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Rathbun v. IndyMac Mortg. Services

United States District Court, D. Montana, Missoula Division

January 4, 2013

Daniel W. RATHBUN, Plaintiff;
v.
INDYMAC MORTGAGE SERVICES; One West Bank, FSB; and John Does 1-25; Defendants.

Page 1175

Nathan G. Wagner, Zane K. Sullivan, Sullivan Tabaracci Rhoades, Missoula, MT, for Plaintiff.

Benjamin P. Hursh, Mark L. Stermitz, Crowley Fleck, Missoula, MT, for Defendants.

ORDER

DONALD W. MOLLOY, District Judge.

I. INTRODUCTION

This case arises from a 2005 deal between Rathbun and IndyMac Bank (" IndyMac" ) establishing for Rathbun a home equity line of credit based on his ownership of property in Ravalli County. (Doc.

Page 1176

30 at 2-5.) Rathbun claims that IndyMac wrongfully encumbered two lots of his property (Lots 20 and 21), when he agreed only to encumbering one lot (Lot 20). ( Id. ) IndyMac has since released the encumbrance on Lot 21, but Rathbun claims damages based on his inability to get other loans which, had the property not been wrongfully encumbered, would have been secured by Lot 21 at a time when the lending markets were better and when he urgently needed money. ( Id. at 5.)

IndyMac was closed by the Office of Thrift Supervision and placed into receivership with the FDIC on July 11, 2008. (Doc. 18 at 2.) OneWest was formed on March 19, 2009, to purchase certain assets of IndyMac from the FDIC. (Doc. Id., 18-1.) Rathbun has sued OneWest as IndyMac's successor in interest. (Doc. 30 at 2.)

OneWest moves the Court for judgment on the pleadings contending that the Court lacks subject matter jurisdiction over claims based on the conduct of a failed banking institution. ( Id. at 1-2.) OneWest insists that all such claims must be handled through the FDIC's administrative claims process pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act (" FIRREA" ), 12 U.S.C. §§ 1821(d)(3)-(13). ( Id. at 3.) OneWest also points out that under the agreements between the FDIC and OneWest, the FDIC expressly withheld liability for claims such as Rathbun's. ( Id. ) OneWest also argues that Rathbun must exhaust his administrative remedies and that it is shielded from any liability under the controlling agreements. The motion for judgment on the pleadings is well taken as explained below.[1]

II. BACKGROUND

A. OneWest's Motion

OneWest's motion for judgment on the pleadings is dependent upon the Court taking judicial notice of certain facts derived from Office of Thrift Supervision Orders and the Agreements between FDIC and OneWest. (Doc. 18 at 4.) It attached the Office of Thrift Supervision Orders and the Agreements as exhibits to its briefing. (Doc. 18-2, 18-3.) The Agreements are also available on the FDIC's website. (Doc. 18 at fn 4 & 5.) Rathbun apparently concedes the Court can take judicial notice of these facts. (Doc. 19 at 3, 7.)

On July 11, 2008, the Office of Thrift Supervision closed IndyMac and appointed the FDIC as Receiver. (Doc. 18-2 at 3.) On the same day, the Office of Thrift Supervision authorized the creation of a new institution, IndyMac Federal Bank, FSB, into which IndyMac's assets were transferred. ( Id. at 4.) The Office of Thrift Supervision appointed the FDIC as Conservator for IndyMac Federal. ( Id. ) On March 19, 2009, the Office of Thrift Supervision changed the FDIC's capacity and appointed the FDIC as Receiver for IndyMac Federal. ( Id. at 3.)

On the same day, the FDIC, in its corporate capacity and as Receiver for IndyMac Federal, transferred substantially all of the assets and only certain designated liabilities of IndyMac Federal to OneWest under a Master Purchase Agreement. (Doc. 18-3.) As part of that transaction, under the Servicing Business Asset Purchase Agreement, OneWest acquired the servicing rights to certain mortgage loans,

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including Plaintiff Rathbun's loans. (Doc. 18-4.)

Both Agreements transfer only designated liabilities to OneWest. For example, the Master Purchase Agreement, in a section entitled " Liabilities Not Assumed by the Purchaser" provides:

Except for ... liabilities expressly assumed by the Purchaser ... the Seller shall not assign and the Purchaser shall not assume any claims, debts, obligations or liabilities (whether known or unknown, contingent or unasserted, matured or unmatured) however they may be characterized, that [IndyMac Bank], IndyMac Federal or the Seller has or may have now or in the future ...

(Doc. 18-3 at 23, § 4.02(a).) The Servicing Purchase Agreement contains a nearly identical provision. (Doc. 18-4 at 21, § 2.04(i).)

Both Agreements also provide that the FDIC retained all liabilities subject to the receivership administrative claims processes pursuant to 12 U.S.C. § 1821(d)(3)-(13). (Doc. 18-3 ...


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