Of the Northern District of California, sitting by *

designation.

United States Court of Appeals

For the First Circuit

No. 08-1444

JAMES YEOMALAKIS, on behalf of himself and all

others similarly situated,

Plaintiff, Appellant,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

 Torruella and Boudin, Circuit Judges,

and Schwarzer, District Judge. *

Barry L. Kramer with whom Law Offices of Barry L. Kramer,

David Pastor and Gilman and Pastor, LLP were on brief for

appellant.

John A. Houlihan with whom Gail Elise Cornwall and Edwards

Angell Palmer & Dodge LLP were on brief for appellee.

April 3, 2009
On December 19, 2008 we granted the motion of the Federal 1

Deposit Insurance Corporation, as Receiver for Washington Mutual

Bank to be substituted as the party in interest and stayed the case

for 90 days. See 12 U.S.C. § 1821(d)(12)(A)(ii). In discussing

the facts and arguments, the opinion refers to Washington Mutual as

it is their (now past) practices that are at issue.

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BOUDIN, Circuit Judge. James Yeomalakis, a resident of

Massachusetts, has or had a credit card account with Washington

Mutual Bank , which was a federally chartered savings association 1

with its principal place of business in Nevada. Credit card

holders customarily pay an interest charge on unpaid balances.

Washington Mutual increases the applicable annual percentage

interest rate ("APR") for cardholders who default on one of the

obligations created under their account agreement (for example by

making a required payment late).

Washington Mutual, assertedly in line with industry

custom, backdates its APR increase to the start of the existing

month's billing cycle. Thus, if Washington Mutual determines on

the last day of a billing cycle to increase a cardholder's APR

because of a default on the prior day, the new rate is applied

starting with the first day of the existing cycle. To challenge

this practice, Yeomalakis brought suit against Washington Mutual in

the Massachusetts Superior Court, but the case was removed by the

latter to the federal district court. 28 U.S.C. § 1332(d)(2)

(2006). 
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Yeomalakis' complaint had two counts: the first accused

Washington Mutual of "Imposing and Enforcing an Illegal Penalty"

through "retroactive" rate increases, although it did not explain

whether federal or state law underlay the claim (or, if the latter,

which state). The second count alleged that Washington Mutual's

actions were unfair and deceptive acts and practices in violation

of M.G.L. c. 93A, § 2--essentially, that the retroactive increases

were unfair and had not been adequately disclosed.

Washington Mutual moved to dismiss under Fed. R. Civ. P.

12(b)(6), alleging that both counts were preempted by the Home

Owners' Loan Act of 1933 ("HOLA") 12 U.S.C. § 1461 et seq. (2006),

and various regulations promulgated thereunder by the federal

Office of Thrift Supervision ("OTS"). Section 4(g)(1) of HOLA, 12

U.S.C. § 1463(g)(1) (2000), preempts state usury laws and allows

credit card companies to charge an interest rate at:

not more than 1 percent in excess of the

discount rate on 90-day commercial paper in

effect at the Federal Reserve Bank in the

Federal Reserve district in which such savings

association is located or at the rate allowed

by the laws of the State in which such savings

association is located, whichever is greater.

Under OTS regulations, "interest" includes payments to a

credit card company for "any default or breach by a borrower of a

condition upon which credit was extended." 12 C.F.R. §

560.110(a)(2008). OTS regulations also preempt state laws that

"impose requirements regarding . . . [d]isclosure and advertising,
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including laws requiring specific statements, information, or other

content to be included in ... billing statements, credit contracts,

or other credit-related documents." Id. § 560.2(b)(9).

Following Yeomalakis' opposition, the district court

granted the motion to dismiss. It said that HOLA clearly preempted

an attack under state law on the level of interest rates, even if

labeled "a penalty" by Yeomalakis. As to his chapter 93A claim,

the court held that it was preempted to the extent it sought

recovery based on the notion that some different rate should have

been charged; and, so far as it rested on the inadequacy of

disclosure, it fell under the OTS regulation forbidding states from

regulating pertinent "[disclosure and advertising."

Yeomalakis then filed a motion under Fed. R. Civ. P.

59(e) to amend the judgment, requesting the opportunity to file an

amended complaint asserting a federal cause of action under the

Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq. (2006).

The motion was denied by the district court. Yeomalakis now

appeals both the dismissal of his state law claims and the denial

of his motion to amend.

Before turning to the merits, developments subsequent to

the district court proceedings have to be recounted. On September

25, 2008, Washington Mutual was closed, the Federal Deposit

Insurance Corporation ("FDIC") was appointed as receiver and many

of WaMu's assets were sold to Chase Bank. On December 18, 2008,
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the FDIC notified the court, and the next day we granted, the

FDIC's motion to substitute for WaMu as the successor in interest

and issued a 90-day stay of the above-captioned action. See 12

U.S.C. § 1821(d)(12)(B).

Yeomalakis then moved to substitute Chase Bank as the

appropriate successor in interest to Washington Mutual and/or add

Chase Bank as a necessary party defendant. The FDIC in turn, now

seeks an additional 180-day stay and a ruling that we require

Yeomalakis to exhaust his claims through the FDIC Receiver's

administrative process mandated by 12 U.S.C. §§ 1821(d)(3)-(13),

enacted by Financial Institutions Reform, Recovery and Enforcement

Act of 1989, Pub. L. No. 101-73, 103 Stat. 183 ("FIRREA"). In

subsequent filings, Yeomalakis objected to the FDIC request for a

further stay and Chase objected to being added or substituted for

the FDIC.

We deal first with the FDIC's motion. FIRREA is a

procedural muddle. The statute both limits court jurisdiction over

claims against the FDIC, see 12 U.S.C. § 1821(d)(13)(D)(i), and

also contains of provisions that could arguably be read to create

a different regime for cases that were commenced in court before

the FDIC was named as a receiver. See, e.g., § 1821(d)(6)(A). We

wrestled through the problem in Marquis v. FDIC, 965 F.2d 1148 (1st

Cir. 1992), and adopted a pragmatic interpretation that is

governing law in this circuit.
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Normally the FDIC argues for an expansive reading of

FIRREA that would strip federal courts of all jurisdiction, and the

opposing party argues for a narrow interpretation that preserves

the right to proceed in court without resorting to administrative

exhaustion. In Marquis, we rejected the FDIC's most sweeping

claims, confirmed that federal courts retain jurisdiction of cases

brought before the receivership, but said that courts would usually

stay pending cases to allow for administrative exhaustion of

claims. 965 F.2d at 1155.

Ordinarily, upon the FDIC's appearance as a receiver, a

district court would stay a claim it had not yet decided. However,

in this instance the district court has already issued a decision

adverse to the claimant, the case had already been briefed and

argued and we had already agreed to affirm the judgment below. The

decision would have been issued months ago but for the belated

notice from the FDIC and our deferral of the decision pursuant to

the stay. The stay has now expired and under Marquis the court

retains discretion as to what to do. 965 F.2d at 1153-54.

In the present case, as will shortly become clear,

Yeomalakis' claims are either barred, un-preserved or unpersuasive.

To send the case back to the FDIC for administrative proceedings

that could take additional time, followed by review in federal

court once again, 12 U.S.C. § 1821(7)(A), makes no sense and would

hardly advance Congress' purpose in enacting FIRREA of promptly
Purchase and Assumption Agreement Among Federal Deposit 2

Insurance Corporation and JP Morgan Chase Bank, National

Association, quoted by the FDIC in its motion and available at

http://www.fdic.gov/about/freedom/Washington_Mutual P_and_A.pdf

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disposing of claims against failed financial institutions. See

H.R. Rep. No. 101-54(I), 101 Cong., 1st Sess., at 418-19, reprinted

in 1989 U.S.C.C.A.N. 86, 214-15.

As for Yeomalakis' motion to substitute Chase Bank as a

party, it too fails. When Washington Mutual failed, Chase Bank

acquired many assets but its agreement with the FDIC retains for

the FDIC "any liability associated with borrower claims for payment

of or any liability to any borrower for monetary relief, or that

provide for any other form of relief to any borrower." Thus the 2

FDIC was and remains the appropriate party in interest. See 12

U.S.C. § 1821(d)(2)(A)(i); see also In re Community Bank of N.

Virginia, 418 F.3d 277, 293 n.6 (3d Cir. 2005). 

Turning to the merits, we begin with the count I penalty

claim. In the district court, Yeomalakis scarcely responded at all

to Washington Mutual's contention that the penalty claim was

preempted by HOLA. The only discussion of the penalty claim was

located under a header entitled "Defendant Misstates What This Case

Is About." In that section, Yeomalakis argues that Washington

Mutual's interpretation of the illegal penalty claim is mistaken

because his allegations are not about the legality of the interest

rates or the manner they are calculated.
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Yet Yeomalakis never explained how his penalty claim

should be interpreted or why the penalty claim would not be

preempted. Even on appeal, no coherent explanation of this claim

is provided. At best, Yeomalakis suggests that Nevada law was

violated, depriving the interest rate of protection under section

1463(g)(1). Whatever his theory, the claim, not seriously defended

in the district court, cannot be resuscitated now. Daigle v. Maine

Med. Ctr., Inc., 14 F.3d 684, 687 (1st Cir. 1994).

As to Yeomalakis' count II claim under chapter 93A, HOLA

does not preempt ordinary contractual claims based on state law;

Yeomalakis could have argued that Washington Mutual's account

agreement did not permit the "retroactive" increase. Similarly,

while the OTS regulation purports to preempt state regulation of

disclosure and advertising, it is debatable how far HOLA supersedes

ordinary fraud claims under state law. See In re Ocwen Loan

Servicing, 491 F.3d 638 (7th Cir. 2007) (Posner, J.).

Yet neither in the district court nor on appeal does

Yeomalakis explain the gravamen of his chapter 93A claim or how it

avoids preemption. Yeomalakis' summary of argument refers

cursorily to various bodies of law (Massachusetts law, common law,

Nevada law, TILA and a Federal Reserve Board regulation). The

brief's argument section is a scatter-gun collection of assertions
"The District Court Concluded that the Wrongdoing Alleged Was 3

Subject Only to the Control of Federal Law and Regulations Under 12

U.S.C. § 1463(g)(1)"; "A Further Explanation of § 1463(g)(1), A

Statute which Is Confusingly Labeled"; "The District Court Treated

§ 1463(g)(1) as a Federal Preemption Defense to the Conduct

Alleged"; "The Ninth Circuit Cases Cited by the Court Are Not

Authority for this Court"; "Massachusetts G.L. c. 93A Can Borrow

from Federal and Nevada State Law"; "WaMu Fails to Cite any State

Law that Would Conflict with Applicable Federal Law."

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some sense of which is supplied by a sampling from among the

sixteen headings in the argument section.3

It is possible that somewhere in this morass is a version

of a claim under chapter 93A that might avoid preemption but there

is no indication that it was presented to the district court and it

certainly is not illuminated for us. It is not our job, especially

in a counseled civil case, to create arguments for someone who has

not made them or to assemble them from assorted hints and

references scattered throughout the brief. See U.S. Healthcare,

Inc. v. Healthsource, Inc., 986 F.2d 589, 595 (1st Cir. 1993).

Yeomalakis' final claim is that the district court should

have given him the opportunity to amend his complaint to allege

additional claims under federal and Nevada law. Review is for

"manifest abuse of discretion." Council of Ins. Agents & Brokers

v. Juarbe-Jimenez, 443 F.3d 103, 111 (1st Cir. 2006) (internal

quotation omitted). A Rule 59(e) motion is not properly used to

"raise arguments which could, and should, have been made before

judgment issued." Harley-Davidson Motor Co. v. Bank of New

England, 897 F.2d 611, 616 (1st Cir. 1990).
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In this instance, Yeomalakis' counsel, Barry Kramer, has

extensive experience with challenges to the very practice at issue

in this case, having brought a number of suits in other courts on

the same subject. The claims he now wants to add could have been

asserted in the original complaint or by amendment after the case

had been removed. It was not an abuse of discretion for the

district court to deny Yeomalakis yet another bite at the apple.

In sum, Yeomalakis' merits claims are denied as is his

motion to substitute or add Chase Bank as a real party in interest.

We also deny the FDIC's request for an additional 180-day stay to

allow for the completion of any administrative claims. The

district court decision is affirmed.

It is so ordered.