Rundgren v. Washington Mutual Bank, FA

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TODD RUNDGREN; MICHELE C. No. 12-15368
RUNDGREN, individually and as
Trustees respectively of the Todd D.C. No.
Rundgren Revocable Trust, dated 1:09-cv-00495-
November 1, 2005 and the Michele JMS-KSC
C. Rundgren Revocable Trust, dated
October 6, 2005,
Plaintiffs-Appellants, OPINION
v.
WASHINGTON MUTUAL BANK, FA, a
Federal Savings Bank; JPMORGAN
CHASE BANK NA, a Delaware
corporation; DOES, 1-30,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted
June 10, 2014—Honolulu, Hawaii
Filed July 29, 2014
Before: William A. Fletcher, Sandra S. Ikuta, and Andrew
D. Hurwitz, Circuit Judges.
Opinion by Judge Ikuta
2 RUNDGREN V. WASHINGTON MUTUAL
SUMMARY*
FIRREA
The panel affirmed the district court’s dismissal of Todd
and Michele Rundgren’s claims against JPMorgan Chase
Bank, in a case arising out of allegedly fraudulent acts by
Washington Mutual Bank, which was placed into the
receivership of the Federal Deposit Insurance Company.
The FDIC transferred certain WaMu assets, including the
Rundgrens’ mortgage, to Chase. The panel held that because
WaMu was placed into the receivership of the FDIC and the
Rundgrens failed to exhaust the administrative remedies
provided by the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as required by 12 U.S.C.
§ 1821(d)(13)(D), the district court correctly determined it
lacked jurisdiction to hear the Rundgrens’ claims. The panel
concluded that the claims in the Rundgrens’ complaint are
“claims” for purposes of § 1821(d)(3)(D) and that their
claims “relate to any act or omission” of WaMu.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RUNDGREN V. WASHINGTON MUTUAL 3
COUNSEL
Gary Victor Dubin (argued) and Frederick John Arensmeyer,
Dubin Law Offices, Honolulu, Hawaii, for Plaintiffs-
Appellants.
Paul D. Alston (argued) and Tina L. Colman, Alston Hunt
Floyd & Ing, Honolulu, Hawaii; Jeffrey H. K. Sia, Diane W.
Wong, and David A. Gruebner, Ayabe, Chong, Nishimoto,
Sia & Nakamura, Honolulu, Hawaii for Defendant-Appellee
JPMorgan Chase Bank.
OPINION
IKUTA, Circuit Judge:
This appeal requires us to consider whether the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989
(FIRREA), Pub. L. No. 101-73, 103 Stat. 183, stripped the
district court of jurisdiction over Todd and Michele
Rundgren’s claims arising out of allegedly fraudulent acts by
Washington Mutual Bank (WaMu). Because WaMu was
placed into the receivership of the Federal Deposit Insurance
Corporation (FDIC), and the Rundgrens failed to exhaust the
administrative remedies provided by FIRREA, the district
court correctly determined it lacked authority to hear the
Rundgrens’ claims. See 12 U.S.C. § 1821(d)(13)(D).
I
In considering this facial challenge to the district court’s
subject matter jurisdiction, we assume the veracity of the
Rundgrens’ allegations. See Savage v. Glendale Union High
4 RUNDGREN V. WASHINGTON MUTUAL
Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). In early 2005,
the Rundgrens obtained a loan secured by a mortgage in favor
of Countrywide Home Loans, Inc, on their property in
Kilauea, Hawaii. Three years later, the Rundgrens refinanced
their mortgage with WaMu for around $3,000,000.
According to the Rundgrens, the loan refinancing was tainted
by WaMu’s numerous fraudulent acts. For example, the
Rundgrens allege that WaMu falsified the loan application,
highly exaggerated the Rundgrens’ income and assets without
their knowledge, misled the Rundgrens as to the terms of the
note, secured a false appraisal, and rushed them through the
signing process, among other things.
WaMu was later seized by the Office of Thrift
Supervision and placed into the receivership of the FDIC.
The FDIC then transferred certain WaMu assets, including
the Rundgrens’ mortgage, to defendant JPMorgan Chase
Bank, N.A. (Chase) under a Purchase and Assumption
Agreement. Pursuant to this agreement, the FDIC retained
most liabilities associated with those assets.1
1
The Purchase and Assumption Agreement between Chase and the
FDIC provided that:
Notwithstanding anything to the contrary in this
Agreement, any liability associated with borrower
claims for payment of or liability to any borrower for
monetary relief, or that provide for any other form of
relief to any borrower, whether or not such liability is
reduced to judgment, liquidated or unliquidated, fixed
or contingent, matured or unmatured, disputed or
undisputed, legal or equitable, judicial or extrajudicial,
secured or unsecured, whether asserted affirmatively or
defensively, related in any way to any loan or
commitment to lend made by [WaMu] prior to failure,
or to any loan made by a third party in connection with
RUNDGREN V. WASHINGTON MUTUAL 5
After Chase determined that the Rundgrens were in
default on their loan, Chase accelerated the payments secured
by the mortgage and notified the Rundgrens that a non-
judicial foreclosure sale would occur on August 26, 2009. In
response, the Rundgrens sent Chase a letter stating that “they
each hereby timely exercise their right to cancel said
referenced loan transaction and mortgage and promissory
note” based on allegations that Chase and WaMu violated
state and federal law.
The Rundgrens then sued Chase and WaMu in Hawaii
state court. In their complaint, the Rundgrens alleged that
WaMu defrauded them and breached its fiduciary duty during
the refinancing negotiation. The Rundgrens sought, among
other things: a declaratory judgment that the loan transaction
was void and unenforceable and that Chase could not proceed
with its nonjudicial foreclosure action; rescission of the loan
and treble damages under state law; injunctive relief
preventing Chase from attempting to foreclose on the
property or “further damage their finances”; statutory
damages under the federal Truth in Lending Act (TILA),
15 U.S.C. §§ 1601–1667f, and other state and federal
consumer protection acts; and punitive damages.
Chase then removed the action to federal court. The
district court dismissed the case against Chase for lack of
jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil
Procedure because the Rundgrens had failed to exhaust their
claims with the FDIC prior to bringing suit, as required by
a loan which is or was held by [WaMu], or otherwise
arising in connection with [WaMu]’s lending or loan
purchase activities are specifically not assumed by
[Chase].
6 RUNDGREN V. WASHINGTON MUTUAL
12 U.S.C. § 1821(d)(13)(D). In the alternative, the court held
that the Rundgrens failed to state a claim under Federal Rule
of Civil Procedure 12(b)(6). This appeal followed.
II
We review de novo the district court’s dismissal of a
claim for lack of subject matter jurisdiction. Campbell v.
Redding Med. Ctr., 421 F.3d 817, 820 (9th Cir. 2005). In
determining whether the Rundgrens’ action against Chase is
barred by the jurisdiction-stripping provisions of FIRREA,
we first consider the Act’s purpose and structure.
Congress enacted FIRREA “in an effort to prevent the
collapse of the [savings and loan] industry” in the late 1980s.
Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1211 (9th
Cir. 2011). In order “to enable the federal government to
respond swiftly and effectively to the declining financial
condition of the nation’s banks and savings institutions,”
FIRREA granted “the FDIC, as receiver, broad powers to
determine claims asserted against failed banks.” Henderson
v. Bank of New Eng., 986 F.2d 319, 320 (9th Cir. 1993).
To maximize the FDIC’s ability to fulfill its role as claim
adjudicator, FIRREA “provides detailed procedures to allow
the FDIC to consider certain claims against the receivership
estate.” Benson v. JPMorgan Chase Bank, N.A., 673 F.3d
1207, 1211 (9th Cir. 2012). The comprehensive claims
process, see 12 U.S.C. § 1821(d)(3)–(10), allows the FDIC 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,” Benson, 673 F.3d at 1211 (internal quotation marks
omitted), “‘without unduly burdening the District Courts,’”
RUNDGREN V. WASHINGTON MUTUAL 7
Henderson, 986 F.2d at 320 (quoting H.R. Rep. No. 101-
54(I), at 419 (1989), reprinted in 1989 U.S.C.C.A.N. 86,
215). As set forth in FIRREA, once the FDIC is appointed
receiver for a failed depository institution, it must publish a
notice to all of “the depository institution’s creditors” with
instructions “to present their claims, together with proof, to
the receiver” by a specific date. 12 U.S.C.
§ 1821(d)(3)(B)(i). The FDIC must also mail the notice “to
any creditor shown on the institution’s books,” id.
§ 1821(d)(3)(C)(i), and “upon discovery of the name and
address of a claimant not appearing on the institution’s
books,” the FDIC must mail the notice to the claimant
“within 30 days after the discovery of such name and
address,” id. § 1821(d)(3)(C)(ii). Late claims “shall be
disallowed and such disallowance shall be final,” id.
§ 1821(d)(5)(C)(i), unless “the claimant did not receive notice
of the appointment of the receiver in time to file such claim
before [the designated] date,” and “such claim is filed in time
to permit payment of such claim,” id. § 1821(d)(5)(C)(ii).
Within 180 days (or another agreed-upon period of time) after
receiving the claim, the FDIC “shall determine whether to
allow or disallow the claim and shall notify the claimant of
any determination with respect to such claim.” Id.
§ 1821(d)(5)(A); see also id. § 1821(d)(5)(D). If the claimant
timely submits the claim to the FDIC and the FDIC disallows
the claim, “the claimant may request administrative review of
the claim . . . or file suit on such claim” in the district court
whose jurisdiction covers the depository institution. Id.
§ 1821(d)(6)(A).
FIRREA strips courts of jurisdiction over claims that have
not been exhausted through this process:
8 RUNDGREN V. WASHINGTON MUTUAL
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, including assets which the
[FDIC] may acquire from itself as such
receiver; or
(ii) any claim relating to any act or omission
of such institution or the [FDIC] as receiver.
Id. § 1821(d)(13)(D).
III
In light of the exhaustion requirement set forth in
§ 1821(d)(13)(D), we begin by asking whether the
Rundgrens’ complaint alleges a “claim” and if so, whether
the claim relates to “any act or omission,” id.
§ 1821(d)(13)(D)(ii), of an “institution for which the [FDIC]
has been appointed receiver,” id. § 1821(d)(13)(D)(i).
A
FIRREA does not define the term “claim” for purposes of
exhaustion, so we use the ordinary meaning of the term. See
Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d
1051, 1061 (9th Cir. 2003) (en banc), as amended by
360 F.3d 1374 (9th Cir. 2004) (en banc). A “claim” is a
cause of action or the aggregate of facts that gives rise to a
RUNDGREN V. WASHINGTON MUTUAL 9
right to payment or an equitable remedy. See Black’s Law
Dictionary 281–82 (9th ed. 2009); see also Black’s Law
Dictionary 247 (6th ed. 1991). Given this general meaning of
the word claim in normal legal usage, the Rundgrens’
complaint clearly raises “claims” against WaMu and Chase
for monetary and nonmonetary relief.
The Rundgrens raise two arguments against this
straightforward conclusion. First, the Rundgrens argue that
their claims are not the sort of claims contemplated by
§ 1821(d)(13)(D) because the Rundgrens are not WaMu’s
creditors. We have previously rejected this argument as
inconsistent with the statutory language. See McCarthy v.
FDIC, 348 F.3d 1075, 1080 (9th Cir. 2003) (holding that “the
exhaustion rule . . . is not limited to creditors, but applies as
well to debtors”). Section 1821(d)(13)(D) is drafted broadly
to preclude courts from exercising jurisdiction over “any
claim or action for payment from, or any action seeking a
determination of rights with respect to” the assets of a failed
bank in the hands of the FDIC, or “any claim relating to any
act or omission” of a failed bank, without respect to the
identity of the claimant. Nothing in this section suggests that
“any claim” refers only to those asserted by creditors.
Although FIRREA refers to the FDIC’s duty to provide
notice to “the depository institution’s creditors,” 12 U.S.C.
§ 1821(d)(3)(B)(i), the statute also provides for notice to
other “claimant[s],” id. § 1821(d)(3)(C)(ii) (requiring the
FDIC to mail notice to any “claimant not appearing on the
institution’s books” that is later discovered). More important,
although Congress specifically referred to “creditors” at
various points in FIRREA, it did not do so in
§ 1821(d)(13)(D), further indicating its intent to preclude
federal courts from exercising jurisdiction over non-
exhausted claims by any claimant. Our sister circuits agree.
10 RUNDGREN V. WASHINGTON MUTUAL
See McCarthy, 348 F.3d at 1079–80 (collecting cases and
noting that our sister circuits “have uniformly held that
debtors’ actions are subject to FIRREA exhaustion”).
Nor can we conclude that the Rundgrens’ claims are not
“claims” because the FDIC would lack the authority to
adjudicate them. We have held that FIRREA “bars judicial
review of any non-exhausted claim, monetary or
nonmonetary, which is ‘susceptible of resolution through the
claims procedure.’” Henderson, 986 F.2d at 321 (quoting
Rosa v. Resolution Trust Corp., 938 F.2d 383, 394 (3d Cir.
1991)); see also Tri-State Hotels, Inc. v. FDIC, 79 F.3d 707,
714 (8th Cir. 1996) (holding that § 1821(d)(13)(D) applies to
declaratory judgment actions); Nat'l Union Fire Ins. Co. v.
City Sav., F.S.B., 28 F.3d 376, 385 (3d Cir. 1994) (same).
And the Rundgrens “give us no reason to believe that
FIRREA exhaustion would have been futile,” Benson,
673 F.3d at 1213, or that their claims are otherwise not
susceptible of resolution through FIRREA’s administrative
procedure, see McCarthy, 348 F.3d at 1081 (holding that
“apart from claims made in connection with bankruptcy
proceedings or arising out of a breach of contract fully
performed by the aggrieved party but not repudiated by the
receiver, all claims or actions [against a failed bank] must be
submitted for administrative resolution”).
The Rundgrens also assert that because they are
attempting to prevent a nonjudicial foreclosure, their
complaint should be construed as raising affirmative
defenses, as Ҥ 1821(d)(13)(D) does not divest a district court
of jurisdiction over an affirmative defense.” Resolution Trust
Corp. v. Midwest Fed. Sav. Bank of Minot, 36 F.3d 785, 793
(9th Cir. 1994).
RUNDGREN V. WASHINGTON MUTUAL 11
We disagree. At the time of this suit, Hawaii, like many
states in this circuit, had both judicial and nonjudicial
foreclosure regimes. Hawaii law authorized lenders like
Chase to bring an action in Hawaii state court to foreclose on
the property in the event of a default. See Haw. Rev. Stat.
§ 667-1.5. Borrowers like the Rundgrens could then raise
defenses to the judicial foreclosure proceeding. See id. § 667-
4. But Hawaii law also permitted a borrower and lender to
agree that the lender could exercise a power of sale should the
borrower default. Haw. Rev. Stat. §§ 667-5(a), 667-5.7 (2008
ed.); Lee v. HSBC Bank USA, 121 Hawai’i 287, 291 (2009).2
When the parties have agreed to use these nonjudicial
foreclosure proceedings and the borrower defaults, the lender
is contractually and statutorily authorized to commence a
public sale of the property without the need to resort to the
judicial process. See Haw. Rev. Stat. § 667-5 (2008 ed.). A
nonjudicial foreclosure is intended to be “‘relatively quick
and inexpensive. It does not require a lengthy time period
between the notice of default and foreclosure sale, and does
not require court costs and legal fees associated with
discovery and drafting of pleadings.’” Lee, 121 Hawai’i at
292 (quoting Georgina W. Kwan, Mortgagor Protection
Laws: A Proposal for Mortgage Foreclosure Reform in
Hawai’i, 24 U. Haw. L. Rev. 245, 253 (2001)). In order to
halt a nonjudicial foreclosure, the borrower may “impeach[]
by action or otherwise, any foreclosure proceeding” by
bringing action “prior to the entry of a new certificate of
title.” Haw. Rev. Stat. § 501-118; see also Aames Funding
Corp. v. Mores, 107 Hawai’i 95, 101 (2005). In other words,
if the loan documents give the lender the power to proceed by
2
The Hawaii State Legislature has significantly altered the nonjudicial
foreclosure process since Chase’s 2009 foreclosure attempt. See 2012
Haw. Sess. Laws, Act 182.
12 RUNDGREN V. WASHINGTON MUTUAL
means of nonjudicial foreclosure, a borrower who wants to
stop the process may bring an independent action raising
claims that provide a legal basis for enjoining the lender from
exercising its rights under the contract.
Here, the Rundgrens had contractually agreed to allow the
lender to exercise a power of sale and foreclosure without
judicial proceedings. Because the lender had no need to
pursue foreclosure through a court action, the Rundgrens
could not block a foreclosure by raising affirmative defenses;
rather, they exercised their right under Hawaii state law to
bring a lawsuit raising their claims against WaMu and Chase.
Nothing in FIRREA allows us to ignore common legal usage
and recharacterize the Rundgrens’ lawsuit for legal and
equitable relief and damages as one raising affirmative
defenses.
Our decision in Midwest Federal is not to the contrary.
In that case, the Resolution Trust Corporation (RTC), acting
as receiver for a failed bank, brought a legal action against a
borrower (and various guarantors) to foreclose on the
mortgage. Midwest Fed., 36 F.3d at 789. Because the loan
documents did not state the loan was nonrecourse, the RTC
also sued for a deficiency amount. The defendants filed an
answer and a counterclaim, alleging mutual mistake and
seeking reformation of the terms of the loan agreement to
include a nonrecourse provision. Id. at 789–90. Consistent
with FIRREA’s broad reference to “claims,” we noted that
the mere “fact that the pleading was labeled a counterclaim
does not avoid the jurisdictional limitations imposed by
FIRREA.” Id. at 791. Nevertheless, we thought that “a better
description of the reformation claim is ‘affirmative defense,’”
id. at 791, because the defendant filed the pleading to avert
personal liability in the RTC’s action against it, and because
RUNDGREN V. WASHINGTON MUTUAL 13
Federal Rule of Civil Procedure 8(c) authorizes federal courts
to “treat the pleading as an affirmative defense rather than a
counterclaim,” id. at 792, when “justice requires,” Fed. R.
Civ. P. 8(c)(2). Accordingly, we concluded that “a district
court has subject matter jurisdiction over affirmative defenses
raised by a defendant who, prior to being sued by the RTC,
was not a creditor of the RTC and who had no independent
basis for filing a claim against the RTC, even though the
defendant had not exhausted the administrative procedures
established by FIRREA.” Midwest Fed., 36 F.3d at 793.
Here, by contrast, the Rundgrens are not defendants in
any lawsuit by the RTC, FDIC, or a lender. They are the
plaintiffs bringing an independent action against the lender,
raising common law and statutory claims based on WaMu’s
alleged fraud. The Rundgrens’ argument that such an action
should be construed as an affirmative defense finds no
support in FIRREA. Nor do the Rundgrens cite any authority
equivalent to Rule 8 of the Federal Rules of Civil Procedure
that would allow us to recharacterize the claims in the
Rundgrens’ independent lawsuit as affirmative defenses.
Accordingly, we are bound by the plain language of the
statute, which strips us of jurisdiction over “any claim
relating to any act or omission” of a failed bank. 12 U.S.C.
§ 1821(d)(13)(D)(ii).
The Rundgrens also rely on Bolduc v. Beal Bank, SSB,
167 F.3d 667 (1st Cir. 1999), to support their argument that
we must construe their legal action as an affirmative defense
for purposes of FIRREA. In Bolduc, the First Circuit
14 RUNDGREN V. WASHINGTON MUTUAL
examined whether a lawsuit by borrowers against the FDIC3
to stop a nonjudicial foreclosure was barred by
§ 1821(d)(13)(D). 167 F.3d at 669–70, 672. Bolduc reasoned
that under FIRREA, it did not matter “who happens to be the
plaintiff” because “[t]he purpose of the exhaustion
requirement is to make persons with claims against bank
funds or property submit them promptly in a single
administrative forum.” Id. at 671. According to Bolduc,
“[o]ne alleged merely to owe the bank money” is not bringing
such a claim, “whether the debtor asks a court for a
preemptive declaration or injunction against the bank claim
or merely awaits suit by the bank and then defends.” Id. at
671–72. Nevertheless, Bolduc expressed uncertainty as to
whether a borrower attempting to stop a foreclosure was
equivalent to a person who merely owed the bank money.
The court noted that mortgages “have a double aspect”: if the
borrower’s lawsuit is deemed a response to potential claims
of the bank to recover debts owed to the bank by the
borrowers, then “the exhaustion requirement does not apply,”
but if the borrower’s lawsuit is viewed “as cutting off the
bank’s rights to property currently in the bank’s possession,
namely, a contingent property interest represented by the
mortgages themselves,” then the exhaustion requirement
might apply. Id. at 672. In the end, the court did not resolve
this “double aspect” problem, but concluded that the
borrower’s suit in that case “does not quite fit within the
statutory language that delineates the exhaustion
requirement” primarily because “it is hard to describe the
3
Although the lawsuit was actually brought against the bank which had
acquired the failed bank’s assets from the FDIC, the First Circuit
proceeded “as if the FDIC still held the second mortgages” and the
borrowers “were suing to enjoin their threatened foreclosure.” Bolduc,
167 F.3d at 671.
RUNDGREN V. WASHINGTON MUTUAL 15
[borrowers’] action as one seeking ‘a determination of rights
with respect to’ a bank asset.” Id.; cf. 12 U.S.C.
§ 1821(d)(13)(D)(i) (stripping a court of jurisdiction over
“any action seeking a determination of rights with respect to,
the assets of any depository institution” in the hands of the
FDIC). Bolduc did not address the language of
§ 1821(d)(13)(D)(ii), which refers to a “claim relating to any
act or omission” of the failed bank.
In our view, the reasoning of Bolduc is neither clear nor
persuasive. Bolduc itself acknowledges that a lawsuit to
enjoin a nonjudicial foreclosure can be characterized as a
claim against the lender, in that the borrower is asserting a
cause of action intended to deprive the lender of a valuable
right, namely, a secured interest in property. In our view, a
claim aimed at preventing a lender from obtaining repayment
of a loan or any realization on its security interest is clearly a
claim against the lender that seeks “a determination of
rights with respect to a bank asset” for purposes of
§ 1821(d)(13)(D)(i). Moreover, a borrower’s claim that the
bank is not entitled to foreclose due to past misdeeds plainly
satisfies the criterion of being a “claim relating to any act or
omission” of a bank. Id. § 1821(d)(13)(D)(ii). To the extent
Bolduc held otherwise, we disagree. Therefore, Bolduc does
not change our analysis here, and we conclude that the
Rundgrens’ claims are not affirmative defenses exempt from
FIRREA’s exhaustion requirement.
B
Having concluded that the Rundgrens’ claims in their
complaint are “claims” for purposes of § 1821(d)(3)(D), we
now consider whether they relate to “any act or omission” of
WaMu or the FDIC as receiver. Id. § 1821(d)(13)(D)(ii).
16 RUNDGREN V. WASHINGTON MUTUAL
Although the Rundgrens named Chase as well as WaMu in
their complaint, all claims in the complaint rest on the theory
that WaMu took deceptive and fraudulent actions to induce
them to enter into a loan agreement, and their mortgage and
note are therefore unenforceable. The complaint makes no
independent claims against Chase.4 A claimant cannot
circumvent the exhaustion requirement by suing the
purchasing bank based on the conduct of the failed institution.
“Where a claim is functionally, albeit not formally, against a
depository institution for which the FDIC is receiver, it is a
‘claim’ within the meaning of FIRREA’s administrative
claims process.” Benson, 673 F.3d at 1214 (internal
quotation marks omitted). Accordingly, we conclude that the
Rundgrens’ claims relate to WaMu’s acts or omissions for
purposes of § 1821(d)(13)(D).
IV
The Rundgrens’ complaint alleges claims “relating to any
act or omission” of WaMu, 12 U.S.C. § 1821(d)(13)(D)(ii),
and they have not explained why their claims are not
susceptible of resolution through the administrative process,
see McCarthy, 348 F.3d at 1081 (noting the “special
situations” that constitute an “exception[]” to the rule that “all
claims or actions must be submitted for administrative
resolution”). Because the Rundgrens have not exhausted
their administrative remedies under § 1821(d), the plain
4
The Rundgrens argue that Chase violated TILA by failing to respond
to the Rundgrens’ rescission notice. The Rundgrens’ complaint did not
include such a claim, nor would such a claim have been ripe, given that
the Rundgrens filed their complaint on the same day they provided Chase
a notice of rescission, and no TILA violation can arise until 20 days after
the lender receives such a notice. See 15 U.S.C. § 1635(b).
RUNDGREN V. WASHINGTON MUTUAL 17
language of § 1821(d)(13)(D)(ii) stripped the district court of
jurisdiction to consider the Rundgrens’ complaint.
AFFIRMED.