[Federal Register Volume 59, Number 44 (Monday, March 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5089]
[[Page Unknown]]
[Federal Register: March 7, 1994]
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RESOLUTION TRUST CORPORATION
Interim Statement of Policy Regarding Procedures To Be Used With
Regard to Claims Based Upon Acts or Omissions of the Receiver
AGENCY: Resolution Trust Corporation.
ACTION: Interim statement of policy.
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SUMMARY: This Policy sets forth the Resolution Trust Corporation's
current procedures for considering administrative claims based upon
acts or omissions of the Corporation as receiver. This Policy reflects
the Corporation's current policy that it does not consider these claims
to be subject to the published bar date for filing claims with the
Corporation as receiver and sets forth the circumstances under which
the Corporation will consider these claims to be timely filed.
EFFECTIVE DATE: This interim policy is effective March 7, 1994.
FOR FURTHER INFORMATION CONTACT:
Munsell St. Clair, Counsel, at (202) 736-3034. (This is not a toll-free
number.)
SUPPLEMENTARY INFORMATION:
1. Purpose
The purpose of this Policy is to set forth the Resolution Trust
Corporation's current procedures for considering claims filed pursuant
to 12 U.S.C. 1821(d) (3) through (13) based upon acts or omissions of
the Corporation as receiver.
2. Scope and Applicability
This Policy sets forth the Corporation's current procedures for
considering claims filed pursuant to 12 U.S.C. 1821(d) (3) through (13)
based upon acts or omissions of the Corporation as receiver, including,
but not limited to, any claim based upon an agreement of the receiver,
any claim based upon an act or omission of the receiver with respect to
an executory agreement or unexpired lease of the institution, and any
claim based upon a repudiation by the receiver of any agreement or
lease. As more fully set forth later, this Policy applies only to
claims that were not in existence as of the date of the receiver's
appointment and that rely for their existence upon an act or omission
of the receiver.
3. Background
12 U.S.C. 1821(d)(13)(D) deprives all courts of jurisdiction over,
inter alia, any claim or action seeking payment from, or a
determination of rights with respect to, the assets of an insured
depository institution for which the Corporation has been appointed
receiver and any claim relating to any act or omission of the
Corporation as receiver, unless the claims process described in 12
U.S.C. 1821(d) has first been complied with.
The legislative history of 12 U.S.C. 1821(d) reveals that the dual
purpose behind requiring exhaustion of claims before suit can be filed
is: (1) To minimize costs to the receivership estate and to the
legitimate claimants who share in the distributions from the estate,
and (2) to minimize the burden on federal courts by avoiding needless
litigation. H.R. Rep. No. 101-54(I), 101st Cong., 1st Sess. 2,
reprinted in 1989 U.S.C.C.A.N. at 215. These purposes are fulfilled by
requiring that the receivership claims process be exhausted with
respect to post-receivership claims before suit can be filed, since
litigation and its accompanying burden on the receivership estate and
the courts can be avoided if the receiver is given an initial
opportunity to allow meritorious claims outside of litigation.
Thus, both the literal terms of 12 U.S.C. 1821(d)(13)(D) and the
purposes of the statute make it clear that no suit can be maintained
against the Corporation as receiver based upon any act or omission of
the Corporation as receiver unless and until the claims process has
been pursued.
As of June 30, 1993, the Corporation held approximately 785,000
assets, such as real estate, mortgages and deeds of trust, and
commercial and consumer loans. The Corporation, as receiver, has
entered into and will continue to enter into numerous contracts for the
sale of these assets. In addition, the Corporation, as receiver, enters
into many other contracts relating to its operations. Further, many
additional claims arise relating to the conduct of receivership
affairs.
Because of the number of contracts that the Corporation enters into
as receiver and because the Corporation, as receiver, acts in a wide
variety of ways, disputes necessarily arise between the Corporation and
other persons. In order to fulfill the purposes of the claims process
set forth in 12 U.S.C. 1821(d), the Corporation is promulgating this
Policy to set out the procedures for considering claims based upon acts
or omissions of the Corporation as receiver.
4. Policy Regarding the Applicability of the Claims Process (12 U.S.C.
1821(d) (3)-(13)) to Claims Based Upon Acts or Omissions of the
Receiver
a. Definition of ``Post-Receivership Claim''
A ``Post-Receivership Claim'' means any claim based upon any act or
omission of the Corporation as receiver, including, but not limited to,
any claim based upon an agreement of the receiver, any claim based upon
an act or omission of the receiver with respect to an executory
agreement or unexpired lease of the institution, and any claim based
upon a repudiation by the receiver of any agreement or lease; provided,
however, that Post-Receivership Claims shall include only claims that
were not in existence as of the date of the receiver's appointment and
that rely for their existence upon an act or omission of the receiver;
a Post-Receivership Claim shall not include any claim in existence as
of the date of the appointment of the receiver, regardless of whether
the claim was then contingent, unliquidated, not matured or not known
or discovered.
b. Applicability
This Policy shall apply only to Post-Receivership Claims.
c. Inapplicability of General Bar Date
The bar date established pursuant to 12 U.S.C. 1821(d)(3)(B)(i) and
1821(d)(5)(C) for filing claims against a receivership (the ``General
Bar Date'') does not apply to any Post-Receivership Claim and the
receiver will not time bar any Post-Receivership Claim for failure to
be presented to the receiver by the General Bar Date.
5. Procedures with regard to Post-Receivership Claims
a. Notice to File Claims
Whenever the Corporation as receiver becomes aware that any party
may have a Post-Receivership Claim (and whenever the receiver
repudiates any contract or lease), it shall be the policy of the
Corporation as receiver to mail a notice to the party requiring that
any claim the party may have be filed, together with proof, no later
than 90 days after the notice is mailed.
b. Consideration of Post-Receivership Claims
The Corporation as receiver will consider timely any Post-
Receivership Claim filed with the receiver provided that:
(1) If the receiver mails a notice pursuant to paragraph 5(a)
above, the claim is filed by the date specified in the notice, which
shall be 90 days after the date the notice is mailed; or
(2) If the receiver does not mail a notice pursuant to paragraph
5(a) above, the claim is filed no later than the 30th day after the
Corporation first publishes notice of its intention to terminate the
receivership.
Otherwise, the claim will be considered untimely and will be
disallowed as such by the receiver, the disallowance will be final
and in no event will any distribution ever be made on the claim.
6. Limitations of Actions
No person shall have any right to bring any action to direct or
compel the Corporation to take any action contemplated by this Policy,
or to pursue any claim or cause of action based on the alleged failure
of the Corporation or any person acting on its behalf to take any
action whatsoever under this Policy.
By order of the Deputy Chief Executive Officer.
Dated at Washington, DC this 1st day of March 1994.
Resolution Trust Corporation.
John M. Buckley, Jr.,
Secretary.
[FR Doc. 94-5089 Filed 3-4-94; 8:45 am]
BILLING CODE 6714-01-M
