This opinion is subject to revision before 

publication in the Pacific Reporter

2014 UT 28

IN THE

SUPREME COURT OF THE STATE OF UTAH

SUMMERHAZE COMPANY, L.C.; ANTION FINANCIAL, L.C.;

DURBANO PROPERTIES, L.C.; DURBANO DEVELOPMENT, L.C.;

DURBANO LAW FIRM, P.C.; and DOUGLAS M. DURBANO,

Petitioners and Appellants,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION, 

as receiver for AMERICA WEST BANK,

Respondent and Appellee.

No. 20120461

Filed July 8, 2014

Second District, Farmington

The Honorable Rodney S. Page

No. 090700093

Attorneys:

George W. Pratt, Jessica P. Wilde, Salt Lake City, 

L. Miles LeBaron, Layton, for appellants

George W. Pratt, Jessica P. Wilde, Salt Lake City, 

Douglas M. Durbano, L. Miles LeBaron, Layton, 

for appellant Douglas M. Durbano

Brent D. Wride, Salt Lake City, for appellee 

ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion of

the Court, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM,

JUSTICE PARRISH, and JUSTICE LEE joined.

ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:

INTRODUCTION

¶ 1 Plaintiffs Summerhaze Company, L.C.; Antion Financial, 

L.C.; Mr. Douglas M. Durbano; Durbano Development, L.C.;

Durbano Law Firm, P.C.; and, Durbano Properties, L.C. 

(collectively Plaintiffs) appeal from the entry of summary 
SUMMERHAZE v. FDIC

Opinion of the Court

2

judgment in favor of the Federal Deposit Insurance Corporation 

(FDIC), successor to America West Bank, L.C. (Bank). We are 

asked to decide whether the district court erred when it 

concluded that it lacked subject matter jurisdiction over the 

Plaintiffs‘ claims after determining that Plaintiffs failed to exhaust 

the administrative claims review process made available to them 

by the Financial Institutions Reform, Recovery, and Enforcement 

Act of 1989 (FIRREA). Additionally, Plaintiffs claim that the 

district court‘s dismissal for lack of subject matter jurisdiction 

denied them due process of the law under both the United States 

and Utah Constitutions. We affirm.

BACKGROUND

¶ 2 Mr. Durbano was the chief executive officer of the Bank. 

Mr. Durbano was also the owner or manager of the other 

plaintiffs in this appeal: Summerhaze Company, L.C. 

(Summerhaze); Antion Financial, L.C. (Antion); Durbano 

Properties, L.C.; Durbano Development, L.C.; and, Durbano Law 

Firm, P.C. In 1985, Mr. Durbano hired Anna S. Padlo to work for 

him at his various companies. Then, in 2001, Mr. Durbano hired 

Ms. Padlo to work at the Bank. Between 2001 and 2007, Ms. Padlo 

embezzled over $550,000 from the Bank.

1 Plaintiffs filed 

a complaint against the Bank on February 10, 2009. They 

alleged (1) improper acceptance of unauthorized signatures, 

(2) negligence, and (3) liability under a theory of respondeat 

superior.

¶ 3 The Bank was insured by BancInsure, Inc. under a 

Financial Institution Bond (Bond). The Bond was an indemnity 

policy. Under its terms, the Bank would be indemnified in the 

event of losses occasioned by employee dishonesty, forgery or 

alteration of negotiable instruments, unauthorized signatures and 

endorsements, and claims expenses, among other things. The 

maximum coverage under the Bond was $2,000,000. Plaintiffs 

filed their complaint ―in order to trigger the bond coverage of [the 

Bank‘s] bonding company, BancInsure, Inc.‖ After receiving the 

complaint, the Bank tendered the defense of the claim to 

1 Ms. Padlo ultimately pleaded guilty to felony embezzlement 

of more than $1,000.
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Opinion of the Court

3

BancInsure, under the terms of the Bond.2 The Bank filed an 

answer to the complaint on April 6, 2009.

¶ 4 On January 9, 2009, before the Plaintiffs filed their 

complaint, the Bank filed a declaratory judgment action against 

BancInsure seeking to establish that the Bank was entitled to 

coverage under the Bond for the losses claimed by the Plaintiffs.3

On March 23, 2009, the Bank and BancInsure agreed to stay the

declaratory judgment action because coverage under the Bond 

would become an issue only if the Plaintiffs proved the damages 

alleged in their complaint against the Bank.

¶ 5 On May 1, 2009, the Utah Department of Financial 

Institutions (UDFI) closed the Bank and appointed the FDIC as

receiver, because the UDFI determined the Bank had failed and 

was operating in an unsafe manner.4 On May 6, 2009, the FDIC 

mailed notice of the Bank‘s receivership to all of the Bank‘s 

recorded creditors. The FDIC published notice of the Bank‘s 

receivership on May 7 and again on June 8 and July 8, 2009. The 

notices were published in the two most prominent newspapers in 

Utah, the Deseret News and The Salt Lake Tribune. Both the mailed 

and published notices indicated that all claims against the Bank, 

along with proof of the claims, had to be submitted to the FDIC 

2 ―Tender of defense‖ describes a common-law practice in 

which a person or entity against whom an action is brought gives 

notice of the suit to a person or entity that may ultimately be liable 

for payment of the judgment, by contract or implication of law. 

59 AM. JUR. 2D Parties § 241 (2014). The purpose is to offer the 

person who may ultimately be liable ―the opportunity to appear 

and defend the action,‖ because the person or entity may be 

bound by the judgment. Id.

3 Mr. Durbano, due to his role as both CEO of the defendant 

Bank, and as a plaintiff, is likely the reason the Bank filed this 

seemingly prescient action.

4 After the Bank was closed, the Office of Inspector General 

issued a Material Loss Review that concluded the Bank failed 

because ―management deviated from the [B]ank‘s business plan 

and did not effectively manage the risks associated with 

[commercial real estate] and [acquisition, development, and 

construction] loans.‖ The Bank‘s failure resulted in a $119 million

loss to the Deposit Insurance Fund.
SUMMERHAZE v. FDIC

Opinion of the Court

4

for administrative claims review by August 5, 2009. Mr. Durbano, 

Durbano Development, and Durbano Law Firm were listed as 

creditors of the Bank and were mailed direct notice of the 

August 5, 2009 claims deadline. Jones Waldo Holbrook & 

McDonough and LeBaron & Jensen, P.C.—as counsel of record for 

Plaintiffs on the February 10, 2009 complaint—were also listed as 

creditors and received direct mailed notice from the FDIC. 

¶ 6 On October 8, 2009, sixty-five days after the 

administrative claims review deadline, Plaintiffs filed a proof of 

claim with the FDIC ―out of an abundance of caution.‖ On 

December 3, 2009, the FDIC disallowed the claims because they 

were not filed by the deadline. On December 18, 2009, the district 

court issued a Notice of Intent to Dismiss Plaintiffs‘ claims for 

failure to prosecute. On January 10, 2010, Plaintiffs notified the 

Bank and the FDIC that they intended to proceed with their suit to 

recover the alleged damages. On January 21, 2010, Plaintiffs filed 

their Notice of Intent to Prosecute. With the case revived and 

apparently moving forward, the district court entered a 

scheduling order and the parties exchanged initial disclosures. 

On October 1, 2010, the FDIC informed Plaintiffs—in a letter that 

accompanied its initial disclosures—that it was pursuing a motion 

to dismiss. 

¶ 7 Several weeks later, the FDIC filed a motion to dismiss 

alleging that the district court lacked subject matter jurisdiction

because the Plaintiffs had failed to comply with FIRREA. The 

district court granted the FDIC‘s motion to dismiss and ruled that 

the court was deprived of subject matter jurisdiction because the 

Plaintiffs failed to file a timely proof of claim, as mandated by

FIRREA. Plaintiffs filed a timely notice of appeal. We have 

jurisdiction under Utah Code section 78A–3–102(3)(j).

STANDARD OF REVIEW

¶ 8 The primary issue before us is whether the district court 

erred when it determined that it lacked subject matter jurisdiction. 

―Whether a district court has subject matter jurisdiction is a 

question of law‖ and we review the district court‘s determination 

for correctness.5 The district court concluded it lacked subject 

matter jurisdiction based on its reading of FIRREA. We review 

5 Utah Div. of Consumer Prot. v. Flagship Capital, 2005 UT 76, ¶ 6, 

125 P.3d 894.
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Opinion of the Court

5

the district court‘s interpretation of a statute for correctness and 

give no deference to the district court‘s conclusions of law.6 

Plaintiffs also argue that the dismissal of their claims was a 

violation of due process. ―Constitutional issues, including 

questions regarding due process, are questions of law,‖ and we 

review the lower court‘s conclusions for correctness.7

ANALYSIS

¶ 9 Plaintiffs present three general challenges to the district 

court‘s determination that it lacked subject matter jurisdiction 

based on FIRREA. First, Plaintiffs contend that FIRREA is not 

applicable to their claims against the FDIC or the Bank. Second, 

Plaintiffs argue that even if FIRREA is applicable, they were not 

required to file a proof of claim with the FDIC because the FDIC 

did not ―trigger‖ the administrative claims review process. Third, 

Plaintiffs argue that the dismissal of their complaint denied them 

due process under the law.

¶ 10 Our decision regarding the subject matter jurisdiction of 

the district court depends on the requirements of FIRREA. We 

begin with a review of FIRREA. We conclude that exhaustion of 

administrative remedies under FIRREA is a prerequisite to the 

exercise of a district court‘s subject matter jurisdiction. We then 

address each of the Plaintiffs‘ arguments.

I. FAILURE TO EXHAUST ADMINISTRATIVE 

REMEDIES THROUGH FIRREA‘S CLAIMS

PROCESS DEPRIVES THE DISTRICT COURT 

OF SUBJECT MATTER JURISDICTION

A. Overview of FIRREA

¶ 11 FIRREA was passed in response to the financial crisis of 

the 1980s.

8 The purpose of FIRREA was to ―revamp[ ] the deposit 

insurance fund system in order to strengthen the country‘s 

financial system.‖9 FIRREA abolished the Federal Savings and 

6 State v. Ostler, 2001 UT 68, ¶ 5, 31 P.3d 528.

7 Salt Lake City Corp. v. Jordan River Restoration Network, 2012 

UT 84, ¶ 47, 299 P.3d 990 (internal quotation marks omitted). 

8 Tellado v. IndyMac Mortg. Servs., 707 F.3d 275, 279 (3d Cir. 

2013).

9 FDIC v. Am. Cas. Co., 975 F.2d 677, 681 (10th Cir. 1992).
SUMMERHAZE v. FDIC

Opinion of the Court

6

Loan Insurance Corporation and created the Resolution Trust 

Corporation (RTC).10 FIRREA assigned the functions of handling 

failed financial institutions to the FDIC and RTC.11 FIRREA gave

the FDIC ―the authority to act as receiver or conservator for failed 

institutions‖;

12 and ―[a]s a receiver, the FDIC succeeds to  ̳all 

rights, titles, powers, and privileges‘ of the failed bank.‖13 The 

goal of FIRREA is to expeditiously wind up the affairs of and 

dispose of the bulk of claims against failed financial institutions.14

¶ 12 To aid in the winding up of and disposal of claims 

against a failed financial institution, FIRREA created an

administrative claims review process for institutions in 

receivership.15 The process allows a receiver to settle claims 

against the institution in receivership and liquidate its assets.16 

After being named, the receiver must promptly publish notice to 

the institution‘s creditors, informing them that claims against the 

bank must be presented by a deadline, which is at least ninety 

days from the publication notice.17 The receiver must also publish 

notice again at one month and two months after the initial 

publication.18 The receiver is also required to review and pay any 

claim received on or before the published deadline, provided that 

the claim is proven to be legitimate to the satisfaction of the 

receiver.19 The receiver has no discretion regarding claims filed 

10 See id.; Thomas v. FDIC, 255 P.3d 1073, 1078 (Colo. 2011).

11 See Am. Cas. Co., 975 F.2d at 681; Rosa v. Resolution Trust 

Corp., 938 F.2d 383, 388 (3d Cir. 1991); Thomas, 255 P.3d at 1078.

12 Tellado, 707 F.3d at 279.

13 Thomas, 255 P.3d at 1078 (quoting 12 U.S.C. 

§ 1821(d)(2)(A)(i)).

14 See Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1141 (D.C. Cir. 

2011); Thomas, 255 P.3d at 1078.

15 See 12 U.S.C. § 1821(d)(3)–(13). See also Am. Nat’l Ins. Co., 642 

F.3d at 1141.

16 Elmco Props., Inc. v. Second Nat’l Fed. Sav. Ass’n, 94 F.3d 914, 

919 (4th Cir. 1996).

17 12 U.S.C. § 1821(d)(3)(B)(i). 

18 Id. § 1821(d)(3)(B)(ii).

19 Id. § 1821(d)(5)(B).
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Opinion of the Court

7

after the published deadline and must disallow and deny any 

late-filed claims.20 

¶ 13 The disallowance of late-filed claims is generally final, 

subject to one exception: if the claimant did not receive notice of 

the receivership in time to file a claim by the deadline and the 

claim is filed in time to permit payment of the claim, it may be 

paid.

21 The receiver is required to decide the legitimacy of any 

claim within 180 days of receipt and notify the claimant of its 

determination of the claim.22 If the receiver denies the claim, it 

must notify the claimant of the reason for the denial and the 

procedures available for obtaining either administrative or 

judicial review of the denial.

23 Following denial, a claimant may 

request a review of the claim within sixty days.24 This process for 

a post claim denial review gives the claimant the option to seek an 

administrative review, file a suit, or continue an action 

commenced before the appointment of the receiver.25 If a 

20 Id. § 1821(d)(5)(C)(i).

21 Id. § 1821(d)(5)(C)(i)–(ii).

22 Id. § 1821(d)(5)(A)(i).

23 Id. § 1821(d)(5)(A)(iv).

24 Id. § 1821(d)(6)(A). This sixty-day deadline begins to run on 

the earlier of the date the claim is denied or 180 days after the 

claims deadline. See id.

25 Id. Section 1821(d)(6)(A) also states that a claimant should 

file suit or continue an action already commenced in the district or 

territorial court of the United States for the district that contains 

the institution‘s principal place of business. However, ―state 

courts have inherent authority, and are thus presumptively 

competent, to adjudicate claims arising under the law of the 

United States.‖ Tafflin v. Levitt, 493 U.S. 455, 458 (1990). 

―Congress has the power to preclude state court jurisdiction over 

federal claims if it so chooses,‖ Holmes Fin. Assocs., Inc. v. 

Resolution Trust Corp., 33 F.3d 561, 564 (6th Cir. 1994), but the 

presumption of state court authority ―can be rebutted by an 

explicit statutory directive, by unmistakable implication from 

legislative history, or by a clear incompatibility between statecourt jurisdiction and federal interests.‖ Gulf Offshore Co. v. Mobil 

Oil Corp., 453 U.S. 473, 478 (1981). ―Because FIRREA does not 

con‘t.
SUMMERHAZE v. FDIC

Opinion of the Court

8

claimant fails to request review of a disallowed claim within sixty

days, the denial is final and the claimant forfeits all further rights 

and remedies with respect to the claim.26 Finally, FIRREA states 

that ―no court shall have jurisdiction over . . . any claim or action 

for payment from, or action seeking a determination of rights with 

respect to, the assets of any depository institution‖ that has been 

placed in receivership or ―any claim relating to any act or 

omission‖ of the failed institution or the receiver, unless 

specifically provided for by FIRREA.27 Stated more plainly, 

FIRREA precludes court jurisdiction over any claim relating to the 

assets, acts, or omissions of the bank or the receiver, except as the 

act permits.28 

B. Administrative Exhaustion

¶ 14 The doctrine of administrative exhaustion generally 

states that ―no one is entitled to judicial relief for a supposed or 

threatened injury until the prescribed administrative remedy has 

been exhausted.‖29 ―The doctrine is applied in a number of 

different situations‖ and can be ―subject to numerous 

exceptions.‖30 We must look to the purposes of the doctrine and 

―the particular administrative scheme involved‖ to determine if 

the doctrine is applicable to a particular claim.31 One purpose of 

the doctrine is ―the avoidance of premature interruption of the 

 

contain a clear and unequivocal withdrawal of state court 

jurisdiction, . . . state courts retain jurisdiction over cases against 

the [FDIC] which were pending when the [FDIC] was appointed 

receiver.‖ Holmes Fin. Assocs., Inc., 33 F.3d at 562. In this case, 

Plaintiffs filed suit in state court prior to the appointment of the 

FDIC as receiver.

26 12 U.S.C. § 1821(d)(6)(B).

27 Id. § 1821(d)(13)(D).

28 Office & Prof’l Emps. Int’l Union, Local 2 v. FDIC, 962 F.2d 63, 

66 n.7 (D.C. Cir. 1992); see also id.

29 McKart v. United States, 395 U.S. 185, 193 (1969) (internal 

quotation marks omitted).

30 Id.

31 Id.
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Opinion of the Court

9

administrative process‖ where the relevant agency ―is created for 

the purpose of applying a statute in the first instance.‖32 A closely 

related purpose is that the ―administrative agency is created as a 

separate entity and invested with certain powers and duties‖ and 

courts ―should not interfere with an agency until it has completed 

its action.‖33 ―Typically, exhaustion of administrative remedies is 

required where Congress imposes such a requirement.‖34 

¶ 15 The text of FIRREA creates ―a jurisdictional prerequisite 

by expressly providing that  ̳no court shall have jurisdiction‘ over 

claims against the receiver outside the administrative claims 

process set forth in section 1821(d).‖35 Thus, we conclude that 

under the doctrine of administrative exhaustion, the failure to 

exhaust administrative remedies available through FIRREA 

deprives a court of subject matter jurisdiction over any action 

seeking a determination of rights with respect to assets of a failed 

bank that is in receivership. By tying timely claim application to 

jurisdiction, we join an overwhelming majority of federal 

circuits.36 This does not end our analysis, however, because the 

32 Id. at 193–94.

33 Id. at 194.

34 Meliezer v. Resolution Trust Co., 952 F.2d 879, 882 (5th Cir. 

1992) (citing Weinberger v. Salfi, 422 U.S. 749, 756–67 (1975)).

35 Thomas, 255 P.3d at 1080 (quoting 12 U.S.C. § 1821(d)(13)(D)). 

FIRREA does provide an exception allowing for payment of latefiled claims when a claimant does not receive notice of the 

receivership. See 12 U.S.C. § 1821(d)(5)(C). However, that 

exception still requires the claimant to file a claim through the 

administrative review process. Id.

36 See Farnik v. FDIC, 707 F.3d 717, 721–23 (7th Cir. 2013) 

(holding the administrative claims review process of FIRREA is 

mandatory for all parties bringing claims against the FDIC or RTC 

as receiver for a failed bank); accord Tellado, 707 F.3d at 279–80; 

Vill. of Oakwood v. State Bank & Trust Co., 539 F.3d 373, 386 (6th Cir. 

2008); McMillian v. FDIC, 81 F.3d 1041, 1045 (11th Cir. 1996); 

Freeman v. FDIC, 56 F.3d 1394, 1400 (D.C. Cir. 1995); Brady Dev. Co. 

v. Resolution Trust Corp., 14 F.3d 998, 1006 (4th Cir. 1994); 

Intercontinental Travel Mktg., Inc. v. FDIC, 45 F.3d 1278, 1286 (9th 

Cir. 1994); Bueford v. Resolution Trust Corp., 991 F.2d 481, 484 (8th 

Cir. 1993); Marquis v. FDIC, 965 F.2d 1148, 1151 (1st Cir. 1992); 

con‘t.
SUMMERHAZE v. FDIC

Opinion of the Court

10

Plaintiffs‘ claim was pending in the district court at the time the 

Bank was placed in receivership. We now answer the question of 

whether exhaustion is required for a claim that is pursued before 

a bank is placed in receivership.

C. Failure to Exhaust FIRREA’s Administrative Claims 

Process Divests a Court of Jurisdiction Over 

Prereceivership Claims

¶ 16 Plaintiffs filed their action against the Bank in the district 

court in February 2009, nearly three months before the FDIC was 

appointed receiver. Plaintiffs argue that FIRREA creates two 

statutory schemes, one for prereceivership claims, and another for 

postreceivership claims, and that administrative exhaustion is not 

required for prereceivership claims. We disagree. 

¶ 17 We agree with those federal circuits that hold FIRREA‘s 

exhaustion requirements apply equally to both pre- and 

postreceivership claims.37 FIRREA states that a claimant may 

request administrative review, file suit, or ―continue an action 

commenced before the appointment of the receiver.‖38 This 

language reflects express statutory intent to conditionally 

recognize the viability of claims filed before a receiver is 

appointed. The condition for viability is that the claim must 

conform to FIRREA‘s procedural mandates. FIRREA contains no 

―language which could be construed to support [the] argument 

that the claim procedures can be dispensed with in cases where 

suit was filed prior to the appointment of the receiver.‖39 

Nevertheless, Plaintiffs attempt to point to such language. 

 

Meliezer, 952 F.2d at 883; Praxis Props., Inc. v. Colonial Sav. Bank, 

S.L.A., 947 F.2d 49, 63 (3d Cir. 1991); Resolution Trust Corp. v. 

Elman, 949 F.2d 624, 627 (2d Cir. 1991); Resolution Trust Corp. v. 

Mustang Partners, 946 F.2d 103, 106 (10th Cir. 1991).

37 See, e.g., Brady Dev. Co., 14 F.3d at 1005–06 (holding 

FIRREA‘s exhaustion requirement is mandatory for both pre- and 

postreceivership claims); accord Intercontinental Travel Mktg., Inc., 

45 F.3d at 1282–84; Bueford, 991 F.2d at 485; Marquis, 965 F.2d at 

1151; Mustang Partners, 946 F.2d at 106.

38 12 U.S.C. § 1821(d)(6)(A)(ii).

39 Mustang Partners, 946 F.2d at 106.
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Opinion of the Court

11

¶ 18 Plaintiffs cite 12 U.S.C. § 1821(d)(5)(F)(ii) in support of 

their argument that FIRREA contains two statutory schemes, one 

for suits brought before a bank is placed in receivership and 

another for after receivership. We disagree. Section 

1821(d)(5)(F)(ii) states, ―the filing of a claim with the receiver shall 

not prejudice any right of the claimant to continue any action 

which was filed before the appointment of the receiver.‖ The 

plain language of section 1821(d)(5)(F)(ii) forecloses Plaintiffs‘ 

argument, because it applies when a claimant has filed a claim, 

thus presuming the administrative claims review process was 

followed.40 Although section 1821(d)(5)(F)(ii) states that an 

existing action is not prejudiced by the filing of an administrative 

claim and may be ―continue[d],‖ it does not address the failure to 

file a claim, nor does it imply the claims process need not be 

followed.41 Instead, this provision is consistent with section 

1821(d)(6), which permits a claimant to file suit or continue a 

previously filed action after exhausting the administrative claims 

process. ―Congress plainly intended the administrative claims 

process to provide a streamlined method for resolving most 

claims against failed institutions in a prompt and orderly fashion, 

without lengthy litigation.‖42

¶ 19 FIRREA creates one scheme for both pre- and 

postreceivership cases under which a court retains jurisdiction. 

This is not to say that the mere appointment of a receiver divests a 

court of jurisdiction. Rather, ―FIRREA expressly allows for 

preexisting actions to be stayed‖ and states that ―such actions may 

be  ̳continue[d]‘ following completion of the administrative claims 

process.‖43 Thus, FIRREA allows a court to suspend, rather than 

dismiss, suits, ―subject to a stay of [the] proceedings as may be 

appropriate to permit exhaustion of the administrative review 

process as it pertains to the underlying claims.‖44 None of the 

provisions diminish the importance of the statutory claim review 

40 See Thomas, 255 P.3d at 1079.

41 Id. at 1079–80.

42 Id. at 1080 (internal quotation marks omitted).

43 Id. (alteration in original) (citing 12 U.S.C. §§ 1821(d)(12), 

(d)(5)(F)(ii), (d)(6)(A)(ii)).

44 Id. (internal quotation marks omitted).
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Opinion of the Court

12

process. A district court acquires or retains jurisdiction only after 

claimants avail themselves of the administrative claims review 

process.

¶ 20 There is no dispute that Plaintiffs failed to file a claim by 

the August 5, 2009 deadline. Plaintiffs submitted their claim on 

October 8, 2009, sixty-five days after the deadline. The Plaintiffs‘

failure to file a claim by the administrative claims review deadline 

deprived the district court of subject matter jurisdiction. 

¶ 21 We now turn to Plaintiffs‘ alternative arguments that 

(1) they are excused from the mandatory administrative claims 

review process and (2) the dismissal of their claims violates due 

process of the law.

II. NO EXCEPTION TO ADMINISTRATIVE EXHAUSTION 

EXISTS FOR PLAINTIFFS, THUS THEIR CLAIMS ARE

SUBJECT TO THE REQUIREMENTS OF FIRREA

¶ 22 Plaintiffs argue that they were excused from 

administrative exhaustion, and alternatively, FIRREA is not 

applicable to its claims against the FDIC. First, Plaintiffs argue

that the FDIC failed to provide notice or otherwise manifest its 

intent to follow the administrative claims review process, thus 

fitting into an exemption from FIRREA. Second, Plaintiffs argue 

that FIRREA is inapplicable because they do not seek payment 

from any assets of the FDIC or the Bank, and thus they do not 

present a ―claim‖ as contemplated by the statute. Third, Plaintiffs 

argue that their claims are not susceptible to resolution through 

FIRREA‘s administrative claims review process because the FDIC 

tendered defense of the claim to BancInsure, and thus the FDIC 

did not have the authority to resolve Plaintiffs‘ claims.45 We 

address each argument in turn.

45 Plaintiffs also assert that under Utah Code section 31A–22–

201, BancInsure cannot use the insolvency of the Bank as a 

defense to liability. Utah Code section 31A–22–201 states: 

Every liability insurance policy shall provide that 

the bankruptcy or insolvency of the insured may not 

diminish any liability of the insurer to third parties, 

and that if execution against the insured is returned 

unsatisfied, an action may be maintained against the 

insurer to the extent that the liability is covered by 

the policy. (Emphasis added).

con‘t.
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Opinion of the Court

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A. Plaintiffs Had Notice of the Administrative Claims 

Review Process and Thus FIRREA Applies

¶ 23 Plaintiffs argue that they were excused from 

administrative exhaustion because the FDIC failed to provide 

notice or otherwise manifest its intent to follow the administrative 

claims review process. Plaintiffs also assert that the FDIC was 

required to (1) stay the pending litigation to allow exhaustion of 

administrative remedies and (2) substitute itself as a party. 

¶ 24 Section 1821(d)(12)(A) states that a ―receiver may request 

a stay . . . in any judicial action or proceeding‖ not to exceed 

ninety days, and that a request for a stay by a receiver must be 

granted.46 The term ―may‖ is permissive; thus the statute does 

not require that the receiver request a stay. Rather, the purpose of 

the stay provision is to give the receiver time to familiarize itself 

with any pending litigation and decide how best to proceed.47 

The FDIC was not required to stay any pending litigation, and we 

need not inquire as to the reason for its decision to not request a 

stay. 

¶ 25 Nor is the FDIC required to substitute itself as a party to 

a prereceivership lawsuit. When a receiver is appointed, it is 

granted all the powers conferred and duties imposed by federal 

and state law.48 A receiver may take over the assets of and 

operate the failed institution with all the power of members, 

 

Plaintiffs have not obtained a judgment against either the Bank or 

the FDIC, let alone had such judgment returned unsatisfied. 

Thus, Utah Code section 31A–22–201 is simply inapplicable.

46 12 U.S.C. § 1821(d)(12)(A)–(B) (emphasis added).

47 Praxis Props., Inc. v. Colonial Sav. Bank, S.L.A., 947 F.2d 49, 68 

(3d Cir. 1991); see also FDIC v. Lacentra Trucking, Inc., 157 F.3d 

1292, 1303 (11th Cir. 1998) (―[T]he purpose of the stay [is to] give[] 

the [receiver] a chance to analyze pending matters and [to] decide 

how best to proceed‖ (alterations in original) (internal quotation 

marks omitted)); Armstrong v. Resolution Trust Corp., 599 N.E.2d 

1209, 1214 (Ill. App. Ct. 1992) (―This stay is designed to give the 

[receiver] some breathing room to get up-to-speed with the 

ongoing litigation.‖) aff’d, 623 N.E.2d 291 (Ill. 1993).

48 12 U.S.C. § 1821(c)(3)(B).
SUMMERHAZE v. FDIC

Opinion of the Court

14

shareholders, directors, or officers of the institution, and may

conduct all business of the institution.49 The receiver also 

―perform[s] all functions of the institution in the name of the 

institution which are consistent with the appointment as . . . 

receiver.‖50 By operation of law, the FDIC may perform any 

functions, including bringing or being named as a party in legal 

proceedings, in the name of the receiver. Accordingly, 

substituting the FDIC as a party was not required.

¶ 26 Finally, Plaintiffs assert that the FDIC failed to provide 

notice of the FIRREA administrative claims review process. We 

disagree. Plaintiffs‘ argument focuses on the narrow exception 

to the rejection of an untimely administrative claim under 

12 U.S.C. § 1821(d)(5)(C)(ii). This section‘s narrow exception 

states that a claim submitted after the published deadline may be 

considered by the receiver only if ―the claimant did not receive 

notice‖ in time to file a claim by the deadline and ―such claim is 

filed in time to permit payment of such claim.‖51

¶ 27 However, in this case, the record is replete with 

references to both published and mailed notices.52 The FDIC 

49 Id. § 1821(d)(2)(B)(i).

50 Id. § 1821(d)(2)(B)(iii) (emphasis added).

51 Id. § 1821(d)(5)(C)(ii).

52 The notice mailed to creditors stated that any creditor ―must 

present the properly completed Proof of Claim Form and the 

supporting documentation to the Receiver on or before the Claims 

Bar Date referenced in the above subject caption. If you do not file 

your claim on or before the Claims Bar Date, the Receiver will 

disallow your claim.‖ The notice then outlined the process 

available to a creditor should the receiver disallow the claim, 

including filing or continuing a lawsuit. The notice concluded

with a statement that a claimant who fails to file or continue a 

lawsuit within sixty days ―will have no further rights or remedies 

with respect to [their] claim.‖ The published notice also stated 

that ―all creditors having claims against the Failed Institution 

must submit their claims in writing, together with proof of the 

claims, to the Receiver by August 05, 2009.‖ The notice continued, 

―with certain limited exceptions, failure to file such claims by the 

Bar Date [August 5, 2009] will result in disallowance by the 

Receiver, the disallowance will be final, and further rights or 

con‘t.
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Opinion of the Court

15

originally published notice on May 7, 2009, and again on June 8 

and July 8, 2009, in the two most widely circulated newspapers in 

Utah, The Salt Lake Tribune and the Deseret News. These notices 

complied with the requirements of FIRREA.53 The published and 

mailed notices are clear; a claimant must submit a proof of claim 

form, after which the FDIC will allow or disallow the claim. Only 

after disallowance may a claimant seek judicial remedies or 

continue a previously filed action.

¶ 28 Plaintiffs claim that not all of them received notice. We 

find this argument without merit. A failure to mail notice ―does 

not relieve the [creditor] of the obligation to exhaust 

administrative remedies,‖ provided the creditor had actual notice 

of the FDIC‘s appointment as receiver.54 The FDIC mailed notice 

to Mr. Durbano, Durbano Development, and Durbano Law Firm 

because they were parties listed as creditors of the Bank due to the 

litigation filed prior to receivership. Mr. Durbano and Durbano 

Law Firm were listed as the manager and servicing agent, 

respectively, for Summerhaze, Antion, Durbano Properties, and 

Durbano Development. Mr. Durbano was listed as both the 

manager and servicing agent for Durbano Law Firm. 

Mr. Durbano testified that he personally received notice of the 

administrative claims review process. Although Mr. Durbano 

testified that he believed the notice of the administrative claims 

review process was in relation to a separate matter, he was also 

the CEO of the Bank and was personally aware of the Bank‘s 

 

remedies with regard to the claims will be barred.‖ Both the 

published and mailed notices reference 12 U.S.C. §§ 1821(d)(5)(C) 

and –(d)(6). 

53 12 U.S.C. § 1821(d)(3)(B)–(C).

54 Freeman v. FDIC, 56 F.3d 1394, 1402 (D.C. Cir. 1995); see also 

Intercontinental Travel Mktg., Inc. v. FDIC, 45 F.3d 1278, 1285 (9th 

Cir. 1994) (noting that a merely negligent failure to mail actual 

notice to a creditor does not relieve a creditor from exhausting 

administrative remedies); Marketplace/Ken Caryl Partners, Ltd. v. 

Vitorio Inv. Co., 778 F. Supp. 29, 30 (D. Colo. 1991) (noting that 

receiver‘s alleged failure to publish notice to creditors did not rise 

to the level of affirmative misconduct warranting an excusal from 

the administrative claims review process).
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Opinion of the Court

16

receivership status. Mr. Durbano also filed a claim for Durbano 

Law Firm through the administrative claims review process for 

$162,500 in legal fees by the claims review deadline.

¶ 29 Furthermore, ―when the [receiver] knows that a claimant 

is represented by counsel with regard to a claim, and especially 

when litigation is pending, it is entirely proper for the [receiver] to 

notify the claimant of the receivership via [his or her] attorney.‖55 

―Indeed, to do otherwise might be an improper communication 

with a represented party, and could well be a breach of 

professional ethics.‖56 The FDIC mailed notice to Plaintiffs‘ 

counsel of record due to the litigation pending at the time the 

Bank was placed in receivership. 

¶ 30 The district court correctly found that Plaintiffs had 

actual notice of the August 5, 2009 administrative claims review 

process deadline. It is undisputed that Plaintiffs filed a claim on 

October 8, 2009—more than two months after the claims deadline.

Based on our review of the record, we conclude the district court 

properly concluded that Plaintiffs had notice of the August 5, 2009 

deadline to submit claims under the administrative claims review 

process. 

B. Plaintiffs Sought Payment from the Bank’s Assets

and Thus Presented a Claim Regulated by FIRREA

¶ 31 Plaintiffs assert that FIRREA is inapplicable to their 

claim. Specifically, Plaintiffs argue that, under 12 U.S.C. 

§ 1821(d)(13)(D), the Bond is not an asset of the Bank or the FDIC, 

and thus FIRREA is inapplicable to their claim. We disagree. The 

threshold question is not whether Plaintiffs would ultimately 

collect from the Bond; rather, it is whether the Bond is an asset of 

the Bank.57 FIRREA states that no court has jurisdiction over any 

claim to or action against the assets of a bank in receivership.58 

55 Bueford v. Resolution Trust Corp., 991 F.2d 481, 486–87 (8th 

Cir. 1993).

56 Id. at 487; see also UTAH R. CIV. P. 5(b)(1) (―If a party is 

represented by an attorney, service shall be made upon the 

attorney unless service upon the party is ordered by the court.‖).

57 See Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. City Sav., 

F.S.B., 28 F.3d 376, 384 (3d Cir. 1994).

58 12 U.S.C. § 1821(d)(13)(D).
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Opinion of the Court

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―The term  ̳asset‘ is not defined in the statute.‖59 However, the 

ordinary meaning of ―asset‖ is broad. It is defined as ―[a]n item 

that is owned and has value‖ or ―[a]ll the property of a person . . . 

available for paying debts or for distribution.‖60 ―Insurance 

policies which a bank has purchased and under which it is an 

insured fall neatly within this definition of assets.‖61 An 

insurance policy is valuable to the owner of the policy even 

though the owner of the policy may never be entitled to recover 

under the policy.62 Additionally, the broad meaning of ―asset‖ 

can include liability insurance, as one purpose of liability 

insurance is to protect other assets against tort claims.63 For these 

reasons, we conclude the plain meaning of ―asset‖ contained in 

section 1821(d)(13)(D)(i) includes the insurance policy purchased 

by the Bank from BancInsure.64 

¶ 32 We further hold that Plaintiffs were required to present a 

―claim‖ as contemplated by FIRREA. Section 1821(d)(13)(D)(ii)

―explicitly bars jurisdiction over any claim relating to any act or 

omission of [a] failed financial institution.‖65 There is no 

qualification of the terms ―act or omission,‖66 and the statutory 

provision should be given ―the full scope that [the] text 

demands.‖67 The statute applies to creditors‘ claims,68 consumer 

59 Samuels v. Acme Mkt., 845 F. Supp. 292, 294 (E.D. Pa. 1994).

60 BLACK‘S LAW DICTIONARY 134 (9th ed. 2009).

61 Nat’l Union Fire Ins. Co., 28 F.3d at 384.

62 See id.

63 Samuels, 845 F. Supp. at 294.

64 See Nat’l Union Fire Ins. Co., 28 F.3d at 384–85; see also 

Holloway v. State, 566 A.2d 1177, 1180 (N.J. Super. Ct. Law Div. 

1989) (rejecting a claim that insurance policies are not assets).

65 Demelo v. U.S. Bank Nat’l Ass’n, 727 F.3d 117, 122 (1st Cir. 

2013) (internal quotation marks omitted). 

66 Decrosta v. Red Carpet Inns Int’l, Inc., 767 F. Supp. 694, 696 

(E.D. Pa. 1991).

67 Demelo, 727 F.3d at 123.

68 Id.
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Opinion of the Court

18

protection claims,69 and ―claims which are or should be covered 

by insurance.‖70 This provision also ―distinguishes claims on 

their factual bases‖ and ―does not make any distinction based on 

the identity of the party from whom relief is sought.‖71 

¶ 33 In Tellado v. IndyMac Mortgage Services, the plaintiffs 

brought a claim against a bank that had purchased a failed 

institution in receivership.72 Although the suit was filed against 

the purchasing bank, the claims related to an act or omission of 

the bank that was the target of FDIC receivership.

73 The Third 

Circuit Court of Appeals held that because the plaintiffs‘ claims 

were wholly dependent upon the wrongdoing of the financial 

institution that was in receivership, the plaintiffs‘ claims fell 

within the ambit of FIRREA.74

¶ 34 In the present case, Plaintiffs filed claims against the 

Bank. The claims included allegations of improper acceptance of 

unauthorized signatures, negligence, and liability under a theory 

of respondeat superior. These claims stemmed from losses 

suffered due to embezzlement by a Bank employee. Thus, the 

claims relate to an ―act or omission‖ of the Bank—an institution 

for which the FDIC was appointed receiver—or the Bank‘s 

employee. The fact that Plaintiffs sought payment from the Bond 

is irrelevant. The Plaintiffs‘ claims are squarely within the ambit 

of FIRREA.

C. The Bank’s Tender of Defense did not Deprive 

the Bank or FDIC of the Authority to 

Resolve Plaintiffs’ Claims

¶ 35 Plaintiffs next argue that their claims are not susceptible 

to resolution through FIRREA‘s administrative claims review 

process because the FDIC tendered defense of the claim to 

69 Tellado v. IndyMac Mortg. Servs., 707 F.3d 275, 279–81 (3d Cir. 

2013).

70 Decrosta, 767 F. Supp. at 696.

71 Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1212 (9th 

Cir. 2012).

72 707 F.3d at 277–78.

73 Id. at 280.

74 Id. at 281.
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Opinion of the Court

19

BancInsure and thus lost authority to resolve the claims. 

Plaintiffs assert that their ―claims are in reality against BancInsure, 

which made itself the real party in interest by accepting the tender 

of AWB‘s defense.‖ We disagree and hold that the tender of 

defense did not deprive the Bank or the FDIC of the ability to 

resolve Plaintiffs‘ claims through the administrative claims review 

process.

¶ 36 Under the typical liability insurance policy, the insurer 

has two duties.75 The sole source of these duties is the insurance 

contract.76 First, an ―insurer has a duty to indemnify the insured, 

up to the limits of the policy, for the payment of a judgment based 

on a liability claim which is covered.‖77 Second, the insurer ―has a 

duty to defend the insured against a liability claim which is 

covered or which is potentially covered.‖78 These are two distinct 

duties, with ―an insurer‘s duty to defend [being] broader than its 

duty to indemnify.‖79 This is because ―[t]he duty to indemnify [is] 

determined by the underlying facts of the case, [while] the duty to 

defend [is] controlled by the allegations in the complaint against 

the insured.‖80 The duty to defend is a continuing duty81 that ―is 

triggered when the insured tenders the defense of an action 

against it which is potentially within the policy coverage.‖82 If the 

75 Mesmer v. Md. Auto. Ins. Fund, 725 A.2d 1053, 1061 (Md. 

1999).

76 Id.

77 Id. 

78 Id.

79 Sharon Steel Corp. v. Aetna Cas. & Sur. Co., 931 P.2d 127, 133 

(Utah 1997).

80 Fire Ins. Exchange v. Estate of Therkelsen, 2001 UT 48, ¶ 23, 27 

P.3d 555 (first and third alterations in original) (internal quotation 

marks omitted). 

81 Montrose Chem. Corp. v. Superior Court, 861 P.2d 1153, 1157 

(Cal. 1993).

82 Solo Cup Co. v. Fed. Ins. Co., 619 F.2d 1178, 1183 (7th Cir. 

1980) (noting the contrast with the indemnity obligation, which 

―matures only when the insured becomes obligated to pay by 

reason of liability imposed by law‖); see also Montrose Chem. Corp., 

con‘t.
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Opinion of the Court

20

―underlying complaint alleges any facts or claims that might fall 

within the ambit of the policy,‖ the insurer must offer a defense.83 

¶ 37 One of the purposes of tendering a defense is notice. A 

tender of defense allows an insurer to appear and defend the 

insured on claims where the insured may ultimately seek to hold 

the insurer liable.84 Although a tender of defense allows the 

insurer to appear and defend the insured, a tender of defense does 

not change the real party in interest,85 and Plaintiffs have 

provided no authority to the contrary. If an insurer has notice of a 

claim against an insured, and ―has been afforded an opportunity 

to appear and defend,‖ regardless of whether the insurer actually 

appears, any judgment against the insured will also conclusively 

bind the insurer.86 Failure to tender a defense ―simply changes 

the burden of proof and imposes on the [insured] the necessity of 

again litigating and establishing‖ that it is entitled to indemnity 

from the insurer. 87 Thus, without a tender of defense, an insurer 

may challenge its liability for the judgment, contest the amount of 

 

861 P.2d at 1157 (noting the duty to defend ―aris[es] on tender of 

defense and last[s] until the underlying lawsuit is concluded‖); 

Hill v. Okay Constr. Co., 252 N.W.2d 107, 121 (Minn. 1977) (noting 

that tender of defense is generally a condition precedent to 

obtaining indemnification for fees incurred in the defense of a 

claim which is the responsibility of another party). 

83 Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 

301 (Colo. 2003) (en banc); see also Ledford v. Gutoski, 877 P.2d 80, 

83 (Or. 1994) (en banc) (―The insurer has a duty to defend if the 

complaint provides any basis for which the insurer provides 

coverage.‖ (emphasis in original)).

84 See 42 C.J.S. Indemnity § 48 (2014). 

85 See Jostens, Inc. v. Mission Ins. Co., 387 N.W.2d 161, 164 

(Minn. 1986); Hermes v. Markham, 60 N.W.2d 267, 272 (N.D. 1953) 

(holding that an insured was the real party in interest despite the 

fact that the insured had assigned his claim to his insurer).

86 Hill v. Joseph T. Ryerson & Son, Inc., 268 S.E.2d 296, 301–02

(W. Va. 1980) (internal quotation marks omitted).

87 42 C.J.S. Indemnity § 48 (2013).
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Opinion of the Court

21

damages, or set forth any other available defense that the insured 

neglected to make.88 

¶ 38 Once presented with a tender of defense, an insurer that 

believes it is not liable for coverage has two options. The insurer 

may either ―protect its interests through a declaratory judgment 

proceeding‖ asking the court to determine coverage under an 

insurance policy,

89 or it may ―defend the suit under a reservation 

of its right to seek repayment later.‖90 However, an insurer ―may 

not refuse the tendered defense of an action unless a comparison 

of the policy with the underlying complaint shows on its face that 

there is no potential for coverage.‖91 An insurer ―that refuses a 

tender of defense by its insured takes the risk not only that it may 

eventually be forced to pay the insured‘s legal expenses but also 

that it may end up having to pay for a loss that it did not insure 

against.‖92

¶ 39 In the present case, the Bank and the FDIC triggered 

BancInsure‘s duty to defend by tendering the defense of Plaintiffs‘ 

complaint to BancInsure. The Bank and the FDIC sought a

declaratory judgment regarding coverage under the Bond for the 

embezzlement by Ms. Padlo. The declaratory judgment action 

was stayed because coverage would not be required unless 

Plaintiffs received a judgment against the Bank or the FDIC. The 

tender of defense did not affect the rights of the Bank or the FDIC,

nor did it change the real party in interest. The tender of defense 

merely triggered the duty of defense under the Bond. The Bank 

88 See Joseph T. Ryerson & Son, Inc., 268 S.E.2d at 302.

89 Hartford Accident & Indem. Co. v. Gulf Ins. Co., 776 F.2d 1380, 

1382 (7th Cir. 1985); see also Gen. Agents Ins. Co. of Am., Inc. v. 

Midwest Sporting Goods Co., 828 N.E.2d 1092, 1102 (Ill. 2005) 

(―Where the insurance carrier is uncertain over insurance 

coverage for the underlying claim, the proper course is for the 

insurance carrier to tender a defense and seek a declaratory 

judgment as to coverage under the policy.‖ (internal quotation 

marks omitted)).

90 Gulf Ins. Co., 776 F.2d at 1382.

91 Solo Cup Co., 619 F.2d at 1183. 

92 Hamlin Inc. v. Hartford Accident & Indem. Co., 86 F.3d 93, 94 

(7th Cir. 1996).
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Opinion of the Court

22

and the FDIC were still actively involved in the defense of the 

claims. Therefore, the Bank and the FDIC retained authority to 

resolve the claims.

III. THE DISMISSAL OF PLAINTIFFS‘ LAWSUIT

DOES NOT VIOLATE DUE PROCESS UNDER THE 

UNITED STATES OR UTAH CONSTITUTION

¶ 40 Plaintiffs argue that the dismissal of their complaint 

denied them due process of law under both the United States and 

Utah Constitution. Plaintiffs claim that the FDIC sought to 

―ambush‖ them by ―awaiting expiration of the administrative 

deadline‖ in order to dispose of their claim ―without 

consideration of the merits,‖ and deprive them of their 

opportunity to be heard.

¶ 41 The Due Process Clause prevents ―denying potential 

litigants use of established adjudicatory procedures, when such an 

action would be the equivalent of denying them an opportunity to 

be heard upon their claimed right[s].‖93 Essentially, due process 

requires ―notice and an opportunity to be heard.‖94 FIRREA 

clearly spells out when and how judicial review is available.95 It 

expressly provides for de novo judicial review, but only after 

exhaustion of the administrative procedures.96 ―Since the 

language of the statute expressly provides for judicial review after 

exhaustion of the administrative procedures, [Plaintiffs] cannot 

prevail on [their] claim that FIRREA‘s administrative procedures 

deny [them] due process by making judicial review unavailable,‖ 

because it does not.97

93 Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. City Sav., F.S.B., 

28 F.3d 376, 394 (3d Cir. 1994) (alteration in original) (internal 

quotation marks omitted).

94 Utah Cnty. v. Ivie, 2006 UT 33, ¶ 22, 137 P.3d 797.

95 Bueford v. Resolution Trust Corp., 991 F.2d 481, 486 (8th Cir 

1993).

96 See Rosa v. Resolution Trust Corp., 938 F.2d 383, 391–92 (3d 

Cir. 1991); Bueford, 991 F.2d at 486; Resolution Trust Corp. v. 

Shoreview Builders, Inc., 599 A.2d 1291, 1294 (N.J. Super. Ct. App. 

Div. 1991).

97 See Bueford, 991 F.2d at 486.
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Opinion of the Court

23

¶ 42 We recognize that the FDIC‘s denial of a claim of one 

who never received notice of the administrative claims review 

process would present due process concerns.98 However, 

Plaintiffs did receive notice.99 Because Plaintiffs had notice of the 

claims review process, they were not deprived of due process.100 

Plaintiffs failed to avail themselves of the available claims review 

process, and this failure to act to protect their rights does not 

amount to a violation of due process.101

CONCLUSION

¶ 43 We hold that compliance with FIRREA‘s administrative 

claims review process is mandatory to vest the district court with 

subject matter jurisdiction. Plaintiffs‘ claims were subject to 

FIRREA‘s administrative claims review, they were required to 

exhaust their administrative remedies, and no exception applied. 

Plaintiffs failed to comply with the administrative exhaustion 

requirements of the statute, and failure to comply with the statute 

deprived the district court of subject matter jurisdiction. Finally, 

we hold that the Plaintiffs were not deprived due process of the 

law as it was their failure to comply with the requirements of 

FIRREA that deprived them of their opportunity to be heard on 

their claims. Accordingly, we affirm the decision of the district 

court to dismiss Plaintiffs‘ claims for lack of subject matter 

jurisdiction. 

98 See Elmco Props., Inc. v. Second Nat’l Fed. Sav. Ass’n, 94 F.3d 

914, 920 (4th Cir. 1996); Campbell v. FDIC, 676 F.3d 615, 621 (7th 

Cir. 2012).

99 See supra Part II.A.

100 See Freeman v. FDIC, 56 F.3d 1394, 1405–06 (D.C. Cir. 1995).

101 See id. at 1406; Elmco Props., Inc., 94 F.3d at 922.