IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-20164

Summary Calendar

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HOME CAPITAL COLLATERAL, INC.,

Plaintiff-Appellant,

versus

FEDERAL DEPOSIT INSURANCE CORPORATION,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Texas

(CA-H-95-4210)

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September 5, 1996

Before KING, WIENER, and STEWART, Circuit Judges.

PER CURIAM:

Home Capital Collateral, Inc. appeals the district court’s

dismissal of its complaint with prejudice for lack of subject

matter jurisdiction and failure to state a claim. Finding no

error, we affirm.

I. BACKGROUND

A. FACTS

In 1980 and 1981, Home Capital Collateral, Inc. (“Home

Capital”) originated loans in connection with first mortgage
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loans originated by Unifirst Federal Savings and Loan Association

(“Unifirst”). Home Capital’s loans were secured by a second lien

on property on which Unifirst held a first lien. To induce Home

Capital to make loans secured by a junior lien, Unifirst agreed

to maintain private mortgage insurance (“PMI”) and to assign the

PMI proceeds on a priority basis to the junior loans owned by

Home Capital. Unifirst also serviced the loans on behalf of Home

Capital.

Thereafter, the Resolution Trust Corporation (“RTC”) placed

Unifirst into receivership, and the RTC as receiver for Unifirst

(“RTC Receiver”)and Home Capital entered the Mortgage Investment

and Servicing Agreement (the “Agreement”), which indicated that

RTC Receiver would assume Unifirst’s responsibility for servicing

the loans. The Agreement provided that the loans would be

serviced in accordance with mortgage industry standards and that

PMI would be maintained on the loans. RTC Receiver then

subcontracted its responsibilities under the Agreement to certain

mortgage companies.

Home Capital alleges that the RTC and/or its subcontractor

violated the Agreement by allowing the PMI to expire by failing

to pay the premium, by failing to timely notify the PMI issuer of

defaults on the loans, and by failing to act on events of

default, giving the PMI issuer a defense against payment under

the policy.
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B. PROCEDURE 

In 1994, Home Capital filed a Proof of Claim with the RTC

against RTC Receiver and RTC in its corporate capacity (“RTC

Corporate”), to recover $ 578,160.03 in damages for the RTC’s

negligent servicing of the loans and failure to maintain the PMI

in violation of the Agreement. The 180-day period for RTC review

of Home Capital’s claim was twice extended by mutual agreement in

writing between the parties, in accordance with 12 U.S.C. §

1821(d)(5)(A)(ii). On January 19, 1995, the RTC requested

another extension, which would have enlarged the claims review

period to February 18, 1995. The January 19 letter advised Home

Capital that:

Pursuant to 12 U.S.C. § 1821(d)(6)(A), if you do not

agree to the extension of time, you may, on or prior to

March 20, 1995, file suit on your claim. . . . If you

do not agree to the extension of time and do not take

the appropriate action within the 60 day period, your

claim will be deemed disallowed, the disallowance will

be final, and you shall have no further rights or

remedies with respect to your claim.

Home Capital did not agree to the extension by signing and

returning the letter to the RTC. Home Capital made no further

response to the RTC.

On August 24, 1995, Home Capital filed a complaint in the

United States District Court for the Southern District of Texas

against the RTC alleging breach of contract and breach of

fiduciary duty based on the RTC’s failure to maintain the PMI and
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to properly service the loans. The RTC filed a motion to dismiss

Home Capital’s complaint for lack of subject matter jurisdiction

as against RTC Receiver and a motion to dismiss for failure to

state a claim against RTC Corporate. Home Capital responded to

the RTC’s motions to dismiss, and the district court held

argument on the motions. 

On February 6, 1996, the district court dismissed Home

Capital’s complaint against RTC Receiver for lack of subject

matter jurisdiction and against RTC Corporate for failure to

state a claim. Home Capital filed a timely notice of appeal.

II. DISCUSSION

A. JURISDICTION

The district court concluded that it lacked subject matter

jurisdiction over Home Capital’s claims against RTC Receiver

because Home Capital failed to file its complaint within the time

limit required by the administrative claims review procedure

(“ACRP”) of the Financial Institution Reform, Recovery, and

Enforcement Act of 1989 (“FIRREA”) at 12 U.S.C. § 1821(d). Home

Capital argues that the district court erred because the ACRP

applies only to claims against the assets of the failed financial

institution and does not apply to post-receivership claims based

on the actions of RTC Receiver, such as Home Capital’s claim.
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We review the district court’s dismissal for lack of subject

matter jurisdiction under Federal Rule of Civil Procedure

12(b)(1) de novo. Carney v. RTC, 19 F.3d 950, 954 (5th Cir.

1994). “Subject matter jurisdiction is determined at the time

the complaint was filed.” Id.

FIRREA, in 12 U.S.C. § 1821(d)(3), (5) and (6), establishes

the ACRP, which governs the filing, determination, and payment of

claims after the appointment of the RTC or the Federal Deposit

Insurance Corporation (“FDIC”) as receiver for a failed financial

institution. Upon appointment as receiver, the RTC or FDIC must

publish, as well as mail to known creditors, notice that the

failed financial institution’s creditors must file all claims

with the receiver by a specified date not less than ninety days

after the date of publication. 12 U.S.C. § 1821(d)(3)(B),(C);

see Simon v. FDIC, 48 F.3d 53, 56 (1st Cir. 1995). Another

provision allows the receiver to consider claims not filed by the

specified date in limited circumstances. 12 U.S.C. §

1821(d)(5)(C). The receiver has 180 days from the date of the

filing of a claim to allow or disallow the claim, although this

time period may be extended by written agreement between the

receiver and the claimant. 12 U.S.C. § 1821(d)(5)(A). 

Section 1821(d)(6) allows judicial determination of claims

filed within a certain time period after a claim has been

disallowed by the receiver or after the 180-day period for the
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receiver to consider the claim has expired. This section

provides:

Provision for agency review or judicial determination

of claims

(A) In general

Before the end of the 60-day period beginning on the

earlier of--

(i) the end of the period described in

paragraph (5)(A)(i) with respect to any claim

against a depository institution for which

the Corporation is receiver [the 180-day

period]; or

(ii)the date of any notice of disallowance of

such claim pursuant to paragraph (5)(A)(i),

the claimant may . . . file suit on such claim . . . in

the district . . . court of the United States . . .

(B) Statute of Limitations

If any claimant fails to--

. . . .

(ii)file suit on such claim . . .

before the end of the 60-day period described in

subparagraph (A), 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.

12 U.S.C. § 1821(d)(6). 

The record reflects that Home Capital filed a proof of claim

with RTC Receiver and that the 180-day administrative review

period for Home Capital’s claim initially expired on November 28,

1994, but was extended by written agreement of the parties until

January 19, 1995. The sixty-day period for filing suit on this

claim under § 1821(d)(6)(A) thus ended on March 20, 1995. Home

Capital does not dispute these dates. As Home Capital did not

file its complaint in the district court until August 24, 1995,
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the suit was filed outside of the statutory time limits and, if

the ACRP applies to Home Capital’s claim, the district court

correctly concluded that it lacked subject matter jurisdiction

over Home Capital’s complaint. Under § 1821(d)(6)(B), “the claim

shall be deemed to be disallowed . . . , such disallowance shall

be final, and the claimant shall have no further rights or

remedies with respect to such claim.”

However, Home Capital argues that because its claim is

against the RTC Receiver and not the assets of Unifirst, and

because its claim arose after the commencement of the

receivership, the ACRP, specifically the time limitation for

filing suit of § 1821(d)(6)(A), does not apply to its claim. 

We note that, even if Home Capital’s argument were true and

the ACRP does not apply to post-receivership claims based on the

acts of the receiver, the district court would still have lacked

subject matter jurisdiction over Home Capital’s complaint by

virtue of § 1821(d)(13)(D). See Hudson United Bank v. Chase

Manhattan Bank, 43 F.3d 843, 848 (3d Cir. 1994). Section

1821(d)(13)(D) expressly limits federal court jurisdiction over

such claims as follows:

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 Corporation [RTC or

FDIC] has been appointed receiver, including

assets which the Corporation may acquire from

itself as such receiver; or
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(ii) any claim relating to any act or

omission of such institution or the

Corporation as receiver.

12 U.S.C. § 1821(d)(13)(D)(emphasis added). This provision has

been interpreted as imposing a statutory exhaustion requirement

rather than an absolute bar to jurisdiction. See Meliezer v.

RTC, 952 F.2d 879, 882 (5th Cir. 1992); Rosa v. FDIC, 938 F.2d

383, 391 (3d Cir.), cert. denied, 502 U.S. 981 (1991). 

Home Capital’s claim against RTC Receiver for its actions in

negligently servicing Home Capital’s loans and breaching the

Agreement comes within the language of § 1821(d)(13)(D)(ii), as a

“claim relating to any act or omission of . . . the Corporation

as receiver”; therefore, the district court would have no

jurisdiction over Home Capital’s claim “except as otherwise

provided” in § 1821(d). As § 1821(d)(6) is the only provision of

subsection (d) “otherwise providing” for judicial determination

of claims, if § 1821(d)(6) does not apply, the district court

lacks subject matter jurisdiction over Home Capital’s complaint

irrespective of Home Capital’s compliance with the ACRP. 

We agree with the district court that the weight of

authority indicates that all claims subject to the jurisdictional

bar of § 1821(d)(13)(D), including both claims against the

receiver and against the assets of the failed financial

institution, and both pre-receivership and post-receivership

claims, must comply with the ACRP established in § 1821(d),
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including § 1821(d)(6)(A)’s time limitations for filing in

district court. See Simon, 48 F.3d at 58 (dismissing claim for

damages arising from receiver’s repudiation of contract for

failure to exhaust administrative remedies); Hudson United Bank,

43 F.3d at 849 (holding that the ACRP of § 1821(d) applies to

claims against the receiver as well as claims against the failed

financial institution); Rosa, 938 F.2d at 392 (holding that

claims related to the RTC’s post-receivership termination of a

retirement plan for employees of failed institution were subject

to the ACRP of § 1821(d)); Office & Professional Employees Int’l

Union v. FDIC, 962 F.2d 63, 66 (D.C. Cir. 1992) (determining that

the ACRP applies to claims arising out of the receiver’s acts in

terminating bank operations and discharging employees).

Therefore, we conclude that the district court correctly

dismissed Home Capital’s claims against RTC Receiver for lack of

subject matter jurisdiction, as Home Capital’s complaint was not

filed within the time limitations established by § 1821(d)(6)(A). 

B. FAILURE TO STATE A CLAIM

Home Capital contends that its complaint contains

allegations against RTC Corporate, which are not required to be

presented to the receiver through the ACRP of § 1821(d). The

district court dismissed Home Capital’s complaint as against RTC

Corporate for failure to state a claim, reasoning that RTC
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Corporate does not incur liability for actions taken by the RTC

in its capacity as receiver for a failed financial institution.

We review a dismissal for failure to state a claim under the

same standard used by the district court: a claim may not be

dismissed unless it appears certain that the plaintiff cannot

prove any set of facts in support of its claim that would entitle

it to relief. Carney, 19 F.3d at 954.

Home Capital makes no allegations of dealings between itself

and RTC Corporate; indeed, the allegations of its complaint are

based on breach of a contract entered into by Home Capital and

RTC Receiver. Home Capital does not claim that RTC Corporate is

even a party to this contract. Rather, Home Capital argues that

the distinction between RTC’s corporate and receivership

capacities is a “mere hyper technicality” that “in reality . . .

is just a blur.” However, we have held that “[t]he RTC, in its

corporate capacity, is not liable for claims against the RTC in

its capacity as conservator or receiver.” Howerton v. Designer

Homes by Georges, Inc., 950 F.2d 281, 283 (5th Cir. 1992); cf.

Stowell v. MacAndrews & Forbes, 956 F.2d 96, 98 (5th Cir.

1992)(stating that a suit based on a contract claim cannot be

brought against FDIC Corporate because all contractual

obligations remain with FDIC Receiver). Therefore, the district

court correctly dismissed Home Capital’s complaint as against RTC

Corporate for failure to state a claim.
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III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.