ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 91-04159)
Before: Becker, Hutchinson, and Alito, Circuit Judges
This case presents the question whether a claimant who fails to file a claim with the Resolution Trust Corporation (RTC) within the period specified in the RTC's notice to creditors under 12 U.S.C. § 1821(d)(3)(B)(i) may nevertheless obtain review of the merits of that claim by filing suit in district court under 12 U.S.C. § 1821(d)(6)(A). We hold that such review is expressly barred by 12 U.S.C. § 1821(d)(5)(C)(i), and therefore we affirm the order of the district court dismissing the complaint in this case, which sought such review.
In March 1990, the Resolution Trust Corporation was appointed as receiver for Horizon Financial F.A. According to an undisputed representation in the RTC's papers, the RTC, on May 31, 1990, published legal notice to creditors advising that claims had to be presented within 90 days, i.e., by August 28, 1990. On November 9, 1990, Kerry W. Althouse executed a proof of claim in which he alleged that Horizon had misrepresented or had wrongfully failed to disclose material facts relating to its sale to him of condominium units. The RTC disallowed the entire claim because it was "dated . . . beyond the statutory time frame."
Althouse then commenced this action in district court. The RTC moved to dismiss, arguing, among other things, that the court lacked jurisdiction under 12 U.S.C. § 1821(d) because Althouse had not filed a timely claim. In his response, Althouse acknowledged that he had filed a claim with the RTC on November 9, 1990, and that the claim had been disallowed as untimely, but he argued that he was nevertheless entitled to de novo review of the merits of his claim in district court.
The district court granted the motion to dismiss. The court wrote that Althouse did not "challenge the correctness or appropriateness of the determination that he had not timely filed his administrative claim, thereby conceding that issue." The court rejected Althouse's argument that he was entitled to de novo district court review even though he had not filed a timely administrative claim, stating that: "to accept plaintiff's argument in this matter would be to relegate the requirement of exhaustion of administrative remedies to a mere pro forma step on the path to district court determination of all claims against Resolution Trust Corporation." Althouse appealed.
We believe that the clear terms of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA"), Pub. L. No. 101-73, 103 Stat. 183 (1989), barred district court jurisdiction in this case. When the RTC is appointed as receiver of a failed thrift institution, the RTC must promptly publish a notice to the institution's creditors to present their claims and proof by a specified date, which may not be less than 90 days after publication. 12 U.S.C. § 1821(d)(3)(B)(i). The RTC must republish this notice twice; the first republication must occur approximately one month after the initial notice, and the second must occur approximately two months after the initial notice. 12 U.S.C. § 1821(d)(3)(B)(ii). In addition, the RTC must mail a similar notice to any creditor shown on the institution's books. 12 U.S.C. § 1821(d)(3)(C). In this case, Althouse does not challenge the adequacy of the notice provided by the RTC.
If a claimant fails to present a claim to the RTC within the time specified in the notice to creditors, the Act states that, with one exception, the claim "shall be disallowed and such disallowance shall be final." 12 U.S.C. § 1821(d)(5)(C)(i). The exception applies to a claimant who does not received notice of the appointment of the receiver in time to file a timely claim but who files a claim in time to permit payment. 12 U.S.C. § 1821(d)(5)(C)(ii).
By contrast, if a timely claim, together with proof, is submitted, the RTC must determine within 180 days whether to allow or disallow the claim and must notify the claimant. 12 U.S.C. § 1821(d)(5)(A)(i). If a claim is disallowed or if the RTC fails to make a determination within the 180 day period, the claimant is permitted 60 days within which to seek administrative review or to file suit on the claim in district court. 12 U.S.C. § 1821(d)(6)(A).
Under this scheme, it is plain that if a claimant receives notice but fails to file a timely claim with the RTC, the claim may not be pursued either before the RTC or the courts. The language of 12 U.S.C. § 1821(d)(5)(C)(i) is clear and, with the one exception cited above, absolute: the claim "shall be disallowed and the disallowance shall be final."
Althouse contends, however, that he was entitled to sue on his claim in district court under 12 U.S.C. § 1821(d)(6), which, as previously noted, permits a claimant to file suit on a claim within 60 days after its disallowance by the RTC. Althouse notes that this provision "makes no mention of a reason for disallowance of the administrative claim by the RTC" (Appellant's Brief at 11), and he therefore ...