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Perik v. JPMorgan Chase Bank, N.A.

Court of Appeals of Illinois, First District, Fifth Division

June 5, 2015

SHARON PERIK, Plaintiff-Appellant,
v.
JPMORGAN CHASE BANK, N.A., Defendant-Appellee, Early Warning Services, LLC., Washington Mutual Bank and TCF National Bank, Defendants

Page 642

Appeal from the Circuit Court of Cook County. No. 12 L 3606. Honorable William Gomolinski, Judge Presiding.

For APPELLANT: John N. Dore, John N. Dore and Associates, of Chicago.

For APPELLEE: Kenneth F. Berg and Heidi VonderHeide, Ulmer & Berne, LLP, of Chicago.

PRESIDING JUSTICE PALMER delivered the judgment of the court, with opinion. Justices McBride and Gordon concurred in the judgment and opinion.

OPINION

PALMER, J.

Page 643

[¶1] Plaintiff Sharon Perik appeals from an order of the circuit court denying her motion to vacate the decision of the American Arbitration Association (AAA) dismissing her arbitration claim against defendant JPMorgan Chase, N.A. (Chase), as successor in interest to Washington Mutual Bank (WaMu). Plaintiff had sought arbitration of her claim that Chase, as the successor in interest to Washington Mutual Bank

Page 644

(WaMu), was liable for WaMu's libel per se. The arbitrator dismissed plaintiff's claim pursuant to the administrative exhaustion requirement set forth in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) (12 U.S.C. § 1821(d)(13)(D) (2012)), finding it lacked jurisdiction to consider the claim as plaintiff had not first filed her claim with the Federal Deposit Insurance Company (FDIC), which had been named as the receiver for WaMu after the federal government closed the bank. Plaintiff argues on appeal that the court erred in denying her motion to vacate as (1) the AAA exceeded its authority in its appointment of the arbitrator and (2) the arbitrator had no authority to dismiss the arbitration based on FIRREA. We remand and direct the court to vacate its decision and dismiss the case for lack of jurisdiction.

[¶2] BACKGROUND

[¶3] Plaintiff maintained a bank account with Chase, a financial institution, from 1992 to 2008. When plaintiff opened her account, she agreed to be bound by Chase's 1991 deposit account rules and regulations. By continuing to use her account after the rules and regulations were amended in 2006, she agreed to be bound by the new 2006 account rules and regulations (2006 agreement). The 2006 agreement provided that " any dispute must be resolved by binding arbitration" and the customer waived any right it had to bring claims before a court or participate in a court case filed by others. The arbitration provision applied " to all Claims relating to [the customer's] account that arose in the past, which may presently be in existence, or which may arise in the future" and would " survive termination" of the account.

[¶4] In March 2009, plaintiff filed a complaint alleging libel per se against Chase (direct claim), WaMu and two other defendants. She asserted she had discovered in September 2008 that Chase had published a false fraud report in March 2008 regarding her use of her Chase checking account. She claimed WaMu had received a copy of the false report in April 2008 and published it to third parties. Chase moved to compel arbitration of the claim against it. The court granted the motion, staying all matters relating to plaintiff's claim against Chase pending the outcome of the mandatory arbitration provided for in the 2006 agreement.

[¶5] On September 25, 2008, some five months before plaintiff filed her complaint, WaMu had failed and been closed by the federal Office of Thrift Supervision, which named the FDIC as receiver for the failed bank. On the same day, Chase had acquired the assets and some of the liabilities of WaMu from the FDIC.

[¶6] In March 2010, plaintiff filed a second amended complaint asserting the same libel per se claims as in her original complaint, but instead of asserting a claim against WaMu, she asserted a claim against Chase as successor in interest to WaMu (successor claim). Citing the trial court's earlier order staying the direct claim against Chase pending completion of arbitration, Chase moved to enforce the stay and compel arbitration as to the successor claim against it. The court granted the motion, finding the arbitration provision in the 2006 agreement between plaintiff and Chase applied to plaintiff's successor claim against Chase. Plaintiff appealed. In an unreported decision, Perik v. JP Morgan Chase, U.S.A., N.A., 2011 IL App. (1st) 093088-U ( Perik I), another division of this court affirmed the trial court's order, finding that " all" of plaintiff's claims against Chase, i.e., both the direct claim

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against Chase and the successor claim against Chase were subject to arbitration.

[¶7] In May 2012, plaintiff filed two requests with the American Arbitration Association (AAA) seeking arbitration of her libel per se claims against Chase and Chase as successor in interest to WaMu. Only the arbitration claim against Chase as successor in interest to WaMu is relevant here.

[¶8] Chase moved to dismiss the arbitration claim against it as successor in interest to WaMu. It argued that FIRREA barred jurisdiction of plaintiff's successor claim against Chase in any forum as plaintiff had failed to first submit the claim to the FDIC for administrative review and the time for such submission had expired. Chase asserted that, under FIRREA, neither the trial court nor the AAA had jurisdiction to hear plaintiff's claim that she was libeled by WaMu " before it imploded in September 2008" and Chase was liable ...


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