# United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 96-2091

___________ Steven D. Hanson, * * Appellant, * * v. * * Federal Deposit Insurance * Corporation, as receiver for * the New Bank of New England, * N.A., * * Appellee. *

___________ Appeals from the United States District Court for the No. 96-2514 District of Minnesota.

___________ Federal Deposit Insurance * Corporation, as receiver for * the New Bank of New England, * N.C., substituted as plaintiff * for the New Bank of New England,* N.A., * * Appellee, * * v. * * Steven D. Hanson, * * Appellant. *

___________ Submitted: March 10, 1997 Filed: May 14, 1997

___________

### The Honorable Frank J. Magill was an active judge at the 1 

### time this case was submitted and took senior status on April 1, 1997, before the opinion was filed. The Honorable David S. Doty, United States District Judge 2 

### for the District of Minnesota.
-2- Before MAGILL, JOHN R. GIBSON, and MURPHY, Circuit Judges. 1

___________ MAGILL, Circuit Judge.

This ap peal arises from a collection action brought by the Bank o f NewEngland (BNE) against Steven D. Hanson and Hanson Industries, Inc

. (Hanson Industries) f or an alleged default on a revolving loan agreement. Hanson a ppeals the district court’s grant of summary judgment to th e 2 Federa l Deposit Insurance Corporation (FDIC), as receiver for BNE, o n several lender liability counterclaims raised by Hanson in BNE’s collectio n action. Hanson also appeals the district court’s grant of summary judgmen t to the FDIC, as receiver for the New Bank of New England (New BNE), in a related constructive trust action brought by Hanson. We affirm.

I.
On July 16, 1985, BNE and Hanson Ind ustries, a Minnesota corporation in which Hanson held a majority interest, entered into a revolving loa n agree ment that was personally guaranteed by Hanson. The loan was als o
secur ed by a mortgage agreement granting BNE a second mortgage in rea l property owned by Han son. In August 1986, BNE filed a claim in Minnesota state court against both Hanson and Hanson Industries to collect on a n alleged default. Denying the default, Hanson and Hanson Industries filed several

### The loans were made to both Hanson and Hanson Industries, 3 

### and both parties were named as defendants in BNE’s collection action. In addition, both Hanson and Hanson Industries brought counterclaims against BNE. On May 1, 1987, however, an involuntary bankruptcy petition was filed against Hanson Industries. Pursuant to an agreement reached during the bankruptcy proceedings, Hanson Industries released any claims that it might have had against BNE. As a result of this agreement, only Hanson, in his individual capacity, remains a party to this litigation. See Federal Deposit Ins. Corp. v. Hanson , 799 F. Supp. 954, 955 n.1 (D. Minn. 1992), rev’d , 13 F.3d 1247 (8th Cir. 1994). - 3 - count erclaims against BNE, asserting tort and breach-of-contract claim s arising out of the alleged default. 3
In August 1987, First Brookdale State Bank (First Brookdale), a nother of Hanson’s creditors, commenced foreclosure pro ceedings against a portion of Hanson’s real prop erty. BNE was the second mortgagee of this property pursua nt to BNE’s revolving loan agreement with Hanson Industries an d Hanson. BNE later redeemed this property from First Brookdale on August 17, 1988. BNE then initiated proceedings in Minnesota state court t o obtain new certificates of title for the real property.
On July 10, 1989, the Minnesota state court consolidated BNE’s August 1986 collection action and BNE’s August 1987 title action into a singl e proc eeding. The state court then directed the Minnesota Examiner o f Titles, on November 13, 1989, to determine whether new certificates o f title for the property should be issued. The Examiner recommended that ne w certificates of title be issued to BNE. Hanson objected that the issuance of new certificates should be stayed pending resolution of Hanson’ s counte rclaims against BNE. Over Hanson’s objection, the state cour t adopted the Examiner’s recommendation on July 13, 1990, and

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issued new certificates of title to BNE. The st ate court set a hearing in BNE’s collection action for February 11, 1991.

On Janu ary 6, 1991, prior to the hearing, the United State s Comptr oller of Currency declared BNE insolvent and placed BNE i n receivership. The FDIC was appointed receiver of BNE pursuant to 12 U.S.C

. § 1821© (Supp. II 1990). The FDIC established New BNE as a bridge bank, pursuant to 12 U.S.C. § 1821(n) (Supp. II 1990), to purchase certain asset s of BNE, including the real property formerly owned by Hanson.
Because BNE had been placed in receivership, BNE’s collection a ction, includ ing Hanson’s counterclaims, was removed to the district court o n January 30, 1991. Pursuant to 12 U.S.C. § 1821(d)(12) (Supp. II 1990), th e FDIC received a stay of the collection action on March 29, 1991. Hanson then filed his counterclaims with the FDIC as required under 12 U.S.C. § 1821(d)(3)-(13) (Supp. II 1990) . On Ju ly 5, 1991, the FDIC mailed a letter to Hanson’s counsel , informing him that the FDIC was denying Hanson’s counterclaims. In th e letter, the FDIC informed Hanson’s counsel that:

If you wish to contest this decision, the sole availabl e procedure for review of this determination is to file suit on suchclaim (or continue an action commenced before th e appo intment of the Receiver) in the United States Distric t Court
. . . . Such action must be commenced before the end of the 60-day period beginning on the date of this notice , pursuant to 12 U.S.C. § 1821(d)(6)(B). If such action is not takenby that date, the determination of the FDIC to disallow such claim shall be final, and there shall be no fu rther rights or remedies with respect to such claim.

I J.A. at 222.

### Because New BNE went into receivership soon thereafter, the 4 

### FDIC was substituted for New BNE as the defendant in this action.
- 5 - Notwithstanding the FDIC’s letter, Hanson did not file suit o r continue an action within sixty days. Instead, on August 30, 1991, Hanson requested that the FDIC provide administrative r eview of its denial of his claim. On September 12, 1991, the FDIC telephoned Hanson’s counsel an d informed him that the FDIC did not have any procedures in place fo r administrative review . The FDIC stated further that it would not perform such a review.

On Novemb er 18, 1991, Hanson filed an action against New BNE in the district court, claiming that New BNE was unjustly enriched when it took title to t he real property that Hanson had formerly owned. Hanson asked 4 the district court to impose a constructive trust pursuant to Minnesota la w on the real property.

In ear ly 1992, the FDIC moved for summary judgment on Hanson’ s counterclaims from the collection action and for summary judgment in the constru ctive trust action. On September 21, 1992, the district cour t granted the FDIC’s mo tions. Federal Deposit Ins. Corp. v. Hanson , 799 F. Sup p. 954, 960 (D. Minn. 1992). Hanson appealed the grant of summar y judgment on the constructive trust claim. This Court reversed and remande d on the ground that “the district court based its grant of summary judgment on an overly broad in terpretation of the D’Oench, Duhme [ D’Oench, Duhme & Co. v. Federal Deposit Ins. Co. , 315 U.S. 447 (1942)] doctrine and it s statutory progeny . . . .” Hanson v. Federal Deposit Ins. Corp. , 13 F.3d 1247, 1253 (8th Cir. 1994).
On March 28, 1996, the district cour t again granted the FDIC summary judgment on the constructive trust claim, but th is time the district court held that Hanson’s constructive trust claim was

### - 6 -

barred by issue preclusion. Order (Mar. 28, 199 6) at 10. In addition, on May 28, 1996, the district court entered a final judgment granting the FDI C summary judgment on H anson’s counterclaims in the collection action. The dis trict court held that Hanson was barred from seeking judicial revie w because he failed to seek review in the manner and time prescribed by 12 U.S.C. § 1821(d)(6). See Order at 7 (citing Han son , 799 F. Supp. at 959). Hanson appeals.

II.

Hanson argues that, because his August 30, 1991 request fo r administrative review satisfied the jurisdictional requirements set forth in 12 U.S.C. § 1821(d)(6)(B), the district court has jurisdiction to revie w his counterclaims in the collection action. We disagree.
We review the district court’s grant of summary judgment to the FDIC de novo. See McCormack v. Citibank, N.A. , 100 F.3d 532, 537 (8th Cir

. 1996). Summary judgm ent is appropriate only if the record, viewed in the light most favorable to the nonmoving party, pre sents no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. ; see also F ed. R. Civ. P. 56(c). Furthermore, “[w]e may affirm
on any gr ound supported by the record.” Doe v. Norwest Bank Minnesota , N.A. , 107 F.3d 1297, 1301 (8th Cir. 1997).

Hanson’s appeal turns on the meaning of § 1821(d)(6)(B)

. Specifically, § 1821(d)(6)(B) provides:
If any claimant fails to--

### - 7 - (I ) request administrative review of any claim i n accordance with subparagraph (A) or (B) of paragraph (7); or (ii) f ile suit on such claim (or continue an actio n commenced before the appointment of the receiver), before the end of the 60-day period described in subparagraph (A), the claim shall be deemed to be disallowed (ot her than any portion of such claim wh ich was allowed by the receiver) as of the end of such period, such disallowance shall be final, and the claimant shall have no further rights or remedies wit h respect to such claim.
12 U.S.C. § 1821(d)(6)(B) (emphasis added).

Thus, the failure of a claimant to satisfy the requirements of § 1821(d )(6)(B) within the prescribed time period bars the claimant fro m seeking judicial review of his claim. See Capital Data Corp. v. Capital Nat’l Bank , 778 F. Supp. 669, 674 (S.D. N.Y. 199 1); cf. Praxis Properties, Inc. v. Colonial Sav. Bank , 947 F.2d 49, 63 n.13 (3d Cir. 1991) (citing § 1821( d)(6)(B), to hold that “[i]f within 60 days the claimant fails t o pursue one of the above three routes authorized by § 1821(d)(6)(A) [an d again enumerated in § 1821(d)(6)(B)]” then the denial of his claim “become s
a final determination”). It is undisputed that Hanson did not file suit or continue an action within the relevant 60-day period. Thus, he did not meet the requirements of § 1821(d)(6)(B)(ii). I nstead, Hanson argues that his Au gust 30, 1991 request for administrative review satisfied th e statut oryrequirements of § 1821(d)(6)(B)(I). Hanson argues that b y satisfying § 1821(d)( 6)(B)(I), he was able to satisfy the requirements of § 1821(d)( 6)(B) as a whole and thereby preserve his right to judicia l review.

We conclude that Hanson did not meet the requirement o f § 1821(d)(6)(B)(I) that his request for administrative review be

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“in accordance with subparagraph (A) or (B) of p aragraph (7) . . . .” 12 U.S.C. § 1821(d)(6)(B)(I). Paragraph 7(A) provides that:

If any claimant requests review under this subparagrap h in lieu of filing or con tinuing any action under paragraph (6) and the Corporation agrees to such request , the Corporatio n shall consider the claim after opportunity for a he aring on the record.
12 U.S.C. § 1821(d)(7)(A) (emphasis added).

Hanson d id not meet the requirements of paragraph 7(A) because th e FDIC refused his request. The FDIC specifically had already told Hanson that it would not review his request for administrative review and ha d already informed Hanson that his “sole available procedure for review” was to file suit on his claim or continue an action commenced befor e appointment of the receiver. I J.A. at 222. Notwithstanding the FDIC’s clear admonition to Hanson to proceed in the district court, Hanson did no t pursue judicial review, but instead chose to sit on his rights. Moreover, § 1821(d) (7)(A) leaves to the FDIC the decision of whether to accept o r rej ect a claimant’s request for administrative review. Its decision t o deny Hanson’s claim a nd to thereby allow him to proceed with his claim in the district court was well within its discretio n. Thus, because the FDIC did not “agree[] to such request,” 12 U.S.C. § 1821(d)(7)(A), Hanson’ s request for review was not “in accordance with” paragraph 7(A) as required by § 1821(d)(6)(B)(I).

Nor was Hanson’s request “in accordance with” paragraph 7(B)

. Paragra ph7(B) empowers the FDIC to handle claims against a financia l institutionin receivership, like the claim filed by Hanson, by means of alternative dispute resolution processes. See

### Section 1821(j) limits the subject matter jurisdiction of 5 

### federal and state courts by providing that, except under certain circumstances, “ no court may take anyaction . . . .” 12 U.S.C. § 1821(j) (Supp. II 1990) (emphasis added). Because § 1821(j) limits subject matter jurisdiction, we can consider for the first time on appeal the FDIC’s argument that, pursuant to § 1821(j), the district court does not have subject matter jurisdiction to hear Hanson’s constructive trust claim. See Preferred Risk Mut. Ins. Co. v. United States , 86 F.3d 789, 793 (8th Cir. 1996) (“[Q]uestions of subject-matter jurisdiction may be raised at any time and may not be waived.”), cert. denied , 117 S. Ct. 1245 (1997). - 9 - 12 U.S.C. § 1821(d)(7)(B)(I). Here, however, the FDIC did not choose to handle Hanson’s claim against BNE by means of such a process, but instead informed Hanson that his “sole available procedu re for review” was to file suit on his claim or continue an action commenced before appointment of th e receiver. I J.A. at 222.

Because Hanson failed to meet the requirements of either paragrap h 7(A) or paragraph 7(B), he failed to meet the requirements of § 1821(d)(6)(B)(I), andas a result, Hanson failed to meet the requirements of § 1821(d)(6)(B) as a whole. Thus, because Ha nson sat on his rights, he is now precluded under § 1821(d)(6)(B) from seeking judicial review

. Accordingly, the district court did not have jur isdiction to hear Hanson’s counterclaims, and summary judgment on those claims was therefore proper.

III.
The FDIC argues for the first time on appeal that 12 U.S.C. § 1 821(j) (Supp. II 1990) bars the district court from hea ring Hanson’s constructive trust claim. We agree. 5

### - 10 - Sectio n1821(j), which was enacted as part of § 212(a) of th e Financ ial Institutions Reform, Recovery, and Enforcement Act of 198 9 (FIRREA), Pub. L. No. 101-73, 103 Stat. 183, provides:

Except as provided in this section, no court may take an y acti on, except at the request of the Board of Directors b y reg ulation or order, to restrain or affect the exercise o f power s or functions of the [FDIC] as a conservator or a receiver.

12 U.S.C. § 1821(j). Section 1821 does not provide any exceptions tha t would ap ply to the present action, nor has the Board of Director s requested, by means of regulation or order, that the district court take acti on to impose a constructive trust. Hanson instead argues that a constructive trust would not “restrain or affect the exercise of powers or functi ons of the [FDIC] as a conservator or a receiver,” 12 U.S.C. § 1821(j), because, according to Hanson, a constructive trust would merely reduce the price of the real property. Thus, according to Hanson, § 1821(j) does not bar the district court from hearing his constructive trus t claim.

Secti on 1821(j), however, “effect[s] a sweeping ouster of courts ’ power to grant equitable remedies . . . .” Freeman v. Federal Deposit Ins

. Corp. , 56 F.3d 1394, 1399 (D.C. Cir. 1995); accord Tri-State Hotels v

. Federal De posit Ins. Corp. , 79 F.3d 707, 715 (8th Cir. 1996) (quotin g Freeman ). As the Circuit Court for the District of Columbia has explained :
Although [§ 1821(j)’s] limitation on courts’ power to gran t equitable relief may app ear drastic, it fully accords with the intent of Congress at the time it enacted FIRREA in the midst of the savings and loan insolvency crisis to enable the FDI C and the Resolution Trust Corporation (“RTC”) to expeditiously wind up the affairs of literally hundreds of failed financial institutions throughout the country.

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Freeman , 56 F.3d at 1398.
As a receiver, the FDIC has substantial powers over New BNE’s a ssets, which include the real property formerly owned by Hanson. Under 12 U.S.C. § 1821( d)(2)(A)(I), the FDIC, as a receiver, succeeds to “all rights , titles, powers, and privileges of the insured depository institution . .

. .” 12 U.S.C. § 1821(d)(2)(A)(I) (Supp II. 1990). In addition, the FDIC , as receiver, may “pla ce the insured depository institution in liquidation and proce ed to realize upon the assets of the institution,” 12 U.S.C. § 1821(d)(2)(E) (Supp II. 1990), “transfer any asset or liability of th e insti tution,” 12 U.S.C. § 1821(d)(2)(G)(I)(II) (Supp II. 1990), an d “exercise . . . such incidental powers as shall be necessary to carry out [its stated] powers.” 12 U.S.C. § 1821(d)(2)(J) (I) (Supp II. 1990). “The exercise of these powers may not be restrained by any court, regardless of the claimant’s likelihood of success on the merits of his underlyin g claims.” Freeman , 56 F.3d at 1399. Impos itionof a constructive trust would necessarily “restrain o r affect the exercise o f powers or functions of the [FDIC] as a conservator or a receiver.” 12 U.S.C. § 1821(j). Under Min nesota law, a constructive trust arises “[w]here a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would b e unjustly enriched if he were permitted to retain it . . . .” Thompson v. Nesheim , 159 N.W.2d 910, 917 (Minn. 1968). “A court of equity, i n decreeing a construct ive trust, is bound by no unyielding formula, but is free to effect justice according to the equities peculiar to eac h transaction wherever a failure to perform a duty to convey would result in unjust enrichment.” Id. at 916. By imposing a constructive trust on the real property now held by New BNE, the district court would therefore make Hanson the beneficial owner of that property. See

### Our conclusion is bolstered by the numerous decisions in 6 

### which this Court and others have held that § 1821(j) precludes jurisdiction. See, e.g. , Sahni v. American Diversified Partnerships , 83 F.3d 1054, 1058-59 (9th Cir. 1996) (holding that § 1821(j) bars suit to rescind the FDIC’s sale of Department of Housing and Urban Development partnerships because the partnerships were part of the receivership estate of the failed financial institution), cert. denied , 117 S. Ct. 765 (1997); TriState Hotels v. Federal Deposit Ins. Corp. , 79 F.3d 707, 715 (8th Cir. 1996) (holding that § 1821(j) bars suit to rescind purchase agreements and loan documents because suit would be inconsistent with the FDIC’s power, as a receiver, to collect obligations and money due to a failed financial institution); Freeman v. Federal Deposit Ins. Corp. , 56 F.3d 1394, 1399 (D.C. Cir. 1995) (holding that § 1821(j) bars suit for injunctive relief, declaratory relief, and rescission where relief would restrain FDIC’s power to foreclose); Lloyd v. Federal Deposit Ins. Corp. , 22 F.3d 335, 336 (1st Cir. 1994) (holding that § 1821(j) bars suit for injunctive relief because suit would restrain FDIC’s power to foreclose); Carney v. Resolution Trust Corp. , 19 F.3d 950, 956-57 (5th Cir. 1994) (per curiam) (agreeing that § 1821(j) bars suit for injunctive relief because suit would restrain FDIC’s power to collect all obligations and money due and to preserve the assets of a failed financial institution).
- 12 - id. at 916-17 (citing Knox v. Knox , 25 N.W.2d 225, 226 (Minn. 1946).
Making Hanson the beneficial owner o f the property would necessarily restrain(1) the FDIC’s rights to title over New BNE’s assets, (2) th e FDIC’s rights to real ize upon New BNE’s assets, and (3) the FDIC’s rights to trans fer New BNE’s assets. As a result, pursuant to § 1821(j), th e district court is barred from hearing Hanson’s constructive trust claim, and summary judgment was therefore proper. 6

IV.

For the foregoing reasons, we affirm the district court’s grant o f summary judgment to the FDIC on Hanson’s counterclaims in

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the collection action. We also affirm the district court’s grant o f summary judgment to the FDIC on Hanson’s constructive trust claim.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.