Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Page 951.
Lewis Disibio, Oakland, CA, pro se.
Mary Disibio, Oakland, CA, pro se.
William M. Levinthal, John F. Friedemann, Kyle M. Fisher, Friedemann,
O'Brien, Goldberg & Zaria, Santa Rosa, CA, for Defendant-Appellee.
Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding.
Before B. FLETCHER, TROTT, and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Lewis and Mary diSibio appeal pro se the district court's summary judgment for Mission National Bank ("MNB") in their action alleging federal and state law violations that occurred during the Resolution Trust Corporation's ("RTC") placement of City Federal Savings and Loan Association ("City Federal"), into receivership with MNB. We review de novo the district court's summary judgment, Intercontinental Travel Mktg., Inc. v. FDIC, 45 F.3d 1278, 1282 (9th Cir.1994), and we affirm.
The district court properly dismissed the diSibios' claims against City Federal because they failed to exhaust their administrative remedies before the RTC. See 12 U.S.C. § 1821(d)(13)(D); Intercontinental Travel Mktg., Inc., 45 F.3d at 1282 (holding that the district court lacks jurisdiction to consider claims against a failed financial institution unless they are first brought before the FDIC); see also Resolution Trust Corp. v. First Am. Bank, 155 F.3d 1126, 1127 (9th Cir.1998) (stating that the RTC was the FDIC's predecessor).
The district court properly held that the terms of the receivership contract between RTC and MNB--the Deposit Insurance Transfer and Asset Purchase Agreement ("DITAPA")--clearly and unambiguously provided that MNB would assume only certain, limited obligations. See United States v. King Features Entertainment, Inc., 843 F.2d 394, 398 (9th Cir.1988). Contrary to the diSibios' contention, the district court properly held that the DITAPA empowered RTC to effect lower interest rates on deposit accounts after MNB assumed City Federal's administration, because the higher rates were burdensome and the repudiation of those interest rates would promote the orderly administration of the institution's affairs. See 12 U.S.C. §§ 1821(e)(1)(B) and (C); Battista v. FDIC, 195 F.3d 1113, 1116 (9th Cir.1999).
We reject the diSibios' contention that the money deposited into their Negotiable Order of Withdrawal (NOW) account was not subject to the DITAPA.
The diSibios' remaining contentions are unpersuasive.
We deny the diSibios' motion to take judicial notice of documents that were not admitted before the district court. See Lowry v. Barnhart, 329 F.3d 1019, 1024-25 (9th Cir.2003).
AFFIRMED.