Plaintiff and appellant Gregory Saffer worked for Washington Mutual Bank (WaMu) between May 2007 and January 2008. In September 2008, WaMu failed. In short order, the Federal Deposit Insurance Corporation (FDIC) was appointed as receiver for the bank, and JP Morgan Chase Bank, N.A.
Saffer now appeals the order compelling binding arbitration and the order confirming the arbitration award. Saffer contends the arbitration agreement was unenforceable. He also argues the arbitrator's award should have been vacated because the arbitrator substantially prejudiced his rights by denying him discovery, and exceeded her powers by dismissing the case without a hearing on the merits. JPMC contends no court, including this court, has subject matter jurisdiction to entertain Saffer's claims, and his complaint should accordingly be dismissed.
We conclude Saffer's failure to timely comply with the mandatory administrative exhaustion requirements of FIRREA created a jurisdictional bar to his claims. For that reason we vacate the judgment and remand to the trial court with directions to enter an order of dismissal against Saffer for lack of subject matter jurisdiction.
Saffer began working for WaMu in late May 2007 as a mortgage loan consultant. At some point near the beginning of his employment, Saffer signed a "Binding Arbitration Agreement." In the agreement, Saffer and WaMu agreed "that arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to [his] employment."
In January 2008, Saffer's employment with WaMu ended.
On October 1 and October 31, 2008, the FDIC published notices in the Wall Street Journal informing creditors of WaMu that any claims against WaMu had to be submitted in writing to the FDIC by December 30, 2008, the "bar date." The notices warned: "Under federal law, with certain limited exceptions, failure to file such claims by the Bar Date will result in disallowance by the Receiver, the disallowance will be final, and further rights or remedies with regard to the claims will be barred. 12 U.S.C. Section 1821 (d)(5)(C)(d)(6)."
In June 2009, Saffer filed suit against WaMu, Chase Manhattan Bank, the former CEO of WaMu, and his former WaMu supervisor, Susan Wolf. Saffer asserted claims for wrongful termination in violation of public policy; breach of express and implied-in-fact contracts not to terminate employment without good cause; breach of the implied covenant of good faith and fair dealing; failure to pay wages in violation of the Labor Code and Industrial Welfare Commission wage orders; false representations and fraudulent inducement; and negligent hiring, retention, and supervision. The complaint alleged Saffer refused to engage in "fraudulent schemes aimed to defraud clients," WaMu and Chase Manhattan Bank constructively discharged him in retaliation, and all defendants negligently hired, retained, or supervised employees who illegally retaliated against him. The complaint further alleged WaMu and Chase Manhattan Bank breached an oral agreement not to terminate him except for good cause, and did not pay all wages due to him. The complaint asserted the defendants, including Wolf, knowingly made false representations to him about WaMu's financial position to induce him to accept employment with WaMu.
In July 2009, JPMC answered the complaint, identifying itself as "JP Morgan Chase Bank, N.A., as acquirer of certain assets and liabilities of Washington Mutual Bank from the FDIC acting as receiver." Wolf subsequently also answered the complaint.
In September 2012, Saffer filed a claim with the FDIC. He also opposed JPMC's motion to dismiss, arguing FIRREA was not applicable because he never received proper notice of the FDIC's receivership of WaMu. He further contended the time to file a claim with the FDIC should be equitably tolled.
In November 2012, the arbitrator concluded the court and the arbitrator lacked subject matter jurisdiction to hear Saffer's claims and dismissed the case. Saffer subsequently filed a motion to vacate the arbitration ruling in the superior court. Saffer contended his rights were substantially prejudiced by the arbitrator's refusal to allow discovery to determine whether the FDIC could have resolved his claims. He further argued the arbitrator should have waited until the FDIC issued a response to his claim. JPMC opposed the motion, arguing that neither the arbitrator nor the courts had jurisdiction to entertain Saffer's claims. However, instead of asserting the trial court should dismiss the action, JPMC contended there was no basis to vacate or review the arbitrator's award and it should be confirmed. In December 2012, the trial court confirmed the arbitrator's award. This appeal followed.
On appeal, Saffer contends the trial court erred in granting JPMC's petition to compel arbitration and subsequently in confirming the arbitration award.
Saffer's first argument is that the trial court erred in compelling him to arbitrate his claims. However, if indeed the courts of this state lack subject matter jurisdiction over Saffer's claims, any issues regarding arbitrability are moot; even if the arbitration agreement was unenforceable, the trial court would still lack the ability to adjudicate his claims. Thus, we independently consider JPMC's jurisdictional challenge.
Section 1821(d)(13)(D) 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 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." Thus, "[f]ailure to comply with the claims procedure bars any lawsuit against a failed depository institution." (Robbins v. Foothill Nissan (1994) 22 Cal.App.4th 1769, 1778 [28 Cal.Rptr.2d 190].)
It is undisputed that Saffer did not exhaust administrative remedies under FIRREA before filing suit. However, Saffer contends this failure is not fatal to his claims, or this appeal, for several reasons. He contends judicial action on his claims is not barred because exhaustion of administrative remedies does not implicate fundamental jurisdiction under California law. He thus asserts exhaustion was a procedural defense JPMC could, and did, waive. Saffer also argues he was not required to exhaust administrative remedies under FIRREA because (1) his claims — employment claims — were not susceptible of resolution by the FDIC; (2) he did not receive adequate notice of the claims bar date or the receivership; and (3) he was not required to exhaust as to JPMC or as to Wolf.
A threshold question is whether Saffer's failure to exhaust his administrative remedies under FIRREA calls into question the courts' subject matter jurisdiction over his claims. We conclude that it does.
As our colleagues in Division Seven explained in 2974 Properties: "The exhaustion of administrative remedies is mandatory when, as here, Congress imposes an exhaustion requirement by statute. [Citations.] [¶] Further, the relevant case law interpreting section 1821(d) confirms that completion of the claims process is a mandatory prerequisite to judicial review. [Citations.] [¶] ... `Congress expressly withdrew jurisdiction to resolve claims to a failed bank's assets from all courts, except as provided in 12 U.S.C., § 1821(d). [Citation.] ... [T]he administrative procedure exhaustion requirement of FIRREA is statutory, not judicial. [Citation.] We are therefore not at liberty to ignore the statutory command.' ... [Citation.] ... [U]nless a claimant has exhausted the administrative claims process, no court has jurisdiction to hear the claim." (2974 Properties, supra, 23 Cal.App.4th at pp. 878-880, original italics, fn. omitted.)
Likewise, numerous federal authorities conclude the failure to exhaust FIRREA administrative remedies prior to filing suit on a covered claim deprives courts of subject matter jurisdiction to consider the claim. (See, e.g., Acosta-Ramírez v. Banco Popular de Puerto Rico (1st Cir. 2013) 712 F.3d 14, 19; Aber-Shukofsky v. JPMorgan Chase & Co. (E.D.N.Y. 2010) 755 F.Supp.2d 441, 446 (Aber-Shukofsky) ["[T]he Second Circuit has consistently held that courts lack subject matter jurisdiction to hear a claim against a failed bank taken into receivership by the FDIC unless the plaintiff has exhausted the administrative claims process."]; Althouse v. Resolution Trust Corp. (3d Cir. 1992) 969 F.2d 1544, 1545-1546; Elmco Properties, Inc. v. Second National Federal Savings Assn. (4th Cir. 1996) 94 F.3d 914, 919 (Elmco); Farnik v. F.D.I.C. (7th Cir. 2013) 707 F.3d 717, 721-722 (Farnik); Bueford v. Resolution Trust Corp. (8th Cir. 1993) 991 F.2d 481, 484; Intercontinental, supra, 45 F.3d at p. 1278; Damiano v. F.D.I.C. (11th Cir. 1997) 104 F.3d 328, 333; Freeman v. F.D.I.C. (D.C. Cir. 1995) 312 U.S. App.D.C. 324 [56 F.3d 1394, 1399-1400].)
Despite section 1821(d)(13)(D) and the many authorities interpreting it, Saffer contends that under California law, a failure to exhaust administrative remedies does not deprive the court of subject matter jurisdiction and the defense can be waived. We disagree.
However, these cases concerned administrative exhaustion schemes that were neither mandatory nor part of a statute that explicitly stripped courts of jurisdiction in the absence of compliance with the relevant exhaustion requirements. For example, in Green, the plaintiff was terminated from employment with the City of Oceanside. An agreement between the city and an employee association to which the plaintiff belonged provided an internal grievance procedure, including various administrative appeals. The plaintiff did not challenge his termination through the employees' grievance procedure but filed suit in the superior court. The court found the internal grievance procedure was simply a "`procedural prerequisite,'" creating only a "potential procedural defense" that could be waived. (Green, supra, 194 Cal.App.3d at pp. 222-223.)
Similarly, in Mokler, a county employee was terminated; internal grievance procedures were available to her to challenge the termination. (Mokler, supra, 157 Cal.App.4th at p. 131.) The grievance procedures expressly provided that they were subject to waiver by mutual consent. (Id. at p. 136.) The county did not raise the employee's failure to exhaust administrative remedies until after a full trial on the merits; the court concluded the defense was waived. (Ibid.) Likewise, in Cummings, the relevant statute provided an elector "may" seek a writ of mandate prior to an election to challenge the eligibility of candidates on an election ballot. (Cummings, supra, 177 Cal.App.4th at p. 505.) The
This is consistent with the purpose of the statute. As explained in 2974 Properties, "In FIRREA, Congress enacted a comprehensive and mandatory statutory scheme to enable the RTC [(the predecessor to the FDIC)], when acting as receiver for a failed financial institution, to carry out its fundamental functions of conserving and preserving the assets of the failed institution, and ultimately making pro rata distributions of those assets to the creditors of the institutions.... [¶] ... The administrative claims process ... provides a centralized mechanism for consideration and resolution of the bulk of claims against insolvent thrifts without the delay and expense of litigation, by requiring that all claims be submitted to the receiver within a finite time period, and by allowing the receiver the initial opportunity to review and resolve the claims." (2974 Properties, supra, 23 Cal.App.4th at pp. 876-877, fns. omitted.)
Moreover, the California Supreme Court's analysis in Lara, supra, 48 Cal.4th 216, supports the conclusion that the FIRREA administrative exhaustion requirements implicate subject matter jurisdiction. The court explained: "A lack of jurisdiction in its fundamental or strict sense results in `"an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." [Citation.] On the other hand, a court may have jurisdiction in the strict sense but nevertheless lack "`jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites." [Citation.] When a court fails to conduct itself in the manner prescribed, it is said to have acted in excess of jurisdiction.' [Citations.] [¶] ... [¶] Whether the failure to follow a statute makes subsequent action void or merely voidable `"has been characterized as a question of whether the statute should be
As noted above, not only does FIRREA's language indicate courts have no jurisdiction unless the claims process is first followed, federal courts interpreting FIRREA's administrative exhaustion requirements have consistently interpreted the procedures as creating a mandatory precondition to litigation, and as depriving courts of subject matter jurisdiction if the claims procedures are not first followed. (In addition to cases cited above see Tellado v. IndyMac Mortgage Services (3d Cir. 2013) 707 F.3d 275, Benson, supra, 673 F.3d at p. 1215, Brady, supra, 14 F.3d at pp. 1003, 1006-1007, Interface Kanner, LLC v. JPMorgan Chase Bank (11th Cir. 2013) 704 F.3d 927, 934.) Several state courts, including courts of this state, have come to the same conclusion. (See, e.g., 2974 Properties, supra, 23 Cal.App.4th at pp. 879-880; Neman, supra, 173 Cal.App.4th at p. 651; Thomas v. FDIC (Colo. 2011) 255 P.3d 1073, 1080-1082; Schettler v. RalRon Capital Corp. (Nev. 2012) 275 P.3d 933, 934, 938; McLaughlin v. F.D.I.C. (1993) 415 Mass. 235 [612 N.E.2d 671, 673] [failure to timely file exhaustion with FDIC fatal to appeal]; Jinadu v. CenTrust Mortgage Corp. (Minn.Ct.App. 1994) 517 N.W.2d 84, 87-88; Bobick v. Community & Southern Bank (2013) 321 Ga.App. 855 [743 S.E.2d 518, 527-529].)
We agree with the many other courts that have concluded a failure to exhaust FIRREA administrative remedies creates a jurisdictional bar and implicates a question of subject matter jurisdiction. The reasoning of Green and its progeny is not applicable, given FIRREA's specific mandates.
Saffer argues he was not required to exhaust administrative remedies under FIRREA before filing his claims. We find his contentions unavailing.
Saffer contends he was not required to file a claim with the FDIC because his claims were not susceptible of resolution through the claims procedure. We disagree. Saffer's contention refers to a phrase employed by some courts to explain that FIRREA "bars judicial review of any non-exhausted claim, monetary or nonmonetary, which is `susceptible of resolution through the claims procedure.' [Citation.]" (Henderson v. Bank of New England (9th Cir. 1993) 986 F.2d 319, 321, quoting Rosa, supra, 938 F.2d at p. 394.) In Rosa, the court concluded the plaintiffs' claims seeking nonmonetary injunctive relief that would bar retroactive termination of an ERISA plan were not susceptible of resolution through the claims procedure. As a result, the claims were not subject to the jurisdictional bar.
However, the Rosa court's conclusion of "nonsusceptibility" was not due to a finding that the FDIC lacked the necessary substantive expertise in ERISA to review the claims. Instead, the court determined section 1821(d)(13)(D)(i) addressed claims looking directly to payments from assets, or in some respect determining rights with respect to assets, and did not encompass purely injunctive claims relating to retroactive termination of an ERISA plan. (Rosa, supra, 938 F.2d at p. 394.) The court also concluded the claims procedure gave the Resolution Trust Corporation (RTC) the authority to allow or disallow claims, and pay creditor claims, but the court was "at a loss to understand how RTC would `determine,' or `allow' or `disallow,' a claim seeking an order barring retroactive termination of the plan, or how it would `pay' such a claim if allowed." (Id. at pp. 394-395.) The court thus found the claims for injunctive relief did not require exhaustion.
Unlike the Rosa plaintiffs' claims, Saffer's claims were monetary, and exclusively concerned the prereceivership acts of the failed bank, WaMu. Courts have concluded that claims of varying subject matters required FIRREA exhaustion, including employment-related claims, so long as they were claims relating to the acts or omissions of a failed depository institution
In Aber-Shukofsky, the district court dismissed the plaintiffs' claims that WaMu violated the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.; FLSA), as well as state wage and labor laws. The plaintiffs were former WaMu employees suing JPMC for alleged overtime wage violations by WaMu. The plaintiffs failed to exhaust FIRREA administrative remedies before filing suit, thus the court dismissed the action for lack of subject matter jurisdiction. (Aber-Shukofsky, supra, 755 F.Supp.2d at pp. 443, 446.) The court rejected arguments that FLSA "trumped" FIRREA, as well as the argument that a plaintiff need not exhaust administrative remedies because he or she has reason to believe the FDIC will disallow the claim. (Aber-Shukofsky, at p. 451.) (See McMillian v. FDIC (11th Cir. 1996) 81 F.3d 1041, 1044-1045 [requiring exhaustion of WARN (Worker Adjustment and Retraining Notification Act; 29 U.S.C. § 2101 et seq.) act claim; severance pay claim was filed with the FDIC and disallowed; received judicial review]; Ladd v. Second National Bank (N.D. Ohio 1996) 941 F.Supp. 87, 89-90 [failure to exhaust FIRREA administrative remedies created a jurisdictional bar requiring dismissal of plaintiff's claims that the FDIC, as receiver, violated the Family and Medical Leave Act of 1993 (5 U.S.C. § 6381 et seq.; 29 U.S.C. § 2601 et seq.) in connection with her termination]; Jinadu v.
We reject the argument that Saffer was not required to exhaust his administrative remedies because his claims were not susceptible of resolution through the process, due to their subject matter. Saffer's claims concerned the acts or omissions of a depository institution for which the FDIC was appointed receiver, and he sought a monetary recovery. His claims were well within the realm of section 1821(d)(13)(D). (See Benson, supra, 673 F.3d at p. 1213 [rejecting nonsusceptibility argument; plaintiffs offered no reason to believe FIRREA exhaustion would have been futile had claims been timely submitted].)
In Benson, the court noted section 1821(d)(13)(D)(ii) "distinguishes claims on their factual bases rather than on the identity of the defendant: It asks whether claims `relate to any act or omission' of a failed institution or the
Here, all of Saffer's claims challenge the actions or omissions of the failed bank, WaMu. The complaint contains no allegations that involve actions taken by any party after the receivership or the sale of WaMu's assets. Instead, Saffer seeks legal recourse for the conduct of WaMu and WaMu agents, before the FDIC was appointed receiver, and before JPMC purchased WaMu assets. There are no allegations based on JPMC's own conduct, nor could there be given the time period relevant to Saffer's claims. These are squarely the kinds of claims that must first be presented to the FDIC under section 1821(d)(13)(D)(ii). (Tellado v. IndyMac Mortgage Services, supra, 707 F.3d at pp. 280-281 [claim that was wholly dependent on failed bank's wrongdoing was subject to FIRREA exhaustion requirements].)
We also find instructive the reasoning of the Aber-Shukofsky court in its determination that the plaintiffs before it were required to exhaust claims asserted against JPMC. In that case, only WaMu was alleged to have violated state wage and hour laws during the plaintiffs' employment with WaMu, "well before WaMu's failure and seizure on September 25, 2008, the FDIC's appointment as receiver, and WaMu's acquisition by defendants." (Aber-Shukofsky, supra, 775 F.Supp.2d at p. 446.) The court explained: "Section 1821(d)(13)(D)(ii) refers to `any claim relating to any act or omission' of a failed institution and does not make its application contingent upon whom the claim is against. (emphasis added). Thus, the statutory provision, by its plain language, applies with equal force to a successor in interest to the failed institution. In short, given the plain language of FIRREA, the Court finds that plaintiffs cannot evade FIRREA's mandatory exhaustion requirement simply by asserting claims against defendants, as third-party purchasers of the failed bank's assets, for acts or omissions that relate to WaMu." (Aber-Shukofsky, supra, 755 F.Supp.2d at p. 447; see Westberg, supra, 926 F.Supp.2d at p. 67.)
Saffer additionally contends there is a possibility JPMC contractually assumed liability for claims such as his, but he was unable to determine whether this was the case without discovery, which the arbitrator improperly denied. He acknowledges a "version" of the purchase and assumption agreement between the FDIC and JPMC is available on the FDIC Web site, and
Several courts have rejected similar arguments regarding successor institutions. For example, in Benson, the plaintiffs argued WaMu knowingly provided banking services that facilitated a Ponzi scheme, and JPMC was liable "because it assumed WaMu's liabilities pursuant to a purchase and assumption agreement with the FDIC." (Benson, supra, 673 F.3d at p. 1215.) The court rejected this argument: "By relying on WaMu's alleged wrongdoing, plaintiffs' claims plainly `relat[e] to any act or omission' of `a depository institution for which the [FDIC] has been appointed receiver.' § 1821(d)(13)(D). And because plaintiffs did not exhaust administrative remedies, their claims are jurisdictionally barred by FIRREA." (Ibid.) Similarly, in Aber-Shukofsky, the plaintiffs argued they were excused from the exhaustion requirements because JPMC "accepted certain assets and liabilities as WaMu's successors in interest," and FIRREA was intended to protect the FDIC, which was no longer operating as WaMu's receiver. (Aber-Shukofsky, supra, 755 F.Supp.2d at p. 446.) The court rejected this argument, concluding section 1821(d)(13)(D)(ii) referred to any claim relating to any act or omission of a failed institution, the plaintiff's FLSA claims related solely to WaMu's acts or omissions, and the provision applied with equal force to a successor in interest to a failed institution. (Aber-Shukofsky, supra, at p. 447.) We find the above described reasoning persuasive.
Saffer additionally argues he was excused from following FIRREA's claim process because he failed to receive adequate notice of the receivership, or the bar date, as a creditor of WaMu. We again disagree.
Moreover, we agree with the numerous courts concluding that even if the receiver fails to mail the required notice of the claims process and bar date, a plaintiff is not excused from exhausting administrative remedies. (Elmco, supra, 94 F.3d at p. 920; Intercontinental, supra, 45 F.3d at pp. 1285-1286; Freeman v. F.D.I.C., supra, 56 F.3d at p. 1402, Meliezer v. Resolution Trust
Here, the FDIC published notice in the Wall Street Journal, a national publication, on at least two occasions at the beginning and end of October 2008. Saffer's claims accrued no later than January 2008, when he resigned from WaMu. He did not file his complaint until 2009, well after the failure of WaMu, the appointment of a receiver, and the passing of the bar date. This case is thus similar to Tillman v. Resolution Trust Corp. (4th Cir. 1994) 37 F.3d 1032 (Tillman), which the Elmco court described: "[T]he claimant in Tillman was not one that the RTC discovered before its bar date. In fact, Tillman did not assert his claim against the failed bank until 30 months after that bank entered receivership. [Citation.] Also, his claim was not based on a standard creditor-debtor arrangement, but on an alleged contract under which the bank had promised to reimburse him for expenses he incurred in the course of unrelated litigation. As a result, Tillman's interest appears not to have been known to RTC or to have been of a type that RTC should be required to discover on its own, and thus he fell within a class of claimants for whom notification by publication is sufficient." (Elmco, supra, 94 F.3d at p. 921.)
The Elmco court found the Tillman approach consistent with Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 317 [94 L.Ed. 865, 70 S.Ct. 652], in which the Supreme Court explained notice by publication is sufficient for those whose interests are contingent, future, or not likely to come to a trustee's attention in the normal course of business. This is in contrast to those "with an identified, present property interest whose address is known or reasonably ascertainable .... As to such parties, mere constructive notice by publication is insufficient. Mullane, 339 U.S. at [p.] 318." (Elmco, supra, 94 F.3d at p. 921, citations omitted.)
Saffer had sufficient inquiry notice of the receivership. As a result, lack of notice did not excuse him from exhausting his administrative remedies under
Similarly, to the extent Saffer contends his claim filed in September 2012 was sufficient to satisfy the FIRREA exhaustion requirements, we disagree. In Wujick v. Dale & Dale, Inc. (3d Cir. 1994) 43 F.3d 790, the court of appeals rejected the very arguments Saffer makes here. In Wujick, the plaintiffs filed suit in Pennsylvania state court against a failed depository institution. After filing their suit, they submitted an administrative claim to the receiver. The receiver removed the case to federal court. The appellate court concluded that at the time the plaintiffs filed suit, "no court had subject matter jurisdiction over the suit because plaintiffs had failed to exhaust the administrative remedies mandated by section 1821(d)(13)(D) of FIRREA." (Id. at p. 793.) The court rejected the plaintiffs' argument that their belated filing of a claim should allow them to pursue their claims, under a "`no harm, no foul'" line of reasoning, since Congress expressly withdrew jurisdiction from all courts over claims to a failed bank's assets made outside the FIRREA procedures. (Wujick, at pp. 793-794.) The appellate court directed the lower court to dismiss the claims. (Id. at p. 794; see Althouse v. Resolution Trust Corp., supra, 969 F.2d at p. 1546 [failure to file timely claim bars claimant from receiving de novo review in court; to receive de novo review the disallowance must be for other reasons]; Potter v. JPMorgan Chase Bank, N.A. (C.D.Cal, May 8, 2013, No. CV 13-863 CAS (AGRx)) 2013 WL 1912718, p. *7 (Potter) [under FIRREA, no court has subject matter jurisdiction to hear a claim filed with FDIC after the bar date, unless the claim meets statutory exception for claims that could not have been filed before bar date].)
As noted above, federal courts have routinely found the failure to file a claim with the FDIC, before instituting litigation in court, prevents a court from having subject matter jurisdiction over covered claims. Saffer cites
As in Wujick, Saffer's untimely filed claim with the FDIC does not satisfy the FIRREA exhaustion requirements, and his claims were barred.
Saffer's failure to exhaust FIRREA administrative remedies before filing suit prevented the trial court from acquiring subject matter jurisdiction over his claims. "[I]n the absence of subject matter jurisdiction, a trial court has no power `to hear or determine [the] case.' [Citation.]" (Varian, supra, 35 Cal.4th at p. 196.) We acknowledge it would have been preferable for JPMC to raise Saffer's failure to exhaust under FIRREA much earlier in the process, rather than compelling the case to an unauthorized arbitration. However, "`[t]he administrative prerequisite to suit set forth in [FIRREA] has been strictly construed and is considered an absolute and unwaivable jurisdictional requirement... this court has no power to excuse a condition precedent to ...
The judgment entered in favor of JPMC is vacated and the matter is remanded to the trial court with directions to enter an order of dismissal against Saffer for lack of subject matter jurisdiction. Respondent shall recover its costs on appeal.
Flier, J., and Grimes, J., concurred.
Yet, in these cases, the claimants offered documents and legal argument to support the contention that exhaustion was not required because the purchasing institution assumed liability for their claims. This is necessary because, "`[a]bsent an express transfer of liability by [the receiver] and an express assumption of liability by [the successor], FIRREA directs that [the receiver] is the proper successor to the liability ....' Payne v. Sec. Sav. & Loan Ass'n, F.A., 924 F.2d 109, 111-12 (7th Cir. 1991). This allows the receiver to `absorb liabilities itself and guarantee potential purchasers that the assets they buy are not encumbered by additional financial obligations.' [Citation.]" (Farnik, supra, 707 F.3d at p. 724.)
Here, Saffer's sole contention is that he required discovery to determine whether JPMC assumed liability for his claims. His complaint did not allege JPMC expressly assumed liability for his claims in a purchase and assumption agreement, or in a collateral contract. He further asks us not to take judicial notice of the publicly available documents relevant to this issue, and does not assert they suggest JPMC assumed liability for claims like his. Although we do not review the arbitrator's decision in this appeal, we note the record from the arbitration proceedings does not include such publicly available documents, or any affirmative suggestion that JPMC assumed liability for Saffer's claims, other than its failure, in litigation, to expressly disclaim successor liability. Even were we persuaded to follow the approach of those courts that have considered a purchase and assumption agreement in the exhaustion analysis, we would conclude the record here neither establishes Saffer was excused from complying with FIRREA exhaustion requirements nor entitles him to an opportunity to further develop the factual record. (See Farnik, supra, 707 F.3d at p. 725 [plaintiffs' mere speculation about transfer of liability was insufficient to avoid jurisdictional bar for failure to exhaust FIRREA remedies].)
