Laws: Cases and Codes : U.S. Code : Title 12 : Section 1821
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U.S. Code as of:
01/19/04
Section 1821. Insurance Funds
(a) Deposit insurance
(1) Insured amounts payable. -
(A) In general. - The Corporation shall insure the deposits of
all insured depository institutions as provided in this chapter.
(B) Net amount of insured deposit. - The net amount due to any
depositor at an insured depository institution shall not exceed
$100,000 as determined in accordance with subparagraphs (C) and
(D).
(C) Aggregation of deposits. - For the purpose of determining
the net amount due to any depositor under subparagraph (B), the
Corporation shall aggregate the amounts of all deposits in the
insured depository institution which are maintained by a
depositor in the same capacity and the same right for the benefit
of the depositor either in the name of the depositor or in the
name of any other person, other than any amount in a trust fund
described in paragraph (1) or (2) of section 1817(i) of this
title or any funds described in section 1817(i)(3) of this title.
(D) Coverage on pro rata or "pass-through" basis. -
(i) In general. - Except as provided in clause (ii), for the
purpose of determining the amount of insurance due under
subparagraph (B), the Corporation shall provide deposit
insurance coverage with respect to deposits accepted by any
insured depository institution on a pro rata or "pass-through"
basis to a participant in or beneficiary of an employee benefit
plan (as defined in subsection (a)(8)(B)(ii) of this section),
including any eligible deferred compensation plan described in
section 457 of title 26.
(ii) Exception. - After the end of the 1-year period
beginning on December 19, 1991, the Corporation shall not
provide insurance coverage on a pro rata or "pass-through"
basis pursuant to clause (i) with respect to deposits accepted
by any insured depository institution which, at the time such
deposits are accepted, may not accept brokered deposits under
section 1831f of this title.
(iii) Coverage under certain circumstances. - Clause (ii)
shall not apply with respect to any deposit accepted by an
insured depository institution described in such clause if, at
the time the deposit is accepted -
(I) the institution meets each applicable capital standard;
and
(II) the depositor receives a written statement from the
institution that such deposits at such institution are
eligible for insurance coverage on a pro rata or
"pass-through" basis.
(2)(A) Notwithstanding any limitation in this chapter or in any
other provision of law relating to the amount of deposit insurance
available for the account of any one depositor, in the case of a
depositor who is -
(i) an officer, employee, or agent of the United States having
official custody of public funds and lawfully investing or
depositing the same in time and savings deposits in an insured
depository institution;
(ii) an officer, employee, or agent of any State of the United
States, or of any county, municipality, or political subdivision
thereof having official custody of public funds and lawfully
investing or depositing the same in time and savings deposits in
an insured depository institution in such State;
(iii) an officer, employee, or agent of the District of
Columbia having official custody of public funds and lawfully
investing or depositing the same in time and savings deposits in
an insured depository institution in the District of Columbia;
(iv) an officer, employee, or agent of the Commonwealth of
Puerto Rico, of the Virgin Islands, of American Samoa, of the
Trust Territory of the Pacific Islands, or of Guam, or of any
county, municipality, or political subdivision thereof having
official custody of public funds and lawfully investing or
depositing the same in time and savings deposits in an insured
depository institution in the Commonwealth of Puerto Rico, the
Virgin Islands, American Samoa, the Trust Territory of the
Pacific Islands, or Guam, respectively; or
(v) an officer, employee, or agent of any Indian tribe (as
defined in section 1452(c) of title 25) or agency thereof having
official custody of tribal funds and lawfully investing or
depositing the same in time and savings deposits in an insured
depository institution;
such depositor shall, for the purpose of determining the amount of
insured deposits under this subsection, be deemed a depositor in
such custodial capacity separate and distinct from any other
officer, employee, or agent of the United States or any public unit
referred to in clause (ii), (iii), (iv), or (v) and the deposit of
any such depositor shall be insured in an amount not to exceed
$100,000 per account in an amount not to exceed $100,000 per
account.(!1)
(B) The Corporation may limit the aggregate amount of funds that
may be invested or deposited in deposits in any insured depository
institution by any depositor referred to in subparagraph (A) of
this paragraph on the basis of the size of any such bank (!2) in
terms of its assets: Provided, however, such limitation may be
exceeded by the pledging of acceptable securities to the depositor
referred to in subparagraph (A) of this paragraph when and where
required.
(3) Certain retirement accounts. -
(A) In general. - Notwithstanding any limitation in this
chapter relating to the amount of deposit insurance available for
the account of any 1 depositor, deposits in an insured depository
institution made in connection with -
(i) any individual retirement account described in section
408(a) of title 26;
(ii) subject to the exception contained in paragraph
(1)(D)(ii), any eligible deferred compensation plan described
in section 457 of title 26; and
(iii) any individual account plan defined in section 1002(34)
of title 29, and any plan described in section 401(d) of title
26, to the extent that participants and beneficiaries under
such plan have the right to direct the investment of assets
held in individual accounts maintained on their behalf by the
plan,
shall be aggregated and insured in an amount not to exceed
$100,000 per participant per insured depository institution.
(B) Amounts taken into account. - For purposes of subparagraph
(A), the amount aggregated for insurance coverage under this
paragraph shall consist of the present vested and ascertainable
interest of each participant under the plan, excluding any
remainder interest created by, or as a result of, the plan.
(4) General provisions relating to funds. -
(A) Maintenance and use of funds. - The Bank Insurance Fund
established under paragraph (5) and the Savings Association
Insurance Fund established under paragraph (6) shall each be -
(i) maintained and administered by the Corporation;
(ii) maintained separately and not commingled; and
(iii) used by the Corporation to carry out its insurance
purposes in the manner provided in this subsection.
(B) Limitation on use. - Notwithstanding any provision of law
other than section 1823(c)(4)(G) of this title, the Bank
Insurance Fund and the Savings Association Insurance Fund shall
not be used in any manner to benefit any shareholder or affiliate
(other than an insured depository institution that receives
assistance in accordance with the provisions of this chapter) of
-
(i) any insured depository institution for which the
Corporation or the Resolution Trust Corporation has been
appointed conservator or receiver, in connection with any type
of resolution by the Corporation or the Resolution Trust
Corporation;
(ii) any other insured depository institution in default or
in danger of default, in connection with any type of resolution
by the Corporation or the Resolution Trust Corporation; or
(iii) any insured depository institution, in connection with
the provision of assistance under this section or section 1823
of this title with respect to such institution, except that
this clause shall not prohibit any assistance to any insured
depository institution that is not in default, or that is not
in danger of default, that is acquiring (as defined in section
1823(f)(8)(B) of this title) another insured depository
institution.
(5) Bank insurance fund. -
(A) Establishment. - There is established a fund to be known as
the Bank Insurance Fund.
(B) Transfer to fund. - On August 9, 1989, the Permanent
Insurance Fund shall be dissolved and all assets and liabilities
of the Permanent Insurance Fund shall be transferred to the Bank
Insurance Fund.
(C) Uses. - The Bank Insurance Fund shall be available to the
Corporation for use with respect to Bank Insurance Fund members.
(D) Deposits. - All amounts assessed against Bank Insurance
Fund members by the Corporation shall be deposited into the Bank
Insurance Fund.
(6) Savings association insurance fund. -
(A) Establishment. - There is established a fund to be known as
the Savings Association Insurance Fund.
(B) Uses. - The Savings Association Insurance Fund shall be
available to the Corporation for use with respect to Savings
Association Insurance Fund members.
(C) Deposits. - All amounts assessed against Savings
Association Insurance Fund members which are not required for the
Financing Corporation, the Resolution Funding Corporation, or the
FSLIC Resolution Fund shall be deposited in the Savings
Association Insurance Fund.
(D) Treasury payments to fund. - To the extent of the
availability of amounts provided in appropriation Acts and
subject to subparagraphs (E) and (G), the Secretary of the
Treasury shall pay to the Savings Association Insurance Fund such
amounts as may be needed to pay losses incurred by the Fund in
fiscal years 1994 through 1998.
(E) Certification conditions on availability of funding. - No
amount appropriated for payments by the Secretary of the Treasury
in accordance with subparagraph (D) for any fiscal year may be
expended unless the Chairperson of the Board of Directors
certifies to the Congress, at any time before the beginning of or
during such fiscal year, that -
(i) such amount is needed to pay for losses which have been
incurred or can reasonably be expected to be incurred by the
Savings Association Insurance Fund;
(ii) the Board of Directors has determined that -
(I) Savings Association Insurance Fund members, in the
aggregate, are unable to pay additional semiannual
assessments under section 1817(b) of this title at the
assessment rates which would be required in order to cover,
from such additional assessments, losses which have been
incurred or can reasonably be expected to be incurred by the
Fund without adversely affecting the ability of such members
to raise and maintain capital or to maintain the members'
assessment base; and
(II) an increase in the assessment rates for Savings
Association Insurance Fund members to cover such losses could
reasonably be expected to result in greater losses to the
Government;
(iii) the Board of Directors has determined that -
(I) Savings Association Insurance Fund members, in the
aggregate, are unable to pay additional semiannual
assessments under section 1817(b) of this title at the
assessment rates which would be required in order to meet the
repayment schedule required under section 1824(c) of this
title for any amount borrowed under section 1824(a) of this
title to cover losses which have been incurred or can
reasonably be expected to be incurred by the Fund without
adversely affecting the ability of such members to raise and
maintain capital or to maintain the members' assessment base;
and
(II) an increase in the assessment rates for Savings
Association Insurance Fund members to meet any such repayment
schedule could reasonably be expected to result in greater
losses to the Government;
(iv) as of the date of certification, the Corporation has in
effect procedures designed to ensure that the activities of the
Savings Association Insurance Fund and the affairs of any
Savings Association Insurance Fund member for which a
conservator or receiver has been appointed are conducted in an
efficient manner and the Corporation is in compliance with such
procedures;
(v) with respect to the most recent audit of the Savings
Association Insurance Fund by the Comptroller General of the
United States before the date of the certification -
(I) the Corporation has taken or is taking appropriate
action to implement any recommendation made by the
Comptroller General; or
(II) no corrective action is necessary or appropriate;
(vi) the Corporation has provided for the appointment of a
chief financial officer who -
(I) does not have other operating responsibilities;
(II) will report directly to the Chairperson of the
Corporation; and
(III) will have such authority and duties of chief
financial officers under section 902 of title 31 as the Board
of Directors of the Corporation determines to be appropriate
with respect to the Corporation;
(vii) the Corporation has provided for the appointment of a
senior officer whose responsibilities shall include setting
uniform standards for contracting and contracting enforcement
in connection with the administration of the Fund;
(viii) the Corporation is implementing the minority outreach
provisions mandated by section 1833e of this title;
(ix) the Corporation has provided for the appointment of a
senior attorney, at the assistant general counsel level or
above, responsible for professional liability cases; and
(x) the Corporation has improved the management of legal
services by -
(I) utilizing staff counsel when such utilization would
provide the same level of quality in legal services as the
use of outside counsel at the same or a lower estimated cost;
and
(II) employing outside counsel only if the use of outside
counsel would provide the most practicable, efficient, and
cost-effective resolution to the action and only under a
negotiated fee, contingent fee, or competitively bid fee
agreement.
(F) Availability of rtc funding. - At any time before the end
of the 2-year period beginning on the date of the termination of
the Resolution Trust Corporation, the Secretary of the Treasury
shall provide, out of funds appropriated to the Resolution Trust
Corporation pursuant to section 1441a(i)(3) of this title and not
expended by the Resolution Trust Corporation, to the Savings
Association Insurance Fund, for any year such amounts as are
needed by the Fund and are not needed by the Resolution Trust
Corporation, if the Chairperson of the Board of Directors has
certified to the Congress that -
(i) such amount is needed to pay for losses which have been
incurred or can reasonably be expected to be incurred by the
Savings Association Insurance Fund;
(ii) the Board of Directors has determined that -
(I) Savings Association Insurance Fund members, in the
aggregate, are unable to pay additional semiannual
assessments under section 1817(b) of this title at the
assessment rates which would be required in order to cover,
from such additional assessments, losses which have been
incurred or can reasonably be expected to be incurred by the
Savings Association Insurance Fund without adversely
affecting the ability of such members to raise and maintain
capital or to maintain the members' assessment base; and
(II) an increase in the assessment rates for Savings
Association Insurance Fund members to cover such losses could
reasonably be expected to result in greater losses to the
Government;
(iii) the Board of Directors has determined that -
(I) Savings Association Insurance Fund members, in the
aggregate, are unable to pay additional semiannual
assessments under section 1817(b) of this title at the
assessment rates which would be required in order to meet the
repayment schedule required under section 1824(c) of this
title for any amount borrowed under section 1824(a) of this
title to cover losses which have been incurred or can
reasonably be expected to be incurred by the Savings
Association Insurance Fund without adversely affecting the
ability of such members to raise and maintain capital or to
maintain such members' assessment base; and
(II) an increase in the assessment rates for Savings
Association Insurance Fund members to meet any such repayment
schedule could reasonably be expected to result in greater
losses to the Government;
(iv) the Corporation has provided for the appointment of a
chief financial officer who -
(I) does not have other operating responsibilities;
(II) will report directly to the Chairperson of the
Corporation; and
(III) will have such authority and duties of chief
financial officers under section 902 of title 31 as the Board
of Directors of the Corporation determines to be appropriate
with respect to the Corporation;
(v) the Corporation has provided for the appointment of a
senior officer whose responsibilities shall include setting
uniform standards for contracting and contracting enforcement
in connection with the administration of the Fund;
(vi) the Corporation is implementing the minority outreach
provisions mandated by section 1833e of this title;
(vii) the Corporation has provided for the appointment of a
senior attorney, at the assistant general counsel level or
above, responsible for professional liability cases; and
(viii) the Corporation has improved the management of legal
services by -
(I) utilizing staff counsel when such utilization would
provide the same level of quality in legal services as the
use of outside counsel at the same or a lower estimated cost;
and
(II) employing outside counsel only if the use of outside
counsel would provide the most practicable, efficient, and
cost-effective resolution to the action and only under a
negotiated fee, contingent fee, or competitively bid fee
agreement.
(G) Exception to subparagraph (d). - Notwithstanding
subparagraph (D), no payment may be made pursuant to such
subparagraphs after the Savings Association Insurance Fund
achieves a reserve ratio of 1.25 percent.
(H) Appearance upon request. - The Secretary of the Treasury
and the Chairperson of the Board of Directors of the Federal
Deposit Insurance Corporation shall appear before the Committee
on Banking, Finance and Urban Affairs of the House of
Representatives or the Committee on Banking, Housing, and Urban
Affairs of the Senate, upon the request of the chairman of the
committee, to report on any certification made to the Congress
under subparagraph (E) or (F).
(I) Borrowing authority. -
(i) In general. - The Corporation may borrow from the Federal
home loan banks, with the concurrence of the Federal Housing
Finance Board, such funds as the Corporation considers
necessary for the use of the Savings Association Insurance
Fund.
(ii) Terms and conditions. - Any loan from any Federal home
loan bank under clause (i) to the Savings Association Insurance
Fund shall -
(I) bear a rate of interest of not less than such bank's
current marginal cost of funds, taking into account the
maturities involved;
(II) be adequately secured, as determined by the Federal
Housing Finance Board;
(III) be a direct liability of such Fund; and
(IV) be subject to the limitations of section 1825(c) of
this title.
(J) Authorization of appropriations. - Subject to subparagraph
(E), there are authorized to be appropriated to the Secretary of
the Treasury, such sums as may be necessary to carry out the
provisions of subparagraph (D) for fiscal years 1994 through
1998, except that the aggregate amount appropriated pursuant to
this authorization may not exceed $8,000,000,000.
(K) Return to treasury. - If the aggregate amount of funds
transferred to the Savings Association Insurance Fund under
subparagraph (D) or (F) exceeds the amount needed to cover losses
incurred by the Fund, such excess amount shall be deposited in
the general fund of the Treasury.
(7) Provisions applicable to maintenance of accounts. -
(A) Corporation's authority. - Any provision of this chapter
forbidding the commingling of the Bank Insurance Fund with the
Savings Association Insurance Fund, or requiring the separate
maintenance of the Bank Insurance Fund and the Savings
Association Insurance Fund, is not intended -
(i) to limit or impair the authority of the Corporation to
use the same facilities and resources in the course of
conducting supervisory, regulatory, conservatorship,
receivership, or liquidation functions with respect to banks
and savings associations, or to integrate such functions; or
(ii) to limit or impair the Corporation's power to combine
assets or liabilities belonging to banks and savings
associations in conservatorship or receivership for managerial
purposes, or to limit or impair the Corporation's power to
dispose of such assets or liabilities on an aggregate basis.
(B) Accounting requirements. -
(i) Accounting for use of facilities and resources. - The
Corporation shall keep a full and complete accounting of all
costs and expenses associated with the use of any facility or
resource used in the course of any function specified in
subparagraph (A)(i) and shall allocate, in the manner provided
in subparagraph (C), any such costs and expenses incurred by
the Corporation -
(I) with respect to Bank Insurance Fund members to the Bank
Insurance Fund; and
(II) with respect to Savings Association Insurance Fund
members to the Savings Association Insurance Fund.
(ii) Accounting for holding and managing assets and
liabilities. - The Corporation shall keep a full and complete
accounting of all costs and expenses associated with the
holding and management of any asset or liability specified in
subparagraph (A)(ii).
(iii) Accounting for disposition of assets and liabilities. -
The Corporation shall keep a full and complete accounting of
all expenses and receipts associated with the disposition of
any asset or liability specified in subparagraph (A)(ii).
(iv) Allocation of cost, expenses and receipts. - The
Corporation shall allocate any cost, expense, and receipt
described in clause (ii) or clause (iii) which is associated
with any asset or liability belonging to -
(I) any Bank Insurance Fund member to the Bank Insurance
Fund; and
(II) any Savings Association Insurance Fund member to the
Savings Association Insurance Fund.
(C) Allocation of administrative expenses. - Any personnel,
administrative, or other overhead expense of the Corporation
shall be allocated -
(i) fully to the Bank Insurance Fund, if the expense was
incurred directly as a result of the Corporation's
responsibilities solely with respect to Bank Insurance Fund
members;
(ii) fully to the Savings Association Insurance Fund, if the
expense was incurred directly as a result of the Corporation's
responsibilities solely with respect to Savings Association
Insurance Fund members;
(iii) between the Bank Insurance Fund and the Savings
Association Insurance Fund, in amounts reflecting the relative
degree to which the expense was incurred as a result of the
activities of Bank Insurance Fund and Savings Association
Insurance Fund members; or
(iv) between the Bank Insurance Fund and the Savings
Association Insurance Fund, in amounts reflecting the relative
total assets as of the end of the preceding calendar year of
Bank Insurance Fund members and Savings Association Insurance
Fund members, to the extent that the Board of Directors is
unable to make a determination under clause (i), (ii), or
(iii).
(8) Certain investment contracts not treated as insured deposits.
-
(A) In general. - A liability of an insured depository
institution shall not be treated as an insured deposit if the
liability arises under any insured depository institution
investment contract between any insured depository institution
and any employee benefit plan which expressly permits
benefit-responsive withdrawals or transfers.
(B) Definitions. - For purposes of subparagraph (A) -
(i) Benefit-responsive withdrawals or transfers. - The term
"benefit-responsive withdrawals or transfers" means any
withdrawal or transfer of funds (consisting of any portion of
the principal and any interest credited at a rate guaranteed by
the insured depository institution investment contract) during
the period in which any guaranteed rate is in effect, without
substantial penalty or adjustment, to pay benefits provided by
the employee benefit plan or to permit a plan participant or
beneficiary to redirect the investment of his or her account
balance.
(ii) Employee benefit plan. - The term "employee benefit
plan" -
(I) has the meaning given to such term in section 1002(3)
of title 29; and
(II) includes any plan described in section 401(d) of title
26.
(b) Liquidation as closing of depository institution
For the purposes of this chapter an insured depository
institution shall be deemed to have been closed on account of
inability to meet the demands of its depositors in any case in
which it has been closed for the purpose of liquidation without
adequate provision being made for payment of its depositors.
(c) Appointment of Corporation as conservator or receiver
(1) In general
Notwithstanding any other provision of Federal law, the law of
any State, or the constitution of any State, the Corporation may
accept appointment and act as conservator or receiver for any
insured depository institution upon appointment in the manner
provided in paragraph (2) or (3).
(2) Federal depository institutions
(A) Appointment
(i) Conservator
The Corporation may, at the discretion of the supervisory
authority, be appointed conservator of any insured Federal
depository institution or District bank and the Corporation
may accept such appointment.
(ii) Receiver
The Corporation shall be appointed receiver, and shall
accept such appointment, whenever a receiver is appointed for
the purpose of liquidation or winding up the affairs of an
insured Federal depository institution or District bank by
the appropriate Federal banking agency, notwithstanding any
other provision of Federal law (other than section 1441a of
this title) or the code of law for the District of Columbia.
(B) Additional powers
In addition to and not in derogation of the powers conferred
and the duties imposed by this section on the Corporation as
conservator or receiver, the Corporation, to the extent not
inconsistent with such powers and duties, shall have any other
power conferred on or any duty (which is related to the
exercise of such power) imposed on a conservator or receiver
for any Federal depository institution under any other
provision of law.
(C) Corporation not subject to any other agency
When acting as conservator or receiver pursuant to an
appointment described in subparagraph (A), the Corporation
shall not be subject to the direction or supervision of any
other agency or department of the United States or any State in
the exercise of the Corporation's rights, powers, and
privileges.
(D) Depository institution in conservatorship subject to
banking agency supervision
Notwithstanding subparagraph (C), any Federal depository
institution for which the Corporation has been appointed
conservator shall remain subject to the supervision of the
appropriate Federal banking agency.
(3) Insured State depository institutions
(A) Appointment by appropriate State supervisor
Whenever the authority having supervision of any insured
State depository institution (other than a District depository
institution) appoints a conservator or receiver for such
institution and tenders appointment to the Corporation, the
Corporation may accept such appointment.
(B) Additional powers
In addition to the powers conferred and the duties related to
the exercise of such powers imposed by State law on any
conservator or receiver appointed under the law of such State
for an insured State depository institution, the Corporation,
as conservator or receiver pursuant to an appointment described
in subparagraph (A), shall have the powers conferred and the
duties imposed by this section on the Corporation as
conservator or receiver.
(C) Corporation not subject to any other agency
When acting as conservator or receiver pursuant to an
appointment described in subparagraph (A), the Corporation
shall not be subject to the direction or supervision of any
other agency or department of the United States or any State in
the exercise of its rights, powers, and privileges.
(D) Depository institution in conservatorship subject to
banking agency supervision
Notwithstanding subparagraph (C), any insured State
depository institution for which the Corporation has been
appointed conservator shall remain subject to the supervision
of the appropriate State bank or savings association
supervisor.
(4) Appointment of Corporation by the Corporation
Except as otherwise provided in section 1441a of this title and
notwithstanding any other provision of Federal law, the law of
any State, or the constitution of any State, the Corporation may
appoint itself as sole conservator or receiver of any insured
State depository institution if -
(A) the Corporation determines -
(i) that -
(I) a conservator, receiver, or other legal custodian has
been appointed for such institution;
(II) such institution has been subject to the appointment
of any such conservator, receiver, or custodian for a
period of at least 15 consecutive days; and
(III) 1 or more of the depositors in such institution is
unable to withdraw any amount of any insured deposit; or
(ii) that such institution has been closed by or under the
laws of any State; and
(B) the Corporation determines that 1 or more of the grounds
specified in paragraph (5) -
(i) existed with respect to such institution at the time -
(I) the conservator, receiver, or other legal custodian
was appointed; or
(II) such institution was closed; or
(ii) exist at any time -
(I) during the appointment of the conservator, receiver,
or other legal custodian; or
(II) while such institution is closed.
(5) Grounds for appointing conservator or receiver
The grounds for appointing a conservator or receiver (which may
be the Corporation) for any insured depository institution are as
follows:
(A) Assets insufficient for obligations. - The institution's
assets are less than the institution's obligations to its
creditors and others, including members of the institution.
(B) Substantial dissipation. - Substantial dissipation of
assets or earnings due to -
(i) any violation of any statute or regulation; or
(ii) any unsafe or unsound practice.
(C) Unsafe or unsound condition. - An unsafe or unsound
condition to transact business.
(D) Cease and desist orders. - Any willful violation of a
cease-and-desist order which has become final.
(E) Concealment. - Any concealment of the institution's
books, papers, records, or assets, or any refusal to submit the
institution's books, papers, records, or affairs for inspection
to any examiner or to any lawful agent of the appropriate
Federal banking agency or State bank or savings association
supervisor.
(F) Inability to meet obligations. - The institution is
likely to be unable to pay its obligations or meet its
depositors' demands in the normal course of business.
(G) Losses. - The institution has incurred or is likely to
incur losses that will deplete all or substantially all of its
capital, and there is no reasonable prospect for the
institution to become adequately capitalized (as defined in
section 1831o(b) of this title) without Federal assistance.
(H) Violations of law. - Any violation of any law or
regulation, or any unsafe or unsound practice or condition that
is likely to -
(i) cause insolvency or substantial dissipation of assets
or earnings;
(ii) weaken the institution's condition; or
(iii) otherwise seriously prejudice the interests of the
institution's depositors or the deposit insurance fund.
(I) Consent. - The institution, by resolution of its board of
directors or its shareholders or members, consents to the
appointment.
(J) Cessation of insured status. - The institution ceases to
be an insured institution.
(K) Undercapitalization. - The institution is
undercapitalized (as defined in section 1831o(b) of this
title), and -
(i) has no reasonable prospect of becoming adequately
capitalized (as defined in that section);
(ii) fails to become adequately capitalized when required
to do so under section 1831o(f)(2)(A) of this title;
(iii) fails to submit a capital restoration plan acceptable
to that agency within the time prescribed under section
1831o(e)(2)(D) of this title; or
(iv) materially fails to implement a capital restoration
plan submitted and accepted under section 1831o(e)(2) of this
title.
(L) The institution -
(i) is critically undercapitalized, as defined in section
1831o(b) of this title; or
(ii) otherwise has substantially insufficient capital.
(M) Money laundering offense. - The Attorney General notifies
the appropriate Federal banking agency or the Corporation in
writing that the insured depository institution has been found
guilty of a criminal offense under section 1956 or 1957 of
title 18 or section 5322 or 5324 of title 31.
(6) Appointment by Director of the Office of Thrift Supervision
(A) Conservator
The Corporation or the Resolution Trust Corporation may, at
the discretion of the Director of the Office of Thrift
Supervision, be appointed conservator and the Corporation may
accept any such appointment.
(B) Receiver
Whenever the Director of the Office of Thrift Supervision
appoints a receiver under the provisions of subparagraph (A) or
(C) of section 1464(d)(2) of this title for the purpose of
liquidation or winding up any savings association's affairs -
(i) before such date as is determined by the Chairperson of
the Thrift Depositor Protection Oversight Board under section
1441a(b)(3)(A)(ii) of this title, the Resolution Trust
Corporation shall be appointed;
(ii) on or after the date determined by the Chairperson of
the Thrift Depositor Protection Oversight Board under section
1441a(b)(3)(A)(ii) of this title, the Resolution Trust
Corporation shall be appointed if the Resolution Trust
Corporation had been placed in control of the depository
institution at any time before such date; and
(iii) on or after the date determined by the Chairperson of
the Thrift Depositor Protection Oversight Board under section
1441a(b)(3)(A)(ii) of this title, the Corporation shall be
appointed unless the Resolution Trust Corporation is required
to be appointed under clause (ii).
(7) Judicial review
If the Corporation appoints itself as conservator or receiver
under paragraph (4), the insured State depository institution
may, within 30 days thereafter, bring an action in the United
States district court for the judicial district in which the home
office of such institution is located, or in the United States
District Court for the District of Columbia, for an order
requiring the Corporation to remove itself as such conservator or
receiver, and the court shall, upon the merits, dismiss such
action or direct the Corporation to remove itself as such
conservator or receiver.
(8) Replacement of conservator of State depository institution
(A) In general
In the case of any insured State depository institution for
which the Corporation appointed itself as conservator pursuant
to paragraph (4), the Corporation may, without any requirement
of notice, hearing, or other action, replace itself as
conservator with itself as receiver of such institution.
(B) Replacement treated as removal of incumbent
The replacement of a conservator with a receiver under
subparagraph (A) shall be treated as the removal of the
Corporation as conservator.
(C) Right of review of original appointment not affected
The replacement of a conservator with a receiver under
subparagraph (A) shall not affect any right of the insured
State depository institution to obtain review, pursuant to
paragraph (7), of the original appointment of the conservator.
(9) Appropriate Federal banking agency may appoint Corporation as
conservator or receiver for insured State depository
institution to carry out section 1831o
(A) In general
The appropriate Federal banking agency may appoint the
Corporation as sole receiver (or, subject to paragraph (11),
sole conservator) of any insured State depository institution,
after consultation with the appropriate State supervisor, if
the appropriate Federal banking agency determines that -
(i) 1 or more of the grounds specified in subparagraphs (K)
and (L) of paragraph (5) exist with respect to that
institution; and
(ii) the appointment is necessary to carry out the purpose
of section 1831o of this title.
(B) Nondelegation
The appropriate Federal banking agency shall not delegate any
action under subparagraph (A).
(10) Corporation may appoint itself as conservator or receiver
for insured depository institution to prevent loss to deposit
insurance fund
The Board of Directors may appoint the Corporation as sole
conservator or receiver of an insured depository institution,
after consultation with the appropriate Federal banking agency
and the appropriate State supervisor (if any), if the Board of
Directors determines that -
(A) 1 or more of the grounds specified in any subparagraph of
paragraph (5) exist with respect to the institution; and
(B) the appointment is necessary to reduce -
(i) the risk that the deposit insurance fund would incur a
loss with respect to the insured depository institution, or
(ii) any loss that the deposit insurance fund is expected
to incur with respect to that institution.
(11) Appropriate Federal banking agency shall not appoint
conservator under certain provisions without giving Corporation
opportunity to appoint receiver
The appropriate Federal banking agency shall not appoint a
conservator for an insured depository institution under
subparagraph (K) or (L) of paragraph (5) without the
Corporation's consent unless the agency has given the Corporation
48 hours notice of the agency's intention to appoint the
conservator and the grounds for the appointment.
(12) Directors not liable for acquiescing in appointment of
conservator or receiver
The members of the board of directors of an insured depository
institution shall not be liable to the institution's shareholders
or creditors for acquiescing in or consenting in good faith to -
(A) the appointment of the Corporation or the Resolution
Trust Corporation as conservator or receiver for that
institution; or
(B) an acquisition or combination under section
1831o(f)(2)(A)(iii) of this title.
(13) Additional powers
In any case in which the Corporation is appointed conservator
or receiver under paragraph (4), (6), (9), or (10) for any
insured State depository institution -
(A) this section shall apply to the Corporation as
conservator or receiver in the same manner and to the same
extent as if that institution were a Federal depository
institution for which the Corporation had been appointed
conservator or receiver; and
(B) the Corporation as receiver of the institution may -
(i) liquidate the institution in an orderly manner; and
(ii) make any other disposition of any matter concerning
the institution, as the Corporation determines is in the best
interests of the institution, the depositors of the
institution, and the Corporation.
(d) Powers and duties of Corporation as conservator or receiver
(1) Rulemaking authority of Corporation
The Corporation may prescribe such regulations as the
Corporation determines to be appropriate regarding the conduct of
conservatorships or receiverships.
(2) General powers
(A) Successor to institution
The Corporation shall, as conservator or receiver, and by
operation of law, succeed to -
(i) all rights, titles, powers, and privileges of the
insured depository institution, and of any stockholder,
member, accountholder, depositor, officer, or director of
such institution with respect to the institution and the
assets of the institution; and
(ii) title to the books, records, and assets of any
previous conservator or other legal custodian of such
institution.
(B) Operate the institution
The Corporation may (subject to the provisions of section
1831q of this title), as conservator or receiver -
(i) take over the assets of and operate the insured
depository institution with all the powers of the members or
shareholders, the directors, and the officers of the
institution and conduct all business of the institution;
(ii) collect all obligations and money due the institution;
(iii) perform all functions of the institution in the name
of the institution which are consistent with the appointment
as conservator or receiver; and
(iv) preserve and conserve the assets and property of such
institution.
(C) Functions of institution's officers, directors, and
shareholders
The Corporation may, by regulation or order, provide for the
exercise of any function by any member or stockholder,
director, or officer of any insured depository institution for
which the Corporation has been appointed conservator or
receiver.
(D) Powers as conservator
The Corporation may, as conservator, take such action as may
be -
(i) necessary to put the insured depository institution in
a sound and solvent condition; and
(ii) appropriate to carry on the business of the
institution and preserve and conserve the assets and property
of the institution.
(E) Additional powers as receiver
The Corporation may (subject to the provisions of section
1831q of this title), as receiver, place the insured depository
institution in liquidation and proceed to realize upon the
assets of the institution, having due regard to the conditions
of credit in the locality.
(F) Organization of new institutions
The Corporation may, as receiver -
(i) with respect to savings associations and by application
to the Director of the Office of Thrift Supervision, organize
a new Federal savings association to take over such assets or
such liabilities as the Corporation may determine to be
appropriate; and
(ii) with respect to any insured bank, organize a new
national bank under subsection (m) of this section or a
bridge bank under subsection (n) of this section.
(G) Merger; transfer of assets and liabilities
(i) In general
The Corporation may, as conservator or receiver -
(I) merge the insured depository institution with another
insured depository institution; or
(II) subject to clause (ii), transfer any asset or
liability of the institution in default (including assets
and liabilities associated with any trust business) without
any approval, assignment, or consent with respect to such
transfer.
(ii) Approval by appropriate Federal banking agency
No transfer described in clause (i)(II) may be made to
another depository institution (other than a new bank or a
bridge bank established pursuant to subsection (m) or (n) of
this section) without the approval of the appropriate Federal
banking agency for such institution.
(H) Payment of valid obligations
The Corporation, as conservator or receiver, shall pay all
valid obligations of the insured depository institution in
accordance with the prescriptions and limitations of this
chapter.
(I) Subpoena authority
(i) In general
The Corporation may, as conservator, receiver, or exclusive
manager and for purposes of carrying out any power,
authority, or duty with respect to an insured depository
institution (including determining any claim against the
institution and determining and realizing upon any asset of
any person in the course of collecting money due the
institution), exercise any power established under section
1818(n) of this title, and the provisions of such section
shall apply with respect to the exercise of any such power
under this subparagraph in the same manner as such provisions
apply under such section.
(ii) Authority of Board of Directors
A subpoena or subpoena duces tecum may be issued under
clause (i) only by, or with the written approval of, the
Board of Directors or their designees (or, in the case of a
subpoena or subpoena duces tecum issued by the Resolution
Trust Corporation under this subparagraph and section
1441a(b)(4) (!3) of this title, only by, or with the written
approval of, the Board of Directors of such Corporation or
their designees).
(iii) Rule of construction
This subsection shall not be construed as limiting any
rights that the Corporation, in any capacity, might otherwise
have under section 1820(c) of this title.
(J) Incidental powers
The Corporation may, as conservator or receiver -
(i) exercise all powers and authorities specifically
granted to conservators or receivers, respectively, under
this chapter and such incidental powers as shall be necessary
to carry out such powers; and
(ii) take any action authorized by this chapter,
which the Corporation determines is in the best interests of
the depository institution, its depositors, or the Corporation.
(K) Utilization of private sector
In carrying out its responsibilities in the management and
disposition of assets from insured depository institutions, as
conservator, receiver, or in its corporate capacity, the
Corporation shall utilize the services of private persons,
including real estate and loan portfolio asset management,
property management, auction marketing, legal, and brokerage
services, only if such services are available in the private
sector and the Corporation determines utilization of such
services is the most practicable, efficient, and cost
effective.
(3) Authority of receiver to determine claims
(A) In general
The Corporation may, as receiver, determine claims in
accordance with the requirements of this subsection and
regulations prescribed under paragraph (4).
(B) Notice requirements
The receiver, in any case involving the liquidation or
winding up of the affairs of a closed depository institution,
shall -
(i) promptly publish a notice to the depository
institution's creditors to present their claims, together
with proof, to the receiver by a date specified in the notice
which shall be not less than 90 days after the publication of
such notice; and
(ii) republish such notice approximately 1 month and 2
months, respectively, after the publication under clause (i).
(C) Mailing required
The receiver shall mail a notice similar to the notice
published under subparagraph (B)(i) at the time of such
publication to any creditor shown on the institution's books -
(i) at the creditor's last address appearing in such books;
or
(ii) upon discovery of the name and address of a claimant
not appearing on the institution's books within 30 days after
the discovery of such name and address.
(4) Rulemaking authority relating to determination of claims
(A) In general
The Corporation may prescribe regulations regarding the
allowance or disallowance of claims by the receiver and
providing for administrative determination of claims and review
of such determination.
(B) Final settlement payment procedure
(i) In general
In the handling of receiverships of insured depository
institutions, to maintain essential liquidity and to prevent
financial disruption, the Corporation may, after the
declaration of an institution's insolvency, settle all
uninsured and unsecured claims on the receivership with a
final settlement payment which shall constitute full payment
and disposition of the Corporation's obligations to such
claimants.
(ii) Final settlement payment
For purposes of clause (i), a final settlement payment
shall be payment of an amount equal to the product of the
final settlement payment rate and the amount of the uninsured
and unsecured claim on the receivership; and
(iii) Final settlement payment rate
For purposes of clause (ii), the final settlement payment
rate shall be a percentage rate reflecting an average of the
Corporation's receivership recovery experience, determined by
the Corporation in such a way that over such time period as
the Corporation may deem appropriate, the Corporation in
total will receive no more or less than it would have
received in total as a general creditor standing in the place
of insured depositors in each specific receivership.
(iv) Corporation authority
The Corporation may undertake such supervisory actions and
promulgate such regulations as may be necessary to assure
that the requirements of this section can be implemented with
respect to each insured depository institution in the event
of its insolvency.
(5) Procedures for determination of claims
(A) Determination period
(i) In general
Before the end of the 180-day period beginning on the date
any claim against a depository institution is filed with the
Corporation as receiver, the Corporation shall determine
whether to allow or disallow the claim and shall notify the
claimant of any determination with respect to such claim.
(ii) Extension of time
The period described in clause (i) may be extended by a
written agreement between the claimant and the Corporation.
(iii) Mailing of notice sufficient
The requirements of clause (i) shall be deemed to be
satisfied if the notice of any determination with respect to
any claim is mailed to the last address of the claimant which
appears -
(I) on the depository institution's books;
(II) in the claim filed by the claimant; or
(III) in documents submitted in proof of the claim.
(iv) Contents of notice of disallowance
If any claim filed under clause (i) is disallowed, the
notice to the claimant shall contain -
(I) a statement of each reason for the disallowance; and
(II) the procedures available for obtaining agency review
of the determination to disallow the claim or judicial
determination of the claim.
(B) Allowance of proven claims
The receiver shall allow any claim received on or before the
date specified in the notice published under paragraph
(3)(B)(i) by the receiver from any claimant which is proved to
the satisfaction of the receiver.
(C) Disallowance of claims filed after end of filing period
(i) In general
Except as provided in clause (ii), claims filed after the
date specified in the notice published under paragraph
(3)(B)(i) shall be disallowed and such disallowance shall be
final.
(ii) Certain exceptions
Clause (i) shall not apply with respect to any claim filed
by any claimant after the date specified in the notice
published under paragraph (3)(B)(i) and such claim may be
considered by the receiver if -
(I) the claimant did not receive notice of the
appointment of the receiver in time to file such claim
before such date; and
(II) such claim is filed in time to permit payment of
such claim.
(D) Authority to disallow claims
(i) In general
The receiver may disallow any portion of any claim by a
creditor or claim of security, preference, or priority which
is not proved to the satisfaction of the receiver.
(ii) Payments to less than fully secured creditors
In the case of a claim of a creditor against an insured
depository institution which is secured by any property or
other asset of such institution, any receiver appointed for
any insured depository institution -
(I) may treat the portion of such claim which exceeds an
amount equal to the fair market value of such property or
other asset as an unsecured claim against the institution;
and
(II) may not make any payment with respect to such
unsecured portion of the claim other than in connection
with the disposition of all claims of unsecured creditors
of the institution.
(iii) Exceptions
No provision of this paragraph shall apply with respect to
-
(I) any extension of credit from any Federal home loan
bank or Federal Reserve bank to any insured depository
institution; or
(II) any security interest in the assets of the
institution securing any such extension of credit.
(E) No judicial review of determination pursuant to
subparagraph (D)
No court may review the Corporation's determination pursuant
to subparagraph (D) to disallow a claim.
(F) Legal effect of filing
(i) Statute of limitation tolled
For purposes of any applicable statute of limitations, the
filing of a claim with the receiver shall constitute a
commencement of an action.
(ii) No prejudice to other actions
Subject to paragraph (12), the filing of a claim with the
receiver shall not prejudice any right of the claimant to
continue any action which was filed before the appointment of
the receiver.
(6) Provision for agency review or judicial determination of
claims
(A) In general
Before the end of the 60-day period beginning on the earlier
of -
(i) the end of the period described in paragraph (5)(A)(i)
with respect to any claim against a depository institution
for which the Corporation is receiver; or
(ii) the date of any notice of disallowance of such claim
pursuant to paragraph (5)(A)(i),
the claimant may request administrative review of the claim in
accordance with subparagraph (A) or (B) of paragraph (7) or
file suit on such claim (or continue an action commenced before
the appointment of the receiver) in the district or territorial
court of the United States for the district within which the
depository institution's principal place of business is located
or the United States District Court for the District of
Columbia (and such court shall have jurisdiction to hear such
claim).
(B) Statute of limitations
If any claimant fails to -
(i) request administrative review of any claim in
accordance with subparagraph (A) or (B) of paragraph (7); or
(ii) file suit on such claim (or continue an action
commenced before the appointment of the receiver),
before the end of the 60-day period described in subparagraph
(A), the claim shall be deemed to be disallowed (other than any
portion of such claim which was allowed by the receiver) as of
the end of such period, such disallowance shall be final, and
the claimant shall have no further rights or remedies with
respect to such claim.
(7) Review of claims
(A) Administrative hearing
If any claimant requests review under this subparagraph in
lieu of filing or continuing any action under paragraph (6) and
the Corporation agrees to such request, the Corporation shall
consider the claim after opportunity for a hearing on the
record. The final determination of the Corporation with respect
to such claim shall be subject to judicial review under chapter
7 of title 5.
(B) Other review procedures
(i) In general
The Corporation shall also establish such alternative
dispute resolution processes as may be appropriate for the
resolution of claims filed under paragraph (5)(A)(i).
(ii) Criteria
In establishing alternative dispute resolution processes,
the Corporation shall strive for procedures which are
expeditious, fair, independent, and low cost.
(iii) Voluntary binding or nonbinding procedures
The Corporation may establish both binding and nonbinding
processes, which may be conducted by any government or
private party, but all parties, including the claimant and
the Corporation, must agree to the use of the process in a
particular case.
(iv) Consideration of incentives
The Corporation shall seek to develop incentives for
claimants to participate in the alternative dispute
resolution process.
(8) Expedited determination of claims
(A) Establishment required
The Corporation shall establish a procedure for expedited
relief outside of the routine claims process established under
paragraph (5) for claimants who -
(i) allege the existence of legally valid and enforceable
or perfected security interests in assets of any depository
institution for which the Corporation has been appointed
receiver; and
(ii) allege that irreparable injury will occur if the
routine claims procedure is followed.
(B) Determination period
Before the end of the 90-day period beginning on the date any
claim is filed in accordance with the procedures established
pursuant to subparagraph (A), the Corporation shall -
(i) determine -
(I) whether to allow or disallow such claim; or
(II) whether such claim should be determined pursuant to
the procedures established pursuant to paragraph (5); and
(ii) notify the claimant of the determination, and if the
claim is disallowed, provide a statement of each reason for
the disallowance and the procedure for obtaining agency
review or judicial determination.
(C) Period for filing or renewing suit
Any claimant who files a request for expedited relief shall
be permitted to file a suit, or to continue a suit filed before
the appointment of the receiver, seeking a determination of the
claimant's rights with respect to such security interest after
the earlier of -
(i) the end of the 90-day period beginning on the date of
the filing of a request for expedited relief; or
(ii) the date the Corporation denies the claim.
(D) Statute of limitations
If an action described in subparagraph (C) is not filed, or
the motion to renew a previously filed suit is not made, before
the end of the 30-day period beginning on the date on which
such action or motion may be filed in accordance with
subparagraph (B), the claim shall be deemed to be disallowed as
of the end of such period (other than any portion of such claim
which was allowed by the receiver), such disallowance shall be
final, and the claimant shall have no further rights or
remedies with respect to such claim.
(E) Legal effect of filing
(i) Statute of limitation tolled
For purposes of any applicable statute of limitations, the
filing of a claim with the receiver shall constitute a
commencement of an action.
(ii) No prejudice to other actions
Subject to paragraph (12), the filing of a claim with the
receiver shall not prejudice any right of the claimant to
continue any action which was filed before the appointment of
the receiver.
(9) Agreement as basis of claim
(A) Requirements
Except as provided in subparagraph (B), any agreement which
does not meet the requirements set forth in section 1823(e) of
this title shall not form the basis of, or substantially
comprise, a claim against the receiver or the Corporation.
(B) Exception to contemporaneous execution requirement
Notwithstanding section 1823(e)(2) (!4) of this title, any
agreement relating to an extension of credit between a Federal
home loan bank or Federal Reserve bank and any insured
depository institution which was executed before the extension
of credit by such bank to such institution shall be treated as
having been executed contemporaneously with such extension of
credit for purposes of subparagraph (A).
(10) Payment of claims
(A) In general
The receiver may, in the receiver's discretion and to the
extent funds are available, pay creditor claims which are
allowed by the receiver, approved by the Corporation pursuant
to a final determination pursuant to paragraph (7) or (8), or
determined by the final judgment of any court of competent
jurisdiction in such manner and amounts as are authorized under
this chapter.
(B) Payment of dividends on claims
The receiver may, in the receiver's sole discretion, pay
dividends on proved claims at any time, and no liability shall
attach to the Corporation (in such Corporation's corporate
capacity or as receiver), by reason of any such payment, for
failure to pay dividends to a claimant whose claim is not
proved at the time of any such payment.
(C) Rulemaking authority of Corporation
The Corporation may prescribe such rules, including
definitions of terms, as it deems appropriate to establish a
single uniform interest rate for or to make payments of post
insolvency interest to creditors holding proven claims against
the receivership estates of insured Federal or State depository
institutions following satisfaction by the receiver of the
principal amount of all creditor claims.
(11) Depositor preference
(A) In general
Subject to section 1815(e)(2)(C) of this title, amounts
realized from the liquidation or other resolution of any
insured depository institution by any receiver appointed for
such institution shall be distributed to pay claims (other than
secured claims to the extent of any such security) in the
following order of priority:
(i) Administrative expenses of the receiver.
(ii) Any deposit liability of the institution.
(iii) Any other general or senior liability of the
institution (which is not a liability described in clause
(iv) or (v)).
(iv) Any obligation subordinated to depositors or general
creditors (which is not an obligation described in clause
(v)).
(v) Any obligation to shareholders or members arising as a
result of their status as shareholders or members (including
any depository institution holding company or any shareholder
or creditor of such company).
(B) Effect on State law
(i) In general
The provisions of subparagraph (A) shall not supersede the
law of any State except to the extent such law is
inconsistent with the provisions of such subparagraph, and
then only to the extent of the inconsistency.
(ii) Procedure for determination of inconsistency
Upon the Corporation's own motion or upon the request of
any person with a claim described in subparagraph (A) or any
State which is submitted to the Corporation in accordance
with procedures which the Corporation shall prescribe, the
Corporation shall determine whether any provision of the law
of any State is inconsistent with any provision of
subparagraph (A) and the extent of any such inconsistency.
(iii) Judicial review
The final determination of the Corporation under clause
(ii) shall be subject to judicial review under chapter 7 of
title 5.
(C) Accounting report
Any distribution by the Corporation in connection with any
claim described in subparagraph (A)(v) shall be accompanied by
the accounting report required under paragraph (15)(B).
(12) Suspension of legal actions
(A) In general
After the appointment of a conservator or receiver for an
insured depository institution, the conservator or receiver may
request a stay for a period not to exceed -
(i) 45 days, in the case of any conservator; and
(ii) 90 days, in the case of any receiver,
in any judicial action or proceeding to which such institution
is or becomes a party.
(B) Grant of stay by all courts required
Upon receipt of a request by any conservator or receiver
pursuant to subparagraph (A) for a stay of any judicial action
or proceeding in any court with jurisdiction of such action or
proceeding, the court shall grant such stay as to all parties.
(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
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.
(14) Statute of limitations for actions brought by conservator or
receiver
(A) In general
Notwithstanding any provision of any contract, the applicable
statute of limitations with regard to any action brought by the
Corporation as conservator or receiver shall be -
(i) in the case of any contract claim, the longer of -
(I) the 6-year period beginning on the date the claim
accrues; or
(II) the period applicable under State law; and
(ii) in the case of any tort claim (other than a claim
which is subject to section 1441a(b)(14) of this title), the
longer of -
(I) the 3-year period beginning on the date the claim
accrues; or
(II) the period applicable under State law.
(B) Determination of the date on which a claim accrues
For purposes of subparagraph (A), the date on which the
statute of limitations begins to run on any claim described in
such subparagraph shall be the later of -
(i) the date of the appointment of the Corporation as
conservator or receiver; or
(ii) the date on which the cause of action accrues.
(C) Revival of expired State causes of action
(i) In general
In the case of any tort claim described in clause (ii) for
which the statute of limitation applicable under State law
with respect to such claim has expired not more than 5 years
before the appointment of the Corporation as conservator or
receiver, the Corporation may bring an action as conservator
or receiver on such claim without regard to the expiration of
the statute of limitation applicable under State law.
(ii) Claims described
A tort claim referred to in clause (i) is a claim arising
from fraud, intentional misconduct resulting in unjust
enrichment, or intentional misconduct resulting in
substantial loss to the institution.
(15) Accounting and recordkeeping requirements
(A) In general
The Corporation as conservator or receiver shall, consistent
with the accounting and reporting practices and procedures
established by the Corporation, maintain a full accounting of
each conservatorship and receivership or other disposition of
institutions in default.
(B) Annual accounting or report
With respect to each conservatorship or receivership to which
the Corporation was appointed, the Corporation shall make an
annual accounting or report, as appropriate, available to the
Secretary of the Treasury, the Comptroller General of the
United States, and the authority which appointed the
Corporation as conservator or receiver.
(C) Availability of reports
Any report prepared pursuant to subparagraph (B) shall be
made available by the Corporation upon request to any
shareholder of the depository institution for which the
Corporation was appointed conservator or receiver or any other
member of the public.
(D) Recordkeeping requirement
After the end of the 6-year period beginning on the date the
Corporation is appointed as receiver of an insured depository
institution, the Corporation may destroy any records of such
institution which the Corporation, in the Corporation's
discretion, determines to be unnecessary unless directed not to
do so by a court of competent jurisdiction or governmental
agency, or prohibited by law.
(16) Contracts with State housing finance authorities
(A) In general
The Corporation may enter into contracts with any State
housing finance authority for the sale of mortgage-related
assets (as such terms are defined in section 1441a-1 of this
title) of any depository institution in default (including
assets and liabilities associated with any trust business),
such contracts to be effective in accordance with their terms
without any further approval, assignment, or consent with
respect thereto.
(B) Factors to consider
In evaluating the disposition of mortgage related assets to
any State housing finance authority the Corporation shall
consider -
(i) the State housing finance authority's ability to
acquire and service current, delinquent, and defaulted
mortgage related assets;
(ii) the State housing finance authority's ability to
further national housing policies;
(iii) the State housing finance authority's sensitivity to
the impact of the sale of mortgage related assets upon the
State and local communities;
(iv) the costs to the Federal Government associated with
alternative ownership or disposition of the mortgage related
assets;
(v) the minimization of future guaranties which may be
required of the Federal Government;
(vi) the maximization of mortgage related asset values; and
(vii) the utilization of institutions currently established
in mortgage related asset market activities.
(17) Fraudulent transfers
(A) In general
The Corporation, as conservator or receiver for any insured
depository institution, and any conservator appointed by the
Comptroller of the Currency or the Director of the Office of
Thrift Supervision may avoid a transfer of any interest of an
institution-affiliated party, or any person who the Corporation
or conservator determines is a debtor of the institution, in
property, or any obligation incurred by such party or person,
that was made within 5 years of the date on which the
Corporation or conservator was appointed conservator or
receiver if such party or person voluntarily or involuntarily
made such transfer or incurred such liability with the intent
to hinder, delay, or defraud the insured depository
institution, the Corporation or other conservator, or any other
appropriate Federal banking agency.
(B) Right of recovery
To the extent a transfer is avoided under subparagraph (A),
the Corporation or any conservator described in such
subparagraph may recover, for the benefit of the insured
depository institution, the property transferred, or, if a
court so orders, the value of such property (at the time of
such transfer) from -
(i) the initial transferee of such transfer or the
institution-affiliated party or person for whose benefit such
transfer was made; or
(ii) any immediate or mediate transferee of any such
initial transferee.
(C) Rights of transferee or obligee
The Corporation or any conservator described in subparagraph
(A) may not recover under subparagraph (B) from -
(i) any transferee that takes for value, including
satisfaction or securing of a present or antecedent debt, in
good faith; or
(ii) any immediate or mediate good faith transferee of such
transferee.
(D) Rights under this paragraph
The rights under this paragraph of the Corporation and any
conservator described in subparagraph (A) shall be superior to
any rights of a trustee or any other party (other than any
party which is a Federal agency) under title 11.
(18) Attachment of assets and other injunctive relief
Subject to paragraph (19), any court of competent jurisdiction
may, at the request of -
(A) the Corporation (in the Corporation's capacity as
conservator or receiver for any insured depository institution
or in the Corporation's corporate capacity with respect to any
asset acquired or liability assumed by the Corporation under
this section or section 1822 or 1823 of this title); or
(B) any conservator appointed by the Comptroller of the
Currency or the Director of the Office of Thrift Supervision,
issue an order in accordance with Rule 65 of the Federal Rules of
Civil Procedure, including an order placing the assets of any
person designated by the Corporation or such conservator under
the control of the court and appointing a trustee to hold such
assets.
(19) Standards
(A) Showing
Rule 65 of the Federal Rules of Civil Procedure shall apply
with respect to any proceeding under paragraph (18) without
regard to the requirement of such rule that the applicant show
that the injury, loss, or damage is irreparable and immediate.
(B) State proceeding
If, in the case of any proceeding in a State court, the court
determines that rules of civil procedure available under the
laws of such State provide substantially similar protections to
such party's right to due process as Rule 65 (as modified with
respect to such proceeding by subparagraph (A)), the relief
sought by the Corporation or a conservator pursuant to
paragraph (18) may be requested under the laws of such State.
(20) Treatment of claims arising from breach of contracts
executed by the receiver or conservator
Notwithstanding any other provision of this subsection, any
final and unappealable judgment for monetary damages entered
against a receiver or conservator for an insured depository
institution for the breach of an agreement executed or approved
by such receiver or conservator after the date of its appointment
shall be paid as an administrative expense of the receiver or
conservator. Nothing in this paragraph shall be construed to
limit the power of a receiver or conservator to exercise any
rights under contract or law, including to terminate, breach,
cancel, or otherwise discontinue such agreement.
(e) Provisions relating to contracts entered into before
appointment of conservator or receiver
(1) Authority to repudiate contracts
In addition to any other rights a conservator or receiver may
have, the conservator or receiver for any insured depository
institution may disaffirm or repudiate any contract or lease -
(A) to which such institution is a party;
(B) the performance of which the conservator or receiver, in
the conservator's or receiver's discretion, determines to be
burdensome; and
(C) the disaffirmance or repudiation of which the conservator
or receiver determines, in the conservator's or receiver's
discretion, will promote the orderly administration of the
institution's affairs.
(2) Timing of repudiation
The conservator or receiver appointed for any insured
depository institution in accordance with subsection (c) of this
section shall determine whether or not to exercise the rights of
repudiation under this subsection within a reasonable period
following such appointment.
(3) Claims for damages for repudiation
(A) In general
Except as otherwise provided in subparagraph (C) and
paragraphs (4), (5), and (6), the liability of the conservator
or receiver for the disaffirmance or repudiation of any
contract pursuant to paragraph (1) shall be -
(i) limited to actual direct compensatory damages; and
(ii) determined as of -
(I) the date of the appointment of the conservator or
receiver; or
(II) in the case of any contract or agreement referred to
in paragraph (8), the date of the disaffirmance or
repudiation of such contract or agreement.
(B) No liability for other damages
For purposes of subparagraph (A), the term "actual direct
compensatory damages" does not include -
(i) punitive or exemplary damages;
(ii) damages for lost profits or opportunity; or
(iii) damages for pain and suffering.
(C) Measure of damages for repudiation of financial contracts
In the case of any qualified financial contract or agreement
to which paragraph (8) applies, compensatory damages shall be -
(i) deemed to include normal and reasonable costs of cover
or other reasonable measures of damages utilized in the
industries for such contract and agreement claims; and
(ii) paid in accordance with this subsection and subsection
(i) of this section except as otherwise specifically provided
in this section.
(4) Leases under which the institution is the lessee
(A) In general
If the conservator or receiver disaffirms or repudiates a
lease under which the insured depository institution was the
lessee, the conservator or receiver shall not be liable for any
damages (other than damages determined pursuant to subparagraph
(B)) for the disaffirmance or repudiation of such lease.
(B) Payments of rent
Notwithstanding subparagraph (A), the lessor under a lease to
which such subparagraph applies shall -
(i) be entitled to the contractual rent accruing before the
later of the date -
(I) the notice of disaffirmance or repudiation is mailed;
or
(II) the disaffirmance or repudiation becomes effective,
unless the lessor is in default or breach of the terms of the
lease;
(ii) have no claim for damages under any acceleration
clause or other penalty provision in the lease; and
(iii) have a claim for any unpaid rent, subject to all
appropriate offsets and defenses, due as of the date of the
appointment which shall be paid in accordance with this
subsection and subsection (i) of this section.
(5) Leases under which the institution is the lessor
(A) In general
If the conservator or receiver repudiates an unexpired
written lease of real property of the insured depository
institution under which the institution is the lessor and the
lessee is not, as of the date of such repudiation, in default,
the lessee under such lease may either -
(i) treat the lease as terminated by such repudiation; or
(ii) remain in possession of the leasehold interest for the
balance of the term of the lease unless the lessee defaults
under the terms of the lease after the date of such
repudiation.
(B) Provisions applicable to lessee remaining in possession
If any lessee under a lease described in subparagraph (A)
remains in possession of a leasehold interest pursuant to
clause (ii) of such subparagraph -
(i) the lessee -
(I) shall continue to pay the contractual rent pursuant
to the terms of the lease after the date of the repudiation
of such lease;
(II) may offset against any rent payment which accrues
after the date of the repudiation of the lease, any damages
which accrue after such date due to the nonperformance of
any obligation of the insured depository institution under
the lease after such date; and
(ii) the conservator or receiver shall not be liable to the
lessee for any damages arising after such date as a result of
the repudiation other than the amount of any offset allowed
under clause (i)(II).
(6) Contracts for the sale of real property
(A) In general
If the conservator or receiver repudiates any contract (which
meets the requirements of each paragraph of section 1823(e) of
this title) for the sale of real property and the purchaser of
such real property under such contract is in possession and is
not, as of the date of such repudiation, in default, such
purchaser may either -
(i) treat the contract as terminated by such repudiation;
or
(ii) remain in possession of such real property.
(B) Provisions applicable to purchaser remaining in possession
If any purchaser of real property under any contract
described in subparagraph (A) remains in possession of such
property pursuant to clause (ii) of such subparagraph -
(i) the purchaser -
(I) shall continue to make all payments due under the
contract after the date of the repudiation of the contract;
and
(II) may offset against any such payments any damages
which accrue after such date due to the nonperformance
(after such date) of any obligation of the depository
institution under the contract; and
(ii) the conservator or receiver shall -
(I) not be liable to the purchaser for any damages
arising after such date as a result of the repudiation
other than the amount of any offset allowed under clause
(i)(II);
(II) deliver title to the purchaser in accordance with
the provisions of the contract; and
(III) have no obligation under the contract other than
the performance required under subclause (II).
(C) Assignment and sale allowed
(i) In general
No provision of this paragraph shall be construed as
limiting the right of the conservator or receiver to assign
the contract described in subparagraph (A) and sell the
property subject to the contract and the provisions of this
paragraph.
(ii) No liability after assignment and sale
If an assignment and sale described in clause (i) is
consummated, the conservator or receiver shall have no
further liability under the contract described in
subparagraph (A) or with respect to the real property which
was the subject of such contract.
(7) Provisions applicable to service contracts
(A) Services performed before appointment
In the case of any contract for services between any person
and any insured depository institution for which the
Corporation has been appointed conservator or receiver, any
claim of such person for services performed before the
appointment of the conservator or the receiver shall be -
(i) a claim to be paid in accordance with subsections (d)
and (i) of this section; and
(ii) deemed to have arisen as of the date the conservator
or receiver was appointed.
(B) Services performed after appointment and prior to
repudiation
If, in the case of any contract for services described in
subparagraph (A), the conservator or receiver accepts
performance by the other person before the conservator or
receiver makes any determination to exercise the right of
repudiation of such contract under this section -
(i) the other party shall be paid under the terms of the
contract for the services performed; and
(ii) the amount of such payment shall be treated as an
administrative expense of the conservatorship or
receivership.
(C) Acceptance of performance no bar to subsequent repudiation
The acceptance by any conservator or receiver of services
referred to in subparagraph (B) in connection with a contract
described in such subparagraph shall not affect the right of
the conservator or receiver to repudiate such contract under
this section at any time after such performance.
(8) Certain qualified financial contracts
(A) Rights of parties to contracts
Subject to paragraph (10) of this subsection and
notwithstanding any other provision of this chapter (other than
subsection (d)(9) of this section and section 1823(e) of this
title), any other Federal law, or the law of any State, no
person shall be stayed or prohibited from exercising -
(i) any right to cause the termination or liquidation of
any qualified financial contract with an insured depository
institution which arises upon the appointment of the
Corporation as receiver for such institution at any time
after such appointment;
(ii) any right under any security arrangement relating to
any contract or agreement described in clause (i); or
(iii) any right to offset or net out any termination value,
payment amount, or other transfer obligation arising under or
in connection with 1 or more contracts and agreements
described in clause (i), including any master agreement for
such contracts or agreements.
(B) Applicability of other provisions
Subsection (d)(12) of this section shall apply in the case of
any judicial action or proceeding brought against any receiver
referred to in subparagraph (A), or the insured depository
institution for which such receiver was appointed, by any party
to a contract or agreement described in subparagraph (A)(i)
with such institution.
(C) Certain transfers not avoidable
(i) In general
Notwithstanding paragraph (11), the Corporation, whether
acting as such or as conservator or receiver of an insured
depository institution, may not avoid any transfer of money
or other property in connection with any qualified financial
contract with an insured depository institution.
(ii) Exception for certain transfers
Clause (i) shall not apply to any transfer of money or
other property in connection with any qualified financial
contract with an insured depository institution if the
Corporation determines that the transferee had actual intent
to hinder, delay, or defraud such institution, the creditors
of such institution, or any conservator or receiver appointed
for such institution.
(D) Certain contracts and agreements defined
For purposes of this subsection -
(i) Qualified financial contract
The term "qualified financial contract" means any
securities contract, commodity contract, forward contract,
repurchase agreement, swap agreement, and any similar
agreement that the Corporation determines by regulation to be
a qualified financial contract for purposes of this
paragraph.
(ii) Securities contract
The term "securities contract" -
(I) has the meaning given to such term in section 741 of
title 11, except that the term "security" (as used in such
section) shall be deemed to include any mortgage loan, any
mortgage-related security (as defined in section 78c(a)(41)
of title 15), and any interest in any mortgage loan or
mortgage-related security; and
(II) does not include any participation in a commercial
mortgage loan unless the Corporation determines by
regulation, resolution, or order to include any such
participation within the meaning of such term.
(iii) Commodity contract
The term "commodity contract" has the meaning given to such
term in section 761 of title 11.
(iv) Forward contract
The term "forward contract" has the meaning given to such
term in section 101 of title 11.
(v) Repurchase agreement
The term "repurchase agreement" -
(I) has the meaning given to such term in section 101 of
title 11, except that the items (as described in such
section) which may be subject to any such agreement shall
be deemed to include mortgage-related securities (as such
term is defined in section 78c(a)(41) of title 15), any
mortgage loan, and any interest in any mortgage loan; and
(II) does not include any participation in a commercial
mortgage loan unless the Corporation determines by
regulation, resolution, or order to include any such
participation within the meaning of such term.
(vi) Swap agreement
The term "swap agreement" -
(I) means any agreement, including the terms and
conditions incorporated by reference in any such agreement,
which is a rate swap agreement, basis swap, commodity swap,
forward rate agreement, interest rate future, interest rate
option purchased, forward foreign exchange agreement, rate
cap agreement, rate floor agreement, rate collar agreement,
currency swap agreement, cross-currency rate swap
agreement, currency future, or currency option purchased or
any other similar agreement, and
(II) includes any combination of such agreements and any
option to enter into any such agreement.
(vii) Treatment of master agreement as 1 swap agreement
Any master agreement for any agreements described in clause
(vi)(I) together with all supplements to such master
agreement shall be treated as 1 swap agreement.
(viii) Transfer
The term "transfer" has the meaning given to such term in
section 101 of title 11.
(E) Certain protections in event of appointment of conservator
Notwithstanding any other provision of this chapter (other
than paragraph (12) of this subsection, subsection (d)(9) of
this section, and section 1823(e) of this title), any other
Federal law, or the law of any State, no person shall be stayed
or prohibited from exercising -
(i) any right such person has to cause the termination,
liquidation, or acceleration of any qualified financial
contract with a depository institution in a conservatorship
based upon a default under such financial contract which is
enforceable under applicable noninsolvency law;
(ii) any right under any security arrangement relating to
such qualified financial contracts; or
(iii) any right to offset or net out any termination
values, payment amounts, or other transfer obligations
arising under or in connection with such qualified financial
contracts.
(9) Transfer of qualified financial contracts
In making any transfer of assets or liabilities of a depository
institution in default which includes any qualified financial
contract, the conservator or receiver for such depository
institution shall either -
(A) transfer to 1 depository institution (other than a
depository institution in default) -
(i) all qualified financial contracts between -
(I) any person or any affiliate of such person; and
(II) the depository institution in default;
(ii) all claims of such person or any affiliate of such
person against such depository institution under any such
contract (other than any claim which, under the terms of any
such contract, is subordinated to the claims of general
unsecured creditors of such institution);
(iii) all claims of such depository institution against
such person or any affiliate of such person under any such
contract; and
(iv) all property securing any claim described in clause
(ii) or (iii) under any such contract; or
(B) transfer none of the financial contracts, claims, or
property referred to in subparagraph (A) (with respect to such
person and any affiliate of such person).
(10) Notification of transfer
(A) In general
If -
(i) the conservator or receiver for an insured depository
institution in default makes any transfer of the assets and
liabilities of such institution; and
(ii) the transfer includes any qualified financial
contract,
the conservator or receiver shall use such conservator's or
receiver's best efforts to notify any person who is a party to
any such contract of such transfer by 12:00, noon (local time)
on the business day following such transfer.
(B) "Business day" defined
For purposes of this paragraph, the term "business day" means
any day other than any Saturday, Sunday, or any day on which
either the New York Stock Exchange or the Federal Reserve Bank
of New York is closed.
(11) Certain security interests not avoidable
No provision of this subsection shall be construed as
permitting the avoidance of any legally enforceable or perfected
security interest in any of the assets of any depository
institution except where such an interest is taken in
contemplation of the institution's insolvency or with the intent
to hinder, delay, or defraud the institution or the creditors of
such institution.
(12) Authority to enforce contracts
(A) In general
The conservator or receiver may enforce any contract, other
than a director's or officer's liability insurance contract or
a depository institution bond, entered into by the depository
institution notwithstanding any provision of the contract
providing for termination, default, acceleration, or exercise
of rights upon, or solely by reason of, insolvency or the
appointment of a conservator or receiver.
(B) Certain rights not affected
No provision of this paragraph may be construed as impairing
or affecting any right of the conservator or receiver to
enforce or recover under a director's or officer's liability
insurance contract or depository institution bond under other
applicable law.
(13) Exception for Federal Reserve and Federal home loan banks
No provision of this subsection shall apply with respect to -
(A) any extension of credit from any Federal home loan bank
or Federal Reserve bank to any insured depository institution;
or
(B) any security interest in the assets of the institution
securing any such extension of credit.
(14) Selling credit card accounts receivable
(A) Notification required
An undercapitalized insured depository institution (as
defined in section 1831o of this title) shall notify the
Corporation in writing before entering into an agreement to
sell credit card accounts receivable.
(B) Waiver by Corporation
The Corporation may at any time, in its sole discretion and
upon such terms as it may prescribe, waive its right to
repudiate an agreement to sell credit card accounts receivable
if the Corporation -
(i) determines that the waiver is in the best interests of
the deposit insurance fund; and
(ii) provides a written waiver to the selling institution.
(C) Effect of waiver on successors
(i) In general
If, under subparagraph (B), the Corporation has waived its
right to repudiate an agreement to sell credit card accounts
receivable -
(I) any provision of the agreement that restricts
solicitation of a credit card customer of the selling
institution, or the use of a credit card customer list of
the institution, shall bind any receiver or conservator of
the institution; and
(II) the Corporation shall require any acquirer of the
selling institution, or of substantially all of the selling
institution's assets or liabilities, to agree to be bound
by a provision described in subclause (I) as if the
acquirer were the selling institution.
(ii) Exception
Clause (i)(II) does not -
(I) restrict the acquirer's authority to offer any
product or service to any person identified without using a
list of the selling institution's customers in violation of
the agreement;
(II) require the acquirer to restrict any preexisting
relationship between the acquirer and a customer; or
(III) apply to any transaction in which the acquirer
acquires only insured deposits.
(D) Waiver not actionable
The Corporation shall not, in any capacity, be liable to any
person for damages resulting from the waiver of or failure to
waive the Corporation's right under this section to repudiate
any contract or lease, including an agreement to sell credit
card accounts receivable. No court shall issue any order
affecting any such waiver or failure to waive.
(E) Other authority not affected
This paragraph does not limit any other authority of the
Corporation to waive the Corporation's right to repudiate an
agreement or lease under this section.
(15) Certain credit card customer lists protected
(A) In general
If any insured depository institution sells credit card
accounts receivable under an agreement negotiated at arm's
length that provides for the sale of the institution's credit
card customer list, the Corporation shall prohibit any party to
a transaction with respect to the institution under this
section or section 1823 of this title from using the list,
except as permitted under the agreement.
(B) Fraudulent transactions excluded
Subparagraph (A) does not limit the Corporation's authority
to repudiate any agreement entered into with the intent to
hinder, delay, or defraud the institution, the institution's
creditors, or the Corporation.
(f) Payment of insured deposits
(1) In general
In case of the liquidation of, or other closing or winding up
of the affairs of, any insured depository institution, payment of
the insured deposits in such institution shall be made by the
Corporation as soon as possible, subject to the provisions of
subsection (g) of this section, either by cash or by making
available to each depositor a transferred deposit in a new
insured depository institution in the same community or in
another insured depository institution in an amount equal to the
insured deposit of such depositor, except that -
(A) all payments made pursuant to this section on account of
a closed Bank Insurance Fund member shall be made only from the
Bank Insurance Fund, and
(B) all payments made pursuant to this section on account of
a closed Savings Association Insurance Fund member shall be
made only from the Savings Association Insurance Fund.
(2) Proof of claims
The Corporation, in its discretion, may require proof of claims
to be filed and may approve or reject such claims for insured
deposits.
(3) Resolution of disputes
(A) Resolutions in accordance with Corporation regulations
In the case of any disputed claim relating to any insured
deposit or any determination of insurance coverage with respect
to any deposit, the Corporation may resolve such disputed claim
in accordance with regulations prescribed by the Corporation
establishing procedures for resolving such claims.
(B) Adjudication of claims
If the Corporation has not prescribed regulations
establishing procedures for resolving disputed claims, the
Corporation may require the final determination of a court of
competent jurisdiction before paying any such claim.
(4) Review of Corporation's determination
Final determination made by the Corporation shall be reviewable
in accordance with chapter 7 of title 5 by the United States
Court of Appeals for the District of Columbia or the court of
appeals for the Federal judicial circuit where the principal
place of business of the depository institution is located.
(5) Statute of limitations
Any request for review of a final determination by the
Corporation shall be filed with the appropriate circuit court of
appeals not later than 60 days after such determination is
ordered.
(g) Subrogation of Corporation
(1) In general
Notwithstanding any other provision of Federal law, the law of
any State, or the constitution of any State, the Corporation,
upon the payment to any depositor as provided in subsection (f)
of this section in connection with any insured depository
institution or insured branch described in such subsection or the
assumption of any deposit in such institution or branch by
another insured depository institution pursuant to this section
or section 1823 of this title, shall be subrogated to all rights
of the depositor against such institution or branch to the extent
of such payment or assumption.
(2) Dividends on subrogated amounts
The subrogation of the Corporation under paragraph (1) with
respect to any insured depository institution shall include the
right on the part of the Corporation to receive the same
dividends from the proceeds of the assets of such institution and
recoveries on account of stockholders' liability as would have
been payable to the depositor on a claim for the insured deposit,
but such depositor shall retain such claim for any uninsured or
unassumed portion of the deposit.
(3) Waiver of certain claims
With respect to any bank which closes after May 25, 1938, the
Corporation shall waive, in favor only of any person against whom
stockholders' individual liability may be asserted, any claim on
account of such liability in excess of the liability, if any, to
the bank or its creditors, for the amount unpaid upon such stock
in such bank; but any such waiver shall be effected in such
manner and on such terms and conditions as will not increase
recoveries or dividends on account of claims to which the
Corporation is not subrogated.
(4) Applicability of State law
Subject to subsection (d)(11) of this section, if the
Corporation is appointed pursuant to subsection (c)(3) of this
section, or determines not to invoke the authority conferred in
subsection (c)(4) of this section, the rights of depositors and
other creditors of any State depository institution shall be
determined in accordance with the applicable provisions of State
law.
(h) Conditions applicable to resolution proceedings
(1) Consideration of local economic impact required
The Corporation shall fully consider the adverse economic
impact on local communities, including businesses and farms, of
actions to be taken by it during the administration and
liquidation of loans of a depository institution in default.
(2) Actions to alleviate adverse economic impact to be considered
The actions which the Corporation shall consider include the
release of proceeds from the sale of products and services for
family living and business expenses and shortening the undue
length of the decisionmaking process for the acceptance of offers
of settlement contingent upon third party financing.
(3) Guidelines required
The Corporation shall adopt and publish procedures and
guidelines to minimize adverse economic effects caused by its
actions on individual debtors in the community.
(4) Financial services industry impact analysis
After the appointment of the Corporation as conservator or
receiver for any insured depository institution and before taking
any action under this section or section 1823 of this title in
connection with the resolution of such institution, the
Corporation shall -
(A) evaluate the likely impact of the means of resolution,
and any action which the Corporation may take in connection
with such resolution, on the viability of other insured
depository institutions in the same community; and
(B) take such evaluation into account in determining the
means for resolving the institution and establishing the terms
and conditions for any such action.
(i) Valuation of claims in default
(1) In general
Notwithstanding any other provision of Federal law or the law
of any State and regardless of the method which the Corporation
determines to utilize with respect to an insured depository
institution in default or in danger of default, including
transactions authorized under subsection (n) of this section and
section 1823(c) of this title, this subsection shall govern the
rights of the creditors (other than insured depositors) of such
institution.
(2) Maximum liability
The maximum liability of the Corporation, acting as receiver or
in any other capacity, to any person having a claim against the
receiver or the insured depository institution for which such
receiver is appointed shall equal the amount such claimant would
have received if the Corporation had liquidated the assets and
liabilities of such institution without exercising the
Corporation's authority under subsection (n) of this section or
section 1823 of this title.
(3) Additional payments authorized
(A) In general
The Corporation may, in its discretion and in the interests
of minimizing its losses, use its own resources to make
additional payments or credit additional amounts to or with
respect to or for the account of any claimant or category of
claimants. Notwithstanding any other provision of Federal or
State law, or the constitution of any State, the Corporation
shall not be obligated, as a result of having made any such
payment or credited any such amount to or with respect to or
for the account of any claimant or category of claimants, to
make payments to any other claimant or category of claimants.
(B) Source of funds
If the depository institution in default is a Bank Insurance
Fund member, the Corporation may only make such payments out of
funds held in the Bank Insurance Fund. If the depository
institution in default is a Savings Association Insurance Fund
member, the Corporation may only make such payments out of
funds held in the Savings Association Insurance Fund.
(C) Manner of payment
The Corporation may make the payments or credit the amounts
specified in subparagraphs (A) and (B) directly to the
claimants or may make such payments or credit such amounts to
an open insured depository institution to induce such
institution to accept liability for such claims.
(j) Limitation on court action
Except as provided in this section, no court may take any action,
except at the request of the Board of Directors by regulation or
order, to restrain or affect the exercise of powers or functions of
the Corporation as a conservator or a receiver.
(k) Liability of directors and officers
A director or officer of an insured depository institution may be
held personally liable for monetary damages in any civil action by,
on behalf of, or at the req | |