United States District Court, S.D. California
ORDER GRANTING MOTION TO DISMISS
DANA M. SABRAW, UNITED STATES DISTRICT JUDGE
before the Court is Defendant U.S. Bank, N.A.'s motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1).
The motion came on for hearing on November 3, 2017. Plaintiff
appeared on behalf of himself, and Bryant Delgadillo appeared
on behalf of Defendant. After considering the parties'
briefs, oral argument, the relevant legal authority, and the
record, Defendant's motion is granted.
2006, Plaintiff refinanced his residence located at 308 Corto
Street in Solana Beach, California (“Property”)
by borrowing $1.26 million from Washington Mutual Bank
(“WaMu”), secured by a deed of trust on the
Property. (First Amended Complaint (“FAC”)
¶¶ 6-7.) Plaintiff alleges WaMu sent a defective
notice of the right to cancel in violation of the Truth in
Lending Act (“TILA”) and Regulation Z.
(Id. ¶ 20.) On June 26, 2009, Plaintiff sent a
notice of rescission to WaMu, Defendant, and other financial
institutions on the ground that WaMu failed to satisfy
TILA's disclosure requirements. (Id. ¶ 10.)
Although Defendant acknowledged receipt of the notice, it has
not rescinded the loan. (Id. ¶ 11.)
time Plaintiff sent the notice of rescission, the Office of
Thrift Supervision had already closed WaMu. On September 25,
2008, WaMu was placed into the receivership of the Federal
Deposit Insurance Corporation (“FDIC”). JPMorgan
Chase Bank, N.A. (“Chase”) entered into a
Purchase and Assumption Agreement with the FDIC. Pursuant to
the Agreement, Chase acquired WaMu's assets. Defendant is
the designated trustee of the WaMu Mortgage Pass-Through
Certificate Series 2006-AR11, which includes Plaintiff's
loan. (Mem. of P. & A. in Supp. of Mot. at 5; Mem. of P.
& A. in Opp'n to Mot. at 2.)
March 2009, after Plaintiff defaulted on the loan, a notice
of default and election to sell was recorded, with a
foreclosure date of July 14, 2009. (Declaration of Norman
Shaw (“Decl. Shaw”) ¶ 8.) Facing
foreclosure, Plaintiff filed for Chapter 11 bankruptcy on
July 9, 2009. (Id. ¶¶ 9, 21.)
18, 2012, Plaintiff filed a complaint against Defendant,
seeking rescission of the loan. On September 6, 2013, the
Court issued an order conditionally denying Defendant's
motion for summary judgment. The denial was contingent on
Plaintiff complying with his obligations to tender by
November 13, 2013. When Plaintiff failed to tender, the Court
dismissed the action on December 10, 2013. On January 6,
2014, Plaintiff filed a notice of appeal.
appeal, Defendant raised for the first time the issue of
subject matter jurisdiction. On June 6, 2017, the Ninth
Circuit remanded the action to this Court with instructions
to conduct fact-finding and to determine whether
Plaintiff's rescission claim under TILA is barred by the
jurisdiction-stripping provisions of the Financial
Institutions Reform, Recovery, and Enforcement Act
(“FIRREA”). Thereafter, Defendant filed the
present motion to dismiss for lack of subject matter
courts are courts of limited jurisdiction. Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 374 (1978).
“A federal court is presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears.” Stock W., Inc. v. Confederated Tribes of
the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
1989). Lack of subject matter jurisdiction may be raised at
any time by any party or by the court. See Fed. R.
Civ. P. 12(h). “A party invoking the federal
court's jurisdiction has the burden of proving the actual
existence of subject matter jurisdiction.” Thompson
v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). “If
the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Rule 12(b)(1) jurisdictional attack may be facial or factual
.” Safe Air for Everyone v. Meyer, 373 F.3d
1035, 1039 (9th Cir. 2004). A “facial” attack
accepts the truth of the plaintiff's allegations but
asserts that they “are insufficient on their face to
invoke federal jurisdiction.” Id. In resolving
a facial attack, the court, “[a]ccepting the
plaintiff's allegations as true and drawing all
reasonable inferences in the plaintiff's favor, …
determines whether the allegations are sufficient as a legal
matter to invoke the court's jurisdiction.”
Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir.
2014) (citing Pride v. Correa, 719 F.3d 1130, 1133
(9th Cir. 2013)). In contrast, a “factual” attack
“contests the truth of the plaintiff's factual
allegations, usually by introducing evidence outside the
pleadings.” Id. (citations omitted). In
resolving a factual attack, the court “may review
evidence beyond the complaint without converting the motion
to dismiss into a motion for summary judgment.”
Meyer, 373 F.3d at 1039 (citing Savage v.
Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th
argues the court lacks subject matter jurisdiction over
Plaintiff's TILA claim pursuant to the
jurisdiction-stripping provisions of FIRREA. Defendant
contends the allegations contained in the FAC are
insufficient on their face to invoke federal jurisdiction
because Plaintiff has not alleged he has exhausted his claim
through FIRREA's administrative claims process. Defendant
also argues Plaintiff cannot satisfy his burden of
establishing subject matter jurisdiction because it is
undisputed he failed to file the required administrative
claim with the FDIC. Defendant therefore makes both facial
and factual jurisdictional challenges.
enacted FIRREA “in an effort to prevent the collapse of
the [savings and loan] industry” in the late 1980s.
Wash. Mut. Inc. v. United States, 636 F.3d 1207,
1211 (9th Cir. 2011). In order “to enable the federal
government to respond swiftly and effectively to the
declining financial condition of the nation's banks and
savings institutions, ” FIRREA granted “the FDIC,
as receiver, broad powers to determine claims asserted
against failed banks.” Henderson v. Bank of New
Eng., 986 F.2d 319, 320 (9th Cir. 1993). To maximize the
FDIC's ability to fulfill its role as claim adjudicator,
FIRREA “provides ...