                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


BANK OF AMERICA, N. A.,
As Indenture Trustee, Custodian, and
Collateral Agent for OCALA FUNDING,
LLC,

       Plaintiff and Counterclaim
       Defendant,
                                                      Civil Action No. 10-CV-1681 (BJR)
               v.
                                                      ORDER GRANTING FDIC’S MOTION
FEDERAL DEPOSIT INSURANCE
                                                      TO DISMISS BOA’S CLAIMS AGAINST
CORPORATION, in its capacity as the
                                                      THE FDIC AS RECEIVER FOR
Receiver for COLONIAL BANK, and in its
                                                      COLONIAL BANK
capacity as the Receiver for PLATINUM
COMMUNITY BANK,

       Defendant and Counterclaim
       Plaintiff.



                                     I.      INTRODUCTION

       Plaintiff and Counterclaim Defendant Bank of America, N.A. (“BOA”), acting as the

indenture trustee, collateral agent, custodian, and “in other capacities” with respect to short term

and subordinated notes issued by Ocala Funding, LLC (the “Ocala Notes”), filed claims against

the Colonial Bank (“Colonial”) receivership on behalf of itself and two investors in the Ocala

Notes. Dkt. No. 20 (First Amended Complaint (“FAC”) at Introduction and ¶ 4). Defendant and

Counterclaimant Federal Deposit Insurance Corporation (“FDIC”), in its capacity as the Receiver

for Colonial, moves to dismiss the claims pursuant to Federal Rule of Civil Procedure 12(b)(1)

and 12(b)(6). Dkt. No. 73 (“Mot.”). The FDIC argues that in light of its recent formal

determination that the assets of the Colonial receivership are insufficient to make any

distribution on the claims of general unsecured creditors (the “No-Value Determination”),

                                                  1
BOA’s claims have “no value” and must therefore be dismissed because no case or controversy

exists under Article III of the United States Constitution. Mot. at 2. Alternatively, the FDIC

moves to dismiss BOA’s claims as prudentially moot. Id.

       BOA opposes the motion, arguing that it should be denied on “five separate and

independent grounds.” Dkt. No. 90 (“Opp.”) at 2. First, BOA argues that the No-Value

Determination only implicates general unsecured claims, and not the other “priority claims” that

BOA filed against the Colonial receivership. Second, BOA argues that the No-Value

Determination is fundamentally flawed and should not be accepted at face value. Third, BOA

claims that even if its claims are moot, they can still be used as a setoff against the FDIC’s

counterclaims. Fourth, BOA contends that the FDIC has identified no “conventional legal basis

for the Court to give dispositive weight to the ‘no-value’ determination.’” Lastly, BOA argues

that—even if this Court rules against BOA on the four above grounds—it should refrain from

dismissing BOA’s claims until BOA has had an opportunity to challenge the No-Value

Determination through the Administrative Procedures Act (“APA”) process.

       Having reviewed the briefing by the parties, together with all other relevant materials, the

Court finds that the FDIC’s No-Value Determination is a final agency action, and is therefore

subject to challenge only pursuant to the APA. The No-Value Determination is binding on this

Court and is preclusive as to whether there are now or ever will be assets sufficient to satisfy

general unsecured claims against the Colonial receivership. The Court further finds that BOA has

only asserted general unsecured claims. Because the Colonial receivership will never have the

assets necessary to satisfy a judgment in BOA’s favor, this Court lacks subject matter

jurisdiction over BOA’s claims. What is more, the claims against the receivership are




                                                  2
prudentially moot. Thus, the Court will GRANT the FDIC’s motion to dismiss BOA’s

affirmative claims. The Court’s reasoning is set forth below.

                                   II.     FACTUAL BACKGROUND

        This Court has described the financial transactions underpinning this case in great detail

on multiple occasions. See, e.g., Dkt. No. 50. It will refrain from doing so again here. Instead, the

Court will briefly outline the background of this dispute, and elaborate, as necessary, in the

discussion below.

        On August 3, 2009, federal agents raided the Florida offices of Taylor, Bean & Whitaker

Mortgage Corp. (“TBW”) and Colonial. Eventually, agents uncovered a multi-billion dollar

fraudulent scheme that resulted in a tremendous financial loss to a number of financial entities.

The discovery has spawned multiple lawsuits between these entities. In this lawsuit, BOA, acting

in its capacity as the indenture trustee, custodian, and collateral agent for the Ocala Notes (Ocala

was one of TBW’s subsidiaries) as well as two investors in Ocala Notes, seeks to recover

approximately $1.7 billion from the FDIC as the receiver for the now defunct Colonial and

Platinum Community Bank (“Platinum”), another bank involved in the TBW scheme. 1 The

FDIC, in turn, countersued, seeking to recover $900 million from BOA for allegedly breaching

its duties as the custodian and bailee for Colonial.

        On December 10, 2012, this Court issued a Memorandum Decision dismissing all of

BOA’s claims on behalf of Ocala, but did not dismiss certain claims to the extent that they were

brought by BOA on behalf of the two investors and in BOA’s individual capacity. Dkt. No. 50.

Discovery commenced on the remaining issues.




1
         This case also involves claims against the Platinum Bank receivership, but the FDIC does not seek to
dismiss those claims.

                                                         3
       On April 15, 2013, the FDIC issued the No-Value Determination regarding Colonial. See

78 Fed. Reg. 76, 23565 (April 15, 2013). The No-Value Determination announced that

“insufficient assets exist in the receivership of Colonial [], to make any distribution on general

unsecured claims, and therefore such claims will recover nothing and have no value.” Id. It states

that as of March 31, 2013, “the maximum value of assets that could be available for distribution

by the Receiver, together with maximum possible recoveries on professional liability claims

against directors, officers, and other professionals, as well as potential tax refunds, was

$3,282,813,040.” Id. The No-Value Determination further states that as of that same date, the

“administrative expenses and depositor liabilities equal $4,981,236,544, exceeding available

assets and potential recoveries by $1,698,423,504.” Id.

                                  III.   LEGAL STANDARDS

       Federal courts are courts of limited jurisdiction. Harris v. Sebelius, ___ F. Supp. 2d ___,

2013 WL 1209945, *1 (D.D.C. 2013). When a party files a motion to dismiss for lack of subject

matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), “the plaintiff[ ] bear[s] the

burden of proving by a preponderance of the evidence that the Court has subject matter

jurisdiction.” Id. (quoting Carney Hosp. Transitional Care Unit v. Leavitt, 549 F. Supp. 2d 93,

95 (D.D.C. 2008)) (other citation and internal quotation marks omitted) (alterations in original).

A court considering a motion to dismiss for lack of jurisdiction must accept the factual

allegations in the complaint as true. Id. (citing Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d

1249, 1253 (D.C. Cir. 2005)). However, a court need not accept as true legal conclusions

couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When assessing a

motion to dismiss under Rule 12(b)(1), a court may consider any undisputed facts in the record,

or “the complaint supplemented by undisputed facts plus the court’s resolution of disputed



                                                  4
facts.” Harris, 2013 WL 1209945, *1 (quoting Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192,

197 (D.C. Cir. 1992)).

       A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of a complaint, or in this case, an amended complaint. Browning v. Clinton, 292 F.3d

235, 242 (D.C. Cir. 2002). To satisfy this test, a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief, in order to give the defendant

fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). “[W]hen ruling on a defendant’s motion to dismiss, a judge

must accept as true all of the factual allegations contained in the complaint,” Atherton v. District

of Columbia, 567 F.3d 672, 681 (D.C. Cir. 2009), and grant a plaintiff “the benefit of all

inferences that can be derived from the facts alleged.” Kowal v. MCI Communications, 16 F.3d

1271, 1276 (D.C. Cir. 1994). However, a court may not “accept inferences drawn by plaintiffs if

such inferences are unsupported by the facts set out in the complaint.” Ashcroft, 556 U.S. at 678.

                                       IV.     DISCUSSION

       A.      The No-Value Determination

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

was enacted in 1989 in the wake of the savings and loan crisis “to enable the FDIC ... to

expeditiously wind up the affairs of literally hundreds of failed financial institutions throughout

the country.” MBIA Ins. Corp. v. FDIC, 708 F.3d 234, 236 (D.C. Cir. 2013) (quoting Freeman v.

FDIC, 56 F.3d 1394, 1398 (D.C. Cir. 1995)). Congress authorized the takeover of failing

federally regulated financial institutions, vesting authority in the FDIC as receiver to liquidate

the remaining assets of the failed institution, see 12 U.S.C. § 1821(d)(2)(E), and as conservator

to “carry on the business of the institution and preserve and conserve the assets and property,”



                                                  5
see id. § 1821(d)(2)(D)(ii). Upon appointment, the FDIC steps into the shoes of the failed

institution and succeeds in “title to the books, records, and assets” of that entity, as well as to “all

rights, titles, powers, and privileges” of the institution. MBIA, 708 F.3d at 236 (quoting §

1821(d)(2)(A)). In so doing it has “extraordinary powers.” Id. (quoting Nat’l Union Fire Ins. Co.

of Pittsburgh, Pa. v. City Sav., F.S.B., 28 F.3d 376, 388 (3d Cir. 1994)).

        In addition, in 1993 Congress adopted the National Depositor Preference Amendment to

the Federal Deposit Insurance Act. Id. (citing Pub.L. 103–66, § 3001(a), 107 Stat. 312, 336–37).

As codified at 12 U.S.C. § 1821(d)(11)(A), it sets forth the order of priority for payment of

proven claims in the receivership estate. Id. The FDIC’s administrative expenses are paid first,

followed by deposit liabilities, and then general creditor claims. Id. Payments on claims in each

priority class are made pro rata, but no payments may be made to a lower-priority class unless

all claims in the higher-priority class have been satisfied. Id. Thus, Congress has prohibited the

FDIC from making any distribution to general unsecured creditors unless there are sufficient

assets to pay deposit liabilities in full. Id.

        Furthermore, Congress requires the FDIC to “preserve and conserve” the assets and

property of a failed institution. 12 U.S.C. § 1821(d)(2(B)(iv). With this mandate in mind, the

FDIC may issue a “no-value” determination if it determines that there are not and never will be

sufficient assets to pay any dividend, distribution, or payment to claims of general creditors. The

FDIC asserts that such a determination “enables [it] to stop processing claims and to seek

dismissal of pending court actions on prudential mootness grounds to save the administrative

expense of processing and defending such claims. Dkt. No. 94 (“Reply”) at 8.




                                                   6
       B.      The FDIC’s Motion to Dismiss for Lack of Subject Matter Jurisdiction and
               Prudential Mootness

       As discussed above, the FDIC seeks dismissal of BOA’s claims against it as the Receiver

for Colonial based on the FDIC’s No-Value Determination. It argues that the claims should be

dismissed for lack of subject matter jurisdiction because there is no case or controversy.

According to the FDIC, its No-Value Determination conclusively establishes that there are no

assets in the Colonial receivership estate to make any payments on general unsecured creditor

claims, including BOA’s, and that such claims therefore have no value. Mot. at 5. The FDIC

argues that this Court’s jurisdiction extends only to actual cases or controversies, and a case or

controversy does not exist where no effective relief may be granted. Id. at 7 (citing Iron Arrow

Honor Society v. Heckler, 464 U.S. 67, 70 (1983) (noting that a case becomes moot and must be

dismissed for lack of subject-matter jurisdiction when a court is no longer able to grant

meaningful relief)). Alternatively, the FDIC argues that BOA’s claims are prudentially moot

because proceeding on the merits would serve no practical purpose, and would only waste

judicial resources. Id. at 8 (citing In re AOV Indus., Inc., 792 F.2d 1140, 1147 (D.C. Cir. 1986) (a

court may dismiss claims for prudential mootness, even if the court has subject matter

jurisdiction, where common sense or equitable considerations justify dismissal)).

       BOA argues that the FDIC’s motion must be denied for the “five separate and

independent reasons” outlined in the introduction of this Order. Opp. at 2. The Court will address

each reason in turn.

       1.      Whether BOA Has Asserted Claims Other Than General Unsecured Claims
               Against the Colonial Receivership

       As its lead argument, BOA contends that the No-Value Determination only bars recovery

on general unsecured claims. This is significant, BOA argues, because its claims are not limited



                                                 7
to general unsecured claims; rather, it has expressly asserted “trust or preferred claims,” “secured

claims,” “deposit liability,” and “guaranty and insurance claims.” Opp. at 10. As evidence of

this, BOA directs this Court’s attention to paragraphs 4 and 124 in the First Amended Complaint,

in which BOA alleges that it “timely filed a proof of claim in the Colonial receivership, which

sought, inter alia, allowance of a general unsecured claim against Colonial.” Id. (citing FAC at

¶¶ 4, 124). BOA argues that “nothing in the [Amended] Complaint purports to limit BOA’s

recovery to the part of its proof of claim that had been styled as a general unsecured

claim…[i]ndeed, the term “inter alia” in [the Amended] complaint was a clear reference to the

other types of claims—i.e., the priority claims—that BOA had made.” Id.

       The FDIC counters that this is the first time that BOA has argued that it is suing for

recovery on claims other than general unsecured claims. Reply at 3. According to the FDIC, the

First Amended Complaint “is completely devoid of any mention of these claims” and this Court

should reject BOA’s attempt to now assert such claims because “it violates one of the purposes

of a complaint”—to describe the factual and legal basis of a lawsuit in order to focus the issues

and help respondents prepare their defense. Id. at 4.

       The Court agrees with the FDIC. It cannot reasonably be disputed that the First Amended

Complaint limits BOA claims against the Colonial receivership to general unsecured claims. See,

e.g., FAC at ¶ 124 (“In its Colonial proof of claim, [BOA] sought allowance of a general

unsecured claim against Colonial insofar as it was complicit in the fraud that resulted in losses to

Ocala Funding and holders of beneficial interests in it.”) (emphasis added); FAC at ¶ 4 (noting

that “[BOA] timely filed a proof of claim in the Colonial receivership, which sought, inter alia,

allowance of a general unsecured claim against Colonial insofar as it was complicit in the fraud

that resulted in losses to Ocala funding.”) (emphasis added).



                                                 8
         BOA’s argument that this Court should infer that BOA also brought priority claims

against the Colonial receivership because “nothing in the [Amended] Complaint purports to limit

BOA’s recovery to” general unsecured claims is borderline frivolous. Using the phrase “inter

alia” in paragraph 4 of the First Amended Complaint does not rescue BOA’s alleged priority

claims. If simply throwing the phrase “inter alia” into a complaint meant that a plaintiff could

later assert any claim he so chose, the pleading requirements of Federal Rule of Civil Procedure

8 would be meaningless. Fed. R. Civ. Pro. 8(a)(2) (a pleading must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief”). Likewise, arguing that a

claim is asserted if it is not expressly excluded from a complaint goes against the clear mandate

of Rule 8. Accordingly, this Court concludes that BOA has only filed general unsecured claims

against the Colonial receivership. 2

         2.       BOA Cannot Collaterally Attack the No-Value Determination

         Next, BOA alleges that the No-Value Determination is fundamentally flawed and should

not be accepted at face value. Specifically, BOA urges this Court to deny the FDIC’s motion to

dismiss because, according to BOA, the No-Value Determination “fails to state the total potential

value of the [Colonial receivership’s] assets, including potential litigation recoveries” and it is

“unclear whether [the] claims administrative expenses—which form part of the FDIC’s

‘liabilities’ figure—are contested or otherwise debatable.” Opp. at 11-12. Therefore, BOA

argues, “[i]t is impossible in this case, on this record, to conclude that the Colonial receivership’s

assets are irrefutably insufficient to satisfy general unsecured claims.” Id. at 13.




2
          The Court notes that 4 paragraphs of the First Amended Complaint’s 234 paragraphs reference BOA’s
alleged security interest in “the collateral at issue.” However, as the FDIC points out, there is no collateral at issue in
this case because the ownership of any disputed loans was resolved by the TBW Loan Allocation Order and the
disputed loans and proceeds distributed to their rightful owners. See Dkt. No. 94, Ex. A.

                                                            9
         In other words, BOA seeks to challenge the FDIC’s No-Value Determination through

this lawsuit. However, such collateral attacks are not permitted. The No-Value Determination is

a final agency action that is binding on this Court and is preclusive as to whether there are now

or ever will be assets sufficient to satisfy general unsecured claims against the Colonial

receivership. South Miami Holdings, LLC v. FDIC, Case No. 12-15992, __ Fed. Appx. __, 2013

WL 4046717, *4 (11th Cir. August 12, 2013) (per curiam) (citing Santopadre v. Pelican

Homestead & Sav. Assoc., 937 F.2d 268, 272 (5th Cir. 1991); see also, Adams v. Resolution

Trust Corp., 927 F.2d 348, 354 (8th Cir. 1991) (the “court is bound by the Bank Board’s

worthlessness determination”); Ward v. Intercontinental Morg. Group, LLC, 2012 WL 10334, *2

(S.D. Ohio, Jan. 3, 2012) (FDIC’s finding of worthlessness is “binding on this Court and is

preclusive as to whether there are now or ever will be assets sufficient to satisfy the claims”).

       As a final agency action, the No-Value Determination is subject to challenge only

pursuant to the APA, and is not subject to collateral attack through individual lawsuits against

the FDIC. South Miami Holdings, 2013 WL 4046717, *4, n. 2; see also, Adams, 927 at 355, n.

15 (“A…determination of worthlessness is a final agency action, which is reviewable under the

provisions of the [APA] in an action against the [FDIC], but not subject to collateral attack

through discovery or other means in individual lawsuits against the receiver.”) (internal

quotation marks and citation omitted); 281-300 Joint Venture v. Onion, 938 F.2d 35, 38 (5th Cir.

1991) (holding that collateral attacks on a final agency determination of worthlessness is

improper); Deutsche Bank Nat’l Trust Co. v. Fed. Deposit Ins. Co., 854 F. Supp. 2d 756, 760 n. 2

(C.D. Cal. June 28, 2011) (“Because the FDIC’s no-value determination is binding, Deutsche

Bank cannot challenge it to avoid prudential mootness.”); Kosnitsky v. FDIC, 2012 WL

4127327, at *2 (S.D. Fla. July 26, 2012) (plaintiff not entitled to discovery or to collaterally



                                                 10
attack FDIC’s no value determination in its lawsuit against the receiver); Haggard v. Ossege,

2011 WL 4711926, *2 (S.D. Ohio Oct. 4, 2011) (same); Federal Sav. & Loan Ins. Corp. v.

Locke, 718 F. Supp. 573, 586 (W.D. Tex. 1989) (same). The APA is the appropriate avenue for

challenging the FDIC’s No-Value Determination. This Court will not, and indeed cannot, allow

BOA to circumvent Congress’ explicit procedures for judicial review.

       3.      BOA Is Not Permitted to Set off Its Claims Against the FDIC

       Next, BOA argues that notwithstanding the No-Value Determination, its claims against

the FDIC constitute a justiciable case or controversy because BOA can set off any recovery on

those claims against any monies it owes to the FDIC. The FDIC disagrees. It counters that

Congress has unequivocally limited the FDIC’s maximum liability to any creditor-claimant of a

failed institution in receivership to the amount that the claimant would have received if the FDIC

had liquidated the assets and liabilities of the failed institution. In this case, the FDIC argues,

BOA, as a general unsecured creditor, will receive nothing on its claims. Therefore, allowing

BOA to set off the value of its unsecured claims against any recovery that the FDIC might make

against it would run afoul of Congress’s clear mandate that the FDIC’s liability is limited to the

amount that a claimant would receive under the distribution scheme set forth in FIRREA.

       The FDIC’s position is correct. 12 U.S.C. § 1821(i)(2) unequivocally limits the maximum

liability of the FDIC to the amount a claimant would have received in liquidation under the

distribution scheme set forth in FIRREA. See First Indiana Federal Sav. Bank v. FDIC, 964 F.2d

503, 507 (5th Cir. 1992) (“In enacting FIRREA, Congress unequivocally expressed its intent to

limit the maximum liability of the FDIC to the amount the claimant would have received in a

liquidation under federal priority regulations”). Here, BOA is a general unsecured creditor. The

FDIC has issued a No-Value Determination that finds that no general unsecured creditor will



                                                  11
receive payment on its claims. As discussed in the previous section in this order, the No-Value

Determination is binding on this Court. Accordingly, BOA’s claims are valueless. Granting BOA

relief in the form of set off would be in violation of Congress’s clear mandate in Section

1821(i)(2).

       What is more, allowing BOA to set off its claims against monies owed to the FDIC

would allow BOA “to jump the line in front of higher-priority creditors,” which would violate

the distribution scheme set forth in Section 1821(d)(11)(A). Placida Professional Center, LLC v.

FDIC, 512 Fed. Appx. 938, 951 (11th Cir. 2013) (citing Battista v. FDIC, 195 F.3d 1113, 1116

(9th Cir. 1999)), see also, FDIC v. Bank of America Nat’l Trust and Sav. Ass’n, 701 F.2d 831,

836-37 (9th Cir. 1983) (holding that a creditor was not entitled to set off against the FDIC when

its claim was subordinated to the rights of depositors under the statutory priority scheme); FDIC

v. RPM Mortgage, 2010 WL 9502044 (C.D. Cal. 2010) (“granting Skyline relief [as an

unsecured general creditor] in the form of setoff or recoupment would be tantamount to allowing

Skyline to jump in front of the line to remedy its damages despite the FDIC’s clear

pronouncements that the receivership estate has insufficient assets”).

       BOA’s reliance on Scott v. Armstrong, 146 U.S. 499 (1892) and its progeny of cases for

the proposition that courts allow set offs against the FDIC is misplaced. Not one of the cases

cited by BOA implicated the distribution scheme set forth in Section 1821(d)(11), so there was

no risk that the creditor would jump ahead of higher priority creditors. In fact, none of the cases

cited by BOA discusses Section 1821(d)(11). The Ninth Circuit in Bank of America expressly

distinguished these cases for this very reason: “none of the foregoing cases dealt with setoff

against a subordinate obligation, such as we have in this case. Here, we are not concerned with

the general rule permitting setoff, but with whether it is applicable to this case.” 701 F.2d at 836.



                                                 12
         This Court is not aware of—and BOA had not cited any—cases that awarded a setoff that

would disrupt the statutory distribution scheme of Section 1821(d)(11). Indeed, in Interfirst

Bank-Abilene, N.A. v. FDIC, a case on which BOA heavily relies, the Fifth Circuit specifically

stated that the setoff in that case should be allowed because it would not interfere with the

priority distribution scheme provision of the National Bank Act. 777 F.2d 1092, 1096 (5th Cir.

1985). Indeed, the D.C. Circuit has explicitly stated that the distribution scheme set forth in

Section 1821(d)(11) must be interpreted to not “frustrate” Congress’s “depositor preference goal

in § 1821(d)(11).” MBIA, 708 F.3d at 245. 3

         4.       BOA’s Remaining Objections to Dismissal

         BOA asserts two further defenses to the motion to dismiss, neither of which merits

extended discussion. First, BOA contends that “[t]here is no valid legal theory making the [No-

Value] Determination binding on this Court.” Opp. at 22. However, as discussed previously in

this order, under well-established case law, the No-Value Determination is a final agency

decision that is conclusive and binding on this Court. See South Miami Holdings, 2013 WL

4046717, *4; Santopadre, 937 F.2d at 272; Ward, 2012 WL 10334 at *2; Gulley v. Sunbelt Sav.,

FSB, 902 F.2d 348, 351 n. 4 (5th Cir. 1990); Nasoordeen v. FDIC, 2010 WL 1135888, at *6-8

(C.D. Cal. Mar. 17, 2010); Adam, 927 F.2d at 354; Village South Joint Venture v. FDIC, 733 F.

Supp. 50, 51-52 (N.D. Tex. 1990).

         BOA complains at length about the “unilateral” nature of the No-Value Determination,

alleging that it lacks the indicia of due process, such as the opportunity for public comment and

examination of witnesses. Opp. at 23-27. This is not the arena within which to raise such


3
          BOA also argues that it can assert its claims as affirmative defenses. The Court disagrees. Allowing BOA
to set off the claims either as direct claims or affirmative defenses would have the same effect. It would allow BOA
to recover more than its pro-rata share under the priority scheme. See Bank of America, 701 F.2d. at 836.


                                                         13
arguments. The APA, not this lawsuit, provides the process within which to contest the No-

Value Determination.

       Next BOA argues that it is “premature to rely on the No-Value Determination to dismiss

BOA’s claims because the No-Value Determination is not final.” It asks this Court to either deny

the FDIC’s motion to dismiss or to defer ruling on it “while judicial review of the APA’s ‘no

value’ determination remains a viable option.” Opp. at 28. BOA posits a scenario whereby the

motion to dismiss is granted, BOA’s claims are dismissed, and the No Value Determination is

subsequently invalidated, thereby leaving BOA without recourse because the statute of

limitations would have run on its causes of action. In light of this concern, the Court will accept

the FDIC’s proposal that the Court grant the motion to dismiss, but hold the order of judgment in

abeyance until the APA action is resolved.

                                     IV.     CONCLUSION

       For the foregoing reasons, the Court HEREBY GRANTS the FDIC’s Motion to Dismiss

(Dkt. No. 73). BOA’s claims against the FDIC as Receiver for Colonial are DISMISSED with

prejudice. The order of judgment will be held in abeyance pending resolution of BOA’s APA

challenge to the FDIC’s No-Value Determination.

       Dated this 26th day of August, 2013.


                                                      A
                                                      Barbara Jacobs Rothstein
                                                      U.S. District Court Judge




                                                 14
