IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-10088

JAMES B. WOODS,

Plaintiff-Appellant;

versus

RESOLUTION TRUST COMPANY, ET AL.,

Defendant-Appellee.

Appeal From the United States District Court For The Northern District of Texas (3-94-CV-2350)

November 1, 1995

Before WIENER, EMILIO M. GARZA and BENAVIDES, Circuit Judges:

PER CURIAM*:

Plaintiff-Appellant James Woods appeals two final orders of

the district court. The first granted the Resolution Trust

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. Company's (RTC's) unopposed motion to dismiss Woods' complaint and

the second denied Woods' Rule 59(e) motion to vacate that

dismissal. As Woods has now exhausted his administrative remedies

and filed a second suit alleging the same underlying causes of

action in another federal district court, circumstances have

"changed" and we dismiss this appeal as moot.

I

FACTS AND PROCEEDINGS

James Woods filed suit in state court against the RTC, as the

receiver for Western Gulf Savings and Loan Association, Standard

Federal Savings Association (Standard), and Imco Realty Services,

Inc., alleging that the RTC and Standard had caused his home to be

sold at a foreclosure sale without providing him notice as required

by state law. Woods alleged that the RTC notified him that he was

in default on his loan and gave him 30 days to pay the principal

and interest due. A deed to the property was executed to the RTC

without any prior notice of the sale being given to Woods. Woods

was subsequently unable to refinance the purchase of another

residence because the void foreclosure had been reported to credit

agencies. Woods sought compensatory and exemplary damages.

The RTC timely filed a notice of removal of the action to the

United States District Court for the Northern District of Texas.

After removal, the RTC filed a motion to dismiss the complaint

based on Woods' failure to submit his claims to the RTC for

administrative consideration. Woods did not file a response.

The district court granted the RTC's motion to dismiss because

2 Woods' complaint did not allege that he had exhausted his

administrative remedies as required by

(d)(6)(A).1

The district court remanded the case with respect to the remaining

parties who had not joined in the removal petition. On December

12, 1994, the district court entered judgment, dismissing the claim

against the RTC without prejudice. Within 10 days of the entry of

judgment, Woods filed a motion to vacate pursuant to Rule 59(e).

In this motion, Woods conceded that § 1821(d)(6)(A) required

exhaustion and that he had not filed an administrative claim with

the RTC, but urged, nevertheless, that the exhaustion requirement

of § 1821(d)(6)(A) did not apply to his claim. Woods argued that

§ 1821(d)(6)(A) does deprive the district court of jurisdiction in

claims that arise pre-receivership, but does not deprive the

district court of jurisdiction in claims, like his, that arise

post-receivership. In other words, Woods contended that as his

claim arose after the RTC had taken over the banking institution

and not before, he could bring suit against the RTC in federal

district court without first exhausting his administrative

remedies.

In its order denying Woods' motion to vacate, the district

court stated, "[Woods] did not file a response to the RTC's Motion

to Dismiss and his opposition will not be heard at this late date."

Accordingly, the district court denied Woods motion to vacate the

1 Section 1821(d)(6)(A) is jurisdictional and it permits a claimant to file suit only after filing a claim with the RTC and then only if the receiver has disallowed the claim or the 180-day determination period has expired.

3 judgment. Woods timely appealed both the Interlocutory Judgment,

granting the RTC's motion to dismiss, and the order denying his

Rule 59(e) motion to vacate the judgement.

During the pendency of this appeal, Woods pursued and

exhausted his administrative remedies and then refiled his suit

against the RTC. In December 1994, Woods filed a proof of claim

with the RTC. In June 1995, the RTC notified Woods that his claim

for administrative relief had been denied. In August 1995, Woods

filed suit on his claims in the United States District Court for

the Western District of Texas. As venue was improper, this second

federal suit was transferred to the United States District Court

for the Southern District of Texas, where, as of this writing, it

is still pending.

II

DISCUSSION

A. MOOTNESS

If a dispute has been resolved or if it has evanesced because

of changed circumstances, it is moot.2 During the pendency of this

appeal, the circumstances "changed": Woods exhausted his remedies

with the RTC and filed a second law suit that has changed the

exhaustion issue. Thus, we need not address the issues raised in

this appeal. Accordingly, we hold that any jurisdictional issues

in this case, which is the one that originated in the Northern

District of Texas, are moot. "When a case becomes moot on appeal,

2 American Medical Association v. Bowen,

, 270 (5th Cir. 1987)(per curiam).

4 the appellate court should vacate the order of the district court

and order dismissal of the action."

The judgment of the district court for the Northern District

of Texas is VACATED3 and this appeal is DISMISSED.

3 We neither express nor imply an opinion on the merits of (1) the argument advanced by Woods in his Rule 59(e) motion, (2) the second suit which Woods initiated in the Western District of Texas, or (3) the transfer of the second suit from the from the Western District of Texas to the Southern District of Texas. Moreover, as we dismiss this appeal and vacate the judgment of the Northern District of Texas, neither the district's court's decision nor ours on appeal is binding as res judicata, law of the case, collateral estoppel, or any other theory that might be urged in bar of the issues in the second suit.

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