FDIC Law, Regulations, Related Acts
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1000 - Federal Deposit Insurance Act
(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 40), 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 40), 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, with respect to any insured depository institution,
organize a new depository institution under subsection (m) or a bridge
depository institution under subsection (n).
(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 depository institution or a bridge
depository institution established pursuant to subsection (m) or (n))
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 Act.
(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 8(n), 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
21A(b)(4), 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 10(c) of this Act.
(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 Act and such
incidental powers as shall be necessary to carry out such powers; and
(ii) take any action authorized by this Act, 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 CLAIM.--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, United States Code.
(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 13(e) 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 13(e)(2), 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
Act.
(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 5(e)(2)(C), 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, United States Code.
(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
13(d)(1), 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 21A(b)(14) of the Federal Home Loan Bank Act), 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.--
(i) IN GENERAL.--Except as provided in clause (ii),
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.
(ii) OLD RECORDS.--Notwithstanding clause (i), the
Corporation may destroy records of an insured depository institution
which are at least 10 years old as of the date on which the Corporation
is appointed as the receiver of such depository institution in
accordance with clause (i) at any time after such appointment is final,
without regard to the 6-year period of limitation contained in clause
(i).
(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 1301 of
the Financial Institutions Reform, Recovery, and Enforcement Act of
1989) 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 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, United States Code.
(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 section 11, 12, or 13); or
(B) any conservator appointed by the Comptroller of the Currency, 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.
[Codified to 12 U.S.C. 1821(d)]
[Source: Section 2[11(d)] of the Act of September 21, 1950
(Pub. L. No. 797; 64 Stat. 884), effective September 21, 1950, as
amended by section 212(a) of title II of the Act of August 9, 1989
(Pub. L. No. 101--73; 103 Stat. 222), effective August 9, 1989;
sections 2521(a)(1), 2528(a), and 2534(a) of title XXV of the Act of
November 29, 1990 (Pub. L. No. 101--647; 104 Stat. 4863, 4877, and 4882
respectively), effective November 29, 1990; sections 123(a), 141(b),
and 161(a) of title I, section 241(c) of title II, and sections 416 and
426 of title IV of the Act of December 19, 1991 (Pub. L. No. 102--242;
105 Stat. 2252, 2277, 2285, 2331, 2376, and 2378, respectively),
effective December 19, 1991; sections 1603(e)(1), 1604(c)(2), and
1606(c) of title XVI of the Act of October 28, 1992 (Pub. L. No.
102--550; 106 Stat.
4081, 4083, and 4088), effective December 19,
1991; section 3001(a) of title III of the Act of August 10, 1993 (Pub.
L. No. 103--66; 107 Stat. 336), effective August 10, 1993; sections
3(d) and 4(b) of the Act of December 17, 1993 (Pub. L. No. 103--204;
107 Stat. 2379 and 2380, respectively), effective December 17, 1993;
section 602(a)(22)--(25) of title VI of the Act of September 23, 1994
(Pub. L. No. 103--325; 108 Stat. 2289), effective September 23, 1994;
section 201 of title II of the Act of September 29, 1994 (Pub. L. No.
103--328; 108 Stat. 2368), effective September 29, 1994; section 2602
of title II of the Act of September 30, 1996 (Pub. L. No. 104--208; 110
Stat. 3009--469), effective September 30, 1996; section 1222 of title
XII of the Act of December 27, 2000 (Pub. L. No. 106--569; 114 Stat.
3036, effective December 27, 2000; section 722(g) of title VII of the
Act of October 13, 2006 (Pub. L. No. 109--351; 120 Stat. 1999),
effective October 13, 2006; section 1604(a)(1) of title VII of the Act
of July 30, 2008 (Pub. L. No. 110--289; 122 Stat. 2826), effective July
30, 2008; section 363(5)(B) of title III of the Act of July 21, 2010
(Pub. L. No. 111--203; 124 Stat. 1552), effective July 21,
2010]
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