Filed 12/29/15 First-Citizens Bank & Trust v. North County Church of Christ CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



FIRST-CITIZENS BANK & TRUST                                         D065167
COMPANY,

          Plaintiff, Cross-defendant and
          Appellant                                                 (Super. Ct. No. 37-2012-00050771-
                                                                     CU-OR-NC)
          v.

NORTH COUNTY CHURCH OF CHRIST,

          Defendant, Cross-complainant and
          Appellant.


          APPEAL from a judgment of the Superior Court of San Diego County, Earl H.

Maas III, Judge. Reversed.

          Anderson Hilbert & Parker, John Forest Hilbert, Jeffrey N. Garland and Whitney

R. Blackhurst; Garrett & Tully, Ryan Christopher Squire and Zi Chao Lin, for Plaintiff

and Appellant First-Citizens Bank & Trust Company.

          Schwartz Semerdjian Ballard & Cauley, James Ballard and Kevin T. Cauley;

Schwartz Semerdjian Cauley & Moot and Kevin T. Cauley; Higgs, Fletcher & Mack,

John Morris and Victoria Fuller, for Defendant and Appellant North County Church of

Christ.
       First-Citizens Bank & Trust Company (First-Citizens) sued North County Church

of Christ (Church), seeking to establish the validity of a deed of trust on the Church's

property securing a loan issued by Temecula Valley Bank (TVB). First-Citizens

purchased the secured loan from the Federal Deposit Insurance Corporation (FDIC) after

the FDIC was appointed receiver for TVB. The Church filed a cross-complaint against

First-Citizens, seeking equitable relief that the deed of trust is not valid and is void as a

matter of law.

       After a six-day bench trial, the court rejected First-Citizens' arguments that the

Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA)

precluded the court from assuming jurisdiction over the Church's claims and defenses.

(12 U.S.C. § 1811, et seq.)1 The court then ruled that a portion of the deed of trust was

void and a portion remained valid. The court found (1) the Church official who obtained

the secured loan from TVB committed fraud against the Church; (2) TVB was on

"inquiry notice" of the fraud and did not engage in due diligence before approving the

loan; and (3) the Church failed to disclose the fraud to First-Citizens after the Church

learned of the encumbrance. The final judgment imposed a new deed of trust that

secured only a portion of the prior debt.

       Both parties appeal. We determine the court had no jurisdiction to consider the

Church's challenges to the validity of the deed of trust because the Church failed to

exhaust its administrative remedies under FIRREA. (§ 1821(d)(13)(D).) We thus

conclude the court erred in rejecting First-Citizens' claim that the deed of trust was valid.

1      All undesignated statutory references are to title 12 of the United States Code.
                                            2
Accordingly, we reverse the judgment and order the court to enter a new judgment in

First-Citizens' favor on its declaratory relief claim and on the Church's cross-complaint.

                     FACTUAL AND PROCEDURAL SUMMARY

       At all relevant times, the Church was governed by a Board of Elders (Board)

responsible for spiritual, religious, and financial matters for the institution. The Board

delegated many of its financial powers to Paul Winter, a long-time Church leader and

successful investor who donated substantial sums to the Church. Winter served as

treasurer and corporate secretary at various times, and had substantial control over all

financial and banking matters related to the Church. Winter was an approved signatory

on the Church's bank accounts, managed assets, negotiated and signed leases, and dealt

with governmental authorities. He had the authority to open bank accounts and write

checks, and he was the person designated to prepare all corporate compliance documents

and corporate resolutions for the Church. The Board trusted Winter without reservation

regarding all financial aspects of the Church.

       In 2004, Winter formed a corporation (Western Christian Foundation (WCF)),

which donated substantial funds to the Church. WCF was controlled by Winter, and was

a public benefit corporation formed to provide gifts, contributions, and grants to qualified

charities.

       The Church's primary asset was improved real property in Escondido (the

Property). The Church used the Property for its religious services and other related

functions. In 2006, Winter proposed to the Board that it transfer the Property to WCF, to

prevent frivolous lawsuits against the Church and allow Winter to use equity in the

                                              3
Property "as collateral in order to borrow against it and earn a profitable return" for the

Church's benefit. The Board supported this concept and instructed Winter to prepare the

necessary documents for the Board's review. Despite this authorization, Winter took no

immediate action to transfer the Property or obtain a loan.

       Two years later, in about February 2008, a TVB senior vice president called

Winter and asked if he was still interested in a loan secured by the Property. Without

notifying the Board, Winter said he was interested and prepared documentation to

transfer the Property to WCF and obtain loan approval from the bank's underwriting

department. This documentation included a grant deed signed by Winter transferring the

Property from the Church to WCF; an unsigned Church corporate resolution authorizing

the transfer; and a leaseback agreement with the Church. Winter did not disclose the

documentation to the Board, and TVB never communicated with any other Church

official regarding the proposed loan.

       Several months later, in August 2008, TVB approved the loan. Without obtaining

reauthorization from the Board or disclosing the transaction, Winter (on WCF's behalf)

obtained a $3.8 million line of credit secured by a deed of trust (Deed of Trust) on the

Property now owned by WCF. At the time, the Property was valued at about $6.35

million.

       Winter then invested a portion of the borrowed funds in short-term high interest

real estate mortgage loans. In about May 2009, the federal government took over those

investment funds as part of a criminal investigation and these funds were ultimately lost.



                                              4
       Shortly after, in July 2009, TVB became insolvent and on July 17, 2009, the FDIC

was appointed receiver. Within a day or two, First-Citizens purchased TVB's assets

(including the WCF secured loan). Winter was aware of TVB's collapse and that it had

been taken over by the FDIC, and he communicated this information to Randy

Armstrong, a member of the Church finance committee. During the next several months,

the FDIC published several notices stating that all claims against TVB must be filed with

the FDIC by October 20, 2009. (See infra at pp. 22-24.)

       One or two months before this October 20 deadline, the Church retained Timothy

Spivey as the head minister, and gave him significant control over the Church's finances

and budget. In investigating the Church's assets, Spivey was surprised to learn WCF

owned the Property and the Property had been encumbered with the Deed of Trust

securing the WCF loan. At that point, Winter had withdrawn about $2.7 million from the

credit line, and about $1.1 million remained.

       On September 16, 2009, Spivey notified the Board of these facts. The Board

members were initially "stunned, caught off guard." The next day the Board members

had a lengthy meeting with Winter. After the meeting, the Board members told Spivey

the Board had authorized the Property transfer and the secured loan "for the purpose of

[Winter and WCF] being able to bring in more revenue" to the Church. They said they

understood and agreed that WCF would borrow against the Property and invest the loan

proceeds to further WCF's financial support of the Church.

       When Spivey recommended that the Board remove Winter as treasurer and

compel him to immediately pay back the borrowed money, the Board members

                                            5
disagreed, believing Spivey "lacked understanding of [Winter], his personal wealth

situation, his motives." They said Winter "has gobs of money. . . [and if] he wanted to

pay it back, he could"; Winter was a powerful man and a very large donor to the Church;

and Winter would "take it as a sign of distrust if they were to ask him those questions or

to request that he give the money back on the spot." They expressed "confidence that if

any money had been borrowed, it would be paid back very easily, so it really was no big

deal," and that Winter would succeed in recovering the seized funds. They instructed

Spivey not to tell the Church's finance team about the Property transfer and loan. Spivey

testified that when he recommended that the Board take steps to freeze the line of credit,

the Board members rejected this suggestion, stating they "felt like I was not

understanding [Winter], his capacity for wealth, his motives. They felt like I was making

a big deal of something that was really not a very big deal."

       Thus, at that point, the Board made no effort to stop Winter/WCF from making

further draws on the credit line, and did not notify First-Citizens there was any concern

with the secured loan or any limits on Winter's authority regarding the loan. Nor did the

Church file any claim with the FDIC challenging the loan or Winter's authority to have

encumbered the Property. By March 31, 2010, Winter (through WCF) took an additional

approximately $1.1 million, drawing the full amount of the $3.8 million credit line.

       During the next several months, Church officials realized Winter would be unable

to pay back the loan. In September 2010, the Board wrote to First-Citizens claiming (for

the first time) that TVB had approved the loan without "proper authorization" from the

Church's governing body. The Church asserted that TVB failed to conduct reasonable

                                             6
due diligence and requested First-Citizens to relinquish the Deed of Trust. The letter

stated that "[i]n the event that [First-Citizens] refuses our request to sign a Deed of

Reconveyance and subsequently initiates foreclosure proceedings on [the] Property, we

will immediately exercise our rights to seek all available legal and equitable remedies."

       The Church then continued to make payments on the secured loan for several

months. It also accepted a promissory note from an entity formed by Winter promising to

repay the borrowed funds. However, in May 2011, the WCF loan went into default, and

in November 2011, the Church recorded a grant deed retransferring the Property from

WCF to the Church.

       Less than one year later, in February 2012, First-Citizens filed a superior court

complaint seeking a judgment quieting title to the property as being subject to the Deed

of Trust and declaring the validity of the encumbrance. The Church answered and

asserted numerous affirmative defenses, including that the conveyance of the Property

from the Church to WCF was "fraudulent and therefore void and null"; TVB issued the

line of credit in violation of applicable standards of care; and First-Citizens was not a

bona fide encumbrancer for value of the Property.

       Shortly before trial, the Church sought permission to file a cross-complaint against

First-Citizens, seeking affirmative equitable relief in the form of an order declaring the

Deed of Trust invalid. The Church argued there would be no prejudice because it was

"merely seek[ing] formal legal redress as a result of the invalid trust deed" and "[t]hese

very same issues were raised by [the Church] in its Answer." The parties then stipulated

to the filing.

                                              7
       In February 2013, the Church filed its first amended cross-complaint, seeking to

quiet title to the Property and for declaratory relief ordering that the Property is "[f]ree of

all encumbrances," including the Deed of Trust. The factual basis for the pleading was

the Church's allegation that First-Citizens' predecessor (TVB) had violated "safe and

sound banking practices in extending the [$3.8 million] line of credit" to WCF, including

by failing to obtain Board confirmation regarding Winter's authority and relying on

documents that were not signed by authorized Church officials.

       In June and July 2013, the court conducted a bench trial on the complaint and

cross-complaint. Before and during trial, First-Citizens raised the issue that under

FIRREA, the court had no jurisdiction over the Church's claims that the Deed of Trust

was void or a nullity. First-Citizens relied on two FIRREA provisions: (1) section

1821(j), known as the injunctive relief prohibition; and (2) section 1821(d)(13)(D),

known as the administrative exhaustion requirement.

       First-Citizens alternatively argued the loan was valid and enforceable because

Winter had the express authority to transfer and encumber the property for the Church's

benefit and Church officials later ratified this authority by refusing to take any action

once they learned of Winter's actions. First-Citizens claimed TVB acted according to

applicable standards in approving the loan because the bank had a longstanding

relationship with Winter as the Church's financial representative; the bank had no

obligation to "police[ ]" the relationship between Winter and the Church; and First-

Citizens and TVB were bona fide encumbrancers and thus could not be liable for



                                               8
Winter's activities. First-Citizens argued that the losses were caused by a bad investment

decision, and not its own conduct or TVB's loan approval.

       In response, the Church argued FIRREA did not bar the action for numerous

reasons, including that the FDIC was not a party to the action and FIRREA did not apply

to affirmative defenses. On the first day of trial, the Church's counsel declined the court's

invitation to stay the action to allow the Church to file an administrative claim with the

FDIC. On the merits, the Church argued that the Deed of Trust was void or invalid

because Winter "duped" the Church when he encumbered the Property; TVB "had a long-

time chummy relationship with [Winter] and chose to bury its head in the sand in the face

of known and obvious red flags . . ."; and TVB violated applicable standards and failed to

engage in reasonable due diligence before approving the loan to WCF.

       After considering the evidence and arguments, the court issued a statement of

decision finding each party proved a portion of its case. The court initially rejected First-

Citizens' FIRREA-based jurisdictional arguments. The court found the injunctive relief

prohibition (§ 1821(j)) did not apply because the action was against a successor bank and

not the FDIC. The court relied on a Ninth Circuit decision (Henrichs v. Valley View Dev.

(9th Cir. 2007) 474 F.3d 609), and rejected conflicting Eighth Circuit authority (Dittmer

Props., L.P. v. FDIC (8th Cir. 2013) 708 F.3d 1011). The court also summarily rejected

First-Citizens' administrative exhaustion argument, finding it was "not persuasive." The

court stated its conclusions "might be different" in a direct action between "the bank and

the borrower."



                                              9
       On the merits, the court found TVB did not engage in due diligence in approving

the loan because it "ignored numerous red flags." The court said the Board members

were "forthright in their admission[s] that they had authorized the [Property] transfer, and

that they had trusted . . . Winter," but the court found this "trust was clearly misplaced"

and that Winter had committed "fraud" against the Church. (Italics added.) The court

stated the Church was "innocent[ ]" and TVB was "on inquiry notice of Winter's fraud."

But the court also found the Church did not act reasonably after September 2009 because

it failed to advise First-Citizens of its objections once it learned of the encumbrance,

resulting in Winter drawing an additional $1,095,651.02 of unauthorized funds from the

credit line.

       Based on these multiple findings, the court found the Deed of Trust was valid to

secure the portion of the funds withdrawn after September 2009 ($1,095,651.02, minus

certain credits for amounts paid by the Church on the loan), but the Deed of Trust was

invalid for the remaining amounts withdrawn before this date ($2,704,349.98). In so

concluding, the court reiterated that Winter was "primarily responsible" for the losses;

Winter "committed fraud on the Church, on TVB, on the County Assessor, and on the

[title company]"; and Winter "abused a position of trust and breached numerous fiduciary

duties." The court said "[u]nfortunately, Mr. Winter is not a party to this action."

       In the final judgment, the court ordered the parties to "reform[ ]" the Deed of Trust

"to reflect that it secures only the amount" of $968,321.27 plus interest of $211,470.71,

and to delete the remaining indebtedness on the loan from the security.



                                             10
                                       DISCUSSION

                                        I. Overview

       Both parties appeal. In its appeal, First-Citizens challenges the court's rejection of

its two jurisdictional challenges, and alternatively argues the Deed of Trust is valid as a

matter of law because the undisputed evidence establishes: (1) First-Citizens and TVB

were bona fide encumbrancers; (2) the Church ratified the conveyance of, and

encumbrance on, the Property; and/or (3) the D'Oench Duhme doctrine bars the Church's

claims (see D'Oench, Duhme & Co. v. FDIC (1942) 315 U.S. 447).

       In its cross-appeal, the Church contends the court abused its discretion in

concluding the Deed of Trust remains valid with respect to the portion of the outstanding

loan amount withdrawn after September 2009.

       We conclude the Church's defense and cross-complaint seeking to invalidate the

Deed of Trust based on TVB's wrongful conduct are barred under FIRREA's

administrative exhaustion provisions. It is undisputed the Church did not first present

these claims under the FDIC's administrative procedures. Under well-settled law,

FIRREA's requirement that a creditor or debtor of a failed bank exhaust its administrative

remedies is a fundamental jurisdictional rule and implements vital public policy seeking

to ensure the stability and continuity of our nation's financial systems. The Church's

arguments that the rule is inapplicable in this case are without merit. Based on this

conclusion, we do not reach the parties' additional arguments.




                                             11
                             II. FIRREA Jurisdictional Defense

                         A. Summary of FIRREA Statutory Scheme

       Congress enacted FIRREA in 1989 " 'in an effort to prevent the collapse of the

[savings and loan] industry' in the late 1980s." (Rundgren v. Wash. Mut. Bank, N.A. (9th

Cir. 2014) 760 F.3d 1056, 1060 (Rundgren).) To accomplish this, Congress granted the

FDIC, as receiver, broad powers to quickly determine claims against failed financial

institutions, and established a mandatory administrative procedure for parties to raise

claims " 'without unduly burdening the District Courts.' " (Henderson v. Bank of New

England (9th Cir. 1993) 986 F.2d 319, 320.)

       " 'Congress' core purpose in enacting FIRREA . . . was to ensure that the assets of

a failed institution are distributed fairly and promptly among those with valid claims

against the institution . . . and to expeditiously wind up the affairs of failed banks.' "

(McCarthy v. FDIC (9th Cir. 2003) 348 F.3d 1075, 1079 (McCarthy).) "[T]o liquidate a

failed institution's assets 'in an orderly manner,' the receiver . . . require[s] timely notice

of 'the entire array of claims' against an insolvent institution and 'an initial opportunity to

consider them in a centralized claims process' in order 'to make rational and consistent

judgments regarding which claims to allow or contest' or to 'settle . . . without resort to

costly litigation' . . . ." (Freeman v. FDIC (D.C.Cir. 1995) 56 F.3d 1394, 1401

(Freeman); 2974 Properties, Inc. v. Resolution Trust Corp. (1994) 23 Cal.App.4th 871,

877 (2974 Properties).)

       To achieve these goals, "FIRREA establishes strict administrative prerequisites

and deadlines that claimants must follow to lodge their claims and challenge any

                                               12
denials." (Miller v. FDIC (7th Cir. 2013) 738 F.3d 836, 840.) The exclusive scheme

covers "all claims and actions against, and actions seeking a determination of rights with

respect to, the assets of failed financial institutions for which the FDIC serves as receiver,

including debtors' claims." (Freeman, supra, 56 F.3d at p. 1402.)

       Under the statutory administrative procedures, once the FDIC is appointed

receiver, it must establish a claims deadline, known as the " 'bar date.' " (Saffer v.

JPMorgan Chase Bank, N.A. (2014) 225 Cal.App.4th 1239, 1247 (Saffer).) The FDIC

must publish notice of this deadline once a month for three months and the deadline must

be at least 90 days after the date of the notice's first publication. (§ 1821(d)(3)(B)(i), (ii);

Saffer, supra, 225 Cal.App.4th at p. 1247.) The FDIC must also mail a notice of the

deadline "to any creditor shown on the institution's books." (§ 1821(d)(3)(C).)

       After an administrative claim is filed, the FDIC must allow or disallow the claim

within 180 days and the claimant then has 60 days to seek additional administrative

review or de novo judicial review of the receiver's decision. (Saffer, supra, 225

Cal.App.4th at p. 1247; § 1821(d)(6)(A).) "If the claimant fails to seek administrative or

judicial review within the 60-day period, 'the claim shall be deemed to be disallowed

. . . as of the end of such period, such disallowance shall be final, and the claimant shall

have no further rights or remedies with respect to such claim.' (§ 1821, subd. (d)(6)(B).)"

(Saffer, supra, 225 Cal.App.4th at p. 1247.)

       The failure to exhaust these FIRREA administrative remedies deprives a court of

subject matter jurisdiction. (Saffer, supra, 225 Cal.App.4th at pp. 1262-1263, 1248-1249

["administrative prerequisite to suit set forth in [FIRREA] has been strictly construed and

                                               13
is considered an absolute and unwaivable jurisdictional requirement"]; 2974 Properties,

supra, 23 Cal.App.4th at pp. 878-880 ["unless a claimant has exhausted administrative

claims process, no court has jurisdiction to hear the claim"]; Tillman v. Resolution Trust

Corp. (4th Cir. 1994) 37 F.3d 1032, 1036 (Tillman) ["the administrative scheme provided

in FIRREA is 'an absolute and unwaivable jurisdictional requirement' for judicial"

consideration of claims]; see Farnik v. FDIC (7th Cir. 2013) 707 F.3d 717, 721 (Farnik);

Tellado v. IndyMac Mortg. Servs. (3d Cir. 2013) 707 F.3d 275, 279-281; Benson v.

JPMorgan Chase Bank, N.A. (9th Cir. 2012) 673 F.3d 1207, 1215 (Benson); Elmco

Props. v. Second Nat'l Fed. Sav. Ass'n (4th Cir. 1996) 94 F.3d 914, 919 (Elmco);

Freeman, supra, 56 F.3d at pp. 1399-1400; Intercontinental Travel Mktg. v. FDIC (9th

Cir. 1994) 45 F.3d 1278, 1282-1284 (Intercontinental).)

       The administrative-exhaustion jurisdictional bar applies to claims against

successor banks (and not just against the FDIC) when the claim is based on the conduct

of the failed institution. (Saffer, supra, 225 Cal.App.4th at pp. 1255-1257; Benson,

supra, 673 F.3d at pp. 1209, 1214; Farnik, supra, 707 F.3d at p. 722; Vill. of Oakwood v.

State Bank & Trust Co. (6th Cir. 2008) 539 F.3d 373, 386.) "[A]n entity that purchases a

failed lending institution's assets from the FDIC acquires the administrative review

protections afforded by section 1821(d)." (Lazarre v. JPMorgan Chase Bank, N.A.

(S.D.Fla. 2011) 780 F.Supp.2d 1320, 1325.) "A claim asserted against a purchasing bank

based on the conduct of a failed bank must be exhausted under FIRREA." (Benson,

supra, 673 F.3d at p. 1209.)



                                            14
       To the extent these rules may be harsh in an individual case, they were enacted

with the broader public objective of protecting our nation's financial systems, maintaining

confidence and stability in our financial institutions, and avoiding overburdening the

court system with individual claims from bank creditors and debtors. Strictly enforcing

rules is consistent with the "important purpose" of FIRREA's exhaustion scheme—

"allowing the FDIC 'to perform its statutory function of promptly determining

claims . . . to quickly and efficiently resolve claims against a failed institution without

resorting to litigation.' " (Intercontinental, supra, 45 F.3d at p. 1285.)

                                         B. Analysis

       The core of FIRREA's administrative exhaustion rule is contained in section

1821(d)(13)(D), which states: "Except as otherwise provided in this subsection, no court

shall have jurisdiction over—[¶] (i) any claim or action for payment from, or any action

seeking a determination of rights with respect to, the assets of any depository institution

for which the [FDIC] has been appointed receiver . . . ; or (ii) any claim relating to any

act or omission of such institution or the [FDIC] as receiver." (Italics added.)

       The Church's claims against First-Citizens fell within subpart (ii) of section

1821(d)(13)(D) because they were based on challenges to the "act[s] or omission[s]" of

the failed institution (TVB). (See Farnik, supra, 707 F.3d at pp. 723-724; see also

Rundgren, supra, 760 F.3d at p. 1064; Westberg v. FDIC (D.C.Cir. 2014) 741 F.3d 1301,

1305-1306.) The Church acknowledges it did not submit its claims to the FDIC for

administrative review. On its face, this failure to exhaust administrative remedies



                                              15
precludes the court's jurisdiction to consider the Church's claims regarding the Deed of

Trust.

         The Church nonetheless argues the jurisdictional bar is not applicable because: (1)

its challenges to the validity of the Deed of Trust were affirmative defenses; (2) the FDIC

did not provide, and the Church did not receive, adequate statutory notice of the takeover

and/or of the bar date; and (3) the jurisdictional bar does not apply to its fraud-based

claims. For the reasons explained below, we reject these contentions.

                                    1. Affirmative Defense

         Because section 1821(d)(13)(D) refers to a "claim" or "action," courts have

interpreted the administrative-exhaustion bar to apply only to claims or counterclaims

and not to affirmative defenses. (American First Fed., Inc. v. Lake Forest Park, Inc.

(11th Cir. 1999) 198 F.3d 1259, 1264 (American First); Resolution Trust Corp. v.

Midwest Fed. Sav. Bank (9th Cir. 1993) 36 F.3d 785, 792-793 (Midwest Federal);

National Union Fire Ins. Co. v. City Sav., F.S.B. (3d Cir. 1994) 28 F.3d 376, 392-394

(National Union).) "However, a court must look beyond the nomenclature of a request

for relief to ascertain whether it is a true affirmative defense or is, in actuality" a

counterclaim. (American First, supra, at p. 1264.) "Whether a request for relief is titled

an affirmative defense or a counterclaim is not dispositive to the question of subject

matter jurisdiction." (Ibid.) "Courts should not allow parties to avoid the procedural bar

of [section] 1821(d)(13)(D) by simply labelling what is actually a counterclaim as a

defense or affirmative defense." (National Union, supra, 28 F.3d at p. 394.) The

administrative exhaustion requirement applies if "the remedy sought by a party,

                                               16
regardless of its label, . . . is in reality a claim against the assets or actions of the failed

institution . . . ." (American First, supra, at pp. 1264-1265.)

       There is no bright-line rule for distinguishing between a counterclaim for which

the FIRREA exhaustion requirement applies and an affirmative defense for which the

requirement does not apply. And the cases have not always been consistent. But on our

review of the federal and state decisions and our consideration of the congressional intent

underlying the rule, we are satisfied the proper focus of the analysis is to determine

whether the party asserting an "affirmative defense" had an independent basis for

bringing the claim in the administrative arena. If so, the claim is barred if the party did

not exhaust administrative remedies. (See Rundgren, supra, 760 F.3d at pp. 1063-1064;

Midwest Federal, supra, 36 F.3d at p. 793 [party may successfully assert affirmative

defenses without exhausting FIRREA administrative procedures if the party "had no

[prior] independent basis for filing a claim against" the receiver]; Resolution Trust Corp.

v. Schonacher (D.Kan. 1994) 844 F.Supp. 689, 694; FDIC v. Martini (D.Md. 1995) 1995

WL 168139, *5.) This independent-grounds test implements congressional intent to

strictly provide the FDIC with the initial opportunity to assess and resolve all claims

identified in section 1821(d)(13)(D) before the claim may be asserted in the courts, while

ensuring parties retain the right to assert defenses that could not have been foreseen or

effectively brought until an affirmative claim is asserted against the party.

       This test was satisfied in this case. The Church's counterclaims and affirmative

defenses were identical. Both sought to remove the encumbrance from the Property

based on TVB's alleged wrongful conduct in approving the loan and in failing to inquire

                                                17
regarding the scope of Winter's authority. The Church could have (and in fact did)

independently assert this challenge before First-Citizens brought its declaratory relief

action. In September 2009, the Board was aware the Property had been transferred to

WCF, and a deed of trust had been placed on the Property securing a $3.8 million credit

line. About one year later, the Church demanded that First-Citizens take action to

reconvey the Deed of Trust to remove it as an encumbrance on the Property, asserting

Winter's lack of authority as a basis for this demand and claiming a right to obtain

affirmative relief.

       In later raising this challenge as an affirmative defense, the Church did not seek

merely to prevent the purchasing bank from relying on its security interest because of a

legal or procedural infirmity with the claim. Rather, it affirmatively sought to reduce the

value of the FDIC's former assets (the secured loan) by removing the encumbrance from

the Property. If the Church had first filed its own action alleging the invalidity of the

Deed of Trust and seeking its removal, this claim would clearly be covered by the

administrative exhaustion rule. Likewise, if First-Citizens had dismissed its complaint,

leaving only the Church's cross-complaint to adjudicate, there would be no question but

that the claim would be barred by the rule.

       Under FIRREA's language and purpose, the applicability of the exhaustion

requirement in this case does not depend on which party filed the initial pleading. The

Church was required to characterize its allegations as "affirmative defenses" because of

the procedural posture of the case. But this label did not alter the fact that the substance

of the challenges was an independent affirmative claim challenging the actions of the

                                              18
failed institution that functionally could have been resolved in the administrative process,

without First-Citizens first filing a lawsuit. The Church's affirmative defenses were thus

subject to the administrative exhaustion rule under section 1821(d)(13)(D). (See

Rundgren, supra, 760 F.3d at p. 1064;2 LNV Corp. v. Harrison Family Bus., LLC (D.Md.

2015) 2015 WL 5836903, *10 [administrative exhaustion bar applied to affirmative

defenses where "defenses are, in substance, repackaged counterclaims"]; FDIC v. Soliz

(M.D.Fla. 2015) 2015 WL 1138421, *4-*5; Centerstate Bank of Florida v. John

Emmons' Taekwondo, Inc. (M.D.Fla. 2015) 2015 WL 310607, *3.)

       The circumstances here are distinguishable from the cases relied upon by the

Church. For example, in National Union, supra, 28 F.3d 376, the court found the

administrative exhaustion doctrine was inapplicable to the party's contract rescission

defense, noting that because "a party cannot know what her defense is until she hears the

claim leveled against her, it seems it would be nearly impossible for a party to submit

future hypothetical defenses to the administrative claims procedure . . . ." (Id. at p. 395.)

In this case, the Church's claims were not unknown or dependent on the nature of First-

Citizens' claims. It was the Church that repeatedly and affirmatively sought to remove

the Deed of Trust from its property; its claim regarding TVB's lack of due diligence in

approving the loan was, in substance, an affirmative claim and not an affirmative defense.




2      In Rundgren, the debtors filed the action first, but the crux of the court's reasoning
was that labels are not controlling and the debtors' claim seeking to forestall a foreclosure
action was not in substance an affirmative defense. (Rundgren, supra, 760 F.3d at pp.
1061-1064.)
                                             19
                                  2. Notice Requirement

       The Church contends it was excused from the exhaustion requirement because it

failed to receive adequate notice of the receivership and/or the bar date. We reject this

contention because the lack of notice does not permit a party to avoid the administrative

exhaustion bar. Further, the undisputed facts show the Church had adequate prior notice.

                             2.a. Applicable Notice Principles

       FIRREA requires the FDIC to provide two different kinds of notice. First, the

FDIC must mail a notice to any known creditor shown on the failed institution's books at

the time of the initiation of the receivership. (§ 1821(d)(3)(C)(ii).) Second, the FDIC

must promptly publish notice regarding the receivership and of the bar date.

(§ 1821(d)(3)(B)(i),(ii).)

       Despite the importance of these notices, it is settled that the FDIC's failure to

comply with these notice requirements does not excuse a plaintiff from filing a claim

with the FDIC. (McCarthy, supra, 348 F.3d at p. 1081 ["[the Ninth Circuit has] already

held that failure to give notice does not render the [FIRREA] administrative claims

process inapplicable"]; Freeman, supra, 56 F.3d at p. 1402 [FDIC's failure to provide

proper notice " 'does not relieve the claimant of the obligation to exhaust administrative

remedies, because the statute does not provide for a waiver or exception under those

circumstances' "]; Saffer, supra, 225 Cal.App.4th at pp. 1258-1260.)

       To avoid the harshness of these rules, FIRREA provides limited relief under

certain narrow circumstances. (§ 1821(d)(5)(C)(ii).) Under the statutory exception, the

FDIC may consider a late claim (one filed after the bar date) if the claimant shows it did

                                             20
not have timely notice of the receivership. (Saffer, supra, 225 Cal.App.4th at p. 1259;

Intercontinental, supra, 45 F.3d at p. 1285.) The absence of notice of the receivership is

the relevant fact; the lack of notice of the bar date is not material. (Saffer, supra, 225

Cal.App.4th at p. 1259; see RTC Mortg. Trust 1994-N2 v. Haith (8th Cir. 1998) 133 F.3d

574, 579.) If the claimant knows of the FDIC's involvement, it must file a timely claim.

(Ibid.) Additionally, the exception applies if the events underlying the claims took place

after the bar date. (See Potter v. JPMorgan Chase Bank, N.A. (C.D.Cal. 2013) 2013 WL

1912718 (Potter).) This exception focuses solely on the date of the relevant events, and

not on the party's claimed knowledge or lack of knowledge of these events. (Ibid.) The

Potter court explained:

          "[R]ecognizing a broad exception for claimants without knowledge
          of their claims prior to the bar date runs contrary to FIRREA's
          purpose of empowering the FDIC to expeditiously resolve claims
          against a failed bank's assets without placing an undue burden on
          federal district courts. Determining whether a claimant knew or
          should have known about a claim prior to the bar date is potentially a
          complex, fact intensive determination. Requiring courts to make this
          determination would burden both the courts and the FDIC with
          significant litigation over claims filed after the claims bar date. This
          result would undermine . . . both the meaningfulness of the
          statutorily imposed claims bar date and FIRREA's purpose . . . . In
          contrast, the existing rule—which focuses on whether a claim is
          based on events taking place after the bar date—is more easily
          administrable. While it may not always be clear whether a claim
          arises out of pre-bar date events or post-bar date events, this inquiry
          is . . . more straightforward than an inquiry complicated by taking
          into account a plaintiff's knowledge. A rule limited to claims that
          could not possibly have been filed prior to the bar date is therefore
          more closely in accord with FIRREA's purpose." (Id. at p. *9.)

       Further, even assuming the claimant can establish the applicability of this statutory

exception (§ 1821(d)(5)(C)(ii)), the exception does not excuse the administrative

                                              21
exhaustion requirement—it merely allows a party to file a late claim with the FDIC.

(Saffer, supra, 225 Cal.App.4th at pp. 1260-1261; see Freeman, supra, 56 F.3d at p. 1402

["only statutorily-specified exemption from the strict requirements of the administrative

claims process is provided if 'the claimant did not receive notice of the appointment of the

receiver in time to file . . . [a] claim . . . , and even in that case the only consequence is

that the FDIC 'may' consider a late-filed claim, provided the claim is filed 'in time to

permit payment' "]; Avery v. FDIC (D.C.Cir. 2015) __ F.Supp.3d __ [2015 WL 3961191,

*3].)

                                     2.b. Notice Analysis

        In this case, the FDIC takeover occurred on July 17, 2009. On that date, the

Church was not a known creditor on TVB's books. The Church was a debtor, not a

creditor, and its claim against TVB had not yet been asserted. On these facts, the FDIC

was not required to mail notice of the receivership and bar date to the Church. (See

McCarthy, supra, 348 F.3d at p. 1081.) Likewise, First-Citizens had no duty to notify the

Church of the administrative exhaustion requirement. It is the FDIC and not the

successor entity that is responsible for providing the requisite notice.

        The FDIC's bar date for claims against TVB was October 20, 2009. First-Citizens

did not present evidence in the proceedings below that it published the required notices of

this bar date. However, on appeal, First-Citizens requests that we take judicial notice of

this fact.3 We grant this motion. (See Evid. Code, § 452, subds. (c), (h); Saffer, supra,


3     The opposed judicial notice request includes a declaration from an FDIC official
authenticating documents showing the FDIC published the receivership notices on
                                           22
225 Cal.App.4th at p. 1244, fn. 2 [Court of Appeal granting judicial notice request of

FDIC's published notices of bar date].)

       Although reviewing courts generally do not take judicial notice of evidence not

presented to the trial court, an exception may apply in exceptional circumstances if the

matters to be judicially noticed are not reasonably open to dispute, there is a reasonable

basis for the party's failure to submit the evidence below, and there is no prejudice. (See

People v. Hardy (1992) 2 Cal.4th 86, 134-135; People v. Belcher (1974) 11 Cal.3d 91,

94, fn. 2.) These circumstances are present here. Based on the statutory proofs of

publication and the official governmental nature of the documents, the fact these FDIC

notices were published in the three newspapers on the specified dates is not reasonably

open to dispute. (See Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743,

752-753; Saffer, supra, 225 Cal.App.4th at p. 1244, fn. 2; Seelig v. Infinity Broadcasting

Corp. (2002) 97 Cal.App.4th 798, 807, fn. 5.) Additionally, the record shows First-

Citizens did not submit these documents during trial because the fact that Church

officials were aware of the FDIC's receivership did not initially appear to be disputed,

and it was only on the last day of trial that one Church Board member retracted his earlier

testimony, creating a potential factual challenge on the notice issue. When First-Citizens'

counsel expressed concern to the court that he might need to introduce further evidence

on this issue after hearing the changed testimony, the court indicated no additional


specific dates in July, August, and September 2009. The notices identify the October 20
bar date and state the failure to file claims by that date "will result in disallowance by the
Receiver" and the "disallowance will be final." The documents include statutory proofs
of the publications from The Press-Enterprise (Riverside), The San Diego Union-Tribune,
and the Los Angeles Times.
                                               23
evidence would be necessary because it was satisfied the Church was aware that the

FDIC had taken over the bank, even if the evidence was disputed on the issue whether the

Church had actual notice of the existence of administrative remedies.

       But even assuming this new evidence is not considered, First-Citizens presented

unrefuted evidence that at least two Church officials—Winter and Anderson—had actual

notice of the FDIC's takeover in time to file the claim. Winter testified that in July 2009,

he was handling the banking for the Church and he was aware the FDIC took over TVB,

although he did not know the "exact date." He also testified he was aware that First-

Citizens reopened the bank and took over management of the Church's accounts.

Armstrong (who handled financial matters for the Church) similarly indicated that he

learned of the "bank changeover" at some time "around" September 2009, and that he

learned in an email from Winter that "First-Citizens Bank had taken over through the

FDIC."

       On this record, the Church had actual notice of the FDIC's receivership before the

bar date. Notice to an entity is accomplished by providing notice to officers or those in a

management capacity. (Moore v. Phillips (1959) 176 Cal.App.2d 702, 709.) To the

extent Winter did not sufficiently convey the notice to other Church members or to the

Board, the Church would possibly have a potential claim against him, but not against

First-Citizens, who was not responsible for the notice. Additionally, the testimony of

Armstrong corroborates that Winter did communicate this notice and therefore confirms

the notice.



                                             24
       The Church argues that even if it had adequate notice of the FDIC takeover, this

notice was not sufficient to permit it to file a claim because it was unaware of the facts of

Winter's fraud and the Bank's "complicity" with that fraud before the bar date. The

argument does not support an exception to the exhaustion requirement.

       First, the court specifically found that "after learning of the transfer and the note

[in September 2009], the [Board members] met, confirmed Winter had permission to

proceed as he had . . ." and that "in the weeks and months following the revelation of the

transfer and encumbrance, the current and/or previous [Church] Elders . . . stated publicly

to the membership that, the transfer had been authorized . . . ." At that point, it was

undisputed the Church officials knew (or had the information in their possession)

regarding what documents were or were not used to authorize this transfer and

encumbrance at the time, and thus were at least on inquiry notice of TVB's actions with

respect to the credit line and Deed of Trust.

       More important, even assuming the Church did not learn the full extent of its

claims until after the bar date, this fact does not excuse the administrative exhaustion

requirement under FIRREA. If the events giving rise to the claim occurred before the bar

date and the claimant had notice of the receivership, the bar date remains the deadline

regardless of the knowledge of the claim. (Potter, supra, 2013 WL 1912718.)

Additionally, as explained above, lack of notice may provide a basis for filing a late

action with the FDIC, but does not create jurisdiction in the courts to consider the claims

in the first instance.



                                                25
       To the extent the Church argues its due process rights were violated because of the

claimed lack of adequate notice, the courts have rejected similar arguments. First, the

courts have found constructive notice through the publication process is consistent with

due process principles. (Saffer, supra, 225 Cal.App.4th at p. 1259; see Mullane v. Cent.

Hanover Bank & Trust Co. (1950) 339 U.S. 306, 317.) Additionally, the courts have

found the statutory scheme includes the necessary due process because it provides a

forum for considering a party's claims, including late claims. The due process

requirement seeks to ensure a party is "given an opportunity for a hearing before [it] is

deprived of any significant property interest . . . ." (Freeman, supra, 56 F.3d at p. 1403,

italics omitted; Feigel v. FDIC (S.D.Cal. 1996) 935 F.Supp. 1090, 1099-1100.) In this

case, the Church had notice and an opportunity to be heard prior to the claimed

deprivation. The Church had an opportunity to present its claims to the FDIC, and to

have those claims resolved through the administrative claims process, subject to de novo

judicial review in the district court. The availability of this administrative process (with

judicial review rights) avoids any constitutional infirmity. (See McCarthy, supra, 348

F.3d at p. 1081; Dobbins v. Dobbins (W.D.Okla. 2015) 2015 WL 3952737, *4.)

                                   3. Fraud-Based Claim

       As a central theme of its appellate briefing, the Church contends the jurisdictional

rules are inapplicable because they do not apply to "fraud-based" claims. The argument

is without merit.

       First, the Church's claim against First-Citizens is not "fraud-based." The Church

did not assert a fraud claim against First-Citizens. Instead, in its cross-complaint, it

                                              26
sought to invalidate the Deed of Trust based on TVB's negligent conduct. The fact that

Winter may have misrepresented facts to the Board about the safety or security of the

proposed investments, or intentionally failed to inform the Board of the transfer and

encumbrance, means (as the court found) that Winter may have engaged in fraudulent

conduct against the Church. But it does not mean the Church has a viable fraud claim

against First-Citizens.

       Equally important, there is no authority supporting the Church's contention that the

administrative exhaustion requirement does not apply to a fraud-based claim. FIRREA's

exhaustion requirement applies to any claim or action concerning the assets of a failed

institution for which the FDIC has been appointed receiver. (McCarthy, supra, 348 F.3d

at p. 1081; accord, Westberg v. FDIC (D.C.Cir. 2014) 741 F.3d 1301, 1303.) FIRREA

" 'bars judicial review of any non-exhausted claim, monetary or nonmonetary, which is

"susceptible of resolution through the claims procedure." ' " (Rundgren, supra, 760 F.3d

at p. 1061.)

       Under this broad rule, the courts have applied the administrative exhaustion bar to

claims asserting fraud and other forms of intentional misconduct. (See, e.g., Rundgren,

supra, 760 F.3d at pp. 1059, 1064 [administrative exhaustion doctrine barred borrower's

claim challenging enforceability of secured loan agreement and mortgage based on a

failed bank's "deceptive and fraudulent actions to induce them to enter into a loan

agreement"]; Benson, supra, 673 F.3d at pp. 1208-1209; see also Farnik, supra, 707 F.3d

at p. 719.) Further, there is no basis for finding the Church's claims were not susceptible

of resolution through the claims procedure.

                                              27
       We also find unpersuasive the Church's contention the FIRREA statutory scheme

is inapplicable because the grant deed transferring the Property from the Church to WCF

was "void." In support of this contention, the Church relies on Langley v. FDIC (1987)

484 U.S. 86, which concerned an interpretation of a different federal statute codifying the

D'Oench Duhme doctrine. (§ 1823(e).) The Langley court held the D'Oench Duhme

doctrine applies to voidable instruments, but not to void documents because the latter

documents have no legal effect. (Langley, at pp. 93-94.) Langley noted that a void

document results from "fraud in the factum—that is, the sort of fraud that procures a

party's signature to an instrument without knowledge of its true nature or contents,"

whereas a document is "voidable" if it results from "fraud in the inducement." (Id. at p.

94.)

       California law recognizes a similar distinction between void and voidable

contracts. When a party is unaware he or she has signed a contract and/or did not intend

to enter into a contract, the contract is void. (Rosenthal v. Great Western Fin. Securities

Corp. (1996) 14 Cal.4th 394, 415.) But if the party is induced to sign a contract by fraud,

the contract is voidable, and not void. (Ibid.; Schiavon v. Arnaudo Bros. (2000) 84

Cal.App.4th 374, 380.) Likewise, a contract intentionally signed by an agent without

authority to enter into the contract is generally voidable, and not void. (See Streetscenes

v. ITC Entertainment Group, Inc. (2002) 103 Cal.App.4th 233, 242; 3 Witkin, Summary

of Cal. Law (10th ed. 2005) Agency & Employment, § 139, p. 184; Civ. Code, §§ 2307,

1588; see also Rest. 2d Contracts, § 7; 1 Witkin, Summary of Cal. Law (10th ed. 2005)

Contracts, § 2, p. 60.) A voidable contract may be ratified and is not a transaction that

                                             28
lacks legal effect. (See Civ. Code, § 1588; Fergus v. Songer (2007) 150 Cal.App.4th

552, 571.)

       Under these principles, the property transfer from the Church to WCF and the

execution of the secured loan documents were at most voidable and not void. The court

found the Church gave Winter the authority to act on its behalf with respect to its

financial affairs, but Winter intentionally abused this authority to accomplish a transfer of

the Church's assets to his own entity. With TVB's assistance, Winter was able to obtain a

secured loan on the Property. The Church Board members later made a deliberate

decision to affirm this transfer based on Winter's false assurances.

       These factual findings show wrongful conduct on the part of Winter, and that

Winter may have acted beyond his authority in transferring the Property and obtaining

the secured loan. But they do not support that Winter had no authority to engage in

financial transactions on behalf of the Church or that he did not know what he was

signing. Based on the court's factual findings, the deed transfer was potentially voidable

if the Church had sued Winter or WCF, but the transfer was not a void transaction in the

sense that it had no legal effect. Although the court characterized the transactions as

"void," this legal conclusion was not supported by its factual findings. Thus, even

assuming Langley's void/voidable distinction applies to FIRREA, Langley is inapplicable

because the challenged instruments were voidable, not void.

       Because the Church did not exhaust its administrative remedies under section

1821(d), the court had no jurisdiction to consider the Church's claims that Winter's and/or

TVB's conduct established the invalidity of the Deed of Trust.

                                             29
                                      DISPOSITION

       We reverse the judgment. The court is ordered to enter a new judgment in favor

of First-Citizens on its declaratory relief claim and on the Church's cross-complaint. The

Church to bear First-Citizens' costs on appeal.


                                                                   HALLER, Acting P. J.

WE CONCUR:



MCINTYRE, J.



O'ROURKE, J.




                                            30
