Bank of America, N. A. v. Federal Deposit Insurance
2012 U.S. Dist. LEXIS 174403
| D.C. Cir. | 2012Background
- TBW's fraudulent scheme implicated Colonial and Platinum, affecting Ocala and investors DB and BNP.
- BOA served as Indenture Trustee, Custodian, and Collateral Agent for Ocala's notes and held related collateral at BOA.
- Ocala funded via short-term notes secured by Participated Mortgage Loans; Colonial bought 99% interests, TBW retained 1%.
- Ocala later sold loans to Freddie Mac; proceeds flowed through Ocala’s BOA collateral accounts; scheme left DB/BNP at risk.
- FDIC, as Receiver for Colonial and Platinum, countersued BOA for alleged breach of Custodial/Bailee duties and related claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BOA's claims on Ocala were properly exhausted under FIRREA | BOA exhausted Ocala's remedies via proofs of claim. | Ocala not listed as Secured Party; claims filed on DB/BNP, not Ocala. | Ocala's claims lacking exhaustion; dismissed on jurisdictional ground. |
| Whether DB and BNP have Article III standing and BOA can sue on their behalf | DB/BNP suffered direct injuries; BOA has authority to pursue on their behalf. | DB/BNP injuries too derivative; BOA lacks derivative standing. | DB/BNP have standing; BOA has derivative standing under Ocala Facility Documents. |
| Whether Counts IX and X (fraudulent transfer) were administratively exhausted or may proceed | Counts IX/X fall under the same factual basis as claims in proofs of claim. | Counts IX/X not adequately tied to the proofs of claim or not exhausted. | Counts IX and X survive; exhaustion found adequate under the proofs of claim. |
| Whether Count V (fraud) is pled with the required specificity | Fraud allegations are massive and pled with particularity; reliance by trustee/custodian noted. | Need for Rule 9(b) specificity not met. | Count V pled with sufficient particularity; denied as to Rule 9(b) dismissal. |
| Whether FDIC counterclaims (1–4,6–12,13–16) survive given exculpatory clauses and contract structure | Exculpatory clauses bar some counts; bailment claims may create independent agreements. | Exculpatory clauses are clear and enforceable; Bailee Letters cannot create independent contracts. | Counterclaims 1–2 and 4 survive; Counterclaim 3 dismissed for lack of statute basis; Counts 6–12 survive; Counts 13–16 survive; exculpatory clauses deemed ambiguous and unenforceable on this record. |
Key Cases Cited
- Bank of Am., N.A. v. Colonial Bank, 604 F.3d 1239 (11th Cir. 2010) (FIRREA exhaustion and standing principles for FDIC actions)
- Freeman v. FDIC, 56 F.3d 1394 (D.C. Cir. 1995) (core purpose and expeditious processing of FIRREA claims)
- Rosa v. RTC, 938 F.2d 383 (3d Cir. 1991) (statutory exhaustion as jurisdictional requirement under FIRREA)
- Branch v. FDIC, 833 F. Supp. 56 (D. Mass. 1993) (administrative exhaustion and representative filing considerations)
- Skinner v. Switzer, 131 S. Ct. 1289 (U.S. 2011) (pleading standards do not require precise theory at outset)