The opinion of the court was delivered by: HARVEY BARTLE, III
This case arises out of the alleged failure of a savings bank, presently in Resolution Trust Corporation ("RTC") receivership, to honor a loan commitment. Currently before the court are RTC's motions to dismiss the case for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) or to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiff, Spring Garden Associates, L.P. ("Spring Garden") filed this action in the Court of Common Pleas of Montgomery County, Pennsylvania against Bell Savings Bank PA S.A. ("Bell") and several of its directors on November 19, 1990. According to the complaint, Bell advanced $ 5,000,000 of a $ 9,000,000 ("Loan") to enable Spring Garden to purchase the Packard Press Building in Philadelphia ("Property"). Spring Garden goes on to allege, however, that Bell wrongfully refused to advance the remaining funds needed for renovations. The complaint seeks rescission and damages or, in the alternative, preliminary and permanent injunctive relief to prohibit Bell from foreclosing on the Property. On November 20, 1990, the Court of Common Pleas entered a "Temporary Restraining Order"
prohibiting Bell from foreclosing.
Approximately four months after Spring Garden filed suit, the Office of Thrift Supervision ("OTS") appointed RTC as receiver of Bell pursuant to the Financial Institutions Reform and Recovery Act ("FIRREA"), 12 U.S.C. § 1821(d)(2)(A). RTC filed a Voluntary Substitution to become a party defendant in January of 1993 and removed the action to this court. Thereafter, RTC filed a motion to vacate the state court injunction, and Spring Garden filed a motion to remand. This court denied the motion to remand and vacated the injunction. The court of appeals recently affirmed. Spring Garden Associates, L.P. v. Resolution Trust Corp., 26 F.3d 412 (3d Cir. 1994).
RTC argues that this court lacks subject matter jurisdiction because plaintiff has not filed an administrative claim with the RTC. Spring Garden admittedly has not done so. The RTC contends that under 12 U.S.C. § 1821(d) a claim against a depository institution in receivership must first be filed with the RTC for allowance or disallowance before any court action may be instituted or continued.
RTC specifically points to § 1821(d)(13)(D) which states:
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 [RTC]
has been appointed receiver, including assets which [RTC] may acquire from itself as such receiver; or
(ii) any claim relating to any act or omission of such institution or [RTC] as receiver.
12 U.S.C. § 1821(d)(13)(D).
The RTC's position requiring dismissal for lack of jurisdiction is supported by case law from other circuits. In Resolution Trust Corp. v. Mustang Partners, 946 F.2d 103 (10th Cir. 1991) (per curiam), Mustang Partners filed suit against a savings association from which it had received a loan. The RTC subsequently became the receiver of the savings association. The court of appeals affirmed the district court's decision that Mustang Partners' pre-existing lawsuit did not excuse its failure to file an administrative claim. The court of appeals held that Mustang Partners lost its ability to pursue its claim in court because of its failure to file an administrative claim after the RTC was appointed receiver. 946 F.2d at 106. Likewise, the Court of Appeals for the First Circuit has held that "participation in the administrative claims review process [is] mandatory for all parties asserting claims against failed institutions, regardless of whether lawsuits to enforce those claims were initiated prior to the appointment of a receiver." Marquis v. Federal Deposit Insurance Corp., 965 F.2d 1148, 1151 (1st Cir. 1992). See also United Bank of Waco, N.A. v. First Republic Bank of Waco, N.A., 758 F. Supp. 1166, 1168 (W.D. Tex. 1991).
Despite the precedents noted above, this court is bound by the contrary decision of the Court of Appeals for the Third Circuit in Rosa v. Resolution Trust Corp., 938 F.2d 383 (3d Cir. 1991), cert. denied, 116 L. Ed. 2d 608, 112 S. Ct. 582 (1991); see also Resolution Trust Corp. v. Clarke, 812 F. Supp. 48 (E.D. Pa. 1992). In Rosa, the claimants began the lawsuit in federal court against a number of defendants, most of which were in RTC receivership. However, plaintiffs filed suit against one savings bank before RTC's appointment. The court of appeals upheld the district court's continued jurisdiction over the RTC as the successor to that savings bank without the necessity of an administrative proceeding. In doing so, the court stated, "the issue under the [jurisdictional] bar [of 12 U.S.C. § 1821(d)(13)(D)] is whether, at the time the case came before the district court, RTC had been appointed receiver ...." 938 F.2d at 392. While Rosa referred to "the time the case came before the district court," id. (emphasis added), it is clear from the context and from the court's further clarification in footnote 12 that it intended the phrase to be synonymous with "the time of the filing of the complaint." As the court explained, it is a "firmly established rule that subject matter jurisdiction is tested as of [that time]." Id., fn.12; see also St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 293, 82 L. Ed. 845, 58 S. Ct. 586 (1938). In sum, Rosa teaches that where a lawsuit was pending in any court against a savings bank before an RTC receivership, the jurisdictional bar of § 1821(d)(13)(D) does not apply. 938 F.2d at 393-94.
In this case, plaintiff filed suit against Bell in the state court some four months before RTC was appointed receiver of Bell. Consequently, Spring Garden need not present its claim administratively before pursuing its claims in this forum. RTC's motion to dismiss pursuant to ...