Unknown case name

November 5, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1032
BANK OF NEW ENGLAND ESSEX, F/K/A,
ESSEXBANK,
Plaintiff, Appellee,
v.
MV BOBCAT, O.N. 517619, ETC., ET AL.,
Defendants, Appellees,
PAUL A. SEKENSKI, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Selya, Circuit Judges.
Carroll E. Ayers on brief for appellant.
Ann S. Duross, Assistant General Counsel, Richard J.
Osterman, Jr., Senior Counsel, and Daniel H. Kurtenbach, Counsel,
Federal Deposition Insurance Corporation, on brief for appellee.
Per Curiam. Appellant Paul Sekenski, Jr., appeals the
denial by the district court of his motion for
reconsideration. We find that we have no jurisdiction to hear
this appeal.
I
This case began in December 1988 when the Bank of New
England Essex [Bank] filed an admiralty and maritime claim
against the vessel MV Bobcat, in rem, and against Northeast
Atlantic Transport, Ltd. [NAT], and Paul Sekenski, in
personam. The Bank sought collection on a promissory note
made by NAT, foreclosure on a mortgage on the vessel that
secured the note, and judgment against Sekenski who had
personally guaranteed NAT's obligation. Sekenski filed a
counterclaim in December 1988.
In March 1990, the district court granted summary
judgment to the Bank on its affirmative claims. In October
1990, the court granted summary judgment to the Bank against
the counterclaim. Sekenski's motion for reconsideration was
denied. In December 1990, Sekenski filed a notice of appeal
from the order denying reconsideration. After the appeal had
been filed, the Federal Deposit Insurance Corporation [FDIC]
was appointed receiver for the Bank. In March, the FDIC as
receiver moved this court for a stay of appeal
unless, and until, the claims against the Bank of
New England, N.A. . . . have been duly presented to
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and disallowed by the FDIC, as Receiver of the Bank
of New England, N.A., pursuant to [12 U.S.C.
1821(d)(3), (5), (6), and (13)(D)].
The motion also noted that "this Court has no subject matter
jurisdiction to adjudicate the [claims] unless, and until,
the claimant has completed the claims process."
In an order dated April 16, 1991, this court ordered a
stay of "appellate proceedings until appellant's claim has
been presented to and disallowed by the FDIC, see 12 U.S.C.
1821(d)." On July 20, 1993, in accordance with Sekenski's
request, this court ordered the appeal to proceed in the
normal manner. The FDIC now represents, and Sekenski has not
denied, that Sekenski never filed an administrative claim
with the FDIC.
II
The Federal Institutions Reform and Recovery Act
[FIRREA] governs the filing, determination and payment of
claims made against the assets of a failed institution after
the FDIC has been appointed receiver. Anyone with a claim
against the assets of a failed institution must submit an
administrative claim to the FDIC within a prescribed period.
12 U.S.C. 1821(d)(5)(C). This includes those who are
"continu[ing] an action commenced before the appointment of
the receiver." 12 U.S.C. 1821(d)(6)(A). "[P]articipation
in the administrative claims review process [is] mandatory
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for all parties asserting claims against failed institutions,
regardless of whether lawsuits to enforce those claims were
initiated prior to the appointment of a receiver." Marquis
v. Federal Deposit Ins. Corp., 965 F.2d 1148, 1151 (1st Cir.
1992) (footnote and citations omitted). "Failure to
participate in the administrative claims process is a
'jurisdictional bar' to judicial review." Heno v. Federal
Deposit Ins. Corp., 996 F.2d 429, 432 (1st Cir. 1993); 12
U.S.C. 1821(d)(13)(D).
Sekenski was given notice, as required by the statute,
by publication and by mailing, 12 U.S.C. 1821(d)(3)(B)-(C),
that he must comply with the administrative claims process.
The order of this court granting a stay in this case also
cited 12 U.S.C. 1821(d) and granted the stay "until
appellant's claim has been presented to and disallowed by the
FDIC." Since Sekenski failed to comply with the
administrative claims process, we are without jurisdiction to
hear his appeal. See Resolution Trust Corp. v. Mustang
Partners, 946 F.2d 103, 106 (10th Cir. 1991) (court has no
jurisdiction over counterclaim because "Mustang's right to
continue pursuing its pending lawsuit is dependent upon its
compliance with FIRREA's claims procedure").
The appeal is dismissed for lack of subject matter
jurisdiction.
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