[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