___________ No. 94-3780

___________ Tri-State Hotels, Inc.; Davcor * Motor Inns, Inc.; Elite Hotel * Associates, Inc.; Turnpike * Motor Inns, Inc.; HMS Property * Management Group, Inc.; * Commerce Hotels, Inc.; Toledo * Motor Inns, Inc.; Ottawa Motor * Inns, Inc.; Amarillo Hotel * Associates, Inc.; Economy * Lodging Systems, Inc.; W. David * Temel; Frank Leonetti, Jr., * * Appellants, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Federal Deposit Insurance * Corporation, as Receiver for * Merchants Bank Inc., and Metro * North State Bank, Inc.; The * Merchants Bank, Inc.; Metro * North State Bank, Inc., * * Appellees, * * Eugene J. Pereira; Bradley W. * Kreiger; Kirsten H. Mills; * Marilyn J. Feingold, Co-Executor* of the Estate and Last Will and * Testament of Frank S. Morgan; * Mark Morgan, Co-Executor of the * Estate and Last Will and * Testament of Frank S. Morgan; * Thomas S. Morgan, Co-Executor * of the Estate and Last Will and * Testament of Frank S. Morgan; * Jeff Johnson; David B. Feingold,* *

Defendants, * * American Hotel Management * Associates, Inc., * * Receiver, * *

### The Honorable Dean Whipple, United States District Judge 1 

### for the Western District of Missouri.
-2- Richard K. Rousch; Nassau * Communications, Inc., * * Proposed Parties. *

__________ Submitted: December 15, 1995 Filed: March 21, 1996

__________ Before MAGILL, BRIGHT, and MURPHY, Circuit Judges.

___________ MAGILL, Circuit Judge.

Tri -State Hotels and other appellants (collectively, Tri-State ) appeal the district court's dismissal of defendant Federal Deposi t 1 Insurance Corporation (FDIC), as receiver for two failed banks, for lack of sub ject matter jurisdiction due to Tri-State's failure to exhaus t administrative remedies. Because prior administrative review of claim s against the FDIC is a prerequisite to judicial review of such claims, see the Financial Institutions Reform, Recovery, andEnforcement Act (FIRREA), codified in relevant part at 12 U.S.C. § 1821(d)(3)-(13) (1994), we affirm

.

I.
During th e period from 1988 to 1992, Tri-State entered into various agreem ents with Merchants Bank (Merchants) and Metro North State Ban k (Metro North) to purchase and finance certain distressed motel and hotel properties. As part of the agreement, Merchants and Metro North assured Tri-State that they would provide additional ref inancing to Tri-State when requested, and they a greed to limit Tri-State's liability in the event of default on any loans

### The FDIC was also appointed receiver for Metro North, which 2 

### went into receivership on November 13, 1992.
-3- made in connection with the properties.

Me rchants consolidated the loans, and in June 1992, it agreed t o invest an additional $1 million in equity in the arrangement and t o refinance $1.3 million of the loans. Merchants breached the agreemen t duri ng the summer of 1992 by failing to complete the refinancing an d failing to provide the promised funding, but it continued to assure TriSta te that it would perform all of its obligations. Despite thes e assurances, Merchants never fulfilled its obligations, and on December 2, 1992, Tri-State mailed notice to Merchants that it was revoking th e refinancing agreement due to Merchants' breach of the agreement.

Merchants went into receivership on November 20, 1992, and the FDIC
was appointed receiver. In December, January, and February, the FDI C 2 published notice in the Kansas City Star newspaper that creditors had unti l March 16, 1993, to present to the FDIC any claims they had agains t Mer chants. The FDIC also mailed notice of the receivership to al l credit ors of Merchants; however, because Tri-State is a debtor o f Merchants, notice was not mailed to Tri-State. Although Tri-State ha d actual knowledge of t he receivership, it did not file a timely claim with the FDIC for the breach of contract by Merchants.
In August 1993, Tri-State and the FD IC began a review of Tri-State's obliga tions under the agreements between Tri-State and Merchants. Thi s review consisted of face-to-face meetings and numerous phone calls an d correspondence betwee n Tri-State and the FDIC. On February 17, 1994, the FDIC finished its review and analysis of the agr eements and concluded that the loan agreements were enforceable. At no tim e did the FDIC inform TriState that it must present its claims to the FDIC under a forma l administrative

### The KLI lawsuit, still pending before the district court, 3 

### was later transferred to the Northern District of Ohio on December 12, 1994.
-4- review process.

On February 18, 1994, Tri-State filed a complaint in the Wester n District of Missouri against the FDIC, Merchants , Metro North, and several officers of the banks (the Tri-State lawsuit). Tri-State sought thre e different forms of relief: (1) declaratory relief adjudicating th e respec tive rights and obligations of the parties under the purchas e agreements and loan documents; (2) rescission of the purchase agreements and loan documents; a nd (3) damages for breach of contract, breach of the duty of good faith, breach of fiduciary obligations, and fraud.

On July 1 3, 1994, the district court dismissed the FDIC, Merchants, and Metro North for l ack of subject matter jurisdiction. The court noted that u nder FIRREA, a claimant must exhaust the administrative revie w process before a court has jurisdiction to hear the claims. 12 U.S.C

. § 1821(d)(6)(A), (d)(13)(D). Because Tri-State did not present its claims to the FDIC for admin istrative review during the ninety-day period ending March 16, 1993, dismissal was appropriate.

On Sept ember 20, 1994, the FDIC filed suit in the Western Distric t of Miss ouri, FDIC v. Knights Lodging, Inc. (the KLI lawsuit), agains t certain appellants, asserting a claim for failure to repay the deb t obligations and alleging that appellants had fraudulently transferred fund s to avoid paying the FDIC.

The district court consolidated the KLI lawsuit and the Tri-Stat e lawsuit o n September 23, 1994. On October 18, 1994, the district cour t dismissed the remaining defendants inthe original Tri-State lawsuit. On 3 November 9, 1994, Tri-State appealed the

### Because the individual defendants in the Tri-State lawsuit 4 

### were not dismissed until October 18, the July 13 order dismissing the FDIC, Merchants, and Metro North was not a final order for purposes of 28 U.S.C. § 1291 appellate jurisdiction until October 18. Therefore, this appeal is timely. We note that Tri-State moved to have the July 13 order certified as final and appealable pursuant to Federal Rule of Civil Procedure 54(b), but this motion was denied by the district court on August 5, 1994.
-5- July 13 dismissal of the FDIC. It is this appeal that is pres ently before 4 the Court.

II.

The FDIC argues that this Court lacks jurisdiction to hear thi s appeal under 28 U.S.C. § 1291 because the July 13 order dismissing the FDI C as a defendant was no t an appealable final order when appeal was taken on Novemb er 9. The FDIC notes that the KLI lawsuit, which had bee n consol idated with the Tri-State lawsuit, was still pending before th e district court when appeal was taken in the Tri-State lawsuit. The FDIC contends that an open question in the consolidated suit still existed , precluding appeal in the absence of Rule 54(b) certification.

We disagree with the FDIC. Only when "two actions [are] reall y consolidated and merged into one," Mendel v. Production Credit Ass'n of th e Midlands , 862 F.2d 18 0, 182 (8th Cir. 1988), does the presence of an open question in one of the formerly separate suits preclude appeal on any issu e in the consolidated s uit. Id. ; see also Soo Line R.R. v. Escanaba & Lake Superior R.R. , 840 F.2d 546, 548 (7th Cir. 1988). However, when "technica l
cons olidation into a single action [does] not occur, but rather [th e consolidation is] an arrangement for joint proceedings and hearings, for
conve nience," Mendel , 862 F.2d at 182, then each suit retains it s individual nature, an d appeal in one suit is not precluded solely because the other suit is sti ll pending before the district court. Id. ; see also Soo Line , 840 F.2d at 548.

### Our appellate consideration would be made considerably 5 

### easier if the district court could regularly state on the record whether consolidated cases have been "formally merged, for all purposes," or whether the consolidation is "informal, for convenience only." Such a statement would provide a very useful bright line in this area. See, e.g. , Ivanov-McPhee v. Washington Nat'l Ins. Co. , 719 F.2d 927, 930 n.2 (7th Cir. 1983) (requesting that district courts state on the record whether consolidated cases have been merged "for all purposes"). The district court did mention that both suits involve the 6 

### determination of rights of the parties with regard to the same properties. Order of Consolidation at 2-3 ( reprinted in Appellee's Addendum at 7-8). The FDIC argues that this language implies that the court intended to formally merge the two related litigations into one suit. However, we believe that the district court offered the fact of similarity between the cases merely as support for its consolidation for convenience.
-6- Altho ugh the district court did not clearly state whether the tw o lawsuits were formall y merged for all purposes, it appears that they were merged for the purposes of convenienc e only and were not formally merged. 5 While the district co urt grouped both suits under a single docket number, this grouping appears to have been only to "simplify the filing process." Orde r of Consolidation at 3 ( reprinted in Appellee's Addendum at 8)

. Furt her, the district court referred to future filings "in these tw o suits," and it noted that consolidation "will best use scarce judicia l resources" and was to "accommodate the convenience of the parties." Id. 6 Finally, in dismissing the remaining defendants in the Tri-State lawsuit on October 18, 1994, the district court stated t hat there was "still other related litigation pending with this same case number." Order of Dismissa l at 1 n.1 ( reprinted in Appellee's Addendum at 9) (emphasis added). That the district court termed the KLI lawsuit "relat ed litigation" rather than "other matters in this case" indicates that the two lawsuits, whil e consolidated, were never merged for all purposes and they retained their individual identity.
Because the two lawsuits were merged for the sake of

### Under this review process, the FDIC must first publish a 7 

### notice "to the depository institution's creditors" specifying a date by which claims must be presented for review, not less than 90 days after publication. 12 U.S.C. § 1821(d)(3)(B). In addition, the FDIC must mail a "similar" notice to "any creditor shown on the institution's books." 12 U.S.C. § 1821(d)(3)(C). The FDIC has 180 days after a claim is filed to allow or disallow it. 12 U.S.C. § 1821(d)(5)(A). Claims not timely filed must be disallowed unless "the claimant did not receive notice of the appointment of the receiver in time to file such claim before such date"; in that case, a late-filed claim "may be considered by the receiver," provided the claim is "filed in time to permit payment." 12 U.S.C. § 1821(d)(5)(C).
-7- convenience, the Tri-State lawsuit was immediately appealable on October 18, 1994, when the remaining defendants in that suit were dismissed

. Accordingl y, we have jurisdiction under 28 U.S.C. § 1291 to hear thi s appeal.

III.

Un der FIRREA, Congress established a comprehensive claims revie w process for claims ag ainst the assets of failed banks held by the FDIC as receive r. See 12 U.S.C. § 1821(d)(3)-(13). Claimants must initiall y submit the ir claims to the FDIC for review, thus "enabl[ing] the FDIC to 7 dispos e of the bulk of claims against failed financial institution s expe ditiouslyand fairly . . . without unduly burdening the Distric t Courts." H.R. Rep. No. 101-54(I), 101st Cong., 1st Sess., at 418-19 , reprinted in 1989 U.S.C.C.A.N. 86, 215.

Judic ial review of claims governed by FIRREA is contingent on th e completion of this administrative review process. Section 1821(d)(13)(D) states that, except as otherwise provided, no court shall have jurisdictio n
over

anyclaim or action for payment from, or any action seeking a det ermination of rights with respect to, the assets of an y depository institution f or which the [FDIC] has been appointed receiver . . . .

### -8-

The only exception is found in § 1821(d)(6)(A), which provides that courts have jurisdiction over claims that have first been presented to the FDIC under its administrative review process. Read together, these tw o provisions mandate th at "administrative exhaustion is required before any court acquires subjec t matter jurisdiction over a claim" against the FDIC
as receiver for a failed thrift. Bueford v. Resolution Trust Corp. , 991 F.2d 481, 484 (8th Cir. 1993).

Tri-Sta te did not submit its claims to the FDIC for formal review

. Nev ertheless, Tri-State argues that the jurisdictional bar is no t appl icable because (1) Tri-State's claims arose postreceivership, as a result of management decisions made by the FDIC, and so the claims are not covered by this section, and (2) this section applies only to creditor s with m onetary claims and not to debtors, especially those seekin g declaratory and rescissory relief.

Furthe r, Tri-State contends that if administrative review wa s required, the failure to undergo such review is excused because (1) th e extensive prelitigation discussions and negotiat ions between Tri-State and the FDIC satisfies this requirement because the FDIC has undertaken th e revie w process contemplated by 12 U.S.C. § 1821(d), and (2) the FDIC' s failure to provide pr oper notice, and the FDIC's actions in affirmatively misleading Tri-State regarding the notice procedures, amounts to a waiver bythe FDIC, estopping the FDIC from asserting the jurisdictional bar

. None of these contentions has merit.

A.

Tri- State contends that the administrative review requirement doe s not apply to it because its claims against Merchants and the FDIC aros e pos treceivership, as a result of management decisions made by the FDIC

. Tri-State concedes that the underlying breach of

### We note that at least one other circuit has reached a 8 

### conclusion contrary to Homeland Stores , holding that FIRREA's jurisdictional bar does encompass a claim arising from postreceivership actions of the RTC. See Rosa v. RTC , 938 F.2d 383, 392 (3d Cir.), cert. denied , 502 U.S. 981 (1991). Because these cases are distinguishable from the instant case, we need not here decide which of our sister circuits has correctly resolved this issue.
-9- contract and fraud th at led to this lawsuit occurred before the FDIC took over as receiver. Ho wever, Tri-State contends that its claims arose only after the FDIC, as re ceiver, refused to honor the refinancing agreements.

Tri-State relies on Homeland Stores, Inc. v. Resolution Trust Corp. , 17 F.3d 1269 (10th Ci r.), cert. denied , 115 S. Ct. 317 (1994), which held that the jurisdictional bar of § 1821(d)(13)(D) does not apply to claims arising out of management actions of the Resolution Trust Corporation (RTC ) after taking over a depository instit ution. In Homeland Stores , the RTC, 8

as part of its receivership, took over management of Belmont Squar e shopping center. Homeland Stores, a tenant in the shopping center, wa s guaranteed in its lease that the anchor tenant of the center would be of a specific character and would be "acceptable" to Homeland. In selecting a new, impermissible anchor tenant, RTC breachedthis lease agreement with Homeland. The court accepted jurisdiction, noting that when claims arise solely from RTC's management of the receivership asset and bear no relatio n to the failed institu tion for which the RTC was receiver, FIRREA does not apply. Id. at 1275. The court reasoned that such actions, because they could arise at any time after the RTC takes over as receiver (and possibly well after the claims bar date), were not susceptible to the standar d administrative review provided for by FIRREA.

Homel and Stores does not apply to the situation presented in thi s case. Although Tri-State, in an attempt to come under the Homeland Stores jurisdictional exception, asserts that it is solely

### Permitting Tri-State to recharacterize its claims as such 9 

### would, as appellees note, effectively eviscerate the claims process, because every plaintiff could (and would) simply challenge the FDIC's failure to reverse the failed bank's fraudulent actions rather than challenge the bank's fraudulent actions directly. Thus, in order to effectuate the stated congressional purpose in enacting FIRREA, namely "enabl[ing] the FDIC to dispose of the bulk of claims against failed financial institutions expeditiously and fairly," H.R. Rep. No. 101-54(I), at 418-19, reprinted in 1989 U.S.C.C.A.N. at 215, courts should look to the underlying substance of the challenged events. If plaintiff brings an action against the assets of the failed institution, then FIRREA's exhaustion requirement is applicable, regardless of how plaintiff styles its claim.
-10- challenging the management decisions of the FDIC (that the FDIC, i n managing the failed banks, did not remedy the br each of contract and fraud and did not honor the loan obligations), the genesis of its claim is the prereceivership misconduct by the failed banks. Unlike in Homeland Stores , in this case the actions taken by the FDIC as re ceiver cannot be separated from the underlying prereceivership misconduct by the failed banks. 9 Beca use Tri-State asserts prereceivership claims against the assets o f Mercha nts, arising out of the misconduct of Merchants, Tri-State wa s required to submit its claims to the FDIC for administrative review.

B.
Tri-State next contends that the administrative review process is not applicable to it because this process only applies to creditors with claim s again st the assets of the failed institutions and not to debtors , especially those seeking declaratory and rescissory relief. We reject thi s contention.

The great weight of authority holds that FIRREA requires debtors as well as creditors to undergo the administrative review process. See, e.g. , Freeman v. FDIC , 56 F.3d 1394, 1401-02 (D.C. Cir. 1995) (noting that the jurisdictional bar applies to "all manner of 'cl aims' and 'actions seeking a determination of rights

### For example, § 1821(d)(3)(B)(i) requires that the receiver 10 

### publish "notice to the depository institution's creditors to present their claims," and § 1821(d)(3)(C) requires the receiver to "mail a notice . . . to any creditor shown on the institution's books . . . ."
-11- with respe ct to' the assets of failed banks, whether those claims an d actions are by debtors, creditors, or others"); National Union Fire Ins. Co. v. City Sav., F.S.B. , 28 F.3d 376, 389 (3d C ir. 1994) (noting that the bar against "any acti on" in § 1821(d)(13)(D) "includes actions by debtors
as well as creditors"); Lloyd v. FDIC , 22 F.3d 335, 337 (1st Cir. 1994 ) (suit by debtor seeki ng equitable reformation or cancellation of mortgage agreement is a "deter mination of rights with respect to an asset" subject to the jurisdictional bar).
We reject Tri-State's contention that, because the notice provisions 10 of FIR REA apply only to creditors, § 1821(d)(13)(D)'s exhaustio n require ment should be similarly limited to creditors bringing claims

. While t he notice provisions do apply only to creditors, such limitin g languag e is conspicuously absent in the jurisdictional bar provision

. Rather than mention creditors or limit its application to creditors , § 1821(d)(13)(D) bars " any claim or action for p ayment from, or anyaction seeking a determination of rights with respect t o the failed institution's assets" (emphasis added), unless administrative remedies have bee n exhausted. Thus, "FIRREA's very text appears to contemplate claims beyond those by 'creditor[s] . . . on the . . . books' to whom statutory notice must be s ent." Office & Professional Employees Int'l Union, Local 2 v

. FDIC , 962 F.2d 63, 67 (D.C. Cir. 1992). We "ass ume Congress meant what it said wh en it included a jurisdictional bar to 'any action,'" Nationa l Uni on , 28 F.3d at 389, and thus we conclude that § 1821(d)(13)(D) wa s intended to

### In so holding, we reject Tri-State's reliance on a line of 11 

### bankruptcy cases holding that debtors are not covered by FIRREA. The Ninth Circuit, after reviewing FIRREA's legislative history, held that, in bankruptcy proceedings, "a 'claim' under FIRREA means an obligation owed bythe failed institution, and not an obligation owing to it," and debtors are thus not covered by FIRREA. In re Parker North Am. Corp. , 24 F.3d 1145, 1153 (9th Cir. 1994) (quoting Scott v. RTC , 157 B.R. 297, 310-11 (Bankr. W.D. Tex. 1993) (withdrawn at request of the parties, 162 B.R. 1004 (Bankr. W.D. Tex. 1994))). Although the construction placed upon § 1821(d)(13)(D) by the Parker court does not "quite square[] with the statutory text," Freeman , 56 F.3d at 1401, we have no need in this case to decide the applicability of FIRREA to bankruptcy cases. Assuming arguendo that Parker was correctly decided, we decline to extend this approach to nonbankruptcy court contexts. Such an extension to nonbankruptcy cases "would not advance the purposes of the Bankruptcy Code, while it would undercut Congress' core purpose in enacting FIRREA." Id.
-12- apply to debtors as well as creditors. Therefore, Tri-State's damage s 11 action for fraud and the breaches of contract, duty of good faith, an d fid uciaryobligations is barred because Tri-State did not exhaus t administrative remedies.

Tri-State 's request for declaratory relief likewise does not render the exhaustion requir ement inapplicable. Section 1821(d)(13)(D) bars any action seeking a determination of rights with re spect to the assets of any depository institution. As noted by the Third Circuit,

a d eclaratory judgment action is an "action seeking a determination of rights." . . . No reasonable argument can be offered that the plain meaning of the "any action seeking a determination of rights" language of § 1821(d)(13)(D) does not include complaints requesting declaratory relief.

National Union , 28 F.3d at 385; see also id. at 385-92 (discussing, i n depth, application of § 1821(d)(13)(D) to declaratory judgment actions). Thus, declaratory judgment actions are covered by

### The National Union Court declined to decide whether 12 

### declaratory judgment actions could be submitted for administrative review under § 1821(d)(6)(A). If not, then § 1821(d)(13)(D)'s inclusion of declaratory judgment actions is a jurisdictional bar rather than an exhaustion requirement. See National Union , 28 F.3d at 387 n.12. While we do not have occasion to decide this issue (Tri-State's failure to submit the issue for administrative review divests the court of subject matter jurisdiction in any event), we do note that the Third Circuit appears to have resolved this issue. In Hudson United Bank v. Chase Manhattan Bank of Conn. , 43 F.3d 843, 849-50 (3d Cir. 1994), the court held that the administrative claims procedures and the jurisdictional bar have concurrent scope, which suggests that declaratory judgment actions could be raised in the administrative forum.
-13- FIRREA. 12

Plaint iff further requests that the court rescind the purchas e agreements and loan documents. However, under FIRREA's anti-injunctio n provision, 12 U.S.C. § 1821(j), "[e]xcept as otherwise provided, no court may take any action . . . to restrain or affect that exercise of the power s or functions of the [ FDIC] as a conservator or receiver." Because FIRREA grants th e FDIC the power to "collect all obligations and money due th e inst itution," 12 U.S.C. § 1821(d)(2)(B)(ii), rescinding the agreement s
wou ld act as an impermissible restraint on the ability of the FDIC t o exercise its powers as receiver. See Freeman , 5 6 F.3d at 1399 (§ 1821(j), which is "a sweeping ouster of courts' power to grant equitable remedies," prevents the courts from granting "nonmonetary remedies, includin g injunctive relief, declaratory relief, and rescission of [a] promissor y note."); see also Ward v. Resolution Trust Corp. , 996 F.2d 99, 104 (5t h Cir. 1993) ("Like injunction, rescission is a 'j udicial restraint' that is barred by 1821(j)."). This Court therefore lacks jurisdiction to grant th e requested equitable relief.

Final ly, we write to address one concern raised at oral argument : if we prevent Tri-State from obtaining declaratory and rescissory relief in this case, then Tri-State will be defenseless

### In support of this proposition, the Third Circuit noted 13 

### that § 1821(d)(13)(D) bars "any claims" seeking payment or "any action seeking a determination of rights"; thus, affirmative defenses, which technically are "responses" and not "claims" or "actions," are not covered by FIRREA and need not first be submitted for administrative review. National Union , 28 F.3d at 393. Further, this interpretation finds support in the policies undergirding FIRREA. In barring declaratory judgment actions, "Congress apparently . . . determined that the societal benefits resulting from the right to bring . . . declaratory judgment actions, are outweighed by the societal benefits resulting from the RTC being able to avoid costly and perhaps unnecessary litigation." Id. at 388. However, when the FDIC has completed its administrative review, and has chosen a judicial forum in which to prosecute its rights, the policy of avoiding unnecessary litigation is no longer applicable, and the party's Due Process rights to defend the claims in the FDIC's lawsuit become paramount. Id. at 394.
-14- in the KL I lawsuit if the FDIC attempts to enforce the loan agreements

. This is not true. In National Union , supra , the Third Circuit held that, while petitioner was barred from offensively bringing a declarator y judgment action or suit for rescissory relief, it could still raise an y affirmati ve defenses it had against the RTC in any suit by the RTC t o enforc e the loan obligations. National Union , 28 F.3d at 392-395; se e 13 also RTC v . Midwest Fed. Sav. Bank , 36 F.3d 785, 792 (9th Cir. 1993 ) (§ 1821(d)(13)(D) applies to "claims" and "actions" and not to "defenses")

. We agree with the Thi rd and Ninth Circuits that true affirmative defenses may still be asserted by Tri-State in the KLI lawsuit.

C.

Tri-State next argues that, even if the exhaustion requirement i s applicable, the extensive discussions and negotiations between Tri-State and the FDIC regarding the financing and debt agreements at issue satisfie s this r equirement because the FDIC has undertaken the review proces s contemplated by 12 U.S.C. § 1821(d). Tri-State relies on Praxis Propertie s v. Colonial Sav. Bank , 947 F.2d 49, 64

### -15-

(3d Cir. 1991), which allowed prolonged negotiations between the parties to substi tute for formal review and thus provide the court wit h jurisdiction.

Praxis is distinguishable from the present case. Praxis arose during the nascent stages of FIRREA. FIRREA was enacted on August 9, 1989, and when the RTC was appointed receiver in that case on November 9, 1989, it "lacked a fully developed, standardized claims process." Id. Praxi s informally presented its claims to the RTC and engaged in extensiv e discussions with the RTC. Given the RTC's lack of standardized procedures , the court determined that "under the circumstanc es Praxis did all it could do to exhaust its administrative remedies." Id.

However, the Praxis court intimated that, had the case arose wh en the RTC had such standardized procedures in place, the informal negotiations would not have been sufficient to provide the court with jurisdiction. Id

. ("We do not mean to imply, however, that under today's regime [o f formalized claims procedures], a mere breakdown of negotiations between RT C and a claimant would entitle the claimant to proceed in court."). O f
cour se, the claims in the present case arose several years after th e enactment of FIRREA, at a time when the FDIC hadformalized procedures for claims review. Tri-State cannot rely on Praxis to excuse its failure to formally present its claims to the FDIC.

Further, the plaintiff in Praxis presented its claims informally to the RTC during the ni nety-day presentation period mandated by FIRREA. In the present case, whi le Tri-State mailed a letter to the FDIC in December 1992 apprising them of the existence of the claims, negotiations did not begin until August 1993, several months after th e expiration of the claims presen tation period, which ended on March 16, 1993, for Merchants

. Therefo re, even if informal negotiations could satisfy the exhaustio n requirement--a proposition we reject--such informal negotiations in

### -16-

this case were untimely.

D.

Tri-State's final argument is that the FDIC's failure to provid e proper notice, and the FDIC's actions in affirmatively misleading Tri-Stat e regarding the notice procedures, amounts to a waiver by the FDIC, estoppin g the FDIC from asserting the jurisdictional bar. This contention is withou t merit, for several reasons.
First, the mailed-notice provisions under § 1821(d)(3)(B)-(C) do not applyto Tri-State. These provisions provide that the FDIC must publish written notice (which it did) and also mail noti ce to all creditors listed on the books of the failed bank. Because Tri-St ate is not a creditor, and is not listed on the books of Merchants as a cre ditor, it was not entitled to receive notice by mail.

Second, even supposing that the notice provisions applied to Tri

State, this Circuit h as expressly held that receivers under FIRREA cannot be estopped from asserting the jurisdictional ba r. In Bueford , this Court stated:

Lac k of subject matter jurisdiction, unlike many othe r objections to the jurisdiction of a particular cour t, cannot be waived. . . . FIRREA contains an exhaustion requirement as a pre-requisite for suit in any court, and the statute contains no waiv er provision. Therefore, the RTC cannot, by its ow n con duct or otherwise, be estopped from raising the issue o f subject matter jurisdiction.

Bueford , 991 F.2d at 485 (citation omitted). Thus, the FDIC's failure to provide proper notice "does not relieve the claimant of the obligation to exhaust administrativ e remedies, because the statute does not provide for a waiver or exception under those

### Bueford 's language that "the RTC cannot, by its own 14 

### conduct or otherwise, be estopped from raising the issue of subject matter jurisdiction," 991 F.2d at 485, seems to support the proposition that the FDIC's affirmative misconduct is irrelevant, although Bueford was not an affirmative misconduct case. One court has intimated that the FDIC's affirmativemisconduct could, in appropriate circumstances, toll the ninetyday bar date. See Intercontinental , 45 F.3d at 1285.
-17- circumstances." Freeman , 56 F.3d at 1402 (citing Meliezer v. RTC , 952 F.2 d 879 , 882-83 (5th Cir. 1992)); see also Intercontinental Travel Mktg. v

. FDIC , 45 F.3d 1278, 1284-85 (9th Cir. 1994) (FDI C's failure to mail notice does not exempt claimant from administrative review requirement). The onl y exception to the strict requirement of exhaustion of remedies, where the claimant does not receive notice of the appointment of the receiver in tim e to fi le his claim, see 12 U.S.C. § 1821(d)(5)(C), is inapplicable her e because Tri-State had actual knowledge of the receivership.

Finall y, the FDIC did not affirmatively mislead Tri-State int o foregoing the required administrative review. Although under Bueford we questi on whether the FDIC's affirmative misconduct could estop it fro m asserting jurisdictional bar, we need not decide t his issue today because 14 in this case the FDIC did not affirmatively mislead Tri-State int o believing that the claims review process did not apply to it.

The FDI C stated that it would not mail notice to Tri-State becaus e it did not consider T ri-State to be a creditor or claimant. However, the FDIC never mentioned that it believed that the jurisdictional bar, a completely separate and independent subsection o f FIRREA, did not apply to Tri-State. Tri-State may have misinterpreted the FDIC's statement that th e not ice provisions were not applicable to mean that administrativ e exhaustion was not required. However, this error by Tri-State does no t amount to evidence that the FDIC affirmatively misled Tri-State.

### -18- V.

The distr ict court's order of July 13, 1994 dismissing the FDIC for lack of subject matte r jurisdiction became final on October 18, 1994, and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291. Because Tri-State failed to exhaust the mandatory administrative remedies before filing suit, the district court's order is affirmed.

A true copy.

Attest:

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