[Federal Register Volume 59, Number 183 (Thursday, September 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23242]


[[Page Unknown]]

[Federal Register: September 22, 1994]


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RESOLUTION TRUST CORPORATION

12 CFR Part 1635

RIN 3205-AA24

 

Claims Based Upon Acts or Omissions of the Receiver

agency: Resolution Trust Corporation.

action: Proposed rule.

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summary: The Resolution Trust Corporation (RTC) is proposing to adopt a 
rule setting forth procedures applicable to administrative claims based 
upon acts or omissions of the RTC as receiver. The rule is intended to 
inform potential claimants of the circumstances under which the RTC 
will consider claims based upon acts or omissions of the receiver to be 
timely filed and to clarify when suit may be filed on these claims. The 
rule will thus inform and remind potential claimants of the deadlines 
applicable to claims and suits based upon acts or omissions of 
receivers. Comments received from the public will be considered in 
determining the form of a final rule.

dates: Comments must be received on or before October 24, 1994.

addresses: Written comments concerning the proposed rule should be 
addressed to John M. Buckley, Jr., Secretary, Resolution Trust 
Corporation, 801 17th Street, NW., Washington, DC 20434-0001. Comments 
may be hand-delivered to Room 321 on business days between 9 a.m. and 5 
p.m. Comments may also be inspected in the Public Reading Room, 801 
17th Street, NW., between 9 a.m. and 5 p.m. on business days. 
(Telephone number: 202-416-6940; FAX number: 202-416-4753. These are 
not toll-free numbers.)

for further information contact: Munsell St. Clair (Counsel), telephone 
202-736-3034.

supplementary information: 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 RTC has been appointed 
receiver and any claim relating to any act or omission of the RTC 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. CODE CONG. & ADMIN. NEWS 215. These purposes are 
fulfilled by requiring that, before suit can be filed, the receivership 
claims process must be exhausted with respect to claims based upon acts 
or omissions of the RTC as receiver, since litigation and its 
accompanying burden on the receivership estate and the courts may 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 RTC as receiver based upon any act or omission of the RTC 
as receiver unless and until the claims process has been pursued.
    As of March 31, 1994, the RTC held over 533,000 assets, such as 
real estate, mortgages and deeds of trust, and commercial and consumer 
loans. The RTC, as receiver, has entered into and will continue to 
enter into numerous contracts for the sale of these assets. In 
addition, the RTC, 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 RTC enters into as 
receiver and because the RTC, as receiver, acts in a wide variety of 
ways, disputes necessarily arise between the RTC and other persons. In 
order to fulfill the purposes of the claims process set forth in 12 
U.S.C. 1821(d), the RTC is promulgating this proposed rule setting 
forth procedures applicable to claims based upon acts or omissions of 
the RTC as receiver. (The proposed rule does not address claims against 
the RTC in its corporate capacity.) When final, this rule will replace 
the Interim Statement of Policy Regarding Procedures to be Used with 
Regard to Claims Based upon Acts or Omissions of the Receiver, 59 FR 
10663 (March 7, 1994), which will be superseded in its entirety.

Regulatory Flexibility Act Statement

    Pursuant to section 605(b) of the Regulatory Flexibility Act, the 
RTC hereby certifies that this proposal is not expected to have a 
significant economic impact on a substantial number of small entities. 
Accordingly, a regulatory flexibility analysis is not required.

List of Subjects in 12 CFR Part 1635

    Administrative practice and procedure.

    For the reasons set out in the preamble, the Resolution Trust 
Corporation proposes to add part 1635 to title 12, chapter XVI, of the 
Code of Federal Regulations to read as follows:

PART 1635--CLAIMS BASED UPON ACTS OR OMISSIONS OF THE RECEIVER

Sec.
1635.1  Definitions.
1635.2  Period to file claims.
1635.3  Procedures.

    Authority: 12 U.S.C. 1441a(b)(4)(A), (11)(A), 1821(d)(1), (3)(A) 
and (4)(A).


Sec. 1635.1  Definitions.

    (a) Claim. For purposes of 12 U.S.C. 1821(d)(3) through (13) and 
this part, a claim shall include any claim, cause of action, complaint, 
counterclaim, crossclaim, third-party claim, affirmative defense, or 
demand or request for relief, whether monetary or non-monetary, legal 
or equitable, brought by any person or entity whatsoever (regardless of 
whether the person or entity is or was a creditor or debtor of the 
receivership or of the institution) that:
    (1) Seeks payment from, or a determination of rights with respect 
to, the assets of any institution for which the RTC has been appointed 
receiver (including assets which the RTC may acquire from itself as 
receiver) or
    (2) Relates to any act or omission of the institution or the 
receiver.
    (b) Institution. For purposes of 12 U.S.C. 1821(d)(3) through (13) 
and this part, an institution or a depository institution shall include 
the RTC as conservator of the institution.
    (c) Post-Receivership Claim. A Post-Receivership Claim means any 
claim based upon any act or omission of the RTC as receiver. A Post-
Receivership Claim includes, but is not limited to, any claim alleging 
a tortious act or omission by the receiver, 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, any claim based upon a repudiation by the receiver 
of any agreement or lease, and any claim alleging a violation of law by 
the receiver; provided, 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 RTC as 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.


Sec. 1635.2  Period to file claims.

    (a) In general. Any Post-Receivership Claim must be filed with the 
receiver within the time limits set forth in this section or the claim 
shall be disallowed, the disallowance shall be final, and the claimant 
shall have no further rights or remedies with respect to the claim.
    (b) Pre-existing contracts. If a Post-Receivership Claim is based 
on a contract that is in writing, that was entered into with the RTC as 
receiver or as conservator prior to [THE EFFECTIVE DATE OF THE FINAL 
RULE], and that contains any term or provision requiring that the claim 
be filed with or presented to the institution or to the RTC as 
conservator or receiver within a certain period of time or by a certain 
date, then the claim must be filed by the earliest of the following 
dates:
    (1) The date or time set forth in the contract;
    (2) The 90th day after the RTC first publishes notice of its 
intention to terminate the receivership; or
    (3) The date established by any applicable statute of limitations.
    (c) Notice. If the receiver mails a notice to a claimant requiring 
that a Post-Receivership Claim with proof be filed by a certain date, 
then the claim must be filed by the date set forth in the notice or by 
the date established by any applicable statute of limitations, 
whichever occurs first (unless the claim is based upon a contract 
meeting the description set forth in paragraph (b) of this section, in 
which case the time limits set forth in paragraph (b) apply). The date 
set forth in the notice shall be not less than 90 days after the notice 
is mailed (and may be later than the date established pursuant to 12 
U.S.C. 1821(d)(3)(B)(i)).
    (d) All other cases. In all cases other than those described in 
paragraphs (b) and (c) of this section, a Post-Receivership Claim must 
be filed by the 90th day after the RTC first publishes notice of its 
intention to terminate the receivership or by the date established by 
any applicable statute of limitations, whichever occurs first.
    (e) No extension to file claims subject to bar of 12 U.S.C. 
1821(d)(3)(B)(i) or 1821(d)(5)(C). This section shall apply only to 
Post-Receivership Claims and shall not apply to and shall not be 
construed as extending the period to file claims described in 12 U.S.C. 
1821(d)(3)(B)(i) or 1821(d)(5)(C) for any other claim.


Sec. 1635.3  Procedures.

    (a) Applicability of 12 U.S.C. 1821(d). The applicable portions of 
12 U.S.C. 1821(d) shall govern any Post-Receivership Claim that is 
filed with the receiver. No suit upon any Post-Receivership Claim may 
be filed or maintained until the claims process has been exhausted. Any 
suit filed must be filed in the courts and in accordance with the time 
limits specified in 12 U.S.C. 1821(d)(6) (or 1821(d)(8), when 
appropriate). 12 U.S.C. 1821(d)(6) requires, inter alia, that suit be 
filed 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 before the end of the 60-day period beginning on 
the earlier of the following:
    (1) The end of the 180-day period (or any mutually agreed upon 
extension thereof) provided in 12 U.S.C. 1821(d)(5)(A)(i) for the 
receiver to consider the claim; or
    (2) The date of any notice of disallowance of such claim pursuant 
to 12 U.S.C. 1821(d)(5)(A)(i).
    (b) Contractual provisions requiring forbearance from suit. If a 
claim is based upon a written contract that was entered into the RTC as 
receiver prior to [THE EFFECTIVE DATE OF THE FINAL RULE] and that 
contains any term or provision requiring the claimant to forebear from 
filing suit for any period of time less than 180 days after first 
presenting or filing a claim with the RTC or receiver, then the 
claimant may, but need not, treat the failure of the RTC or receiver to 
allow or disallow the claim prior to the end of the contractual 
forbearance period as a disallowance pursuant to 12 U.S.C. 
1821(d)(5)(A)(i) entitling the claimant to file suit within 60 days 
after the end of the contractual forbearance period. If the claimant 
does not elect to treat the failure of the RTC or receiver to allow or 
disallow the claim prior to the end of the contractual forbearance 
period as a disallowance, then, in order to preserve its claim, the 
claimant must file suit in the appropriate federal court during the 60-
day period beginning on the earlier of:
    (1) The end of the 180-day period (or any mutually agreed upon 
extension thereof) beginning on the date the claim is filed; or
    (2) The date of any actual notice of disallowance of such claim.
    By Order of the Deputy and Acting Chief Executive Officer of the 
Resolution Trust Corporation.

    Dated at Washington, DC, this 14th day of September 1994.

Resolution Trust Corporation.
John M. Buckley, Jr.,
Secretary.
[FR Doc. 94-23242 Filed 9-21-94; 8:45 am]
BILLING CODE 6714-01-M