1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-16-1996

Resolution Tr. Corp. v. W.W. Dev. & Mgmt, Inc.

Precedential or Non-Precedential:

Docket 95-1227

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Recommended Citation

"Resolution Tr. Corp. v. W.W. Dev. & Mgmt, Inc." (1996). 1996 Decisions. Paper 247.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

Nos. 95-1227 and 95-1228 

 

RESOLUTION TRUST CORPORATION IN ITS CAPACITY 

AS CONSERVATOR FOR BELL FEDERAL SAVINGS BANK 

v. 

W.W. DEVELOPMENT & MANAGEMENT, INC. 

 W.W. Development and Management 

 Company, 

 Appellant

 

W.W. DEVELOPMENT & MANAGEMENT, INC. 

v. 

THE RESOLUTION TRUST CORPORATION, IN ITS CAPACITY 

AS RECEIVER FOR BELL SAVINGS BANK, PaSA 

 W.W. Development and Management 

 Company, 

 Appellant

 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil Action Nos. 91-3788 and 93-4210) 

 

Argued December 5, 1995 

BEFORE: GREENBERG and MCKEE, Circuit Judges, and 

ACKERMAN, District Judge* 

(Filed: January 16, l996) 

 

 

 

 
2 

*Honorable Harold A. Ackerman, Senior Judge of the United States 

District Court for the District of New Jersey, sitting by 

designation. 

 Edward H. Rubenstone 

 William Goldstein (argued) 

 Elliot Alan Kolodny 

 Groen, Laveson, Goldberg and 

 Rubenstone 

 Four Greenwood Square 

 Suite 200 

 P.O. Box 8544 

 Bensalem, PA 19020 

 Attorneys for Appellant

 Michael R. Latowski (argued) 

 Saul, Ewing, Remick & Saul 

 3800 Centre Square West 

 Philadelphia, PA 19102 

Sophia Ranalli 

Resolution Trust Corporation 

P.O. Box 1500 

 Valley Forge, PA 19482-1500 

 Douglas Konselman 

 1717 "H" Street N.W., Room 3116 

 Washington, D.C. 20434 

 Attorneys for Appellees

 

OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

 This case requires us to consider the application of 

the jurisdictional bar in the Financial Institutions Reform, 

Recovery and Enforcement Act of 1989 ("FIRREA") to the judicial 

adjudication of claims when the claimant has not complied with 
3 

FIRREA's claims procedures.0 Bell Savings Bank, PaSA ("Bell") 

confessed judgment in a Pennsylvania state court against W.W. 

Development and Management Company ("W.W.") following W.W.'s 

default on a $500,000 loan. After the Director of the Office of 

Thrift Supervision, Department of the Treasury, declared Bell 

insolvent and appointed the Resolution Trust Corporation ("RTC") 

its conservator and then its receiver, W.W. filed: (1) a petition 

to open the judgment, offering defenses and a counterclaim in the 

state court action which the RTC subsequently removed to a 

federal court and, after the administrative claims period passed, 

(2) a separate action restating the same claims in federal court. 

The district court denied the petition in the first case and 

granted summary judgment to the RTC in the second case, as it 

held that it lacked subject matter jurisdiction over W.W.'s 

claims in both cases as a result of FIRREA's jurisdictional bar. 

For reasons that we explain below, we will affirm the district 

court's order as to its conclusion that it lacked subject matter 

jurisdiction over the second lawsuit and over W.W.'s counterclaim 

in the first. We, however, will vacate the district court's 

order to the extent that it rejected jurisdiction over W.W.'s 

defenses to liability in W.W.'s petition to open judgment. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

 The two cases arose from a loan and a loan commitment 

agreement between Bell and W.W. for financing W.W.'s development 

 

0

Pub. L. No. 101-73, 103 Stat. 183 (1989). 
4 

of a medical office condominium in Philadelphia, Pennsylvania. 

W.W.'s App. 54. Initially, Bell loaned W.W. $500,000 on August 

20, 1987. Id. at 45. In the loan documents, W.W. authorized 

Bell to confess judgment against it in the amount of the loan 

plus interest if W.W. defaulted. Id. at 43. On September 6, 

1988, Bell agreed to loan W.W. $3,314,000 for further development 

of the property. This commitment was valid until October 30, 

1988. Id. at 121-28. W.W. planned to use part of this loan to 

pay off the earlier loan of $500,000. Id. at 91. On October 3, 

1988, the parties extended the commitment date on the $3,314,000 

loan until April 30, 1989. Id. at 95. Bell, however, did not 

make this additional loan to W.W. which then defaulted on the 

earlier $500,000 loan. Bell then confessed judgment against W.W. 

in the amount of $529,883.43 on June 13, 1990, in the Court of 

Common Pleas of Philadelphia County. Id. at 40-50. 

 On March 15, 1991, the Director of the Office of Thrift 

Supervision found that Bell was likely to incur losses as a 

result of unsafe and unsound practices and appointed the RTC its 

conservator.0 As a result, under 12 U.S.C. § 1821(d)(2)(A)(i), 

the RTC succeeded to "[a]ll rights, titles, powers and 

privileges" of Bell. Four days later, on March 19, 1991, the 

director appointed the RTC Bell's receiver. The RTC then 

published notice that all creditors having claims against Bell 

 

0

Order No. 91-163. RTC's App. 4. After Bell Savings Bank was 

taken over the RTC organized Bell Federal Savings Bank to acquire 

Bell's assets. As a matter of convenience we refer simply to 

Bell as a single institution. 
5 

must submit them by June 22, 1991, but it later extended this 

time, at least as to W.W., until September 27, 1991. 

 On March 26, 1991, W.W. filed a petition to open the 

confessed judgment in the Philadelphia County Court of Common 

Pleas, alleging that Bell's breach of its commitment on the 

proposed $3,314,000 loan caused W.W. to default on the $500,000 

loan. In addition, W.W. sought to assert a counterclaim for 

damages from Bell's breach. W.W.'s App. 51-60.0

 On April 24, 1991, the RTC removed the state court 

proceedings, including the judgment and the petition to open the 

judgment, to the United States District Court for the District of 

Columbia pursuant to 28 U.S.C. §§ 1331 and 1441(a) and 12 U.S.C. 

§ 1441a(l)(3).0 W.W.'s App. 96. Thus, we will refer to this 

 

0

We accept W.W.'s representation that it was unaware that Bell 

was in receivership at this time. We observe, however, that this 

circumstance has no legal significance. We will refer to W.W.'s 

defenses and counterclaim as if they have been filed even though 

its petition merely sought permission to file them. W.W.'s Br. 

at 6. 

0

12 U.S.C. § 1441a(l)(3) reads: 

(3) Removal and remand 

(A) In general 

 The Corporation, in any capacity 

and without bond or security, may remove 

any action, suit, or proceeding from a 

State court to the United States 

district court with jurisdiction over 

the place where the action, suit, or 

proceeding is pending, to the United 

States district court for the District 

of Columbia, or to the United States 

district court with jurisdiction over 

the principal place of business of any 

institution for which the Corporation 

has been appointed conservator or 
6 

case as the removed case. On May 18, 1991, the District of 

Columbia court transferred the removed case to the Eastern 

District of Pennsylvania. W.W.'s App. 101. 

 On August 5, 1991, shortly before the deadline for the 

filing of claims under FIRREA against the RTC as receiver for 

Bell, counsel for W.W. wrote a letter to the RTC's counsel 

advising him of the pending petition to open judgment and of 

W.W.'s claims against the RTC. The letter stated: 

As you are aware, . . . the Motion to Open 

Judgment that is presently pending, in 

addition to setting forth grounds to open the 

judgment and defenses against that judgment, 

includes claims for damages incurred as a 

result of the subject breach by Bell of its 

Agreement to loan sufficient funds to W.W. 

Development. . . . 

I assume that, given the fact that RTC is in 

receipt of these claims, no further filings 

are required by my client in order to permit 

RTC to determine these claims pursuant to 12 

U.S.C. Sec. 1821(d)(5). If this assumption is 

incorrect, I would appreciate your prompt 

advice and would further appreciate your 

 

receiver if the action, suit or 

proceeding is brought against the 

institution or the Corporation as 

conservator or receiver of such 

institution. The removal of any such 

suit or proceeding shall be instituted- 

(i) not later than 90 days after 

the date the Corporation is 

substituted as a party, or 

(ii) not later than 30 days after 

service on the Corporation, if the 

Corporation is named as a party in 

any capacity and if such suit is 

filed after August 9, 1989. 
7 

providing me with any forms which should be 

completed by my client in order to obtain 

review and determination by RTC of these 

claims. Your prompt advice would be most 

appreciated and in the event I do not hear 

from you to the contrary, I will assume that 

the presentation of the claims of my client 

in the Motion to Open Judgment are sufficient 

to permit the RTC to administratively 

determine such claims. 

W.W.'s App. 156-157. There is some dispute as to whether the RTC 

responded to this letter but we will assume in accordance with 

W.W.'s contention that it did not.0 In any event, W.W. did not 

file a formal claim with RTC within the period for filing claims 

even as extended to September 27, 1991. 

 On September 15, 1992, almost one year after the time 

to file a formal claim had expired, and after counsel suggested 

that the proceedings in the removed case be postponed, the court 

referred that case to a magistrate judge to explore settlement. 

Upon joint request of the parties, the district court suspended 

the proceedings on the petition to open the judgment for five 

months on September 22, 1992. Id. at 108. Finally, on October 

7, 1992, W.W. filed a formal proof of claim with the RTC. On 

June 8, 1993, the RTC denied W.W.'s October 7, 1992 

administrative claim on the ground that W.W. did not return an 

official claim form before the deadline for filing claims. In 

the letter denying the claim and explaining the bar, the RTC 

 

0

W.W.'s counsel claims that he did not receive a reply to the 

letter. RTC's counsel states that the RTC sent W.W. a claims 

form on August 27, 1991, though W.W. did not return the completed 

claims form until after the deadline. Our assumption does not 

prejudice the RTC because the relief we are granting W.W., i.e., 

that it may assert its defenses to the complaint resulting in the 

judgment by confession, does not depend on it. 
8 

stated that W.W. could file suit within 60 days from the date of 

the letter. Id. at 174-75. 

 On August 5, 1993, within that 60-day period, W.W. 

filed the second action, which we will call the federal case, 

against the RTC in its capacity as receiver for Bell, alleging 

that Bell's failure to adhere to its loan commitment caused W.W. 

damages of $2,996,150. This federal case essentially restated 

W.W.'s claims in its petition to open judgment. On June 20, 

1994, the court transferred the petition to open judgment in the 

removed case to its current docket. Id. at 109. 

 The RTC then moved for summary judgment in the federal 

case, arguing that the district court lacked subject matter 

jurisdiction under 12 U.S.C. § 1821(d)(5)(C)(i)0 since W.W. did 

not file an official claim form until after the bar date of 

September 27, 1991. W.W.'s App. 136. W.W. filed a cross-motion 

for partial summary judgment declaring that it had filed a timely 

administrative claim. The district court rejected the RTC's 

argument, reasoning that the petition to open, filed on March 26, 

1991, and served on the RTC in April 1991, coupled with W.W.'s 

 

0

12 U.S.C. § 1821(d)(5)(C)(i) reads in relevant part: 

(C) Disallowance of claims filed after end of 

filing period 

(i) In general 

Except as provided in clause (ii), claims 

filed after the date specified in the notice 

published under paragraph (3)(B)(i) shall be 

disallowed and such disallowance shall be 

final. 
9 

letter of August 5, 1991, requesting notification if its 

administrative claim was incomplete, constituted a sufficient and 

timely administrative claim. Id. at 22-25. As a result, the 

district court on July 15, 1994, denied the RTC's motion for 

summary judgment and granted W.W.'s cross-motion for partial 

summary judgment establishing that its claim was timely. Id. at 

26. 

 The RTC then filed a motion for reconsideration on the 

grounds that if W.W's claim was considered filed by August 5, 

1991, as the district court had held, then under 12 U.S.C. 

§1821(d)(5)(A)(i),0 the claim was deemed denied as a matter of 

 

0

12 U.S.C. § 1821(d)(5)(A)(i) reads in relevant part: 

(5) Procedures for determination of claims 

(A) Determination period 

(i) In General 

 Before the end of the 180-day 

period beginning on the date any 

claim against a depository 

institution is filed with the 

Corporation as receiver, the 

Corporation shall determine whether 

to allow or disallow the claim and 

shall notify the claimant of any 

determination with respect to such 

claim. 

(ii) Extension of time 

 The period described in clause 

(i) may be extended by a written 

agreement between the claimant and 

the Corporation. 

(iii) Mailing of notice sufficient 

. . . . 
10 

law on February 3, 1992, the end of the 180-day period in which 

the RTC should have acted on the claim. Thus, in the RTC's view, 

W.W. was required to have filed its district court action within 

60 days of February 3, 1992 (i.e., on or before April 4, 1992) 

under 12 U.S.C. § 1821(d)(6)(B).0 The RTC argued that since W.W. 

did not file the federal case until August 5, 1993, the district 

court lacked subject matter jurisdiction over it. W.W.'s App. 

31-34. The district court agreed and granted the RTC's motion 

for summary judgment on November 17, 1994. Id. In the same 

order, the district court denied W.W.'s petition to open judgment 

in the removed case on the grounds that W.W. filed the petition 

after Bell was placed in receivership. Consequently, the court 

held that it lacked jurisdiction because W.W. did not properly 

exhaust its claims administratively before filing the petition. 

After the district court, on February 27, 1995, denied W.W.'s 

 

(iv) Contents of notice of 

disallowance 

 If any claim filed under 

clause (i) is disallowed, the 

notice to the claimant shall 

contain- 

(I) a statement of each reason 

for the disallowance; and 

(II) the procedures available 

for obtaining agency review of 

the determination to disallow 

the claim or judicial 

determination of the claim. 

0

The RTC used the April 4, 1992 date in its brief. It appears 

that the correct date was April 3, 1992. Of course, the 

difference does not matter. 
11 

motion for reconsideration, W.W. appealed in both cases from the 

orders of November 17, 1994, and February 27, 1995. 

II. DISCUSSION

 This court has jurisdiction pursuant to 28 U.S.C. §1291 

because W.W. filed a timely notice of appeal on March 22, 1995. 

Because the subject matter jurisdiction of the district court is 

the central issue in the case, we discuss it below. We exercise 

plenary review on this appeal. See Petruzzi's IGA Supermarket, 

Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir.), 

cert. denied, 114 S.Ct. 554 (1993). 

 Congress enacted FIRREA in 1989 in response to the 

massive losses occurring in the nation's savings and loan 

institutions and the deposit insurance fund protecting their 

depositors. H.R. Rep. No. 101-54(I), 101st Cong., 1st Sess. 1, 

302, reprinted in 1989 U.S.C.C.A.N. 86, 98. In its report on 

FIRREA, Congress projected that the full cost of the thrift 

crisis would be more than $335 billion, noting, to give some 

perspective, that this expenditure would dwarf the $13.3 billion 

cost of the entire post-World War II Marshall Plan to reconstruct 

Europe. Id. at 514. Congress also expressed concern that 

higher-than-expected costs for case resolution could boost that 

figure. Id. at 515. To restore consumer confidence in the 

failed savings and loan industry and resolve the crisis, Congress 

granted the receivers of failed institutions broad powers to 

administer a streamlined claims procedure designed to dispose of 

the bulk of claims against failed savings and loans. Id. at 305, 
12 

419. Congress also designed FIRREA to be consistent with the 

Supreme Court's holding in Coit Independence Joint Venture v. 

FSLIC, 489 U.S. 561, 109 S.Ct. 1361 (1989), which dealt with the 

procedure for filing claims against the Federal Savings and Loan 

Insurance Corporation. H.R. Rep. No. 101-54(I) at 418-19.0 

 On this appeal, we are concerned with FIRREA's complex 

and, in practice, draconian jurisdictional provisions which, as 

we explain below, we must apply as written. In brief, Congress 

requires the RTC to notify claimants to submit their claims on or 

before a date at least 90 days from the date of publication of 

the notice. Once they do so, the RTC has 180 days to allow or 

disallow their claims. Claimants thereafter have 60 days from 

the earlier of the end of the 180-day period or the notice of 

denial of their claims to seek de novo judicial review. No court 

has jurisdiction to hear any suit filed after this 60-day period 

against the RTC as receiver for a failed thrift. 

 Actions filed prior to institution of FIRREA 

proceedings may be stayed at the request of a conservator or 

receiver. If a claimant then submits a claim and it is denied or 

the 180-day period expires without a claim being allowed or 

 

0

In Coit, the Court held that the Federal Savings and Loan 

Insurance Corporation, the RTC's predecessor with respect to 

failed thrifts, under pre-FIRREA law, did not have exclusive 

authority to adjudicate claims filed against failed savings and 

loan institutions and that a claimant was entitled to a de novo 

review of the corporation's disposition of a claim in the 

district court. 489 U.S. at 587, 109 S.Ct. at 1376. The Court 

noted, however, that requiring exhaustion of the claim process 

would be permissible if the claim process included a reasonable 

time limit on the corporation's ability to postpone judicial 

review. Id. at 584, 109 S.Ct. at 1374. 
13 

disallowed, claimants have 60 days to continue their prereceivership actions.0

 With this plan, Congress hoped to promote 

expeditious and fair adjudication of the many claims against the 

failed thrifts. 

 The central issue in this case is whether W.W.'s 

actions are jurisdictionally barred under FIRREA and thus whether 

the district court's dismissal of the actions was proper. 

I. The federal case

 We first will consider whether the district court had 

jurisdiction over the federal case which W.W. filed on August 5, 

1993, after the RTC rejected its formal claim. We held in Rosa 

v. RTC, 938 F.2d 383 (3d Cir.), cert. denied, 502 U.S. 981, 112 

S.Ct. 582 (1991), that a district court has subject matter 

jurisdiction over a claim under FIRREA only if the claimant 

exhausts the statutory claim procedure. Id. at 391-92, 396-97. 

See also Althouse v. RTC, 969 F.2d 1544, 1545-46 (3d Cir. 1992) 

(holding that failure to file timely claim precludes jurisdiction 

and de novo review by district court); FDIC v. Shain, Schaffer & 

Rafanello, 944 F.2d 129, 132 (3d Cir. 1991) (holding that courts 

have no jurisdiction over claims besides that specified in 

FIRREA). Our conclusion in Rosa follows from 12 U.S.C. 

§1821(d)(13)(D), which states: 

(D) Limitation on Judicial Review 

 

0

In Praxis Properties, Inc. v. Colonial Sav. Bank, 947 F.2d 46, 

63 n.14 (3d Cir. 1991), we pointed out that FIRREA in some 

respects is unclear as to its treatment of a claimant's action 

filed before the institution of FIRREA proceedings. We need not 

explore that problem here because W.W. filed its first pleading, 

its petition to open judgment, after the RTC was appointed 

receiver. 
14 

 Except as otherwise provided in this 

subsection, no court shall have jurisdiction 

over- 

(i) any claim or action for payment 

from, or any action seeking a 

determination of rights with respect to, 

the assets of any depository institution 

for which the Corporation has been 

appointed receiver, including assets 

which the Corporation may acquire from 

itself as such receiver; or 

(ii) any claim relating to any act or 

omission of such institution or the 

Corporation as receiver. 

 To determine whether the district court has 

jurisdiction over the controversy, we look to whether W.W. 

followed the statutory claim procedure. This procedure is set 

out at 12 U.S.C. § 1821(d)(6)(A), which reads: 

(6) Provision for agency review or judicial 

determination of claims 

(A) In general 

Before the end of the 60-day period 

beginning on the earlier of- 

(i)the end of the period described in 

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

claim against a depository institution 

for which the Corporation is receiver; 

or 

(ii) the date of any notice of 

disallowance of such claim pursuant to 

paragraph (5)(A)(i), 

the claimant may request administrative 

review of the claim in accordance with 

subparagraph (A) or (B) of paragraph (7) or 

file suit on such claim (or continue an 

action commenced before the appointment of 

the receiver) in the district or territorial 

court of the United States for the district 

within which the depository institution's 
15 

principal place of business is located or the 

United States District Court for the District 

of Columbia (and such court shall have 

jurisdiction to hear such claim). 

 The "period described in paragraph (5)(A)(i)" is the 

180-day period during which the RTC is required to determine 

whether to allow or disallow the claim and notify the claimant of 

its determination. The parties can extend this period only upon 

their written agreement.0 Absent written agreement to extend the 

180-day period, a claimant must seek judicial review before the 

earlier of 60 days from the determination of its claim or 240 

days from the date its claim was filed (the 180 days of section 

1821(d)(5)(A)(i), plus the 60 days of section 1821(d)(6)(A)) even 

if, as in this case, the RTC fails to make a determination within 

the statutorily required 180-day period specified in section 

1821(d)(5)(A)(i).0 Astrup v. RTC, 23 F.3d 1419, 1420-21 (8th 

Cir. 1994); Capitol Leasing Co. v. FDIC, 999 F.2d 188 (7th Cir. 

1993); Henderson v. Bank of New England, 986 F.2d 319, 320 (9th 

Cir., cert. denied, 114 S.Ct. 559 (1993). 

 In this case, treating W.W.'s petition to reopen in the 

removed case and its counsel's August 5, 1991 letter to RTC's 

counsel as together constituting a properly filed claim, W.W. 

 

0

12 U.S.C. § 1821(d)(5)(A)(ii). 

0

Congress clearly contemplated the possibility of the 180-day 

period expiring without the RTC having resolved a claim, for 

section 1821(d)(6)(A) states that a claimant has 60 days after 

the expiration of the 180-day claim determination period or the 

disallowance of a claim to seek administrative review or to 

institute an action in court. If Congress had not contemplated 

the possibility of the 180-day period expiring without the RTC 

having resolved a claim, the first limitation period would have 

been superfluous, since there never would be an instance in which 

the 180-day period would expire without the resolution of a 

claim. 
16 

failed to bring the federal case in the district court within the 

statutorily-specified time period. The district court held that 

W.W. provided the RTC with the information necessary to process 

its claim in April 1991 when it served its March 26, 1991 

petition to open (filed in the Philadelphia County Court of 

Common Pleas) on the RTC. At the latest, treating these informal 

filings, i.e., the petition and the letter, as satisfying the 

requirement to file an administrative claim, the 240-day period 

began in August, after W.W. sent the RTC the letter requesting 

adjudication of its claim.0 Yet W.W. did not file the federal 

case until August 5, 1993. Since more than 240 days elapsed 

between the filing of the claim with RTC and the filing of the 

federal case in the district court, the district court lacked 

subject-matter jurisdiction over it. 

 

0

The RTC contends that service of the petition did not constitute 

a properly filed claim and that FIRREA bars W.W.'s action because 

it did not file an appropriate claim form within 90 days of 

receiving notice to do so, as required by 12 U.S.C. 

§1821(d)(5)(C)(i). If the RTC is correct so that W.W.'s 

petition, either independently or accompanied by its letter of 

August 5, 1991, did not constitute a claim, the district court 

would have lacked jurisdiction because W.W. would not have 

followed the proper administrative procedures. 

 Nevertheless, since we find that even if a pleading can 

constitute a claim under FIRREA, the district court lacked 

jurisdiction over this claim, we need not address this issue. We 

therefore assume without deciding that the procedures W.W. 

followed in 1991 constituted compliance with the FIRREA claims 

procedure. Of course, the petition could not be an adequate 

claim in the removed case itself, because FIRREA contemplates an 

administrative claim procedure independent of a judicial 

proceeding. Treating the petition as an adequate administrative 

filing to support jurisdiction in the removed case would 

frustrate the two-step process FIRREA contemplates. 
17 

 W.W. argues that the court possessed jurisdiction over 

the federal case because there was a written agreement, pursuant 

to 12 U.S.C. § 1821(d)(5)(A)(ii), to extend the 180-day period in 

which the RTC was required to resolve W.W.'s claims. W.W. argues 

that: (i) motions to the district court to stay the removed case 

constitute written agreements between the RTC and W.W., and (ii) 

that the RTC's denial of W.W.'s October 7, 1992 claim on June 8, 

1993, in explicitly granting W.W. 60 days to appeal, also 

constitutes a written agreement, albeit a retroactive one, to 

extend the 180-day period for consideration of its 1991 claim. 

Thus, in W.W.'s view, its action filed August 5, 1993, was 

timely. Alternatively, W.W. argues that material written by the 

RTC after the expiration of the 180-day period should extend 

retroactively the 180-day period.0 

 

0

W.W. cites a letter to the district court dated February 9, 

1993, which states: 

On or about October 5, 1992, after the case 

was placed in the suspense file, defendant 

W.W. Development & Management, Inc. submitted 

an administrative claim to the Resolution 

Trust Corporation pursuant to 12 U.S.C. 

§1821(d)(5). Pursuant to Section 1821(d) the 

claim must be decided within 180 days of 

filing (i.e., on or about April 3, 1993). 

Accordingly, we request that the matter 

remain in the suspense file until April or 

until the claim has been decided, whichever 

is earlier. Of course if the claim is 

decided before April 3, we will promptly 

notify the Court. Edward Rubenstone, counsel 

for defendant, joins in this request. 

W.W.'s App. 173. 

When the RTC denied W.W.'s claim on June 8, 1993, its letter to 

W.W. stated: 
18 

 To support its contentions, W.W. points out that 

section 1821(d)(5)(A)(ii) provides that the 180-day period, "may 

be extended by a written agreement between the claimant and the 

Corporation." On June 24, 1991, the RTC filed a motion to stay 

all legal proceedings in the removed case. It read in part: 

For the reasons set forth in the following 

Memorandum of Law, substituted plaintiff 

Resolution Trust Corporation, in its capacity 

as Conservator for Bell Federal Savings Bank, 

moves the Court for an Order staying 

consideration of defendant's Motion to Open 

Judgment pending exhaustion of administrative 

remedies. 

W.W.'s App. 106-07. On August 14, 1991, W.W. filed a Memorandum 

of Law in response which argued, in part, that the district court 

should stay further proceedings for 180 days so that 

administrative procedures could be exhausted. It read in part: 

"under the facts of this case . . . the issuance by this Court of 

a stay for 180 days as to the prosecution of such claims is 

appropriate." W.W.'s App. 197. 

 W.W. further argues that Congress intended the deadline 

provisions to constrain only the RTC and it suggests that 

Congress drafted them in response to the concerns raised by the 

Supreme Court in Coit Independence Joint Venture v. FSLIC, 489 

U.S. at 582-83, 109 S.Ct. at 1373, where the Court noted that the 

 

Pursuant to 12 U.S.C. Section 1821(d)(6), if 

you wish to contest this disallowance, then, 

within sixty (60) days from the date of this 

letter you must file suit on your claim 

against the Receiver in the United States 

District Court for the Eastern District of 

Pennsylvania . . . . 

Id. at 175. 
19 

lack of deadline periods enabled the Federal Savings and Loan 

Insurance Corporation to delay judicial review indefinitely. W.W. 

argues that the legislative history offers no support for the 

RTC's use of the deadline procedures to defeat a claim. It 

further argues that allowing the RTC to evaluate claims even 

after the 180-day period has elapsed would serve the purpose of 

FIRREA.0 

 When a statute is clear, however, our role in 

interpretation is at an end, absent a clearly expressed 

legislative intention that contradicts the plain language of the 

statute. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 

447 U.S. 102, 108, 100 S.Ct. 2051, 2056 (1980); Sacred Heart 

Medical Center v. Sullivan, 958 F.2d 537, 545 (3d Cir. 1992). 

Nothing that W.W. cites is "a written agreement between the 

 

0

The legislative history explains that the claims procedure set 

forth in FIRREA was designed: 

[To enable] the FDIC to dispose of the bulk 

of claims against failed financial 

institutions expeditiously and fairly. The 

exhaustion requirements should lead to a 

large number of claims being resolved without 

resort to further procedures. In addition, 

the administrative procedures, including 

review procedures, created by the FDIC, if 

made sufficiently attractive to claimants, 

should lead to a large number of claimants 

agreeing to present their claims through 

these forums rather than in court. Thus, the 

claim resolution process established in this 

section should allow the FDIC to quickly 

resolve many of the claims against failed 

financial institutions without unduly 

burdening the District Courts. 

H.R. Rep. No. 101-54 (I) at 419. 
20 

claimant and the Corporation" to extend the 180-day period. 

Furthermore, W.W. cannot point to "a clearly expressed 

legislative intention" that contradicts the plain language of the 

statute and thus would allow us to treat the items to which it 

points as an agreement for an extension of the 180-day claim 

consideration period. GTE Sylvania, 447 U.S. at 108, 100 S.Ct. 

at 2056. Consequently, we cannot find that the 180-day claim 

period was extended to permit the district court to exercise 

jurisdiction over the federal case.0 

 We recognize that our result is harsh. The RTC 

disallowed the claim on the basis of untimeliness despite W.W.'s 

good faith efforts and request for guidance from the RTC to 

comply with the new and confusing statute. In addition, the 

RTC's actions encouraged W.W. to believe that its claim was under 

serious administrative consideration as the statutory period for 

judicial review expired. Furthermore, we acknowledge that "[t]he 

statute arguably encourages the RTC to avoid making 

determinations and, in so doing, catch creditors dozing." Astrup, 

 

0

Of course, the claim W.W. filed on October 7, 1992, was late so 

even if there had been a written agreement to extend the time for 

the receiver to allow or disallow the claim to June 8, 1993, when 

the RTC disallowed the claim, which as far as we are aware there 

was not, the district court would have granted the RTC summary 

judgment properly as W.W. filed the claim long after the bar 

date. We must say, however, that we are at a loss to understand 

why the RTC in its June 8, 1993 letter advised W.W. that it could 

file suit within 60 days, inasmuch as the RTC denied the October 

7, 1992 claim long after 180 days following its submission. It 

would seem that the RTC was attempting to give the district court 

jurisdiction which the court did not have. It may be that on 

this basis as well the district court, notwithstanding the June 

8, 1993 letter, did not have jurisdiction. But we do not reach 

that point. 
21 

23 F.3d at 1421. But our hands are tied under the statutory 

scheme. See also National Union Fire Ins. Co. v. City Sav. Bank, 

F.S.B., 28 F.3d 376, 388 (3d Cir. 1994) ("FIRREA was . . . 

passed to give the receiver extraordinary power."). We therefore 

hold that the district court did not have jurisdiction over the 

federal case. 

II. The removed case

 W.W. also argues that the district court had 

jurisdiction in the removed case over the petition to open the 

judgment and to allow it to assert defenses and a counterclaim. 

The relevant facts are that Bell filed its action for confession 

of judgment before the RTC was appointed receiver for Bell but 

that W.W. filed its petition after that appointment. 

 FIRREA, though allowing the RTC to remove state cases 

to a federal court, does not generally divest courts of 

jurisdiction in pre-receivership cases. This is clear from 12 

U.S.C. § 1821(d)(5)(F)(ii), which provides, with an exception 

dealing with stays, that filing a claim with a receiver does not 

prejudice the right of a claimant to continue an action filed 

before the receiver's appointment. It necessarily follows from 

this section that the institution of a proceeding under FIRREA 

does not oust a court of the jurisdiction it otherwise would have 

over an action involving a thrift institution. Accordingly, in 

Praxis Properties, Inc. v. Colonial Sav. Bank, 947 F.2d 49, 63 

n.14 (3d Cir. 1991), we explained that if an action is filed 

before a thrift is placed in receivership, jurisdiction over the 
22 

matter is not lost by the subsequent insolvency of the thrift and 

takeover by the RTC. Id. 

 Bell commenced the removed action by confessing 

judgment against W.W.0 In National Union, 28 F.3d 393, we held 

that section 1821(d)(13)(D)'s statutory bar does not apply to 

either defenses or affirmative defenses to a claim brought by the 

RTC because: 

We think it plain enough that a defense or an 

affirmative defense is neither an 'action' 

nor a 'claim,' but rather is a response to an 

action or a claim, and that therefore 

defenses and affirmative defenses do not fall 

under any of the [categories of action barred 

by § 1821(d)(13)(D)]. 

See also Praxis, 947 F.2d 49, 64 n.14 (Neither exhaustion 

requirement nor administrative claims procedure apply to actions 

the thrift commenced before it failed.). 

 Consequently, we must decide whether the petition to 

open the judgment was a separate claim against the RTC or whether 

it should be regarded as defense and therefore not barred by 

section 1821(d)(13)(D). Because the petition to open judgment 

includes both a defense to liability in the action commenced 

before the FIRREA proceedings (though not a conventional defense 

as in an action in which process is served at the outset), and a 

counterclaim against RTC, we will bifurcate the petition and 

separately consider the defenses and the counterclaim.0 This 

 

0

Of course, the district court had jurisdiction over the judgment 

and could have entertained enforcement proceedings for its 

collection. Thus, we deal with W.W.'s pleadings, not those of 

the RTC. 

0

The petition itself is broken into three sections. Section I is 

headed: 
23 

procedure is consistent with that which we followed in National 

Union, 28 F.3d at 383-95, where we separately considered whether 

FIRREA barred affirmative defenses and declaratory judgment 

actions even when both were based on the same legal grounds. We 

find that the defenses offered in the petition to open judgment 

are not subject to FIRREA's statutory bar, but that the 

counterclaim in the petition is jurisdictionally barred by 

FIRREA. 

A. The defenses

 We first consider the defenses to the confessed 

judgment included in the petition to open the judgment. In 

deciding whether or not FIRREA bars jurisdiction over this part 

of the petition, we are guided by the Supreme Court's recent 

holding in O'Melveny & Myers v. FDIC, 114 S.Ct. 2048 (1994), 

which explained that "matters left unaddressed" in FIRREA "are 

 

As a Result of Bell's Breach of Contract and 

Other Wrongful Conduct, Petitioner has 

Numerous Bona Fide, Good Faith Defenses to 

Bell's Claims, Thereby Warranting the Opening 

of the Subject Judgment by Confession. 

W.W.'s App. 54. 

Section II is headed: 

Defendant has Incurred Substantial Damages as 

a Direct Result of Plaintiff's Breach of 

Contract, Thereby Entitling it to Assert a 

Counterclaim in this Action. 

Id. at 57-59. 

Section III requests an order staying the execution of the 

confessed judgment. Id. at 59-60. 
24 

presumably left subject to the disposition provided by state 

law." Id. at 2054. We thus consider how the petition would be 

viewed under Pennsylvania law. 

 In Pennsylvania, a petition to open a judgment is 

integral to the process of determining the debtor's and 

creditor's rights.0 See Davis v. Woxall Hotel, Inc., 577 A.2d 

 

0

Pa. R. Civ. P. 2959 governs the procedure on a petition to open 

a judgment. While W.W. characterized its petition as a motion, 

inasmuch as that section refers to a petition, we have called the 

pleading a petition. The rule reads: 

Rule 2959. Striking Off or Opening Judgment; 

Pleadings; Procedure 

(a) Relief from a judgment by confession 

shall be sought by petition. All grounds for 

relief, whether to strike off the judgment or 

to open it, must be asserted in a single 

petition. The petition may be filed in the 

county in which the judgment was originally 

entered, in any county to which the judgment 

has been transferred or in any other county 

in which the sheriff has received a writ of 

execution directed to him to enforce the 

judgment. 

(b) If the petition states prima facie 

grounds for relief the court shall issue a 

rule to show cause and may grant a stay of 

proceedings. After being served with a copy 

of the petition the plaintiff shall file an 

answer on or before the return day of the 

rule. The return day of the rule shall be 

fixed by the court by local rule or special 

order. 

(c) A party waives all defenses and 

objections which he does not include in his 

petition or answer. 

(d) The petition and the rule to show cause 

and the answer shall be served as provided in 

Rule 440. 
25 

636, 638 (Pa. Super. Ct. 1990) ("[A] challenge to the accuracy of 

such amounts should be resolved by a petition to open the 

judgment."). Passed as part of the same chapter as the provision 

governing a confession of judgment, a petition to open a judgment 

is the sole means by which the defendant in a confession of 

judgment action can assert a defense. If the party against whom 

judgment is confessed pleads prima facie grounds for relief, the 

court must open the judgment, and "may grant a stay of 

proceedings." Pa. R. Civ. P. 2959(b). The use of the word 

"proceedings" suggests that the petition should be understood as 

part of the same action as the underlying confession of judgment. 

This interpretation is strengthened by the Pennsylvania Superior 

Court's discussion: 

A petition to strike and a petition to open 

are two forms of relief with separate 

remedies; each is intended to relieve a 

different type of defect in the confession of 

judgment proceedings. . . . [A] petition to 

open the judgment offers to show that the 

defendant can prove a defense to all or part 

of the plaintiff's claim. 

 

(e) The court shall dispose of the rule on 

petition and answer, and on any testimony, 

depositions, admissions and other evidence. 

The court for cause shown may stay 

proceedings on the petition insofar as it 

seeks to open the judgment pending 

disposition of the application to strike off 

the judgment. If evidence is produced which 

in a jury trial would require the issues to 

be submitted to the jury the court shall open 

the judgment. 

(f) The lien of the judgment or of any levy 

or attachment shall be preserved while the 

proceedings to strike off or open the 

judgment are pending. 
26 

Manor Bldg. Corp. v. Manor Complex Assocs., LTD., 645 A.2d 843, 

845 n.2 (Pa. Super. Ct. 1994) (emphasis added). The court's 

reference to the petition to open as "a defense" in "confession 

of judgment proceedings" indicates that a defense to liability in 

a petition to open is part of an overall confession of judgment 

procedure and not an independent action. 

 Moreover, the Pennsylvania courts have noted the 

importance of a petition to open a judgment in satisfying due 

process in the confession of judgment procedure. North Penn 

Consumer Discount Co. v. Shultz, 378 A.2d 1275, 1277-78 (Pa. 

Super. Ct. 1977).0 We find, therefore, that the defenses alleged 

in the petition to open judgment are part of a pre-receivership 

action and thus under sections 1821(d)(5)(F)(ii) and 

1821(d)(13)(D) the district court may entertain them without 

regard for the jurisdictional bar in the latter section. 

 In reaching our result, we also point out that section 

1821(d)(13)(D) bars jurisdiction only over "any claim or action 

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

with respect to, the assets of any depository institution for 

 

0

We note that the Pennsylvania confession of judgment procedure 

has raised serious due process issues in the past. See Jordan v. 

Fox, Rothschild, O'Brian & Frankel, 20 F.3d 1250 (3d Cir. 1994). 

The existence of the opportunity to present a defense provided by 

the petition to open judgment may well be crucial to the 

constitutionality of the procedure. See Girard Trust Bank v. 

Martin, 557 F.2d 386 (3d Cir.), cert. denied, 434 U.S. 985, 98 

S.Ct. 612 (1977) (construing D.H. Overmyer Co. v. Frick Corp., 

405 U.S. 174, 92 S.Ct. 775 (1972), to seem to require that "there 

be some procedure by which debtor against whom judgment is 

confessed may test the validity of the judgment against him"). 

These concerns also support construing a petition to open 

judgment as part of the same action as a confession of judgment. 
27 

which the Corporation has been appointed receiver." Id.

(emphasis added). We regard the defenses offered by W.W. in the 

petition to open judgment as pertaining to its assets, not those 

of Bell, because a judgment has value only insofar as it can be 

the basis for a recovery from a debtor's assets. 

 Finally, on this point we observe that at oral argument 

counsel for the RTC acknowledged that if a thrift filed an action 

before the Office of Thrift Supervision instituted proceedings to 

take it over under FIRREA, a defendant in that case after the 

initiation of the FIRREA proceedings could assert defenses 

without exhausting administrative procedures, so long as it did 

not seek affirmative relief. In view of our conclusions 

regarding the nature of a petition to reopen under Pennsylvania 

law, this concession essentially means that the RTC agrees that 

W.W. should be able to assert its defenses in the removed case. 

B. The counterclaim

 The counterclaim for damages included in the petition 

to open stands on a different footing. Unless a claimant 

exhausts the statutory claim procedure, FIRREA divests courts of 

jurisdiction over "any claim or action for payment from, or any 

action seeking a determination of rights with respect to, the 

assets of any depository institution for which the Corporation 

has been appointed receiver . . . ." Section 1821(d)(13)(D). 

While defenses to Bell's confession of judgment action pertain to 

the assets of W.W., the counterclaim clearly asserts a claim over 

Bell's assets. "[I]f in addition to raising defenses or 

affirmative defenses to an action or a claim, a party also raises 
28 

counterclaims, such counterclaims would fall under section 

1821(D)(13)(D)'s jurisdictional bar." National Union, 28 F.3d at 

394. We must decide, then, whether a counterclaim should escape 

section 1821(d)(13)(D)'s jurisdictional bar because it should be 

regarded as a continuation of a pre-receivership lawsuit under 

section 1821(d)(5)(F)(ii). 

 Congress's express purpose in creating the claims 

determination procedure embodied in FIRREA was to: 

[E]nable[] the FDIC to dispose of the bulk of 

claims against failed financial institutions 

expeditiously and fairly. The exhaustion 

requirements should lead to a large number of 

claims being resolved without resort to 

further procedures. . . . Thus, the claim 

resolution process established in this 

section should allow the FDIC to quickly 

resolve many of the claims against failed 

financial institutions without unduly 

burdening the District Courts. 

H.R. Rep. No. 101-54(I) at 419. The counterclaim brought by 

W.W., in contrast to its defenses to the confessed judgment, is a 

"claim[] against [a] failed financial institution," precisely the 

kind of post-receivership claim that Congress wanted resolved 

"expeditiously and fairly," through the administrative claims 

process. A holding that a counterclaim is not barred would 

permit a litigant, as the district court observed, to "convert 

its claim to a pre-receivership claim merely by making it a part 

of litigation which predates the receiver's takeover." W.W.'s 

App. 38. This procedure would enable a claimant in a pending 

pre-receivership action effectively to evade FIRREA's strictures 

and thereby subvert Congress's express purpose to "allow the FDIC 
29 

to quickly resolve many of the claims without unduly burdening 

the district courts." H.R. Rep. No. 101-54(I) at 419. 

Consequently, we find that a post-receivership counterclaim is 

subject to section 1821(d)(13)(D)'s jurisdictional bar, at least 

if, as here, the counterclaim is asserted as a basis for relief 

beyond defeating the complaint.0

 As a result, the Philadelphia Court of Common Pleas 

lacked jurisdiction over the counterclaim when it was filed, 

because it was filed after RTC's appointment as receiver of Bell. 

Consequently, the district court never possessed subject matter 

jurisdiction over W.W.'s counterclaim, and properly dismissed 

this part of the removed action. 

III. CONCLUSION

 We find that the district court properly granted 

summary judgment to the RTC in the federal case, No. 93-4210, as 

the court lacked subject matter jurisdiction over it. The 

district court erred, however, in entirely denying the petition 

to open judgment in the removed case, No. 91-3788. Accordingly, 

we will affirm the district court's summary judgment in favor of 

the RTC No. 93-4210 and will affirm the district court's denial 

of the petition to open judgment in No. 91-3788 with respect to 

the counterclaim raised in the petition. We will vacate the 

district court's denial of the petition to open judgment in No. 

 

0

We observe that interpreting FIRREA to preclude jurisdiction 

over a post-receivership counterclaim raises none of the due 

process concerns raised by interpreting FIRREA to prevent W.W. 

from raising a defense to a judgment confessed against it. 
30 

91-3788 with respect to the defenses to the confessed judgment 

raised in W.W.'s petition, and will remand the case to the 

district court for proceedings consistent with this opinion. 

Thus, we will affirm in part and will vacate in part the district 

court's orders of November 17, 1994, and February 29, 1995. On 

the remand, the district court should consider the petition to 

open judgment without regard for the FIRREA jurisdictional bar, 

but only insofar as W.W. seeks to assert defenses to the 

complaint. Of course, we express no opinion on whether the court 

should grant W.W. relief on its petition as we limit our opinion 

to the jurisdictional issues. The parties will bear their own 

costs on this appeal. 

 
31 
32