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National Credit Union Administration Board v. JPMorgan Chase Bank, N.A.

United States District Court, Tenth Circuit

September 3, 2013

JPMORGAN CHASE BANK, N.A., as Successor-in-Interest to Washington Mutual Bank, WaMu Capital Corp., Long Beach Securities Corp., and WaMu Asset Acceptance Corp.; WAMU CAPITAL CORP.; LONG BEACH SECURITIES CORP.; and WAMU ASSET ACCEPTANCE CORP., Defendants.


JOHN W. LUNGSTRUM, United States District Judge.

This matter is presently before the Court on defendants’ motion to dismiss (Doc. # 19). The Court concludes that certain of plaintiff’s claims are time-barred. Accordingly, the motion is granted in part and denied in part, as set forth more specifically herein.

I. Background

Plaintiff National Credit Union Administration Board brings this suit as conservator and liquidating agent of the following three credit unions: U.S. Central Federal Credit Union (“U.S. Central”), Western Corporate Federal Credit Union (“WesCorp”), and Southwest Corporate Federal Credit Union (“Southwest”). The suit relates to 49 different residential mortgage-backed securities (“RMBS” or “certificates”), each purchased by one of the credit unions between March 2006 and June 2007. By the present suit, filed on January 14, 2013, plaintiff brings claims under the federal Securities Act of 1933 and under California, Kansas, and Texas statutes, based on alleged untrue statements or omissions of material facts relating to each RMBS. Defendant WaMu Capital Corp. was the underwriter or seller for the certificates, while defendants Long Beach Securities Corp. and WaMu Asset Acceptance Corp. issued the certificates. Plaintiff has also brought its claims against defendant JPMorgan Chase Bank, N.A. (“JPMC”) as successor-in-interest to those defendants and as successor-in-interest to non-party Washington Mutual Bank (“WaMu Bank”), which plaintiff alleges became liable to the credit unions as a “control person” under the Securities Act. Defendants have moved to dismiss all claims.

Plaintiff has brought eight other similar suits, involving different certificates, in this district, which cases have been re-assigned to the undersigned judge. In one of those actions, Case No. 12-2648, by Memorandum and Order dated April 8, 2013, the Court granted in part and denied in part the motion to dismiss filed by the Credit Suisse defendants (“Credit Suisse”). See National Credit Union Admin. Bd. v. Credit Suisse Sec. (USA) LLC, ___ F.Supp.2d ___, 2013 WL 1411769 (D. Kan. Apr. 8, 2013) (“Credit Suisse”). In that opinion, the Court held as follows: (1) Credit Suisse did not show that the Court lacked venue over plaintiff’s claims asserted on behalf of credit unions WesCorp and Southwest; (2) plaintiff’s claims were not untimely as a matter of law with respect to the applicable one- and two-year discovery limitations periods; (3) the so-called Extender Statute, 12 U.S.C. § 1787(b)(14), which provides the limitations period for claims brought by plaintiff as conservator or liquidator, applies to federal and statutory claims; (4) the Extender Statute displaces both limitations periods in the otherwise-applicable federal (Section 13, 15 U.S.C. § 77m) and state statutes; (5) plaintiff’s three-year limitations period under the Extender Statute was triggered by plaintiff’s appointment as conservator for a credit union, not by its later appointment as liquidator; (6) the Extender Statute’s three-year limitations period may not be extended by a tolling agreement; (7) plaintiff’s assertion of American Pipe tolling with respect to its federal claims based on some certificates did not fail as a matter of law at this stage; and (8) plaintiff’s substantive allegations were sufficient to state plausible and cognizable claims against Credit Suisse. In some of its rulings, the Court followed the reasoning of Judge Rogers in ruling on a motion to dismiss in another of these nine similar cases (before the case was reassigned). See Id . (citing National Credit Union Admin. Bd. v. RBS Sec., Inc., 900 F.Supp.2d 1222 (D. Kan. 2012) (“RBS”)). Last week, in an interlocutory appeal in RBS, the Tenth Circuit affirmed Judge Rogers with respect to two of the issues listed above, holding that the Extender Statute does apply to federal and statutory claims and does displace Section 13’s three-year limitations period. See National Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., ___ F.3d ___, 2013 WL 4516997 (10th Cir. Aug. 27, 2013).

After issuing its opinion in Credit Suisse, the Court invited the parties in seven of the other similar cases (one case had not yet been filed) to submit briefs addressing (a) the application of the Court’s rulings in Credit Suisse to the motions to dismiss filed by the defendants in those cases and (b) the specific issue of the enforceability of plaintiff’s tolling agreements.

II. Analysis

A. Exhaustion of Claims Against JPMC

In the initial briefing on defendants’ motion to dismiss, defendant JPMC moved to dismiss all claims against it as successor-in-interest to WaMu Bank and the other defendants on the basis that plaintiff did not exhaust its administrative remedies by filing its claims with the Federal Deposit Insurance Corporation (“FDIC”) pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), 12 U.S.C. § 1821(d)(3)-(13). JPMC again asserted this basis for dismissal in defendants’ supplemental briefs.

In its complaint, plaintiff has alleged as follows: On September 25, 2008, the United States Office of Thrift Supervision (“OTS”) closed WaMu Bank and named the FDIC as receiver. Subsequently, the FDIC entered into a Purchase and Assumption Agreement (“the PAA”) with JPMC, under which JPMC agreed to purchase substantially all of WaMu Bank’s assets (including its subsidiaries, which included the other defendants) and to assume substantially all of WaMu Bank’s liabilities, including liability for the claims asserted in this case.[1]

FIRREA establishes administrative procedures for bringing claims against institutions for which the FDIC is acting as receiver. If the FDIC disallows a claim, the claimant may pursue an administrative appeal or commence a lawsuit; if the claimant does neither, “such disallowance shall be final, and the claimant shall have no further rights or remedies with respect to such claim.” See Id . § 1821(d)(6)(B). Subject to that exception, FIRREA deprives courts of jurisdiction over the following:

(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 [FDIC] 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 ...

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