MEMORANDUM OF DECISION AND ORDER GRANTING THE DEFENDANT'S [DOC. #12] 12(b)(1) MOTION TO DISMISS THE PLAINTIFF'S COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) AND 12(b)(6)

VANESSA L. BRYANT, District Judge.

The Defendant, JP Morgan Chase Bank (hereinafter referred to as "Chase" and as "JPM"), moves to dismiss the Complaint filed by the Plaintiff, Richard Caires ("Caires") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) [Doc. #12]. In this proceeding, relating to a note and mortgage issued by Caires to Washington Mutual Bank, F.A., ("WAMU"), evincing and securing, respectively, a loan made by WAMU to Caires. Caires asserts three causes of action against Chase, as WAMU's successor in interest: 1) fraud in the inducement; 2) equitable estoppel from foreclosure upon the mortgaged property; and 3) violation of the Connecticut Unfair Trade Practices Act (CUTPA), Conn. Gen.Stat. § 42-110a et seq. during the formation of the mortgage at issue. [Doc. #1]. Chase contends that the Court lacks subject matter jurisdiction over this matter by virtue of the Financial Institutions Reform, Recovery & Enforcement Act of 1989, 12 U.S.C. § 1821(d), (FIRREA), and that Caires fails to state a cause of action for which the Court can grant relief due to the application of the D'Oench, Duhme doctrine as codified in 12 U.S.C. § 1823(e). [Id.] Pursuant to the following analysis, Chase's motion to dismiss [Doc. #12] is GRANTED. This dismissal is without prejudice to the Plaintiff's right to file an amended complaint not inconsistent with this order not later than October 14, 2010.

I. Factual and Procedural Background

The following facts are based on the Plaintiff's Complaint [Doc. #1] and are accepted as true for purposes of this motion unless otherwise noted: In December 2006, Caires, a citizen and resident of Greenwich, CT, entered into a mortgage contract with WAMU to purchase 634 North Street, Greenwich, CT. In January 2007, Caires considered potential lenders for a six million dollar renovation of the property. Relying upon representations made by WAMU employees regarding fees and his ability to convert to a lower interest rate, Caires agreed to sign to a two-phase loan with WAMU consisting of construction and conventional post construction phases. WAMU lenders indicated that the loan would have a reserve account, apparently funded with loan proceeds, during the construction phase to pay for loan servicing. The lenders also indicated that the interest rate during the first 18 month period of construction or to the date of Caires' Certificate of Occupancy would be 8.50%, and that following receipt of the Certificate of Occupancy the construction loan would be converted to a 5 year Adjustable Rate Mortgage (ARM) bearing interest at the 2 year Treasury rate plus 2 percent. Caires claims that the lenders indicated that his loan would not require any out of pocket money, but that WAMU failed to abide by its representations and charged Caires $98,000 to close the loan, and "slipped some clause in that the 8.5% construction phase rate would stay in place for 5 years and would not adjust as promised on the date of the Certificate of Occupancy."

On September 25, 2008, the United States Office of Thrift Supervision seized WAMU and placed it into receivership with the FDIC. On the same day, the FDIC sold WAMU and its subsidiaries to Chase through a Purchase and Assumption Agreement.

During the construction period of Caires' loan, Caires was regularly assured by WAMU, and subsequently by Chase, that his loan would be converted or that he would be able to refinance his loan "with no problem or money out of pocket" when the Certificate of Occupancy was received. In particular, Caires alleges that WAMU and then Chase representatives indicated that "after the 18 month construction period Caires would pay interest instead of the reserve account paying it. If the certificate of occupancy was not issued by the 18 month term Caires could extend the construction phase time period by paying a penalty fee . . . Caires was told that if he required more time it was not a problem and the reserve account, if it still had money in it would continue to pay the loan servicing."

After Caires paid a penalty fee of a ¼ point of the loan amount to extend the mortgage's construction period, "WAMU/JPM charged Caires the interest service on the loan although the reserve account had plenty of money in it" and "then reduced the size of Caires' loan by the amount left in the reserve account without adequate warning and outside of the agreed upon terms leaving Caires to pay the servicing out of pocket depleting Caires' reserves."

Caires also claims that he was coerced by "WAMU/JPM" on May 2, 2009, to accept a modification and reduction of the loan amount effective on March 1, 2009; and that on July 2, 2009, Chase failed to fully honor an application made by Caires to draw down on the loan to fund construction costs, claiming that the Plaintiff's property had depreciated in value and reduced the amount Caires could draw from $160,700 to $62,000, which "put Caires in an untenable position and coerced him to accept these unbargained for terms." The Complaint also notes dissatisfaction with servicing of his account during the transition of the management of his account from WAMU to Chase, and alleges that during 2009 an assistant manager made further assurances that Caires' interest rate would decline significantly upon issuance of the Certificate of Occupancy. The Plaintiff did not attach the loan documents to, or describe all of the relevant loan terms in, his complaint.

On November 24, 2009, the Plaintiff filed a summons and complaint in the Connecticut Superior Court. On December 30, 2009 Chase removed this action on the basis of diversity of citizenship, pursuant to 28 U.S.C. § 1332(a)(1), and federal question jurisdiction, pursuant to 28 U.S.C. § 1331. [Doc. #1]. Chase now moves to dismiss the Complaint, in its entirety.

II. Standard of Law

"A federal court has subject matter jurisdiction over a cause of action only when it `has authority to adjudicate the cause' pressed in the complaint." Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir.2008) vacated on other grounds, 585 F.3d 559 (2d Cir.2009), cert. denied, ___ U.S. ____, 130 S.Ct. 3409, 177 L.Ed.2d 349 (2010) (quoting Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 425, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007)). "Determining the existence of subject matter jurisdiction is a threshold inquiry and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Id. (internal citations and quotation marks omitted). "When jurisdiction is challenged, the plaintiff bears the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists, and the district court may examine evidence outside of the pleadings to make this determination." Id. (internal citations and quotation marks omitted). "[T]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff, but jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (internal citations and quotation marks omitted) (alteration in original).

The United States Supreme Court recently reexamined the standard governing a motion to dismiss, made pursuant to Rule 12(b)(6), for failure to state a claim upon which relief may be granted. See Ashcroft v. Iqbal, ___ U.S. ____, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a `short and plain statement of the claim showing that the pleader is entitled to relief.'" Id. at 1949. While Rule 8 does not require detailed factual allegations,

Id. (internal citations omitted).

In evaluating a motion to dismiss, the Court should follow a "two-pronged approach" to evaluate the sufficiency of the complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010). "A court `can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.'" Id. (quoting Iqbal, 129 S.Ct. at 1950). "At the second step, a court should determine whether the [remaining] `well-pleaded factual allegations,' assumed to be true, `plausibly give rise to an entitlement to relief.'" Id. (quoting Iqbal, 129 S.Ct. at 1950).

III. Analysis

A) The Defendant's Motion to Dismiss Pursuant to Rule 12(b)(1)

The Defendant argues that pursuant to the FIRREA, the Court lacks jurisdiction over the Plaintiff's claims against Chase, because Chase is an assignee of the FDIC, and therefore benefits from the FDIC's claim exhaustion requirements that are specified in 12 U.S.C. §§ 1821(d)(3)-(d)(9). [Doc. #13]. In response, the Plaintiff argues that the legislature intended for the claim procedure and statutory protections enumerated in § 1821(d) to apply exclusively to the FDIC, and that the "rights, powers and immunities" of FIRREA only apply to claims made against the FDIC and not to its assignees. [Doc. #16]. The Plaintiff claims that Chase knowingly purchased the assets and their liabilities at a reduced price and that the FIRREA's application ended when Chase purchased the loan in question from the FDIC:

[Id.] (internal citations omitted). The Plaintiff further argues that the "practical effect of the Defendant's reading of the statutes at issue here would be a new precedent which would result in an avalanche of claims against the FDIC which were not contemplated by legislators as evidenced by the fact that Defendants have been unable to locate a precedent that is analogous to the case at bar." [Id.]

Overview of the FIRREA Claims Process and Exhaustion Requirement

The FIRREA includes an exhaustion requirement that applies to claims made against the assets of a failed depository institution that is in FDIC receivership. See 12 U.S.C. § 1821(d)(5) (Procedures for determinations of claims); § 1821(d)(13)(D) (Limitation on judicial review). The statute allows a claimant to obtain judicial review of an FDIC claim determination if the claimant files a claim with the FDIC, receives a "disallowance" of the claim, and then files suit in a district court within 60 days after the FDIC's disallowance of the claim. See id. §§ 1821(d)(5)(A), (6)(A). Notably, the FIRREA makes a distinction between claimants whose names appear and whose names fail to appear on the books of a failed financial institution.

Carlyle Towers Condominium Ass'n, Inc. v. FDIC, 170 F.3d 301, 305 (2d Cir.1999) (internal citations omitted). For claimants whose names do not appear on a failed financial institution's books, the statute is noted as less precise:

Id. (internal citations omitted).

FIRREA provides:

Id. (internal citations omitted) (alteration in the original).

Further, the FIRREA places an express limitation upon a district court's review of claims that have not proceeded through the described FDIC claims review process prior to bringing suit. § 1821(d)(13)(D) reads:

12 U.S.C. § 1821(d)(13)(D) (emphasis added). The Second Circuit has held that "section 1821(d)(13)(D), when read in conjunction with the rest of section 1821(d), creates a requirement that all claims be presented to the FDIC before a claimant may seek judicial review." Carlyle Towers, 170 F.3d at 307; See also Resolution Trust Corp. v. Elman, 949 F.2d 624, 627 (2d Cir.1991).

Applicability of the FIRREA Claims Process and Exhaustion Requirement to the Plaintiff's Claims

While the FIRREA dictates that the FDIC is protected from suit over an asset from a failed bank until a plaintiff has exhausted the FDIC's claim procedures, and that the Court lacks jurisdiction over claims relating to acts or omissions of a failed bank, the statute does not clearly address the Defendant's proposed interpretation that Chase as a subsequent purchaser of the assets of a failed financial institution, such as WAMU, automatically benefits from § 1821(d)(13)(D)'s limitation on judicial review as a right that is incidental to a note that has been acquired from the FDIC. The Defendant notes that in prior cases, this Court and the Connecticut Appellate Court have applied state principles of assignment to determine whether subsequent purchasers of assets were entitled to the rights, benefits, and remedies that the FIRREA confers upon the FDIC. The Court finds that the Defendant's characterization of these past cases is overreaching.

This Court has indeed looked to Connecticut law to determine whether the statute of limitations specified in the FIRREA for claims brought by the FDIC applied to a plaintiff who was an assignee that purchased defaulted assets from the FDIC. See Joslin v. Grossman, 107 F.Supp.2d 150 (D.Conn.2000); see also Hardy v. New York City Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir.1999) (noting that "when a federal action is brought in federal court, the court has discretion to borrow from state law when there are deficiencies in the federal statutory scheme.") In Joslin, due to the absence of a clear statement in the FIRREA, the Court followed the lead of other courts that have relied on state law to settle the ambiguity:

Joslin, 107 F.Supp.2d at 155-56 (citations and quotation marks omitted). Noting the Fourth Circuit's guidance that courts should look to state law, the Court further explained:

Id. at 156 (quoting National Loan Investors Ltd. P'ship v. Heritage Square Assocs., 54 Conn.App. 67, 733 A.2d 876, 879-80 (1999)).

In the instant case, WAMU executed the loan at issue to the Plaintiff. WAMU subsequently failed and the FDIC was appointed a receiver. Under the ownership of the FDIC, all of the assets became subject to all provisions of the FIRREA. The Defendant contends that when the FDIC sold the failed bank's assets to Chase, Chase became an assignee of the FDIC and "[stepped] in the shoes of the FDIC by virtue of the assignment." National Loan Investors, 733 A.2d at 880. The Defendant contends that Chase is therefore vested with all of the FDIC's rights, remedies, and benefits that are incidental to the note pursuant to Joslin and National Loan Investors, including the claims exhaustion requirement of 12 U.S.C. § 1821(d)(13)(D) that would deprive this Court of jurisdiction until the Plaintiff exhausted the FIRREA claim process administrative remedies. The Plaintiff correctly notes however, that Joslin and National Loan Investors, reflects "a line of holdings that allows the statute of limitations on assets purchased from the FDIC to be extended by 12 U.S.C. § 1821(d)(12)." [Doc. #16]. Joslin and National Loan Investors only presented whether the FIRREA's statute of limitations applied to their proceedings. While both opinions observed more generally that, as an assignee, a "plaintiff is vested all of the FDIC's rights, remedies and benefits that are incidental to the note," Joslin, 107 F.Supp.2d at 156; National Loan Investors, 733 A.2d at 880, it does not necessarily follow that an assignee would necessarily benefit from a jurisdictional bar that congress reserved for a special entity such as the FDIC. The jurisdictional bar is incidental to the deposit insurance system but not to each note acquired by a bank prior to its insolvency. The Court will therefore turn to principles of statutory interpretation to resolve this ambiguity.

Where a statute is silent on an issue or unclear, the Court applies established principles of statutory construction:

Marvel Characters, Inc. v. Simon, 310 F.3d 280, 289-90 (2d Cir.2002) (internal citations and quotation marks omitted).

"The primary purpose underlying FIRREA's exhaustion scheme is to allow [the FDIC] to perform its statutory function of promptly determining claims so as to quickly and efficiently resolve claims against a failed institution without resorting to litigation." Rosa v. Resolution Trust Corp., 938 F.2d 383, 396 (3d Cir. 1991) (citing H.R. Rep. No. 101-54(I), 101st Cong., 1st Sess. 418-19, reprinted in 1989 U.S.C.C.A.N. 86, 214-15). Further, "the FIRREA was explicitly drafted to satisfy the procedural shortcomings of administrative review identified by the Supreme Court in Coit [Independence Joint Venture v. Federal Sav. & Loan Ins. Corp., 489 U.S. 561, 109 S.Ct. 1361, 103 L.Ed.2d 602 (1989)]. In so doing, Congress expressly withdrew jurisdiction from all courts over any claim to a failed bank's assets made outside the procedures established in § 1821" F.D.I.C. v. Vernon Real Estate Invs., Ltd., 798 F.Supp. 1009, 1017 (S.D.N.Y.1992).

The claims exhaustion requirement therefore reflects the FDIC's powers as a receiver of failed assets and the FDIC's need "to dispose of the bulk of claims against failed financial institutions expeditiously and fairly." H.R. Rep. No. 54(I), 101st Cong., 1st Sess. 419 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 215. Notably, included in the FDIC's powers as receiver is the authority to "transfer any asset or liability of the institution in default . . ." 12 U.S.C. § 1821(d)(2)(G)(i)(II). Accordingly, the FDIC is empowered to determine which assets and liabilities of a failed bank are to be sold and transferred, and which assets it should keep. Such a design "facilitates the sale of a failed institution's assets (and thus helps to minimize the government's financial exposure) by allowing the [FDIC] to absorb liabilities itself and guarantee potential purchasers that the assets they buy are not encumbered by additional financial obligations." Payne v. Security Sav. & Loan Ass'n, F.A., 924 F.2d 109, 111 (7th Cir.1991) (Where the court analyzed analogous provisions of the FIRREA and highlighted the significance of purchase and assumption agreements to conclude that the Resolution Trust Corporation, and not the subsequent purchaser of the assets of a failed savings and loan association, was the proper successor to liability created by an age discrimination judgment against the failed institution). It is this intermediate step, the FDIC's ability to designate specific assets and liabilities for purchase and assumption that reflects a distinction between the FDIC and a subsequent purchaser, and why a subsequent purchaser does not necessarily benefit from the FDIC's claim exhaustion process. Instead a Court should look to the purchase and assumption agreement governing the transfer of assets between the FDIC and a subsequent purchaser of assets of a failed bank to determine which assets and corresponding liabilities are being assumed. Absent a transfer of liability by the FDIC and assumption of liability by a subsequent purchaser, such as Chase, the liability remains with the FDIC and subject to the claim exhaustion procedures.

The September 25, 2008 Purchase and Assumption Agreement between Chase and the FDIC explicitly reserved liability for the FDIC:

[Doc. #17, Exh. D2]; see also www.fdic. gov/about/freedom/washington_mutual_p_and_a.pdf. The Court can consider the Purchase and Assumption Agreement, as a district court may examine evidence outside of the pleadings when determining jurisdiction pursuant to Rule 12(b)(1). See Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000) (district courts "may resolve the disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as affidavits, and if necessary, hold an evidentiary hearing.") Further, it is appropriate to consider this document as it is a public document that the Defendant had knowledge of, as the Plaintiff not only makes reference to the FDIC's sale of WAMU and its subsidiaries to Chase in his Complaint, but also makes direct reference to a section of the Purchase and Assumption Agreement in its Memorandum in Opposition to the Defendant's instant motion [Docs. 1 & 16]. See Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) ("Despite the fact that the documents attached to [defendant's] motion to dismiss were neither public disclosure documents required by law to be filed with the SEC, nor documents actually filed with the SEC, nor attached as exhibits to the complaint or incorporated by reference in it, the district court was entitled to consider them in deciding the motion to dismiss. The [documents in question] were documents plaintiffs had either in its possession or had knowledge of and upon which they relied in bringing suit.")

Various courts have recently reviewed the efficacy of this very Purchase and Assumption Agreement clause between the FDIC and Chase:

Aragon v. F.D.I.C., No. 2:09CV793DS, 2010 WL 331907 at *1 (D.Utah, January 28, 2010) (internal citation and quotation marks omitted).

A district court reached a similar finding in Moldenhauer v. F.D.I.C., No. 2:09-CV-00756 TS, 2010 WL 1064422 (D.Utah, March 18, 2010). In Moldenhauer, where the plaintiff sued both the FDIC and Chase in connection with an $840,000 loan executed by WAMU, the court first noted that for an action against the FDIC, "[e]xhaustion of administrative remedies is mandatory where Congress has provided such remedies" and dismissed the claim pursuant to Fed. R. Civ. P. 12(b)(1). Id. at *2. With regard to the claim against Chase, the Court found that because the "claims all relate[d] to a loan made before September 25, 2008, Plaintiff ha[d] not stated a claim against Chase because Chase expressly did not assume the liability for which Plaintiffs s[ought] to recover." Id. Under similar reasoning, the Court finds that the language of the parties' Purchase and Assumption agreement is dispositive and that Chase did not assume liabilities against WAMU arising from its lending or loan purchase activities prior to September 25, 2008, and that those liabilities remained with the FDIC as receiver, and subject to the FDIC's jurisdictional claim exhaustion requirements.

The Purchase and Assumption agreement also notes, in section 2.1, however that notwithstanding other sections of the agreement, that "the Assuming Bank specifically assumes all mortgage servicing rights and obligations of the Failed Bank." [Doc. #17, Exh. D2]. Mortgage servicing typically refers to the "administrative tasks associated with collecting mortgage payments." Morrison v. National Australia Bank Ltd., ___ U.S. ____, 130 S.Ct. 2869, 2875, 177 L.Ed.2d 535 (2010) (citing to J. Rosenberg, Dictionary of Banking and Financial Services 600 (2d. ed. 1985)). In considering the Complaint pursuant to Rule 12(b)(1), the Court must therefore distinguish between claims relating to lending activities as distinguished from claims relating to mortgage servicing. As a result the Court lacks jurisdiction over any of Caires' allegations regarding the origination and formation of the loan and mortgage by and between Caires and WAMU, but retains jurisdiction over allegations regarding the servicing of Caires mortgage by Chase. The Defendant's motion to dismiss made pursuant to Rule 12(b)(1) is therefore granted as each of the Plaintiff's causes of actions rely, at least in part, on actions taken and statements made by WAMU employees in connection with the finalization and issuance of Caires' mortgage agreement. As each of the counts in Caires complaint also refer to actions taken by Chase employees possibly after the date of the Purchase and Assumption Agreement and actions taken by Chase employees in relation to the servicing of the Plaintiff's loan agreement, but fails to clearly delineate the timing and responsible party for these alleged misdeeds, the Plaintiff's case is dismissed without prejudice to the Plaintiff's right to file an amended complaint that limits its causes of actions to allegations regarding the servicing of the Plaintiff's loan agreement that are not subject to the FDIC's claim exhaustion requirements within fourteen days of this decision.

B) The Defendant's Motion to Dismiss Pursuant to Rule 12(b)(6)

The Defendant also seeks to dismiss the Plaintiff's claims pursuant to rule 12(b)(6) for failure to state a cause of action upon which relief can be granted:

[Doc. #13]. In response, the Plaintiff contends that the doctrine of D'Oench, Duhme does not apply to the assignee of an asset that passed through the FDIC, and that the Defendant stepped in the shoes of the failed bank in regard to the purchased assets and not the shoes of the FDIC and therefore cannot rely on the powers of the FDIC.

The D'Oench, Duhme doctrine based on the 1942 United States Supreme Court case and subsequent judicial interpretation and legislative codification, invalidates certain agreements made between a bank's representatives and borrowers, prior to the FDIC's appointment as a receiver for that failed institution, to modify the terms of a promissory note, unless the agreement meets certain requirements, including being reduced to writing. See D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942). The Second Circuit has explained, in detail, the development of the D'Oench, Duhme doctrine, its subsequent codification, and its application to assets acquired by the FDIC:

F.D.I.C. v. Giammettei, 34 F.3d 51, 55 (2d Cir.1994) (internal citations omitted). The codification of that doctrine in FIRREA provides:

12 U.S.C. § 1823(e)(1).

In Langley, The Supreme Court noted a key purpose of the D'Oench, Duhme doctrine:

Langley v. Federal Deposit Ins. Corp., 484 U.S. 86, 91-92, 108 S.Ct. 396, 98 L.Ed.2d 340 (1987), (internal citations and quotation marks omitted).

Several Courts have noted that the D'Oench, Duhme doctrine applies to assignees of the FDIC:

Fleet Bank of Maine v. Steeves, 785 F.Supp. 209, 213 (D.Maine 1992) (listing authorities noting that banks acting as assignees of the FDIC as a failed institution may assert the D'Oench, Duhme doctrine); see also Porras v. Petroplex Sav. Ass'n, 903 F.2d 379, 380-81 (5th Cir.1990) ("The preferred method of ensuring that depositors are paid is through the use of purchase and assumption agreements . . . Recognizing this, we recently extended D'Oench, Duhme to `assignees of the FDIC.'"); see also AAI Recoveries, Inc. v. Pijuan, 13 F.Supp.2d 448, 451 (S.D.N.Y., 1998) ("Although Congress only codified the D'Oench, Duhme doctrine with regard to the FDIC, courts have extended the rule to include third party assignees and transferees . . . Therefore, AAI, as a successor in interest to the FDIC, is entitled to the protection of the D'Oench, Duhme doctrine in the instant case."); see also OCI Mortg. Corp. v. Marchese, 255 Conn. 448, 774 A.2d 940, 943 n. 7 (2001) ("Although not a disputed issue in the present case, it is generally recognized that third party transferees and assignees of the Federal Deposit Insurance Corporation and Resolution Trust enjoy the same protections of 12 U.S.C. § 1823(e) and the D'Oench, Duhme doctrine.") This Court agrees with the line of reasoning promulgated by these courts, and notes in particular that allowing parties to assert oral agreements, or agreements that otherwise fail to meet the requirements of the D'Oench, Duhme doctrine against a purchaser would diminish the value of assets that the FDIC seeks to sell and undermine the deposit insurance system. As noted by the Fifth Circuit:

Porras, 903 F.2d at 380-81 (internal citations omitted).

Accordingly, the Court finds that the Defendant is entitled to the protections of the D'Oench, Duhme doctrine and 12 U.S.C. § 1823(e) as an assignee of the FDIC and that Chase is not subject to any agreements, other than Caires' mortgage agreement, made prior to WAMU being placed in receivership of the FDIC, unless they meet the requirements of § 1823(e), including being reduced to writing. As in the discussion of the Defendant's motion to dismiss made pursuant to Rule 12(b)(1), the Court notes that the Plaintiff's Complaint fails to properly delineate the timing of alleged statements and agreements made by WAMU and Chase employees. Further, the Plaintiff fails to note if and how any subsequent communications altered the terms of his mortgage despite the existence of a written mortgage agreement, and more importantly whether such communications or subsequent agreements complied with the requirements of 12 U.S.C. § 1823(e). Accordingly, the Defendant's motion to dismiss made pursuant to Rule 12(b)(6) is also granted, without prejudice to the Plaintiff's right to file an amended complaint within fourteen days of this decision that provides sufficient factual detail for the Court to conclude whether any alleged agreements forming the basis of Plaintiff's claims, made subsequent to the initial mortgage closing but prior to Chase's purchase and assumption of WAMU's assets comply with the D'Oench, Duhme doctrine as codified in the four requirements enumerated in 12 U.S.C. § 1823(e).

IV. Conclusion

Chase's motions to dismiss made pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) [Doc. #12] are GRANTED, and this case will be closed unless the Plaintiff files an amended complaint in compliance with the Court's foregoing instruction by October 14, 2010.

IT IS SO ORDERED.