2014 COA 151
Colo. Ct. App.2014Background
- Liberty participated in two loans with Colorado Capital Bank (CCB) for a townhome project; CCB failed in 2011 and FDIC was appointed receiver (FDIC-R).
- FCBT purchased CCB’s assets and assumptions on July 8, 2011 under FIRREA, with FDIC publishing proofs of claim procedures.
- Liberty timely filed a proof of claim with the FDIC on October 12, 2011, asserting CCB breached covenants and acted with gross negligence.
- FDIC denied Liberty’s claim in November 2011; Liberty sued FCBT and FDIC-R in federal court in 2012.
- Liberty later sued in state court with twelve counterclaims against FCBT; the district court dismissed Counts One–Three for lack of exhaustion and Counts Four–Ten and Twelve as not in the proof of claim, leading to dismissal with prejudice.
- Liberty appeals, arguing exhaustion and futility arguments; the court affirms, ruling Counts One–Three were not exhausted and futility not established; due process preservation was not sufficiently raised.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of administrative remedies for counterclaims. | Liberty exhausted claims by proper proof of claim. | Counts One–Three were not in the proof of claim; not exhausted. | Counts One–Three not exhausted; jurisdiction lacking. |
| Futility exception to exhaustion. | Futility due to asset transfer to FCBT and FDIC-R dismissal. | Futility not shown beyond reasonable doubt; exhaustion required. | Futility exception not satisfied; exhaustion required. |
| Due process preservation of arguments. | Liberty preserved due process arguments. | Arguments not sufficiently raised below. | Due process issue not preserved; not addressed. |
Key Cases Cited
- Brown Leasing Co. v. Fed. Deposit Ins. Corp., 833 F.Supp.3d 672 (N.D. Ill. 1993) (exhaustion requires fair notice of claims in proof of claim)
- Jahn v. Fed. Deposit Ins. Corp., 828 F.Supp.2d 305 (D.D.C. 2011) (new theories not in proof of claim deprive jurisdiction)
- Branch v. Fed. Deposit Ins. Corp., 833 F.Supp. 56 (D. Mass. 1993) (claims based on same general facts authenticated; new claims may be barred)
- Rosa v. Resolution Trust Corp., 938 F.2d 383 (3d Cir. 1991) (exhaustion not futile where receiver may compensate via claims process)
- Am. Nat. Ins. Co. v. Fed. Deposit Ins. Corp., 642 F.3d 1137 (D.C. Cir. 2011) (broad interpretation of claims process for liability of failed institution)
- Village of Oakwood v. State Bank and Trust Co., 539 F.3d 373 (6th Cir. 2008) (circumvention of FIRREA’s jurisdictional bar not allowed)
- Kuhn v. Dep't of Revenue, 817 P.2d 101 (Colo. 1991) (exhaustion invoked where agency remedies exist)
- New Design Constr. Co. v. Hamon Contractors, Inc., 215 P.3d 1172 (Colo. App. 2008) (exhaustion requirements and court review standard)
- City & Cnty. of Denver v. United Air Lines, Inc., 8 P.3d 1206 (Colo. 2000) (exhaustion may be excused if futility is clear)
- Golden's Concrete Co., 962 P.2d 919 (Colo. 1998) (exhaustion requirement as threshold to judicial review)