Starkey-Application For Leave To Obtain Further Appellate Review 10-31-18-Meta-Data-Remv

COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
No. FAR-26395
H. CHRISTOPHER STARKEY & LOUISA H. STARKEY,

Plaintiffs-Respondents,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY ET AL.,

Defendants-Applicants.
ON APPEAL OF A JUDGMENT OF
THE BARNSTABLE SUPERIOR COURT
DEFENDANTS-APPLICANTS’ APPLICATION FOR LEAVE

TO OBTAIN FURTHER APPELLATE REVIEW
Alan E. Schoenfeld Mark C. Fleming

(pro hac vice pending) (BBO No. 639358)
WILMER CUTLER PICKERING WILMER CUTLER PICKERING
HALE AND DORR LLP HALE AND DORR LLP
7 World Trade Center 60 State Street
250 Greenwich Street Boston, MA 02109
New York, N.Y. 10007 (617) 526-6000
(212) 230-8800 mark.fleming@wilmerhale.com
alan.schoenfeld@wilmerhale.com
Counsel for
Albinas J. Prizgintas Defendants-Applicants
(pro hac vice pending)
Arpit K. Garg
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave. N.W.
Washington, D.C. 20006
(202) 663-6000
albinas.prizgintas@wilmerhale.com
arpit.garg@wilmerhale.com October 31, 2018
CORPORATE DISCLOSURE STATEMENTS
Pursuant to Supreme Judicial Court Rule 1:21,

JPMorgan Chase Bank, N.A. hereby files its corporate
disclosure statement:
1. The filing party, a nongovernmental
corporation, identifies JPMorgan Chase & Co. as its
parent corporation.
2. JPMorgan Chase & Co. is the only publicly held
company that owns 10% or more of the shares of JPMorgan
Chase Bank, N.A.
* * *
JPMorgan Chase Bank, N.A., successor-by-merger to Chase
Home Finance LLC, hereby files its corporate disclosure
statement with respect to Chase Home Finance LLC:
Chase Home Finance LLC was a wholly owned
subsidiary of Chase Home Finance, Inc., which was a
wholly owned subsidiary of JPMorgan Chase Bank, N.A.
Effective May 1, 2011, Chase Home Finance LLC merged
into JPMorgan Chase Bank, N.A.
* * *
Deutsche Bank National Trustee Company acting solely in
its capacity as Trustee for the WaMu Mortgage Pass-
Through Certificates Series 2006 AR1 Trust, hereby files
its corporate disclosure statement:
- i -
The filing party, a nongovernmental corporation,
identifies Deutsche Bank Trust Company Americas as its
parent corporation.
- ii -
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENTS...................... i
TABLE OF AUTHORITIES................................. v
INTRODUCTION AND REQUEST FOR LEAVE TO OBTAIN

FURTHER APPELLATE REVIEW............................. 1
STATEMENT OF PRIOR PROCEEDINGS....................... 2
STATEMENT OF RELEVANT FACTS.......................... 3
A. FIRREA..................................... 3
B. Factual Background......................... 8
1. The Starkeys’ loan.................... 8
2. FDIC’s receivership of WaMu........... 9
3. The Starkeys’ lawsuit................ 10
C. Superior Court Decision................... 10
D. Appeals Court Decision.................... 12
STATEMENT OF POINTS WITH RESPECT TO FURTHER

APPELLATE REVIEW.................................... 14
STATEMENT WHY FURTHER APPELLATE REVIEW IS

APPROPRIATE......................................... 15
FURTHER APPELLATE REVIEW IS WARRANTED TO

RESOLVE THE CONFLICT BETWEEN THE APPEALS
COURT’S FIRREA HOLDING AND THE FOURTH
CIRCUIT’S HOLDING IN WILLNER V. DIMON, 849
F.3D 93 (4TH CIR. 2017)........................ 15
THE APPEALS COURT’S FIRREA HOLDING IS WRONG. ... 19
EVEN UNDER ITS ERRONEOUS FIRREA HOLDING, THE

APPEALS COURT SHOULD HAVE CONCLUDED THAT THE
JURISDICTIONAL BAR APPLIES..................... 23
CONCLUSION.......................................... 25
ADDENDUM
- iii -
CERTIFICATE OF SERVICE
MASSACHUSETTS RULE OF APPELLATE PROCEDURE 16(K)

CERTIFICATION
- iv -
TABLE OF AUTHORITIES
CASES
Page(s)
Acosta-Ramirez v. Banco Popular de Puerto Rico,
712 F.3d 14 (1st Cir. 2013) ........................7
American National Insurance Co. v. Federal

Deposit Insurance Corp.,
642 F.3d 1137 (D.C. Cir. 2011) ..........7, 8, 12, 22
Atlanticare Medical Center v. Commissioner

of Division of Medical Assistance,
439 Mass. 1 (2003) ................................19
Bank of New York v. First Millennium, Inc.,

607 F.3d 905 (2d Cir. 2010) ................8, 13, 22
Benson v. JPMorgan Chase Bank, N.A.,

673 F.3d 1207 (9th Cir. 2012) ......................6
Botschafter v. Federal Deposit Insurance Corp.,

416 Mass. 1004 (1993) .......................2, 6, 19
Bueford v. Resolution Trust Corp.,

991 F.2d 481 (8th Cir. 1993) .......................6
Casseus v. Eastern Bus Co.,

478 Mass. 786 (2018) ..............................19
Demelo v. U.S. Bank National Association,

727 F.3d 117 (1st Cir. 2013) ..................passim
Drakopoulos v. U.S. Bank National

Association,
465 Mass. 775 (2013) ..............................24
Excel Willowbrook, LLC v. JP Morgan Chase

Bank, National Association,
758 F.3d 592 (5th Cir. 2014) .......................9
Farnik v. Federal Deposit Insurance Corp.,

707 F.3d 717 (7th Cir. 2013) .......................7
Heno v. Federal Deposit Insurance Corp.,

20 F.3d 1204 (1st Cir. 1994) ......................21
- v -
Hudson United Bank v. Chase Manhattan Bank
of Connecticut, N.A.,
43 F.3d 843 (3d Cir. 1994) ........................ 8
McLaughlin v. Federal Deposit Insurance Corp.,

415 Mass. 235 (1993) .......................5, 19, 20
Rundgren v. Washington Mutual Bank, FA,

760 F.3d 1056 (9th Cir. 2014) .................passim
Tellado v. IndyMac Mortgage Services,

707 F.3d 275 (3d Cir. 2013) ........................7
Village of Oakwood v. State Bank & Trust Co.,

539 F.3d 373 (6th Cir. 2008) .......................8
Westberg v. Federal Deposit Insurance Corp.,

741 F.3d 1301 (D.C. Cir. 2014) ...............5, 6, 7
Willner v. Dimon,
849 F.3d 93 (4th Cir. 2017) ...................passim
Yeomalakis v. Federal Deposit Insurance Corp.,

562 F.3d 56 (1st Cir. 2009) ........................9
STATUTES AND RULES
12 U.S.C.
§ 1821(d)(2)(A) .................................. 24
§ 1821(d)(2)(G) .................................. 24
§ 1821(d)(3)(B)(i) ................................ 4
§ 1821(d)(5)(A)(i) ................................ 4
§ 1821(d)(6)(A) .................................4, 7
§ 1821(d)(13)(D) ............................5, 6, 20
§ 1821(d)(13)(D)(ii) ..........................passim
G. L. c. 106,
§ 3-301 ...........................................24
§ 3-305 ...........................................24
Mass. R. App. P. 27.1................................ 2
- vi -
INTRODUCTION AND
REQUEST FOR LEAVE TO OBTAIN FURTHER APPELLATE REVIEW
The Financial Institutions Reform, Recovery, and

Enforcement Act (FIRREA) provides that, absent
administrative exhaustion, “no court shall have
jurisdiction over ... any claim relating to any act or
omission” of a failed bank placed in the receivership of
the Federal Deposit Insurance Corporation (FDIC). 12
U.S.C. § 1821(d)(13)(D)(ii) (emphasis added). As the
Superior Court held, the operative claims in this case
arise out of the acts or omissions of Washington Mutual
Bank (WaMu), a failed bank in the FDIC’s receivership.
Because it is undisputed that plaintiffs failed to
administratively exhaust those claims, the court
dismissed them as jurisdictionally barred under FIRREA.
That decision was correct, and the Appeals Court should
have affirmed it.
Instead, the Appeals Court reversed, and placed
Massachusetts in sharp conflict with FIRREA’s plain text
and meaning. Although the Appeals Court left
undisturbed the Superior Court’s conclusion that the
claims are based on WaMu’s conduct, it held that FIRREA’s
jurisdictional bar does not apply to such claims when
the underlying asset (here, a loan) was sold by the
failed bank before receivership.
That novel holding finds no support in FIRREA’s
text and warrants further appellate review for three
reasons. First, the Appeals Court created a square
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conflict with the Fourth Circuit’s decision in Willner
v. Dimon, 849 F.3d 93, 105 (4th Cir. 2017), which
considered and rejected the argument that FIRREA’s
jurisdictional bar is inapplicable to claims relating to
assets sold before FIRREA receivership. Second, the
decision below contravenes FIRREA’s plain text and lacks
support in the cited case law. Third, even under the
Appeals Court’s erroneous view of FIRREA, it should have
concluded that the jurisdictional bar applies and
forecloses plaintiffs’ claims.
FIRREA is a critical federal banking statute to
which nationwide uniformity and prompt administration of
a failed bank’s assets and liabilities are vital. The
Appeals Court’s erroneous holding “affect[s] the public
interest or the interests of justice,” and therefore
warrants further review from this Court. Mass. R. App.
P. 27.1. Indeed, this Court previously granted further
appellate review in a case about the proper
interpretation of FIRREA’s jurisdictional bar. See
Botschafter v. FDIC, 416 Mass. 1004, 1004 (1993). The
Court should likewise grant review here and reinstate
the Superior Court’s decision.
STATEMENT OF PRIOR PROCEEDINGS
In November 2009, plaintiffs H. Christopher Starkey

and Louisa H. Starkey brought this action in Superior
Court, seeking to enjoin a foreclosure action against
them. They named as defendants Deutsche Bank National
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Trust Company (Deutsche Bank), JPMorgan Chase Bank, N.A.
(JPMC), and other entities related to JPMC and WaMu.
On September 4, 2014, the Superior Court dismissed
all but one claim under FIRREA’s jurisdictional bar.
The parties subsequently settled and dismissed the
surviving claim. In accordance with that settlement,
the Superior Court’s final judgment dismissed all
remaining claims against all defendants.
On September 11, 2018, the Appeals Court reversed
and remanded. Defendants petitioned for rehearing or,
in the alternative, clarification of the Appeals Court’s
opinion. On October 18, the court denied rehearing but
granted the alternative request for clarification.
STATEMENT OF RELEVANT FACTS
A. FIRREA
Congress enacted FIRREA “‘in an effort to prevent

the collapse of the [savings and loan] industry’ in the
late 1980s.’” Rundgren v. Washington Mutual Bank, FA,
760 F.3d 1056, 1060 (9th Cir. 2014) (alteration in
original), cert. denied, 135 S. Ct. 1560 (2015). Seeking
“‘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.’” Id.
“To maximize the FDIC’s ability to fulfill its role
as claim adjudicator,” FIRREA establishes a
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“comprehensive” administrative “claims process.”
Rundgren, 760 F.3d at 1060; accord, e.g., Willner v.
Dimon, 849 F.3d 93, 102 (4th Cir. 2017); Demelo v. U.S.
Bank Nat’l Ass’n, 727 F.3d 117, 121 (1st Cir. 2013).
This claims process is critical to FIRREA’s purpose: to
allow the FDIC “to ensure that the assets of a failed
institution are distributed fairly and promptly among
those with valid claims against the institution, and to
expeditiously wind up the affairs of failed banks ...
without unduly burdening” the courts. Rundgren, 760
F.3d at 1060 (internal quotation marks and citation
omitted).
Once appointed as receiver for a failed bank, the
FDIC must publish certain notices to potential
claimants, and claimants must comply with the required
claims process by (among other things) submitting claims
to the FDIC by a designated deadline. See 12 U.S.C.
§ 1821(d)(3)(B)(i). The FDIC has 180 days to decide
whether to allow or disallow a filed claim. Id.
§ 1821(d)(5)(A)(i). Disappointed claimants may seek
administrative review of “any claim against a depository
institution for which the Corporation is receiver” or
seek judicial review in federal district court. Id.
§ 1821(d)(6)(A).
“This regime affords a streamlined method for
resolving most claims against failed institutions in a
prompt, orderly fashion, without lengthy litigation.”
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Demelo, 727 F.3d at 121 (internal quotation marks
omitted). Congress accordingly “ma[de] participation in
the administrative claims review process mandatory for
all parties asserting claims against failed
institutions.” McLaughlin v. FDIC, 415 Mass. 235, 238
(1993). Congress did so by providing that “courts lose
jurisdiction over a claim or action against a failed
institution if an administrative claim is not timely
filed with the FDIC.” Id. at 239; accord, e.g., Willner,
849 F.3d at 103.
Specifically, FIRREA’s jurisdiction-stripping
provision states that, absent administrative exhaustion:
[N]o court shall have jurisdiction over--
(i) any claim or action for payment from, or

any action seeking a determination of rights
with respect to, the assets of any depository
institution for which the Corporation has been
appointed receiver, including assets which the
Corporation may acquire from itself as such
receiver; or
(ii) any claim relating to any act or omission

of such institution or the Corporation as
receiver.
12 U.S.C. § 1821(d)(13)(D).
FIRREA’s plain terms thus “create an exhaustion
requirement that ... is absolute and unwaivable.”
Willner, 849 F.3d at 103 (internal quotation marks
omitted). That is, FIRREA “routes claims through an
administrative review process” and “withholds judicial
review unless and until claims are so routed.” Westberg
- 5 -
v. FDIC, 741 F.3d 1301, 1303 (D.C. Cir. 2014); accord
Bueford v. RTC, 991 F.2d 481, 484 (8th Cir. 1993)
(collecting cases), cited favorably by Botschafter v.
FDIC, 416 Mass. 1004, 1004 (1993). This “jurisdictional
exhaustion requirement ... cannot [be] excuse[d],”
Westberg, 741 F.3d at 1303, and “is clear as a bell,”
Demelo, 727 F.3d at 122.
The term “claim” in 12 U.S.C. § 1821(d)(13)(D) has
a broad, “ordinary” meaning: “a cause of action or the
aggregate of facts that gives rise to a right to payment
or an equitable remedy.” Rundgren, 760 F.3d at 1061.
Accordingly, a “claim” under FIRREA includes requests
for “monetary and nonmonetary” relief. Id.
Moreover, because the jurisdictional bar is phrased
expansively--as relevant here, referring to “any claim
relating to any act or omission” of a failed bank, 12
U.S.C. § 1821(d)(13)(D)(ii) (emphasis added)--courts
have “given this provision the full scope that its text
demands,” Demelo, 727 F.3d at 123. Subsection (ii), as
courts have explained, “distinguishes claims on their
factual bases rather than on the identity of the
defendant: It asks whether claims ‘relate to any act
o[r] omission’ of a failed institution .... [T]he
provision does not make any distinction based on the
identity of the party from whom relief is sought.”
Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1212
(9th Cir. 2012); accord, e.g., Westberg, 741 F.3d at
- 6 -
1306.
Courts have thus uniformly held that, “[w]here a
claim is functionally, albeit not formally, against a
[failed bank], it is a ‘claim’ within the meaning of
FIRREA’s administrative claims process” and is therefore
jurisdictionally barred absent exhaustion. American
Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1142 (D.C. Cir.
2011); accord, e.g., Willner, 849 F.3d at 104; Rundgren,
760 F.3d at 1064; Acosta-Ramirez v. Banco Popular de
Puerto Rico, 712 F.3d 14, 20-21 (1st Cir. 2013); Farnik
v. FDIC, 707 F.3d 717, 722-723 (7th Cir.), cert. denied,
571 U.S. 974 (2013); Tellado v. IndyMac Mortg. Servs.,
707 F.3d 275, 280 (3d Cir. 2013). In other words, “[a]
claimant cannot circumvent the exhaustion requirement by
suing the purchasing bank”--i.e., the third-party bank
that purchased the failed bank’s assets--“based on the
conduct of the failed institution.” Rundgren, 760 F.3d
at 1064.
Finally, there is one context in which some courts
have stated that the term “claim” is a “term of art,”
but that context is not relevant here. On its face,
§ 1821(d)(13)(D)(ii) strips jurisdiction over claims not
only against failed banks, but also against “the [FDIC]
as receiver.” But only claims against failed banks may
be brought in the administrative process. See 12 U.S.C.
§ 1821(d)(6)(A). Thus, under subsection (ii), courts
could lack jurisdiction over some claims--i.e., those
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against the FDIC--that are not subject to resolution in
the administrative process. Some courts have resolved
this issue by characterizing “the word ‘claim’ [a]s a
term-of-art,” American Nat’l Ins., 642 F.3d at 1142, in
the sense that § 1821(d)(13)(D)(ii) “bars only claims
that could be brought under the administrative
procedures of § 1821(d),” Bank of N.Y. v. First
Millennium, Inc., 607 F.3d 905, 921 (2d Cir. 2010);
accord, e.g., Village of Oakwood v. State Bank & Tr.
Co., 539 F.3d 373, 385 (6th Cir. 2008); Hudson United
Bank v. Chase Manhattan Bank of Conn., N.A., 43 F.3d
843, 849 (3d Cir. 1994).
This case, however, does not involve a claim
against the FDIC. Thus, as relevant here, any assertion
of a legal right functionally pleaded against a failed
bank is a “claim” that must be exhausted
administratively and otherwise will be jurisdictionally
barred. See supra pp.5-7.
B. Factual Background
This case arises out of a mortgage loan that the

Starkeys executed with WaMu in 2005.
1. The Starkeys’ loan
On November 22, 2005, the Starkeys refinanced the

mortgage on their residential property located in South
Yarmouth. RA.39. They executed a $1,000,000 promissory
note in favor of WaMu, RA.39-44, and gave WaMu a mortgage
on their property, RA.45-66.
- 8 -
The Starkeys’ mortgage note was subsequently
securitized: It was pooled with other assets, and the
assets were sold to the WaMu Mortgage Pass Through
Certificates Series 2006-AR1 Trust (WaMu 2006 AR1 Trust
or trust) in return for the revenue from securities that
the trust simultaneously issued backed by the stream of
income from future loan payments. The trustee was
Deutsche Bank. See generally RA.162-406 (Pooling and
Serving Agreement).
2. FDIC’s receivership of WaMu
On September 25, 2008, WaMu was declared insolvent

and the FDIC placed it into receivership. Yeomalakis v.
FDIC, 562 F.3d 56, 59 (1st Cir. 2009). As receiver,
“the FDIC stepped into WaMu’s shoes and assumed all of
its assets and liabilities.” Excel Willowbrook, LLC v.
JP Morgan Chase Bank, Nat’l Ass’n, 758 F.3d 592, 595
(5th Cir. 2014).
On the same day, the FDIC entered into a Purchase
and Assumption Agreement with JPMC. See RA.434-477.
Under that agreement, JPMC acquired “many of WaMu’s
assets.” Yeomalakis, 562 F.3d at 59. However, “the
FDIC retained most liabilities associated with those
assets.” Rundgren, 760 F.3d at 1059. Specifically,
“liability for [WaMu]’s acts and omissions stayed with
the FDIC.” Willner, 849 F.3d at 109; see also RA.446
(Purchase and Assumption Agreement § 2.5, stating that
JPMC did not assume liability for “Borrower Claims”).
- 9 -
3. The Starkeys’ lawsuit
In November 2008, the Starkeys defaulted on their

mortgage loan. RA.9. On May 14, 2009, Deutsche Bank,
acting solely in its capacity as trustee for the WaMu
2006 AR1 Trust, brought a foreclosure action against the
Starkeys. RA.67-68.
On November 20, 2009, in an effort to forestall the
foreclosure suit, the Starkeys filed this lawsuit.
RA.7-36. Their complaint named as defendants Deutsche
Bank, as trustee; JPMC as successor-in-interest to WaMu;
and other JPMC and WaMu entities. RA.7-8.
The Starkeys’ complaint included seven counts,
whereby the Starkeys
challeng[ed] the validity of the mortgage and
the note on several bases, including failure
to properly convey or assign the note, an
action for rescission of the note under G. L.
c. 140D, common law fraud, breach of contract,
violation of 12 U.S.C. § 2605(e) (“RESPA”),
fraud under G. L. c. 93A, and violation of the
Borrower’s Interest Act, G. L. c. 183
§ 28C(a).
Add.19-20; see Add.2-3.1 The Starkeys sought rescission

of the mortgage and note, monetary damages, and other
equitable relief. Defendants moved to dismiss all seven
counts. RA.120-161.
C. Superior Court Decision
The Superior Court dismissed six of the seven
1 References to “Add.” are to the Addendum to this

Application.
- 10 -
counts (all but count five) under FIRREA’s
jurisdictional bar. It concluded that these six counts
“clearly ‘arise out of and relate exclusively to pre-
receivership acts or omissions’ of WaMu, the failed
institution, or the FDIC.” Add.21-22. As the court
made clear, five of these six counts--counts two, three,
four, six, and seven--arose from WaMu’s conduct only.
Add.22-25. As for count one, it too arose from WaMu’s
conduct. Add.22. While the Superior Court indicated
that count one might also involve the “FDIC, as WaMu’s
successor,” id., that count challenged the conveyance of
the note into the trust and thus necessarily arose from
WaMu conduct, see id.; RA.30 (challenging the “fail[ure]
to properly convey the Starkey’s mortgage note into the
trust”). Accordingly, because “FIRREA precludes
judicial review” of such claims absent administrative
exhaustion, Add.21 (citing Demelo, 727 F.3d at 122), and
because the Starkeys did not exhaust the FDIC’s
administrative process, the Superior Court granted the
motion to dismiss as to these counts.
The Superior Court concluded that count five was
not subject to the jurisdictional bar because it arose
out of JPMC’s alleged conduct, not WaMu’s. Add.26. The
Superior Court thus denied the motion to dismiss as to
count five against JPMC. Add.26-27.
The parties then settled count five and dismissed
it by separate judgment. The Superior Court’s final
- 11 -
judgment thus effected a complete dismissal of all
remaining counts against all defendants. See Add.4.
D. Appeals Court Decision
The Appeals Court reversed and remanded. It left

undisturbed the Superior Court’s holding that the
Starkeys’ claims arise out of WaMu’s alleged acts or
omissions. Nonetheless, the Appeals Court held that
FIRREA’s jurisdictional bar does not apply when the
underlying asset was sold by the failed bank prior to
receivership. Add.14-15. And it concluded that,
because there was “a genuine issue of fact with respect
to” whether the Starkeys’ mortgage was sold before
WaMu’s receivership, Add.9, it remanded the case to the
Superior Court for “further discovery,” Add.15.
The Appeals Court began its FIRREA analysis by
invoking the D.C. Circuit’s statement that “[i]n FIRREA,
the word ‘claim’ is a term-of-art,” referring “only to
claims that are resolvable through the FIRREA
administrative process.” Add.10 (quoting American Nat’l
Ins., 642 F.3d at 1142); see also supra pp.7-8
(discussing American Nat’l Ins.). And it interpreted
the First Circuit’s Demelo decision as “impl[ying] that
the FIRREA bar applies only to ... [mortgages] ...
‘acquired ... by way of the powers vested in the FDIC
under FIRREA.’” Add.12 (quoting Demelo, 727 F.3d at
124; third alteration in original). For assets assigned
before receivership, the Appeals Court observed, claims
- 12 -
can be brought directly against the “assignee [who] will
have whatever ‘successor liability’ comes with the
assigned mortgage.” Id. (quoting Demelo, 727 F.3d at
124).
The Appeals Court further stated that its
“approach”--i.e., not applying the jurisdictional bar to
claims relating to assets sold prior to the
receivership, even if they arise out of the failed bank
bank’s acts or omissions--was “taken by” the Second
Circuit in its Bank of New York decision. Add.12. That
case involved an interpleader action between various
securities holders and the FDIC, with both claiming a
right to certain assets held by a trust; the assets had
been assigned to the trust from the failed bank prior to
the FDIC’s receivership. Bank of N.Y., 607 F.3d at 909-
911. The Second Circuit held that § 1821(d)(13)(D)(ii)
did not apply to the noteholders’ claims against the
trust, because “the noteholders assert no claim against
either the FDIC or [the failed bank], and since they are
not compelled to comply with the administrative
procedures of § 1821(d),” “FIRREA ... did not deprive
the district court of subject matter jurisdiction over
the interpleader action.” Id. at 921. The Appeals Court
“f[ou]nd that reading of FIRREA persuasive.” Add.14.
Defendants petitioned for rehearing or, in the
alternative, for clarification concerning the scope of
the Appeals Court’s decision. The Appeals Court
- 13 -
“allowed [the motion] to the extent it seeks
clarification,” and stated that its holding applied to
all of the Starkeys’ operative claims. Add.17. “To the
extent the petition seeks rehearing,” the Appeals Court
stated, “it is denied.” Id.
STATEMENT OF POINTS WITH RESPECT TO
FURTHER APPELLATE REVIEW
1. Whether the Appeals Court legally erred in

adopting an interpretation of FIRREA’s jurisdictional
bar that squarely conflicts with the Fourth Circuit’s
decision in Willner v. Dimon, 849 F.3d 93 (4th Cir.
2017), and the plain text of the statute.
2. Whether the Appeals Court legally erred in
reversing the dismissal of the operative claims even
under its interpretation of FIRREA’s jurisdictional bar.
- 14 -
STATEMENT WHY FURTHER APPELLATE REVIEW IS APPROPRIATE
FURTHER APPELLATE REVIEW IS WARRANTED TO RESOLVE

THE CONFLICT BETWEEN THE APPEALS COURT’S FIRREA
HOLDING AND THE FOURTH CIRCUIT’S HOLDING IN
WILLNER V. DIMON, 849 F.3D 93 (4TH CIR. 2017)
The Appeals Court held that FIRREA’s jurisdictional

bar does not apply to claims arising from the acts or
omissions of a failed bank if they concern assets sold
before receivership. The Fourth Circuit rejected that
precise argument in Willner v. Dimon, 849 F.3d 93, 105
(4th Cir. 2017), holding that FIRREA’s bar applies to
all claims against a failed bank regardless of whether
the related asset was sold before receivership. This
conflict between the Appeals Court and a federal court
of appeals on an important question of federal law
warrants further appellate review.
A. As in this case, Willner involved legal claims
arising out of a mortgage originated by WaMu. 849 F.3d
at 99-102. As here, the loan was sold to a trust and
securitized before WaMu failed and went into
receivership. Id. As here, the homeowners sued the
trustee and JPMC as successor to WaMu; they sought (among
other things) a declaration that the trustee and JPMC,
having acquired WaMu’s interest in the loan from the
FDIC, had no right to foreclose under the deed of trust.
Id. The district court dismissed the relevant claims
for both monetary and nonmonetary relief under FIRREA’s
jurisdictional bar. Id.
- 15 -
The Fourth Circuit affirmed. Reaffirming settled
law, it held that FIRREA’s jurisdictional bar applies to
“unexhausted claims [that] are functionally pleaded
against the acts and omissions of” a failed bank. 849
F.3d at 104. It then held that the claims were
functionally pleaded against a failed bank because they
alleged only misconduct by WaMu. Id.
In so doing, the Fourth Circuit expressly
considered the homeowners’ “argument that FIRREA’s
exhaustion requirement doesn’t apply” because the note
was “securitized ... by depositing it into the [trust]
prior to [WaMu’s] failure” and thus never “passed
through the FDIC’s receivership estate.” 849 F.3d at
105 (emphasis added). That argument, the court of
appeals concluded, was “irrelevant” to the
jurisdictional analysis because the plain text of FIRREA
applies to “any claim relating to any act or omission of
[any depository institution for which the FDIC has been
appointed receiver].” Id. (alteration in original).
Because the relevant claims were “functionally pleaded
against [WaMu’s] conduct,” the jurisdictional bar
applied. Id.
B. The Appeals Court attempted to distinguish
Willner in a footnote. It posited that Willner’s
“holding was limited to claims that could have been
brought in an administrative proceeding ... and that, if
found meritorious, would have been paid by the FDIC, not
- 16 -
[a] third party.” Add.14-15.n.7. In offering that
distinction, the Appeals Court appeared to assume that
the Starkeys’ claims would be paid by a third party.
The court offered no authority or basis in the record to
support that assumption, other than a brief reference
earlier in the opinion to “successor liability,” Add.12.
The footnote is unpersuasive, for two independent
reasons. First, the Appeals Court misstated Willner’s
clear holding by conflating two distinct points.
Willner did recognize that the jurisdictional bar
applies only to claims that can be brought in the
administrative process. 849 F.3d at 105-106. But
Willner held that such claims are those functionally
pleaded against a failed bank--not, as the Appeals Court
suggested, claims that, if meritorious, would be paid by
the FDIC. Id. at 108-109. In fact, the Fourth Circuit
declined “to blindly speculate ... how the FDIC would
have resolved” a particular claim. Id. at 108. Willner
thus rejected the very inquiry the Appeals Court
suggested in its footnote--speculation as to the chain
of successor liability and who is responsible for
payment--underscoring the conflict between the Fourth
Circuit and the Appeals Court’s decision.

Second, the Appeals Court’s footnote is also
unpersuasive because its operative, unqualified
assumption (that the Starkeys’ claim would be paid by a
third party, not the FDIC) is incorrect. As explained
- 17 -
below, infra pp.23-24, even if WaMu sold the Starkeys’
mortgage note before receivership, any liabilities
underlying the Starkeys’ claim would have remained with
WaMu at the time of the receivership. The FDIC would
have assumed those liabilities. If the Starkeys had
timely filed their claims against WaMu before the FDIC,
those claims (if meritorious) would have been paid or
otherwise resolved by the FDIC.
C. The split created by the Appeals Court’s
FIRREA holding warrants further appellate review, as it
involves a central provision of a critical federal
banking law. FIRREA governs national banks and savings
associations, where uniform nationwide administration is
vital. See, e.g., Willner, 849 F.3d at 110. The next
time a bank fails, the FDIC and interested parties should
not have to be concerned that FIRREA might apply
differently in Massachusetts from how it operates in the
Fourth Circuit (which includes Maryland, Virginia, West
Virginia, North Carolina, and South Carolina).
Moreover, the Appeals Court’s FIRREA holding undermines
Congress’s goal of “‘expeditiously wind[ing] up the
affairs of failed banks,’” Rundgren, 760 F.3d at 1060.
Without confidence in FIRREA’s jurisdictional bar, for
example, purchasing banks are less able to properly
appraise their liabilities and thus less likely to
assist the FDIC in winding up failed banks.
Perhaps in recognition of all this, this Court
- 18 -
previously has granted further appellate review in a
case about the proper interpretation of FIRREA’s
jurisdictional bar. See Botschafter v. FDIC, 416 Mass.
1004, 1004 (1993). Further appellate review is
similarly warranted here.
THE APPEALS COURT’S FIRREA HOLDING IS WRONG
Further appellate review is also warranted because

the Appeals Court’s FIRREA holding is wrong--in
contravention of the statute’s plain text and
unsupported by the cited cases.
A. This Court has repeatedly recognized that
“[c]ourts must follow the plain language of a statute
when it is unambiguous and when its application would
not lead to an absurd result or contravene the
Legislature’s clear intent.” Casseus v. Eastern Bus
Co., 478 Mass. 786, 787 (2018); see also Atlanticare
Med. Ctr. v. Commissioner, 439 Mass. 1, 6 (2003). The
Appeals Court did not follow this approach here: There
is no textual basis for the Appeals Court’s
interpretation of FIRREA’s jurisdictional bar.
This Court held in McLaughlin v. FDIC, 415 Mass.
235, 237 (1993), that a “plaintiff’s failure to
participate in a timely manner in FIRREA’s
administrative process is fatal.” McLaughlin’s
reasoning was brief and clear. “‘FIRREA makes
participation in the administrative claims review
process mandatory for all parties asserting claims
- 19 -
against failed institutions.’” Id. at 238. And “courts
lose jurisdiction over a claim or action against a failed
institution if an administrative claim is not timely
filed with the FDIC.” Id. at 239.
FIRREA’s jurisdictional bar applies to “any claim
relating to any act or omission” of a failed bank. 12
U.S.C. § 1821(d)(13)(D)(ii) (emphasis added). Courts
have “given this provision the full scope that its text
demands,” and thus rejected arguments to recognize
unstated exceptions for certain types of claims.
Demelo, 727 F.3d at 123; see supra pp.5-7. The same is
true here: There is no textual exception for claims
relating to assets sold (or liabilities transferred)
before receivership.
All of the dismissed claims relate to WaMu’s
conduct at origination or during securitization--a
Superior Court holding the Appeals Court (rightly) left
undisturbed. Thus, all claims are “against a failed
institution.” McLaughlin, 415 Mass. at 239. Because
the Starkeys did not timely file their claims with the
FDIC, FIRREA’s bar applies and “no court shall have
jurisdiction over” them. 18 U.S.C. § 1821(d)(13)(D).
B. Moreover, the plain-language reading of
FIRREA’s jurisdictional bar is efficient and fair. In
requiring exhaustion of all claims against a failed
bank--regardless of whether those claims concern assets
sold before receivership--Congress made clear that it
- 20 -
falls to the FDIC, not courts many years later, to
determine whether the liabilities underlying those
claims remained with the failed bank at the time of
receivership or were previously transferred to a third
party. That is a task to which the FDIC is properly
suited, given its “cumulative administrative expertise”
and its access to the relevant factual records. Heno v.
FDIC, 20 F.3d 1204, 1209 (1st Cir. 1994).
Moreover, this exhaustion assists claimants in many
cases. If the FDIC concludes that liabilities were not
transferred to a third party, the FDIC may pay the
claimants. If the FDIC concludes that the liabilities
were transferred (by disallowing the claim), the
claimant may then bring suit against the third party.
By contrast, the Appeals Court’s approach is not
easily administrable and contrary to Congress’s intent.
Courts would be compelled to resolve potentially
complicated questions about whether a claim concerns an
asset sold before receivership and, if so, whether that
assignment also conveyed any legal liabilities relating
to that asset. And by permitting post-hoc
“speculat[ion] about how the FDIC would have resolved”
the claim, courts would be improperly permitting
plaintiffs to “circumvent FIRREA’s exhaustion
requirement by declining to pursue the remedies
available to them and later arguing that such remedies
are ineffective.” Willner, 849 F.3d at 109.
- 21 -
C. The cases on which the Appeals Court relied do
not support its FIRREA holding. The Appeals Court quoted
language from Second Circuit and D.C. Circuit decisions
as though those courts adopted a narrow interpretation
of “claim” under 12 U.S.C. § 1821(d)(13)(D)(ii). In
fact, as discussed supra pp.7-8, those courts were only
harmonizing the term “claim” in the jurisdictional bar
with “claim” as defined in the administrative process.
Under that interpretation, both courts concluded that
the jurisdictional bar applies to any claim against a
failed bank. See Bank of N.Y., 607 F.3d at 921; American
Nat’l Ins., 642 F.3d at 1142. Here, the Starkeys’ claims
are against a failed bank--arising from WaMu’s acts or
omissions. Those claims are thus barred under Second
Circuit and D.C. Circuit law.
The other case relied upon by the Appeals Court,
the First Circuit’s decision in Demelo, does not support
its FIRREA interpretation either. In the quoted passage
from Demelo, the First Circuit explained that,
notwithstanding a Massachusetts law stating that an
assignee is responsible for liabilities arising out of
a high-cost mortgage, when the assignee acquires the
“mortgage by way of the powers vested in the FDIC under
FIRREA,” “the plaintiffs’ claims are subject to ...
[the] jurisdictional bar.” 727 F.3d at 125. The Appeals
Court appears to have reasoned by inference that, where
a mortgage is assigned pre-receivership, the assignee is
- 22 -
necessarily liable under Massachusetts law, and thus the
FDIC has no role in resolving claims relating to that
asset and the jurisdictional bar does not apply. Add.12.
That reasoning suffers from many flaws. Most
fundamentally, a single state’s laws cannot dictate the
interpretation of federal law. Moreover, the Appeals
Court’s reasoning is a veiled policy argument. The court
reasoned that, where a plaintiff’s claims can be brought
against a solvent third party, administrative exhaustion
is unnecessary and should not be required. But Congress
did not make that policy judgment. It stated instead
that the jurisdictional bar applies to “any claim
relating to any act or omission of” a failed bank. 12
U.S.C. § 1821(d)(13)(D)(ii) (emphasis added). That
language is controlling here.
EVEN UNDER ITS ERRONEOUS FIRREA HOLDING, THE
APPEALS COURT SHOULD HAVE CONCLUDED THAT THE
JURISDICTIONAL BAR APPLIES
According to the Appeals Court, the applicability

of the jurisdictional bar turns on whether the
plaintiff’s claim was effectively channeled through the
FDIC, i.e., whether the claim was “‘acquired ... by way
of the powers vested in the FDIC under FIRREA.’” Add.12.
From this premise, the Appeals Court concluded that, if
WaMu sold the Starkeys’ mortgage to the trust before
receivership, the Starkeys’ claims were not acquired by
the FDIC and thus not subject to the jurisdictional bar.
Even accepting the incorrect premise, the
- 23 -
conclusion does not follow. The logical flaw is that
the Appeals Court conflated assignment of the Starkeys’
mortgage note (an asset) with assignment of the
Starkeys’ legal claims (a liability relating to that
asset). General legal principles treat notes and
liabilities as separate; indeed, under the holder-in-
due-course doctrine, the sale of a note does not
generally convey liabilities relating to that note. See
G. L. c. 106, §§ 3-301, 3-305 (adopting the Uniform
Commercial Code’s holder-in-due-course doctrine).2
Thus, even if WaMu sold the Starkeys’ mortgage to
the trust pre-receivership, any legal liabilities
arising from the mortgage remained with WaMu. Those
liabilities were then acquired by the FDIC when it became
receiver. See supra p.9; 12 U.S.C. § 1821(d)(2)(A),
(G). Thus, even under the Appeals Court’s own reasoning,
the jurisdictional bar should apply.
2 Although Demelo cites a Massachusetts law

potentially abrogating the holder-in-due-course
doctrine, that law only applies to “high-cost home
mortgage loan[s],” Drakopoulos v. U.S. Bank Nat’l Ass’n,
465 Mass. 775, 783 (2013). Plaintiffs have never invoked
this law, and there is no evidence in the record that
the loan at issue is a high-cost loan under Massachusetts
law. In fact, the record shows the opposite. See RA.269
(“[T]he Mortgage Pool” is “not intended ... to include
any Mortgage Loan that is a ‘high-cost home loan’ as
defined under ... the Massachusetts Predatory Home Loan
Practices Act[.]”). Moreover, even assuming this law
applied, the Appeals Court’s holding would still be
erroneous because it held that the jurisdictional bar
never applies to any asset sold pre-receivership--not
just high-cost mortgage loans in Massachusetts.
- 24 -
CONCLUSION
This Court should grant further appellate review

and reinstate the judgment of the Superior Court.
October 31, 2018 Respectfully submitted,
/s/ Mark C. Fleming

Mark C. Fleming
(BBO No. 639358)
HALE AND DORR LLP
60 State Street
Boston, MA 02109
(617) 526-6000
mark.fleming@wilmerhale.com
Alan E. Schoenfeld
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, N.Y. 10007
(212) 230-8800
alan.schoenfeld@wilmerhale.com
Albinas J. Prizgintas
Arpit K. Garg
HALE AND DORR LLP
1875 Pennsylvania Ave. N.W.
Washington, D.C. 20006
(202) 663-6000
albinas.prizgintas@wilmerhale.com
arpit.garg@wilmerhale.com
Counsel for Defendants-Applicants
- 25 -
ADDENDUM
ADDENDUM
Tab Description Page(s)
1 Opinion in Starkey v. Deutsche Bank Add.1-

National Trust Co., No. 2016-P-1594 Add.16
(Mass. App. Ct. Sept. 11, 2018) (Rubin,
J. joined by Lemire and Shin, JJ.)
2 Order on Petition for Rehearing in Add.17-

Starkey v. Deutsche Bank National Add.18
Trust Co., No. 2016-P-1594 (Mass. App.
Ct. Oct. 18, 2018)
3 Memorandum of Decision and Order on Add.19-

Defendants’ Motions to Dismiss in Add.27
Starkey v. Deutsche Bank National Trust
Co., No. 2009-00829 (Banstable Superior
Court Sept. 4, 2014) (Muse, J.)
4 12 U.S.C. § 1821(d)(13) Add.28-

Add.29
- i -
TAB 1
NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
16-P-1594 Appeals Court
H. CHRISTOPHER STARKEY & another1 vs. DEUTSCHE BANK NATIONAL

TRUST COMPANY, trustee,2 & others.3
No. 16-P-1594.
Barnstable. December 11, 2017. - September 11, 2018.
Present: Rubin, Lemire, & Shin, JJ.
Mortgage, Real estate, Foreclosure. Real Property, Mortgage.

Federal Deposit Insurance Corporation. Jurisdiction.
Practice, Civil, Motion to dismiss, Summary judgment.
Civil action commenced in the Superior Court Department on

November 20, 2009.
Motions to dismiss were heard by Christopher J. Muse, J.,

and entry of judgment was ordered by him.
Glenn F. Russell, Jr., for the plaintiffs.
1 Louisa H. Starkey.
2Of the WaMu Mortgage Pass Through Certificates Series

2006-AR1 Trust.
3JPMorgan Chase Bank, N.A.; Chase Home Finance, LLC;

Washington Mutual, Inc.; Washington Mutual Bank, FA; Washington
Mutual Mortgage Securities Corporation; Washington Mutual
Mortgage Service Corporation; and ATM Corporation.
Add.1
2
Charles L. Solomont for Deutsche Bank National Trust

Company & another.
RUBIN, J. The plaintiffs, H. Christopher Starkey and
Louisa H. Starkey, entered into a mortgage loan transaction in
which they executed a promissory note in favor of Washington
Mutual Bank, FA (Washington Mutual), as lender and payee in the
amount of $1,000,000, on November 22, 2005, and gave Washington
Mutual a mortgage on their residential real property in South
Yarmouth. The plaintiffs ultimately fell behind on their
mortgage payments. On May 14, 2009, Deutsche Bank National
Trust Company (Deutsche Bank), as trustee for WaMu Mortgage Pass
Through Certificates Series 2006-AR1 Trust (trust), brought a
"Complaint to Foreclose Mortgage" against the plaintiffs under
the Servicemembers Civil Relief Act, as a final step prior to
initiating the process of foreclosure through publication. On
June 10 and June 15, 2009, the plaintiffs sent "Notice[s] of
Rescission" to Deutsche Bank as trustee of the trust, in which
they claimed the right to rescind the November 22, 2005,
transactions. After receiving no response, they filed their
November, 2009, complaint in the instant action in Superior
Court, naming as defendants Deutsche Bank, as trustee for the
trust; JPMorgan Chase Bank, N.A. (JPMorgan Chase), successor in
interest to Washington Mutual; and other entities related to
JPMorgan Chase or Washington Mutual. The plaintiffs sought
Add.2
3
declaratory relief, damages, and rescission of the mortgage and
note, alleging that the defendants have no enforceable rights
with respect to the mortgage and note due to their failure to
properly convey these assets into the trust (count 1), that the
note and mortgage were obtained without disclosures mandated by
G. L. c. 140D (count 2), that the plaintiffs were fraudulently
induced to sign the mortgage and note (count 3), that the
defendants breached their contract with the plaintiffs by
refusing to allow the plaintiffs to rescind the mortgage loan
(count 4), that the defendants violated the Real Estate
Settlement Procedures Act, 12 U.S.C. §§ 2601-2617 (2006) (count
5), that the defendants violated the consumer protection
statute, G. L. c. 93A (count 6), and that the defendants
violated the borrower's interest statute, G. L. c. 183,
§ 28C (a) (count 7).
The defendants filed motions to dismiss in January, 2010.
In their memoranda in support of the motions to dismiss, the
defendants did not raise any argument that dismissal was
required by the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 (FIRREA), Pub. L. 101-73, 103 Stat. 183,
the relevant portions of which are codified at 12 U.S.C.
§ 1821(c)-(l) (2006). However, at argument on the motions,
without prior notice to the plaintiffs, the defendants presented
the judge with a copy of Demelo v. U.S. Bank Nat'l Ass'n, 727
Add.3
4
F.3d 117 (1st Cir. 2013), and argued that FIRREA, as construed
by Demelo, required dismissal of the suit.
The motion judge ordered the dismissal of all but one claim
in the complaint -- count 5 as against JPMorgan Chase -- solely
on the basis of FIRREA. At the first opportunity to address
that statute, after the decision was rendered, the plaintiffs
filed a motion for reconsideration, arguing the inapplicability
of FIRREA. That motion was denied the same day it was filed.
Eventually the remaining count 5 claim was resolved by mutual
agreement and dismissed by separate judgment. A second judgment
then entered dismissing counts 1 through 4, 6, and 7, on the
basis of FIRREA. Before us now is the plaintiffs' timely appeal
from that judgment (as corrected to remedy a clerical mistake).
On appeal the only issue before us is whether FIRREA
requires dismissal of these counts. In light of the procedural
history described, we think the plaintiffs' arguments were
adequately raised below.4 Additional relevant facts will be
described in the course of our discussion below.
Analysis. On September 25, 2008, Washington Mutual Bank,
formerly Washington Mutual Bank, FA,5 was declared insolvent and
4The plaintiffs also raise a constitutional argument that,

in light of our disposition of this case, it is unnecessary to
address.
5 We treat these entities as the same for simplicity.
Add.4
5
placed into receivership of the Federal Deposit Insurance
Corporation (FDIC). See Thompson v. Washington Mut., 806 F.
Supp. 2d 197, 199 (D.D.C. 2011). Its assets were immediately
sold to defendant JPMorgan Chase. FIRREA sets forth a claims
procedure that requires creditors of failed banks to file claims
with the FDIC, and divests courts of jurisdiction to hear these
claims against these banks, or the FDIC as receiver, until
administrative remedies with the FDIC have been exhausted.
Specifically, the statute provides,
"Except as provided in this subsection, no court shall have

jurisdiction over--
"(i) any claim or action for payment from, or any action

seeking a determination of rights with respect to, the
assets of any depository institution for which the
Corporation [i.e., the FDIC] has been appointed receiver,
including assets which the Corporation may acquire from
itself as such receiver; or
"(ii) any claim relating to any act or omission of such

institution or the Corporation as receiver."
12 U.S.C. § 1821(d)(13)(D). The defendants argue that the
statute bars the plaintiffs' claims because it eliminates the
trial court's jurisdiction, and that the plaintiffs are remitted
to the claim procedure set forth in FIRREA, under which the
deadline for filing claims has now passed. See Alkasabi v.
Washington Mut. Bank, F.A., 31 F. Supp. 3d 101, 104 (D.D.C.
2014) (FDIC set December 30, 2008, as deadline for filing claims
against the Washington Mutual receivership).
Add.5
6
Procedural setting. As an initial matter, in their
complaint, the plaintiffs alleged that their mortgage was
"apparently" held by "Washington Mutual, Inc., or one of its
subsidiaries" on the date of Washington Mutual's insolvency.
They alleged that they were not informed that anyone other than
the original mortgagee, Washington Mutual, held their mortgage
loan prior to their receipt of the trust's Complaint to
Foreclose Mortgage. The notion that the mortgage loan was held
by Washington Mutual on the date of its placement in
receivership (September 25, 2008) was certainly a reasonable
inference, since, three days before bringing the May 14, 2009,
Complaint to Foreclose Mortgage, the trust was purportedly
assigned the mortgage by JPMorgan Chase. The assignment was
signed by Barbara Hindman, vice-president of JPMorgan Chase,
recorded in the Barnstable Registry of Deeds on May 20, 2009,
and accompanied by an affidavit by the FDIC stating that
JPMorgan Chase came to own all of Washington Mutual's "loans and
loan commitments" on September 25, 2008.
Although the memoranda in support of the defendants'
motions to dismiss, filed by a single attorney purporting to
represent all the defendants, including JPMorgan Chase and the
trust, did nothing to clarify the question of who owned the note
and the mortgage at what times, the plaintiffs did append to an
opposition memorandum a copy of the "Pooling and Servicing
Add.6
7
Agreement" (PSA), an agreement between WaMu Asset Acceptance
Corp. as depositor of a set of assets (primarily mortgage
loans), Washington Mutual Bank as servicer of those loans,
Deutsche Bank as trustee of the trust, and Deutsche Bank Trust
Company Delaware as Delaware trustee. Its inclusion suggests
that the mortgage was securitized and sold to the trust long
before Washington Mutual's insolvency. That document reveals
that the trust obtained all its assets through a purchase from
WaMu Asset Acceptance Corp., the set of assets being valued at
over $1.5 billion. The PSA states that those assets include
"Mortgage Loans" that would be conveyed to the trust on the
closing date, January 30, 2006. "Mortgage Loan[]" is relevantly
defined to include both the note and the mortgage. According to
the PSA, the "Mortgage Files," which include the mortgage notes
and recorded mortgages, endorsed or assigned respectively either
in blank, to the trust, or to the trustee, were also to be
delivered to the trust on January 30, 2006. The trust then
issued a variety of classes of "certificates," each representing
a fractional ownership interest in the bundle of Mortgage Loans
that made up the trust assets, and the certificates were
subsequently sold on the open market. The PSA appears to make
no provision, and appears to grant the trust no authority, for
acquisition of additional assets by the trust subsequent to the
closing date.
Add.7
8
Arguing that FIRREA bars the plaintiffs' claims if the
mortgage was owned by Washington Mutual on the date of its
placement in receivership, the defendants now contend that
because the plaintiffs, understandably in light of the
defendants' own conduct, pleaded that the mortgage was
"apparently" owned by Washington Mutual on that date, the
plaintiffs have "pled themselves out of court."
At this stage in the proceedings, however, we need not
determine what claims or actions might be barred by FIRREA with
respect to assets owned by Washington Mutual on the date it went
into receivership. That is because the judge, appropriately,
considered the PSA in ruling on the motions to dismiss,
specifically concluding that "[t]he mortgage was quickly
packaged into a security sold to Deutsche Bank." The judge thus
implicitly treated the motions as ones for summary judgment
under Mass. R. Civ. P. 56, 365 Mass. 824 (1974), rather than as
motions to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass.
754 (1974). See Mass. R. Civ. P. 12 (b) ("If, on any motion
asserting the defense numbered [6], to dismiss for failure of
the pleading to state a claim upon which relief can be granted,
matters outside the pleading are presented to and not excluded
by the court, the motion shall be treated as one for summary
judgment . . ."). Accord Cousineau v. Laramee, 388 Mass. 859,
860 n.2 (1983) (trial judge who relies on factual matters
Add.8
9
outside the pleadings in deciding a rule 12 [b] [6] motion
implicitly converts that motion into one for summary judgment).
On appeal, we therefore do the same. Our review is de
novo. Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016).
Drawing every inference from the record in favor of the
nonmoving parties, the plaintiffs, we must determine whether
there is any genuine issue of material fact and whether, as a
matter of law, the defendants are entitled to judgment. Id.
See Miller v. Cotter, 448 Mass. 671, 676 (2007).
Discussion. As our description of the proceedings below
suggests, there is, at least, a genuine issue of fact with
respect to the ownership of the plaintiffs' mortgage loan in
2008. If, as the PSA suggests, the note and the mortgage were
sold to the trust in 2006, they were no longer assets of
Washington Mutual on the day it went into receivership. Both
the note and the mortgage would have been the property of the
trust since 2006, notwithstanding the transfer document recorded
in May, 2009.
In a suit against a purchaser of a loan from a depository
institution that later became insolvent and went into
receivership of the FDIC, the first clause of 12 U.S.C.
§ 1821(d)(13)(D) is inapplicable. Such a suit does not seek
"payment from, or . . . a determination of rights with respect
to, the assets of any depository institution for which the
Add.9
10
[FDIC] has been appointed receiver." The question before us is
whether such a suit is barred by the second clause, eliminating
jurisdiction over "any claim relating to any act or omission of
such institution or the [FDIC] as receiver." 12 U.S.C.
§ 1821(d)(13)(D)(ii).
"In FIRREA, the word 'claim' is a term-of-art that refers
only to claims that are resolvable through the FIRREA
administrative process, and the only claims that are resolvable
through the administrative process are claims against a
depository institution for which the FDIC is receiver."
American Nat'l Ins. Co. v. Federal Deposit Ins. Corp., 642 F.3d
1137, 1142 (D.C. Cir. 2011). This understanding of the scope of
the word "claim" accords with the purposes of FIRREA, which are
"to ensure that the assets of a failed institution are
distributed fairly and promptly among those with valid claims
against the institution, and to expeditiously wind up the
affairs of failed banks." McCarthy v. Federal Deposit Ins.
Corp., 348 F.3d 1075, 1079 (9th Cir. 2003), quoting Freeman v.
Federal Deposit Ins. Corp., 56 F.3d 1394, 1401 (D.C. Cir. 1995).
See Marquis v. Federal Deposit Ins. Corp., 965 F.2d 1148, 1154
(1st Cir. 1992) ("FIRREA was designed to create an efficient
administrative protocol for processing claims against failed
banks"); Rosa v. Resolution Trust Corp., 938 F.2d 383, 396 (3d
Cir. 1991) (purpose of FIRREA's administrative procedure is to
Add.10
11
"quickly and efficiently resolve claims against a failed
institution without resorting to litigation").
Courts have required the use of the administrative claims
procedure for claims against third-party banks that purchased
the assets of the failed bank from the FDIC as receiver and
assumed its rights and/or liabilities from the FDIC -- the
purchasing bank in this case is JPMorgan Chase -- when those
claims are "functionally," if not "formally," against the failed
bank. See, e.g., Tellado v. IndyMac Mtge. Servs., 707 F.3d 275,
280-281 (3d Cir. 2013); Benson v. JPMorgan Chase Bank, N.A., 673
F.3d 1207, 1214 (9th Cir. 2012); Aber-Shukofsky v. JPMorgan
Chase & Co., 755 F. Supp. 2d 441, 448 (E.D.N.Y. 2010). In those
cases, the suit was functionally against the failed bank because
the purchasing bank held, at the time of the suit, the assets
that the FIRREA claims process was designed to distribute, and a
contrary rule would allow plaintiffs to circumvent the required
process simply by naming the purchasing bank rather than the
failed bank as the defendant. See, e.g., American Nat'l Ins.
Co., supra at 1144; Benson, supra at 1214. This was the case
with the defendant bank in Demelo v. U.S. Bank Nat'l Ass'n, 727
F.3d 117 (1st Cir. 2013), relied on by the defendants here.6
6We note that the record before us contains no evidence as

to JPMorgan Chase's assumption of Washington Mutual's or the
FDIC's liabilities.
Add.11
12
Consistent with the purposes of the statute, though, in
Demelo the United States Court of Appeals for the First Circuit
implied that the FIRREA bar applies only to holders of mortgages
originally issued by the failed bank when those mortgages were
"acquired . . . by way of the powers vested in the FDIC under
FIRREA." Id. at 124. See American First Fed., Inc. v. Lake
Forest Park, Inc., 198 F.3d 1259, 1263 n.3 (11th Cir. 1999)
("[The bank], having purchased the note from the [FDIC], stands
in the shoes of the [FDIC] and acquires its protected status
under FIRREA"). In other circumstances, the assignee will have
whatever "successor liability" comes with the assigned mortgage.
Demelo, supra. This is the approach taken by the United States
Court of Appeals for the Second Circuit in Bank of N.Y. v. First
Millennium, Inc., 607 F.3d 905 (2d Cir. 2010). In that case, a
trust created by a bank, NextBank, purchased some assets from
NextBank before it failed. The trust then issued notes backed
by proceeds from the assets, which notes it subsequently sold.
After NextBank failed, the FDIC and various noteholders each
claimed the right to certain proceeds -- the noteholders under
the notes, and the FDIC as receiver for the trust's creator.
The trust interpleaded the FDIC and the noteholders to resolve
the dispute. Id. at 908-910. The FDIC argued that the case was
barred by FIRREA. Id. at 920. The Second Circuit rejected this
argument because, although it concluded the case involved claims
Add.12
13
related to an "act or omission" of the FDIC, the claims at issue
were only against the solvent trust –- not against the failed
bank or the FDIC as receiver. Since such claims could not have
been brought under the administrative procedures of 12 U.S.C.
§ 1821(d), FIRREA did not bar them:
"This interpleader . . . is not an administrative claim,

nor could it have been one. The noteholders are not
creditors of NextBank, and they assert no claims against
either that failed institution or against the FDIC. They
hold notes issued by the trust, an independent and still
solvent entity. Accordingly, since they assert no claims
against the FDIC as receiver for NextBank, they are not
bound by the jurisdictional limitations or other procedural
requirements of § 1821(d).
"While the plain language of . . .

§ 1821(d)(13)(D)(ii)[] may initially appear helpful to the
FDIC's argument, closer examination reveals it to be
irrelevant. Section 1821(d)(13)(D)(ii) states: '[e]xcept
as otherwise provided in this subsection, no court shall
have jurisdiction over . . . any claim relating to any act
or omission of [an] institution [in receivership] or the
[FDIC] as receiver.' Read out of context, this provision
may seem to deprive courts of jurisdiction over any claim
involving the FDIC's 'act or omission,' even a claim not
directly against the FDIC. Such an interpretation would be
erroneous. This provision is not an isolated edict, but is
part of FIRREA's statutory scheme, which was intended to
force plaintiffs with claims against failed depository
institutions to exhaust administrative remedies before
coming to [F]ederal court. Carlyle Towers [Condominium
Ass'n, Inc. v. Federal Deposit Ins. Corp.], 170 F.3d [301,]
307 [(2d Cir. 1999)]. Courts interpreting the broad
language of § 1821(d)(13)(D)(ii) have universally concluded
that this provision bars only claims that could be brought
under the administrative procedures of § 1821(d), not any
claim at all involving the FDIC. See Auction Co. of Am. v.
FDIC, 141 F.3d 1198, 1201 (D.C. Cir. 1998) (holding that
§ 1821[d][13][D][ii] grants the FDIC immunity only from
claims that can be brought through the administrative
processes of § 1821[d]); Hudson United Bank v. Chase
Manhattan Bank of Conn., N.A., 43 F.3d 843, 849 (3d Cir.
Add.13
14
1994) ('The purpose [of FIRREA] was not to immunize certain

claims from review.'). We agree with their conclusion.
Accordingly, since the noteholders assert no claim against
either the FDIC or NextBank, and since they are not
compelled to comply with the administrative procedures of
§ 1821(d), § 1821(d)(13)(D)(ii) [does not] bar[] their
claims........"
Bank of N.Y., supra at 920-921.
We find that reading of FIRREA persuasive. And indeed,
although the reasoning of various courts in construing this
provision of FIRREA varies, we are aware of no case in which a
court has held that FIRREA eliminates jurisdiction over a claim
such as this -- against a solvent third party that is not the
failed bank, the FDIC, or a successor that obtained assets of
the failed bank from the FDIC -- for either money damages that
the third party will be required itself to pay, or for
declaratory or injunctive relief.7 Except to the extent, if any,
7Our conclusion is not inconsistent with the recent

decision in Willner v. Dimon, 849 F.3d 93 (4th Cir. 2017), on
which the defendants would rely, but which they read for more
than it is worth. Although the court in Willner held that the
language in 12 U.S.C. § 1821(d)(13)(D)(ii) is broad enough to
encompass certain claims brought against third parties (i.e.,
not the failed bank, the FDIC, or a successor that obtained
assets of the failed bank from the FDIC) based on the acts or
omissions of the failed bank or the FDIC, id. at 105, its
holding was limited to claims that could have been brought in an
administrative proceeding under the statute and that, if found
meritorious, would have been paid by the FDIC, not the third
party itself. Indeed, after concluding that claims were not
automatically excepted from the FIRREA bar because brought
against third parties, the court went on to say that, regardless
of that conclusion, "[c]ourts interpreting . . .
§ 1821(d)(13)(D)(ii) have universally concluded that [it] bars
Add.14
15
that the plaintiffs seek money damages from Washington Mutual,
or arguably JPMorgan Chase as the bank that assumed its rights
and/or liabilities from the FDIC, then, we conclude their claims
are not barred by FIRREA. To the extent there exists any
dispute by the defendants about the ownership of the note or the
mortgage on the date Washington Mutual went into receivership --
and we note that date of preparation or recordation of a
mortgage transfer does not necessarily indicate that that is the
date on which ownership of the mortgage was in fact transferred
to a purchaser -- the plaintiffs are entitled to further
discovery on the matter.
only claims that could be brought under the administrative

procedures of § 1821(d)." Id. at 105-106, quoting Bank of N.Y.,
607 F.3d at 921. The Willner court then went on to assess
whether claims against a solvent third party that had purchased
a mortgage prior to a failed bank's insolvency could be brought
under that procedure; the plaintiffs argued that the FDIC could
not order a remedy against that third party and that, therefore,
the claims could not have been brought under the FIRREA
administrative procedure.
The court held that FIRREA applied, but only because the
money damages claim was "functionally" against the failed bank
and "upon receiving a timely and meritorious claim for damages,
the FDIC can resolve it by making a payment to the claimant."
Id. at 108. It did not address whether a money-damages claim
that would be paid by the third party, not the FDIC, would be
barred by the statute. Likewise, it explicitly declined to
determine whether the claims procedure could be used to issue a
declaratory judgment binding against the third party. Id. at
108-109.
Add.15
16
The plaintiffs also argue that, even if the mortgage loan
was owned by Washington Mutual on the date of receivership or
FIRREA otherwise applied, some or all of their claims would
survive because they do not fall within the language of the
statute as properly construed, in particular because declaratory
judgments and affirmative defenses do not fall under FIRREA's
definition of "claim." See Bolduc v. Beal Bank, SSB, 167 F.3d
667, 671-672 (1st Cir. 1999) (preemptive assertion of
affirmative defense to foreclosure action not barred by FIRREA).
See also, e.g., Beaton v. Land Court, 367 Mass. 385, 392 (1975)
(fraud is defense to foreclosure). In light of our holding, and
the fact that the motion judge was presented with the FIRREA
argument only at the hearing on the motions to dismiss, so that
these issues were not fully briefed before the motions were
initially decided, we think the prudent course is to allow the
Superior Court to address these issues on remand in the first
instance, should it become necessary.8
The corrected judgment is reversed and the case is remanded
to the Superior Court for further proceedings consistent with
this opinion.
So ordered.
8The same course should be taken with respect to surviving

claims, if any, pressed by the plaintiffs for money damages
against Washington Mutual or JPMorgan Chase as purchaser of its
assets from the FDIC.
Add.16
TAB 2
From: AppealsCtClerk@appct.state.ma.us
Sent: Thursday, October 18, 2018 10:30 AM
To: Solomont, Charles L.; Mailloux, Nancy H.
Subject: 2016-P-1594 - Notice of Order
[EXTERNAL EMAIL]

‐COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT CLERK'S OFFICE
Dated: October 18, 2018

RE: No. 2016‐P‐1594
Lower Court No: 0972CV00829

H. CHRISTOPHER STARKEY & another vs. CHASE HOME FINANCE LLC & others
NOTICE OF DOCKET ENTRY
Please take note that, with respect to the PETITION for Rehearing filed for Chase Home Finance LLC, Deutsche Bank
National Trust Company, JP Morgan Chase Bank NA and Washington Mutual Mortgage Service Corporation by Attorney
Charles Solomont. (Paper #24), on October 18, 2018, the following order was entered on the docket:

RE#24: Defendants‐Appellees JPMorgan Chase Bank, N.A.and Deutsche Bank National Trust Company, Acting Solely in its
Capacity as Trustee for the WAMU Mortgage Pass‐Through Certificates Series 2006 AR1 Trust have filed a petition for
rehearing "or, in the alternative, clarification of [this court's] opinion of September 11, 2018 in the above captioned
appeal." The premise of that motion is that "[o]n Appeal, Appellants sought reversal only of the Trial Court's dismissal of
Count I." Petition at 4. That premise is incorrect. See, e.g., Appellants' Brief at 38 ("Therefore, it was error for the
Superior Court Judge to dismiss Plaintiffs remaining claims solely on the basis of the holding in DeMelo . . ."). Although
our opinion is clear, the motion is allowed to the extent it seeks clarification concerning the scope of our judgment: We
reversed the dismissal of counts 1, 2, 3, 4, 6, and 7 and remanded the case to the Superior Court for further proceedings
consistent with our opinion. To the extent the petition seeks rehearing it is denied. (Rubin, Lemire, Shin, JJ.) *Notice

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Add.18

TAB 3
BARNSTABLE, ss. SUPERIOR COURT
CMLACTION
NO. 2009-00829
H. CHRISTOPHER STARKEY & another'
vs.
DEUTSCHE BANK NATIONAL TRUST COMPANY2 & others3
MEMORANDUM OF DECISION AND ORDER

ON DEFENDANTS' MOTIONS TO DISMISS
The plaintiffs, H. Christopher Starkey and Louisa A. Starkey ("the Starkeys"), are
homeowners who refinanced a $1,000,000 loan mortgaging their residence at 149 River Street,
South Yarmouth, with loan originator Washington Mutual, Inc. ("WaMu") in 2006. The
mortgage was quickly packaged into a security sold to Deutsche Bank National Trust Company
("Deutsche Bank"). In the course of the subsequent economic crisis, WaMu was seized and
placed into the receivership of the Federal Deposit Insurance Corporation ("FDIC"), which sold
certain WaMu assets, including the Starkeys' loan, to JPMorgan Chase Bank, N.A. ("JPMC"), on
September 25, 2008. The plaintiffs thereafter fell behind on their mortgage payments and
initiated these proceedings challenging the validity of the mortgage and the note on several bases,
including failure to properly convey or assign the note, an action for rescission of the note under
G. L. c. 140D, common law fraud, breach of contract, violation of 12 U.S.C. § 2605(e)
1
Louisa A. Starkey
2
As trustee for WaMu Mortgage Pass Through Certificates Series 2006-ARI Trust
3
JPMorgan Chase Banlc, N.A.; Chase Home Finance, LLC; Washington Mu1ual, Inc.; Washington Mutual Banlc, FA;
Washington Mutual Mortgage Securities Corporation; Washington Mutual Mortgage Service Corporation
Add.19
(ʺRE SPAʺ , fraud under G.L.c.93A, and violation of the Borrowerʹs In ere t Ac , G L 183,
§ 2 C ) Defend n s Deu s he B nk, JPMC, Chase Home Finance, LLC (ʺChase Homeʺ),
Was ington Mu ual Mortgage ervice C rpor ion (ʺWaMu erviceʺ) now move to dismiss the
entirety of the complaint for failure to s ate a claim u der Mas a h setts Ru e of Civi Procedure
12(b (6), as well as failure o exhaus adm nis ra ive r medies against WaMu through the claims
pro ess ng regime e ut by he Financial Institutions Reform, Recovery, and Enforcement Act
(ʺFIRREAʺ)

DISCUSS O
I Standard of Review

When evaluating the sufficie cy f a compl int pursu Mass R Civ P 1 (b)(6), h
our m st accept as r e he well pleaded factual allegations of the complaint, as well as any
reaso able inferences whi can be rawn erefrom n he p ain if s favor Eyal v Helen
Broadcasting Corp Mass 426,429 ( 991) In order o survive such a motion, ʺa complain
must contain sufficient factual matter, accepted as true, to ʹstate a claim to relief that is plausible
o ts face ʺʹ Ashcroft v Iq al, 556 U S 66 67 (2009), quo ing Bell Atl Corp. v T ombly,
550 U 54 570 (2007) The e fac u l al ega ions, a e as rue, m s be ʹʺenoug o raise a
righ o relief above he specul ive level ʺʹ Iannacchino v Ford Motor Co , 4 1 Ma 623 636
(200 ), quot ng Twombly, 550 U.S.at 555. Therefore, ʺ w]hat is required at the pleading stage
are factual allega i ns plausibly ugges ing (not merely c ns sten wi ) an en it emen t relief
in order to reflect[] the hreshold requirement . that the plain statement possess enough heft to
sho[w] t a the pl ader s e itled to relief.ʺ Id, (internal quota i n om tted) See Iqbal, 56
U S at 6 8 (ʺA claim as facia p a sibility w en the p ain iff pleads c al con en ha al ows
2

Add.20
the court to draw the reasonable inference that the defenda t is l able r t e m conduc
al eged.ʺ).

II. Federal Claim Prec us n under F RRE
n DeMelo v US Bank, the Uni ed S es Court of Appeals for the First Circuit
considered the preclusion under the i a cia Inst ut o s eform Re overy, and Enfo cemen
Act 989 (ʺFIRREA ), 12 U.S C A § 82l(d) 3) (13) of state cour ac ions by homeowners
g ins he bank tha assumed the mortgage pursuant to an FDIC purchase and assumption
agreement after the origina ing bank was p aced in o rece vership 727 .3d 7 ( st Cir 20 3
Li e he case a bar t e De e s g t bring a c aim under the Borrower s Intere t Ac ,
claiming ha the origina ing bank, ʺin making the loan, viola ed a sta e consumer protection
aw ʺ Id. a 2 T e c urt eld t at F RREA co stituted a jur sdict na bar t he
cons deration of he h meowners state cour claims where he claims processing regime set up
by FIRREA ʺis not optional: participation in its is manda ory for all parties asserting claims
ag ns fa ed insti ut ons and ʺ[ ]he fail e o p r ue and admini trat ve laim s ta ʺ Id. a
122 (internal citations and quotations omitted) Specifically FIRREA precludesjudicial review
fʹʺany c aim e a ng a y act or m ss on of [ e fa led ins itution"', such as the ʺconsumer
protec i l im aris[ ng] out ofand re at[ing exclusively to pre‐receivership acts or omissions
of the fa led instit ionʺ n er the Borrowe ʹ I ere t Act. Id at 22, quoting 2 U.S.C.A. §
1821(d (13)(D)
In the case a bar the S arkeys bring seven ca es faction again t he defendan s ix o
which clearly ʺarise ou ofand relat exclusivel to pre r c ivership a s or omis i s of

Add.21
WaMu, he failed institution, or the FDIC. See id
A C unt I
Count al eges at e defen n s, generally o n have pr p r standing o enforce the
note against the Starkeys because the note was not properly conveyed or assigned. As wit he
failed institution in DeMelo, ʺ[t]he FDIC, as a ma ter f ederal aw, s cceeded t e a etsʺ o
WaMu as rece ver, and ʺ[a] ng in ha capac y, he FDIC a empow red by deral law o
ʹtransfer any asset or liability of [the failed bank] . without any approval, assignment, or
consent with respect to such transfer.ʺʹ See id at 125, quoting 12 U.S C A.§
1821(d)(2)(G)(i)( ). Thu the S arkeysʹ la m a to e va di y o he co veyance as ig en
of note to the c rren holder necessarily arise from the actions or omission ofeither WaMu or the
FD C s W M s ucce or. F r that reason, C unt I all w th n he FIRREA urisdictional bar;
he defendantsʹ Mo ions to Dismiss must be ALLOWED as to Count I.
B Count II
Count II claims that the Starkeys have right o rescind he note under G.L . 1 0D
because WaMu fa ed accurate y di c se financ ng charges and give required consumer
information o the S arkeys (e.g.telephon no ifications and var u pu ca i i c ud ng he
Notice of Right to Cancel, the Truth in Lending Disclosure S atemen and e C n umer
Han boo on Adjus ab e Rate Mortgages) T e Starkeys do not allege any conduct or omissions
by any party other than WaMu that forms he g ounds fo reci on u der c. 40D, a d hus the
Starkeys are requ red to pursue hi c aim through the process set out in FIRREA. Accordingly,
the defendantsʹ Motion t Dismi s mus be ALLOWED as to Count II.

4

Add.22
C. Count III
Count III sounds in common law fraud, resting on three types of misrepresentations.
First, the plaintiffs allege that the defendants, generally, failed to disclose material facts regarding
the loan transaction. The plaintiffs plead a multitude of facts regarding the acts and omissions of
WaMu that support the contention that the failed institution engaged in extensive fraud during
the origination of the loan.4 However, the plaintiffs do not plead any facts relating to conduct by
Deutsche Bank, JPMC, Chase Home, or WaMu Service at any time thereafter; this aspect of the
fraud claim finds no support against any defendant except WaMu. Second, the plaintiffs allege
that the defendants misrepresented facts in the origination of the loan. Clearly, as WaMu was the
only defendant that was a party to the origination of the loan, this aspect of the plaintiffs' fraud
claim is also limited to the acts and omissions ofWaMu.
Finally, the plaintiffs contend that the defendants created false records for the purposes of
deceiving the plaintiffs and the court. While this contention could be construed to refer to some
unspecified creation of false records by Deutsche Bank, JPMC, Chase Home, or WaMu Service
during the course of this litigation, such a contention is without any support in the pleadings.5
4
Thesewell pleaded facts include, inter alia, WaMu's :fraudulent ap praisalof the plaintiffs' home, WaMu's
securities fraud in the securitization of the plaintiffs' loan, WaMu's fraud in the inducement causing the plaintiffs to
enter into a unfavorable loan agreement, WaMu's misrepresentations that it was the 'true' lender when the real parties
in interest were other financial institutions involved in thesecuritization process, WaMu's failure to notify the
plaintiffs of transfer of the note for the purposes of recision notification, WaMu's breach of its fiduciary duty to the
plaintiffs, WaMu' s falsification of the plaintiffs' income and home value to obtain approval for the loan, and
WaMu's receipt ofundisclosed fees from intermediaries for securitizationof the loan.
s At hearing, the plaintiffs invoked the specter of the possible falsity of the FDIC--JPMC Purchase and Assumption
Agreement that the defendants included asan attachment to their Motion to Dismiss, providing this jurist with copies
of pleadmgsfiled in wholy unrelated cases in other jurisdictions that contain passing references to a P&A Agreement
with a different number of pages than the one produced by the defendants in this case. The plaintiffs failed to
developthis implication of fraud on the court beyondvague referencesto the apparent inconsistency; until such time
as such a claim is formally lodged with this court. it will be disregarded as a red herring. Further, the specificterms
Add.23
Any claim for fraud must be pleaded with particularity under Massachusetts Rule of Civil
Procedure 9(b), which requires that the plaintiff identify specify the creator, time, place and
substance of the alleged false document or misrepresentation, as well as the particulars of the
plaintiffs' detrimental reliance on the falsehood. See, e.g., Guo v. Datavantage Corp., 2008 WL
660338, at *5 (D.Mass. 2008). In the absence of any pleaded facts identify misrepresentations or
false documentation produced any defendant, with the exception ofWaMu, this aspect of the
plaintiffs' fraud claim also falls wholly within the confines ofFIRREA's claims processing
scheme for claims arising from the acts of the failed institution. See DeMelo, 727 F.3d at 122.
Accordingly, the defendants' Motions to Dismiss must be ALLOWED as to Count III.
D. Count IV
Count IV asserts that the plaintiffs had a right to rescission under the terms of the note
that extended for four years if there were specific violations of G. L. c. 140Dand related
provisions of the Code of Massachusetts Regulations by the originator. While the plaintiffs
assert that any defendant who currently holds the note is bound by the terms of the note,
including to respond to the plaintiffs' notification of rescission, a breach can only be found where
the plaintiffs prevail on the merits of the underlying claim for violation of c. 140D, set out in
Count II. Thus, the breach of contract claim arises out of the acts or omissions ofWaMu, and is
precluded by FIRREA for the same reasons discussed with respect to Count II. Id For that
reason, the defendants' Motions to Dismiss must be ALLOWED with respect to Count IV.
of the P&A Agreement are irrelevant where the plaintiffs' claims against the defendants (with the exception of
WaMu) are entirely predicatedon the fact that those defendants assumed the plaintiffs' loan from theFDIC after
WaMu failed, thus subjecting the plaintiffs to the strictures of the FIRREA-dictated claims process. See DeMelo,
727 F.3d at 122.
Add.24
D CountVI
Count a so a leges fraud, h s me under t e auspices of he ons mer protection
sta u e G L. c 93A. The plain iffs specifcally claim hat WaMu offered them a loan at a teaser
rate which is presumptively unfair, and further reallege "well over 50 v ola i s" sted elsewhere
in the comp aint. A discu sed ab v with re pect o Count I I, he plain iffs' common law fraud
claim, this court can on y identify pleaded facts re at g to the c nd c of W Mu a t e ime
the loan orig nation t a c u d support a laim of fra d th p ain iff fail t allege any facts
re at ng fraud by the o her defend n s, let lone any sufficient to me the heightened pleading
andard. Accordingly, the 93A claim is also limited solely to the acts and omission of WaMu, a
failed institution, before it was placed into the receivership of he FDIC, and t us t s cla m s
precluded by he mandat ry c a ms proce sing scheme se out in FIRREA Id Thus he
defenda ts Mot ons to Dis iss mus be A OWE w t respec o C ntVI.
E. Cou V I
Tepan s' fina c a m t e one t at r cks mos clos ly w th t e fac s in DeMelo
violation of the Borrower's Interes Act, G L. c 183, § 28C(a) by the originating bank. As
extensively d scussed ab ve and in DeMelo, this ype of state c nsumer pro ect on cla m ar s ng
o e y fr m t e act or omis s of an originating bank, which hereafter fai s mus be i t led
with th FDIC and sub ected o t e claims pr ce sing eg e et out i FIRREA. Jd a 12 . The
plaintiffs' fai ure to exhaust such administrative remedy therefore precludes this claim, and the
defendants' Motions o Dismiss must be ALL WED wi h respec to CountVII

7
Add.25
Fax Server 9 / 8 / 2 0 1 4 3 : 2 3 : 34 PM AGE 2/002 Fax Server
III. Remaini g Claim
The Court now turns to the remaining cla m, Counts V vio ation ofthe provisions of the
federal RESPA tatute re ating to quali ied written re uests for oan servic ng infom1ation on a
esidential mortgage. 12 U.S C. § 2605(e) The substance ofthe claim is that the defendants had
a duty u de PA to respond to each o the plaintiffs' five written communications sent
between anuary and October of 2009 with the xtensive info nation and documentation therein.
As the duties and alleged omissions tha this claim aris s from occu e entirely after the loan
was assumed by JPMC from the FDIC, it is not subject to claim preclusion for f ilur to exhaust
remedies under FIRREA C f DeMelo, 727 FJ at 121.
T e defend nts argue that the plaintiffs' five letters do not constitute "qualified written
requests" under 12 U S C.A. § 2605(e), n that the subject ofthe e ters as not a request for
loan servicing information, but a contention that the note was invalid. However, th matte
efo e the Court at this time is a motion to dismiss, not one for su mary udgment The
plaintiffs have adequately pleaded hat they sent five letters con aining subjec ma ter that
endered them qualified written communica ions, that the respon e to the et ers was i adeq ate,
and that negative credit reporting con inued during the si ty days following each letter, in
violation of the provisions ofRESPA Taki g these facts as true the plaintiffs have stated a
c aim upon which re iefmay be granted; the m ri s ofthe nature of the le ers as qualified wri en
requests is properly an issue for summary judgment.
The defendants also a gue that only JPMC, as the loan servicer of the p aintiffs'
mor gage, is bound by RESPA, and thus the plaintiffs fail to state a claim against the other
defendants. Th Court agrees. RESPA clearly specifies which entities have a duty to respond to
Add.26
qualified written requests by borrowers: Section 2605(e) is titled "duty of loan servicer to
respond to borrower inquiries". Only JPMC was a servicer of the plaintiffs' loan at the time the
letters were sent; none of the other named defendants has duty to respond to the plaintiffs letters
under RESPA. Accordingly, the defendants' Motions to Dismiss must be ALLOWED with
respect to Count V for all defendants with the exception of JPMC.
ORDER
For the reasons stated here itishereby ORDERED that JP Morgan Chase Bank,
N.A.' s Motion to Dismiss be DENIED as to Count V, but the defendants' Motions to Dismiss
be ALLOWED for all other claims.
September 4, 2014
Add.27
TAB 4
12 U.S.C. § 1821(d)(13)
(13) Additional rights and duties
(A) Prior final adjudication
The Corporation shall abide by any final unappealable judgment

of any court of competent jurisdiction which was rendered before
the appointment of the Corporation as conservator or receiver.
(B) Rights and remedies of conservator or receiver
In the event of any appealable judgment, the Corporation as

conservator or receiver shall—
(i) have all the rights and remedies available to the insured
depository institution (before the appointment of such
conservator or receiver) and the Corporation in its corporate
capacity, including removal to Federal court and all
appellate rights; and
(ii) not be required to post any bond in order to pursue such

remedies.
(C) No attachment or execution
No attachment or execution may issue by any court upon assets

in the possession of the receiver.
(D) Limitation on judicial review
Except as otherwise provided in this subsection, no court shall

have jurisdiction over—
(i) any claim or action for payment from, or any action

seeking a determination of rights with respect to, the assets
of any depository institution for which the Corporation has
been appointed receiver, including assets which the
Corporation may acquire from itself as such receiver; or
(ii) any claim relating to any act or omission of such

institution or the Corporation as receiver.
(E) Disposition of assets
In exercising any right, power, privilege, or authority as

conservator or receiver in connection with any sale or
disposition of assets of any insured depository institution for
which the Corporation has been appointed conservator or
receiver, including any sale or disposition of assets acquired
Add.28
12 U.S.C. § 1821(d)(13)
by the Corporation under section 1823(d)(1) of this title, the

Corporation shall conduct its operations in a manner which—
(i) maximizes the net present value return from the sale or
disposition of such assets;
(ii) minimizes the amount of any loss realized in the

resolution of cases;
(iii) ensures adequate competition and fair and consistent

treatment of offerors;
(iv) prohibits discrimination on the basis of race, sex, or

ethnic groups in the solicitation and consideration of
offers; and
(v) maximizes the preservation of the availability and

affordability of residential real property for low- and
moderate-income individuals.
Add.29
CERTIFICATE OF SERVICE
I, Mark C. Fleming, hereby certify under the

penalties of perjury that on October 31, 2018, I
caused the foregoing to be filed via the Court’s
electronic filing service and I caused a true and
accurate copy of the foregoing to be filed in the
office of the clerk of the Appeals Court, and served
two copies upon the following counsel by electronic
and overnight mail:
Glenn F. Russell, Jr.

LAW OFFICE OF GLENN F. RUSSELL, JR.
38 Rock Street, Suite 12
Fall River, MA 02720
(508) 324-4545
russ45esq@gmail.com
/s/ Mark C. Fleming

Mark C. Fleming (BBO #639358)
MASSACHUSETTS RULE OF APPELLATE PROCEDURE 16(K)
CERTIFICATION
I hereby certify that, to the best of my

knowledge, this brief complies with the Massachusetts
Rules of Appellate Procedure that pertain to the
filing of briefs.
/s/ Mark C. Fleming

Mark C. Fleming (BBO #639358)
HALE AND DORR LLP
60 State Street
Boston, MA 02109
(617) 526-6000
mark.fleming@wilmerhale.com

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COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

H. CHRISTOPHER STARKEY & LOUISA H. STARKEY,

DEUTSCHE BANK NATIONAL TRUST COMPANY ET AL.,

DEFENDANTS-APPLICANTS’ APPLICATION FOR LEAVE

Alan E. Schoenfeld Mark C. Fleming

Pursuant to Supreme Judicial Court Rule 1:21,

INTRODUCTION AND REQUEST FOR LEAVE TO OBTAIN

STATEMENT OF PRIOR PROCEEDINGS....................... 2

STATEMENT OF RELEVANT FACTS.......................... 3

1. The Starkeys’ loan.................... 8

2. FDIC’s receivership of WaMu........... 9

3. The Starkeys’ lawsuit................ 10

C. Superior Court Decision................... 10

D. Appeals Court Decision.................... 12

STATEMENT OF POINTS WITH RESPECT TO FURTHER

STATEMENT WHY FURTHER APPELLATE REVIEW IS

FURTHER APPELLATE REVIEW IS WARRANTED TO

THE APPEALS COURT’S FIRREA HOLDING IS WRONG. ... 19

EVEN UNDER ITS ERRONEOUS FIRREA HOLDING, THE

MASSACHUSETTS RULE OF APPELLATE PROCEDURE 16(K)

American National Insurance Co. v. Federal

Atlanticare Medical Center v. Commissioner

Bank of New York v. First Millennium, Inc.,

Benson v. JPMorgan Chase Bank, N.A.,

Botschafter v. Federal Deposit Insurance Corp.,

Bueford v. Resolution Trust Corp.,

Casseus v. Eastern Bus Co.,

Demelo v. U.S. Bank National Association,

Drakopoulos v. U.S. Bank National

Excel Willowbrook, LLC v. JP Morgan Chase

Farnik v. Federal Deposit Insurance Corp.,

Heno v. Federal Deposit Insurance Corp.,

McLaughlin v. Federal Deposit Insurance Corp.,

Rundgren v. Washington Mutual Bank, FA,

Tellado v. IndyMac Mortgage Services,

Village of Oakwood v. State Bank & Trust Co.,

Westberg v. Federal Deposit Insurance Corp.,

Yeomalakis v. Federal Deposit Insurance Corp.,

STATUTES AND RULES

Mass. R. App. P. 27.1................................ 2

The Financial Institutions Reform, Recovery, and

STATEMENT OF PRIOR PROCEEDINGS

In November 2009, plaintiffs H. Christopher Starkey

STATEMENT OF RELEVANT FACTS

Congress enacted FIRREA “‘in an effort to prevent

[N]o court shall have jurisdiction over--

(i) any claim or action for payment from, or

(ii) any claim relating to any act or omission

This case arises out of a mortgage loan that the

1. The Starkeys’ loan

On November 22, 2005, the Starkeys refinanced the

2. FDIC’s receivership of WaMu

On September 25, 2008, WaMu was declared insolvent

In November 2008, the Starkeys defaulted on their

Add.19-20; see Add.2-3.1 The Starkeys sought rescission

The Superior Court dismissed six of the seven

1 References to “Add.” are to the Addendum to this

D. Appeals Court Decision

The Appeals Court reversed and remanded. It left

1. Whether the Appeals Court legally erred in

FURTHER APPELLATE REVIEW IS WARRANTED TO RESOLVE

The Appeals Court held that FIRREA’s jurisdictional

Circuit and the Appeals Court’s decision.

Perhaps in recognition of all this, this Court

THE APPEALS COURT’S FIRREA HOLDING IS WRONG