies and the

jurisdictional bar erected by FIRREA applies to the Shirks’ claims attributable to the acts

or omissions of [WaMu] and its agents.” Id. at 604.

       {¶ 19} Based on this logic and law, Macho’s notice argument in not persuasive.

                                C. Constitutionality of the FDIC

       {¶ 20} Macho next asserts that FIRREA, and the very existence of the FDIC, is

unconstitutional — alleging that Congress does not have the power to create such

“quasi-governmental” entities.          Damaging to Macho’s argument is the lack of any

supporting case law on this point. The only support advanced is that Article I, Section 8

of the United States Constitution specifies Congress’s powers and does not give it the

right to establish such entities.         However, the Necessary and Proper Clause of the

Constitution6 bestows the right “[t]o make all laws which shall be necessary and proper

for carrying into execution the foregoing powers, and all other powers vested by this

Constitution in the government of the United States, or in any department or officer

thereof.” The Commerce Clause7 also provides authority to regulate commerce “among

the several States,” including the creation of a nationwide banking system and related

agencies for its operation and preservation. Clause 3, Section 8, Article I, United States

Constitution. See Weir v. U.S. (C.A.7, 1937), 92 F.2d 634, 636.




           Clause 18, Section 8, Article 1, United States Constitution.
       6




       Clause 3, Section 8, Article 1, United States Constitution.
       7
       {¶ 21} Further, federal courts have upheld challenges to FIRREA’s provisions,

including the exhaustion of administrative remedies embodied in 12 U.S.C. 1821(d).

Rosa v. Resolution Trust Corp. (C.A.3, 1991), 938 F.2d 383; Bueford v. Resolution Trust

Corp. (C.A.8, 1993), 991 F.2d 481; Glenborough New Mexico Assoc. v. Resolution Trust

Corp. (D.C.N.M. 1992), 802 F.Supp. 387; F.D.I.C. v. Updike Bros., Inc. (D.C.Wyo.

1993), 814 F.Supp. 1035. But, see, Wilson v. F.D.I.C. (E.D.N.Y. 1993), 827 F.Supp. 120

(holding that where an action is instituted before the FDIC is appointed receiver, a court

retains jurisdiction over the action).

       {¶ 22} Congress has the power to create governmental corporations to help oversee

the operation of a nationwide banking system under both the Commerce Clause and the

Necessary and Proper Clause of the Constitution.

                                           D. Removal

       {¶ 23} Macho also asserts that the trial court should have removed the case to one

of the federal district courts, citing 12 U.S.C. 1819(b)(2). This statute gives the FDIC

the power to remove any case where it is a party to federal court.8 However, removal

would not be appropriate here where Macho had not exhausted her administrative

remedies for her claims against the FDIC.                The trial court lacked subject matter

jurisdiction because FIRREA requires Macho to go through the FDIC claims process and




         12 U.S.C. 1819(b)(2)(B) states: “Except as provided in subparagraph (D), the [FDIC] may,
       8


without bond or security, remove any action, suit, or proceeding from a State court to the appropriate
United States district court before the end of the 90-day period beginning on the date the action, suit,
or proceeding is filed against the Corporation or the Corporation is substituted as a party.”
bestows exclusive jurisdiction upon two federal courts, and subsequent case law has

crafted only very narrow exceptions.

        {¶ 24} The FDIC argues that judicial review is precluded by 12 U.S.C.

1821(d)(13). This statute appears to prohibit judicial review of the decisions of the

FDIC.     However, the federal district court for this jurisdiction has reviewed the

provisions of FIRREA related to the claims of uninsured depositors against a successor

bank after the assets of a failed institution were transferred under the receivership of the

FDIC and found that 12 U.S.C. 1821(d)(13)’s prohibition of judicial review is actually an

exhaustion of claims requirement necessary before judicial review may occur. Village of

Oakwood v. State Bank & Trust Co. (N.D.Ohio 2007), 519 F.Supp.2d 730, 737-738.

This view was affirmed by the Sixth Circuit. Village of Oakwood v. State Bank & Trust

Co. (C.A.6, 2008), 539 F.3d 373.

        {¶ 25} Macho has cited no case law, statute, or regulation that requires the FDIC to

seek removal rather than dismissal.      While judicial review has been established by

federal courts in Ohio and other jurisdictions, the FDIC is not required to seek removal

rather than dismissal. Therefore, Macho’s arguments on this issue are unpersuasive.

                       E. Jurisdictional Limitations in FIRREA

        {¶ 26} Macho    also   argues    that   FIRREA’s     jurisdictional    limitation   is

unconstitutional where it requires judicial review of any FDIC determination to occur

only in the federal district court in Washington D.C. or the district court located in

WaMu’s principle place of business — Seattle, Washington.                     However, in a

post-receivership case filed concurrently in two federal jurisdictions, the Washington
D.C. district court found “the District of Maryland would not have had subject matter

jurisdiction over plaintiff’s case. Instead, under FIRREA, only this Court or the district

court in the district where [WaMu’s] principal place of business is located would have

jurisdiction over plaintiff’s claims.” Poku v. F.D.I.C. (D.C.D.C. 2010), 752 F.Supp.2d

23, 27-28, citing Lloyd v. F.D.I.C. (C.A.1, 1994), 22 F.3d 335, 337. The Poku court

found this provision constitutional, and Macho has failed to point to other applicable

cases holding the opposite.

      {¶ 27} Macho takes issue with requiring her to seek redress of her claims in a

district court far from her home. She claims that a minimum contacts analysis, as set

forth in Internatl. Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed.

95, must be applied to her under the Due Process Clause of the Fifth Amendment as a

cross-claim plaintiff to find that she does not have minimum contacts with these

jurisdictions and cannot be forced to sue the FDIC there.

      {¶ 28} Ohio and Federal laws require a plaintiff to bring suit in jurisdictions where

they may not have any contacts. For example, Civ.R. 3(B)(1) specifies that proper venue

lies, among other places, “in the county where the defendant resides.” This gives no

consideration to the contacts the plaintiff may have to this forum.9 See, also, 28 U.S.C.

1391. The Supreme Court has also upheld contract provisions that require plaintiffs to

sue in certain fora even where they are complete strangers. See Carnival Cruise Lines,

Inc. v. Shute (1991), 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622.




          Civ.R. 4.3 does require a due process analysis, but only for an out-of-state defendant.
      9
       {¶ 29} Further, Macho bears the burden of demonstrating that the statute in

question is unconstitutional.   “When no fundamental right is implicated or suspect

classification affected, the person complaining of the due process violation must establish

that the legislature acted in an arbitrary and irrational fashion.”    Feigel v. F.D.I.C.

(S.D.Cal. 1996), 935 F.Supp. 1090, 1100, citing United States R.R. Retirement Bd. v.

Fritz (1980), 449 U.S. 166, 174–75, 101 S.Ct. 453, 66 L.Ed.2d 368; Usery v. Turner

Elkhorn Mining Co. (1976), 428 U.S. 1, 15, 96 S.Ct. 2882, 49 L.Ed.2d 752.

       {¶ 30} Macho has not carried that burden.        The only case cited by her in

furtherance of the argument that a minimum contacts analysis applies to her as a plaintiff

is Republic of Argentina v. Weltover, Inc. (1992), 504 U.S. 607, 112 S.Ct. 2160, 119

L.Ed.2d 394.    In that case, the Supreme Court analyzed the minimum contacts a

defendant, the government of Argentina, had with the New York federal court where the

plaintiffs filed suit. At no point did the court engage in an analysis of the plaintiffs’

contacts with that forum.

       {¶ 31} Finally, Macho argues that this is a foreclosure action that must be brought

in Cuyahoga county, the location of the subject property. BofA’s complaint against

Macho does seek foreclosure, but Macho’s claims against WaMu do not. She seeks to

hold WaMu and others responsible for alleged wrongdoing in the origination of her

mortgage. Her claims are not for foreclosure and, but for the intervention of the Office

of Thrift Supervision and its appointment of the FDIC as receiver for WaMu, could be

brought in any jurisdiction where WaMu had sufficient contacts. However, FIRREA
significantly restricts Macho’s choice and requires her to first submit her claims to the

FDIC.

        {¶ 32} This is not to say that Macho is entirely prevented from asserting certain

defenses against BofA in its foreclosure actions against her. She may still assert fraud

defenses against BofA through assignee liability under Ohio law. See Citizens Fed.

Bank, F.S.B. v. Brickler (1996), 114 Ohio App.3d 401, 410, 683 N.E.2d 358 (“[T]he

assignee of a contract takes that contract with all rights of the assignor and subject to all

defenses that the obligor may have had against the assignor.”); R.C. 1303.35(A)(1)(c)

(fraud is a valid defense even against a holder in due course10). Therefore, Macho is not

prevented from using WaMu’s conduct as a defense against BofA’s claims against her,

but she is required to follow the FDIC claims process to assert causes of action against

WaMu. See MacPherson at 316; JP Morgan Chase Bank Nat. Bank v. McPhaden (Sep.

14, 2010), Conn.Super. No. FSTCV095009848S.

                                           II. Conclusion

        {¶ 33} The trial court did not err in finding that it did not have subject matter

jurisdiction to hear Macho’s claims against the FDIC as receiver for WaMu. FIRREA

established a mandatory process for those with claims against a failed financial institution

over which the FDIC is appointed receiver. Macho is required to engage in this process,


           A holder in due course is defined as one who takes an “instrument when issued or
        01


negotiated to the holder [that] does not bear evidence of forgery or alteration that is so apparent, or is
not otherwise so irregular or incomplete as to call into question its authenticity; [and:] (a) For value;
(b) In good faith; (c) Without notice that the instrument is overdue or has been dishonored or that
there is an uncured default with respect to payment of another instrument issued as part of the same
series; (d) Without notice that the instrument contains an unauthorized signature or has been altered;
* * *.” R.C. 1303.32.
and the provisions of FIRREA specifically limit the jurisdictions that may review such

claims. This determination renders moot the FDIC’s claim that the trial court erred by

not finding that it also lacked personal jurisdiction, and it will not be addressed.

       Judgment affirmed.

       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

JAMES J. SWEENEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
