§ 1441a. Thrift Depositor Protection Oversight Board and Resolution Trust Corporation
(a)
Thrift Depositor Protection Oversight Board established
(1)
In general
There is hereby established the Thrift Depositor Protection Oversight Board as an instrumentality of the United States with the powers and authorities herein provided.
(2)
Status
The Thrift Depositor Protection Oversight Board shall oversee and monitor the operations of the Resolution Trust Corporation (hereinafter referred to in this section as the “Corporation”) and shall be accountable for the duties assigned to the Thrift Depositor Protection Oversight Board by this chapter. The Thrift Depositor Protection Oversight Board shall be an “agency” of the United States for purposes of subchapter
II of chapter
5 and chapter
7 of title
5.
(3)
Membership
(B)
Political affiliation
The independent members shall not be members of the same political party. No independent member of the Thrift Depositor Protection Oversight Board shall hold any other appointed office during his or her term as a member.
(C)
Chairperson
The Chairperson of the Thrift Depositor Protection Oversight Board shall be the Secretary of the Treasury.
(D)
Term of office
The term of each member (other than the independent members) of the Thrift Depositor Protection Oversight Board shall expire when such member has fulfilled all of his or her responsibilities under this section and section
1441b of this title. The term of each independent member shall be 3 years.
(E)
Quorum required
A quorum shall consist of 4 members of the Thrift Depositor Protection Oversight Board and all decisions of the Board [1] shall require an affirmative vote of at least a majority of the members voting.
(4)
Compensation and expenses
(A)
Expenses
Members of the Thrift Depositor Protection Oversight Board shall receive allowances in accordance with subchapter
I of chapter
57 of title
5 for necessary expenses of travel, lodging, and subsistence incurred in attending meetings and other activities of the Thrift Depositor Protection Oversight Board, as set forth in the bylaws issued by the Thrift Depositor Protection Oversight Board.
(B)
No additional compensation for United States officers or employees
Members of the Thrift Depositor Protection Oversight Board (other than independent members) shall receive no additional pay by reason of service on such Board.
(C)
Compensation for independent members
The independent members of the Thrift Depositor Protection Oversight Board shall be paid at a rate equal to the daily equivalent of the rate of basic pay for level II of the Executive Schedule for each day (including travel time) during which such member is engaged in the actual performance of duties of the Thrift Depositor Protection Oversight Board.
(5)
Powers
The Thrift Depositor Protection Oversight Board shall be a body corporate that shall have the power to—
(B)
provide for a principal or executive officer and such other officers and employees as may be necessary to perform the functions of the Thrift Depositor Protection Oversight Board, define their duties, and require surety bonds or make other provisions against losses occasioned by acts of such persons;
(C)
fix the compensation and number of, and appoint, employees for any position established by the Thrift Depositor Protection Oversight Board;
(D)
set and adjust rates of basic pay for employees of the Thrift Depositor Protection Oversight Board without regard to the provisions of chapter
51 or subchapter
III of chapter
53 of title
5;
(E)
provide additional compensation and benefits to employees of the Thrift Depositor Protection Oversight Board if the same type of compensation or benefits are then being provided by any other Federal bank regulatory agency or, if not then being provided, could be provided by such an agency under applicable provisions of law, rule, or regulation; in setting and adjusting the total amount of compensation and benefits for employees of the Thrift Depositor Protection Oversight Board, the Thrift Depositor Protection Oversight Board shall consult with and seek to maintain comparability with the other Federal bank regulatory agencies, except that the Thrift Depositor Protection Oversight Board shall not in any event exceed the compensation and benefits provided by the Federal Deposit Insurance Corporation with respect to any comparable position;
(F)
with the consent of any executive agency, department, or independent agency utilize the information, services, staff, and facilities of such department or agency, on a reimbursable (or other) basis, in carrying out this section;
(I)
indemnify, from funds made available to it by the Corporation, the members, officers, and employees of the Thrift Depositor Protection Oversight Board on such terms as the Thrift Depositor Protection Oversight Board deems proper against any liability under any civil suit pursuant to any statute or pursuant to common law with respect to any claim arising out of or resulting from any act or omission by such person within the scope of such person’s employment in connection with any transaction entered into involving the disposition of assets (or any interests in any assets or any obligations backed by any assets) by the Corporation, and the indemnification authorized by this provision shall be in addition to and not in lieu of any immunities or other protections that may be available to such person under applicable law, and this provision does not affect any such immunities or other protections;
(6)
Thrift Depositor Protection Oversight Board duties and authorities
The Thrift Depositor Protection Oversight Board shall have the following duties and authorities with respect to the Corporation:
(A)
To review overall strategies, policies, and goals established by the Corporation for its activities, which shall include such items as the Thrift Depositor Protection Oversight Board deems likely to have a material effect upon the financial condition of the Corporation, the results of its operations, or its cash flows, and such items as the Thrift Depositor Protection Oversight Board deems to involve substantial issues of public policy. After consultation with the Corporation, the Thrift Depositor Protection Oversight Board may require the modification of any such overall strategies, policies, and goals and their implementation. Overall strategies, policies, and goals shall include such items as—
(B)
To approve prior to implementation financial plans, budgets, and periodic financing requests developed by the Corporation.
(C)
To review all rules, regulations, standards, principles, procedures, guidelines, and statements that may be adopted or announced by the Corporation. The provisions of this subparagraph shall not apply to internal administrative policies and procedures (including such matters as personnel practices, divisions and organization of staffing, delegations of authority, and practices respecting day-to-day administration of the Corporation’s affairs) and determinations or actions described in paragraph (8) [2]
(D)
To review the overall performance of the Corporation on a periodic basis, including its work, management activities, and internal controls, and the performance of the Corporation relative to approved budget plans.
(E)
To require from the Corporation any reports, documents, and records it deems necessary to carry out its oversight responsibilities.
(G)
To authorize the use of proceeds from any funds provided by the Treasury to the Corporation and from any financing by the Resolution Funding Corporation established pursuant to section
1441b of this title consistent with the approved budget and financial plans of the Corporation and to oversee the collection of funds by the Resolution Funding Corporation.
(I)
To have general oversight over the Resolution Funding Corporation as provided under section
1441b of this title.
(7)
Transition policies
Until such time as the Thrift Depositor Protection Oversight Board and the Corporation (consistent with paragraph (6) and subsection (b)(11) of this section) adopt strategies, policies, goals, regulations, rules, operating principles, procedures, or guidelines, the Corporation may carry out its duties in accordance with the strategies, policies, goals, regulations, rules, operating principles, procedures, or guidelines of the Federal Deposit Insurance Corporation, notwithstanding the provisions of section
553 of title
5.
(8)
Limitation on authority
The Corporation shall have the authority, without any prior review, approval, or disapproval by the Thrift Depositor Protection Oversight Board, to make such determinations and take such actions as it deems appropriate with respect to case-specific matters involving
(iii)
day-to-day operations of the Corporation. The preceding sentence in no way limits the authority of the Thrift Depositor Protection Oversight Board to review overall strategies, policies, and goals established by the Corporation.
(9)
Delegation
Except with respect to the meetings required by paragraph (10), nothing in this section shall preclude a member of the Thrift Depositor Protection Oversight Board who is a public official from delegating his or her authority to an employee or officer of such member’s agency or organization, if such employee or officer has been appointed by the President with the advice and consent of the Senate. For purposes of the preceding sentence, the Chairman of the Board [1] of Governors of the Federal Reserve System may delegate his or her authority to another member of the Board [1] of Governors.
(10)
Open meetings
Not less than 6 times each year, the Thrift Depositor Protection Oversight Board shall conduct open meetings to review overall strategies, policies, and goals established by the Corporation and to consider such other matters as pertain to its functions under this chapter. The Thrift Depositor Protection Oversight Board shall maintain a transcript of the board’s open meetings.
(11)
Power to remove; jurisdiction
Notwithstanding any other provision of law, any civil action, suit, or proceeding to which the Thrift Depositor Protection Oversight Board is a party shall be deemed to arise under the laws of the United States, and the United States district courts shall have original jurisdiction. The Thrift Depositor Protection Oversight Board may, without bond or security, remove any such action, suit, or proceeding from a State court to a United States district court or to the United States District Court for the District of Columbia.
(12)
Administrative expenses
The administrative expenses of the Thrift Depositor Protection Oversight Board shall be paid by the Corporation, upon request of the Thrift Depositor Protection Oversight Board.
(13)
Standards, policies, procedures, guidelines, and statements
The Thrift Depositor Protection Oversight Board may issue rules, regulations, standards, policies, procedures, guidelines, and statements as the Thrift Depositor Protection Oversight Board considers necessary or appropriate to carry out its authorities and duties under this chapter which shall be promulgated pursuant to subchapter
II of chapter
5 of title
5.
(14)
Strategic plan for Corporation operations
(A)
In general
The chief executive officer of the Corporation is authorized to implement the strategic plan for conducting the Corporation’s functions and activities submitted by the former Oversight Board to the Congress, dated December 31, 1989.
(B)
Provisions of plan
The strategic plan and implementing policies and procedures required under this paragraph shall at a minimum contain the following:
(i)
Factors the Corporation shall consider in deciding the order in which failed institutions or categories of failed institutions will be resolved.
(ii)
Standards the Corporation shall use to select the appropriate resolution action for a failed institution.
(iii)
With respect to assisted acquisitions, factors the Corporation shall consider in deciding whether non-performing assets of the failed institution will be transferred to the acquiring institution rather than retained by the Corporation for management and disposal.
(v)
Management objectives by which the Corporation’s progress in carrying out its duties under this section can be measured.
(vi)
A plan for the organizational structure and staffing of the Corporation, including an assessment of the extent to which the Corporation will perform asset management functions and other duties through contracts with public and private entities.
(vii)
Consideration of whether incentives should be included in asset management contracts to promote active and efficient asset management.
(ix)
Standards that prohibit discrimination on the basis of race, sex, or ethnic group in the solicitation and consideration of offers.
(xi)
Procedures requiring that unsuccessful offerors be notified in writing of the decision within 30 days after the offer has been rejected.
(xii)
Procedures for establishing the market value of assets based upon standard market analysis, valuation, and appraisal practices.
(xv)
Guidelines for determining if the value of an asset has decreased so that no reasonable recovery is anticipated. In such cases, the Corporation may consider potential public uses of such asset including providing housing for lower income families (including the homeless), day care centers for the children of low- and moderate-income families, or such other public purpose designated by the Secretary of Housing and Urban Development.
(xvi)
Guidelines for the conveyance of assets to units of general local government, States, and public agencies designated by a unit of general local government or a State, for use in connection with urban homesteading programs approved by the Secretary of Housing and Urban Development under section
1706e of this title.
(15)
Reports on any modification to any strategy, policy, or goal
If, pursuant to paragraph (6)(A), the Thrift Depositor Protection Oversight Board requires the Corporation to modify any overall strategy, policy, or goal, such board shall submit, before the end of the 30-day period beginning on the date on which the board first notifies the Corporation of such requirement, to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Banking, Finance and Urban Affairs of the House of Representatives an explanation of the grounds which the board determined justified the review and the reasons why the modification is necessary to satisfy any such ground.
(b)
Resolution Trust Corporation established
(1)
Establishment
(A)
In general
There is hereby established a Corporation to be known as the Resolution Trust Corporation which shall be an instrumentality of the United States.
(B)
Status
The Corporation shall be deemed to be an agency of the United States for purposes of subchapter
II of chapter
5 and chapter
7 of title
5 when it is acting as a corporation. The Corporation, when it is acting as a conservator or receiver of an insured depository institution, shall be deemed to be an agency of the United States to the same extent as the Federal Deposit Insurance Corporation when it is acting as a conservator or receiver of an insured depository institution.
(3)
Duties
The duties of the Corporation shall be to carry out a program, under the general oversight of the Thrift Depositor Protection Oversight Board, including:
(A)
To manage and resolve all cases involving depository institutions—
(i)
the accounts of which were insured by the Federal Savings and Loan Insurance Corporation before August 9, 1989; and
(ii)
for which a conservator or receiver is appointed after December 31, 1988, and before such date as is determined by the Chairperson of the Thrift Depositor Protection Oversight Board, but not earlier than January 1, 1995, and not later than July 1, 1995 (including any institution described in paragraph (6)).
(B)
To develop and establish overall strategies, policies, and goals for the Corporation, subject to review by the Thrift Depositor Protection Oversight Board pursuant to subsection (a)(6)(A) of this section.
(4)
Conservatorship, receivership, and assistance powers
(A)
In general
Except as provided in paragraph (5) and in addition to any other provision of this section, the Corporation shall have the same powers and rights to carry out its duties with respect to institutions described in paragraph (3)(A) as the Federal Deposit Insurance Corporation has under sections
1821,
1822, and
1823 of this title with respect to insured depository institutions (as defined in section
1813 of this title).
(C)
Appeals
The Corporation shall implement and maintain a program, in a manner acceptable to the Thrift Depositor Protection Oversight Board, to provide an appeals process for business and commercial borrowers to appeal decisions by the Corporation (when acting as a conservator) which would have the effect of terminating or otherwise adversely affecting credit or loan agreements, lines of credit, and similar arrangements with such borrowers who have not defaulted on their obligations.
(5)
Limitation on paragraph (4) powers
The Corporation—
(6)
Continuation of RTC receivership or conservatorship
(A)
In general
If the Corporation is appointed as conservator or receiver for any insured depository institution described in paragraph (3)(A) before such date as is determined by the Chairperson of the Thrift Depositor Protection Oversight Board under paragraph (3)(A)(ii), and a conservator or receiver is appointed for such institution on or after such date, the Corporation may be appointed as conservator or receiver for such institution on or after such date as is determined by the Chairperson of the Thrift Depositor Protection Oversight Board under paragraph (3)(A)(ii).
(B)
Charter conversions
Notwithstanding any other provision of Federal or State law, if the Federal Deposit Insurance Corporation is appointed as conservator or receiver for any savings association that has converted to a bank charter and otherwise meets the criteria in paragraph (3)(A) or (6)(A), the Federal Deposit Insurance Corporation may tender such appointment to the Corporation, and the Corporation shall accept such appointment, if the Corporation is authorized to accept such appointment under this section.
(7)
Obligations and guarantees
The Corporation’s authority to issue obligations and guarantees shall be subject to general supervision by the Thrift Depositor Protection Oversight Board under subsection (a) of this section and shall be consistent with subsection (j) of this section.
(8)
Staff
(A)
In general
Except for the chief executive officer of the Corporation, the Corporation itself shall have no employees.
(B)
Utilization of personnel of other agencies
(i)
FDIC
The Corporation shall use employees (selected by the Corporation) of the Federal Deposit Insurance Corporation and the Federal Deposit Insurance Corporation shall provide such personnel to the Corporation for its use. Notwithstanding the foregoing, the Federal Deposit Insurance Corporation need not provide to the Corporation any employee of the Federal Deposit Insurance Corporation who was employed by the Federal Deposit Insurance Corporation on December 12, 1991, and who had not theretofore been provided to the Corporation by the Federal Deposit Insurance Corporation. In addition to persons otherwise employed by the Federal Deposit Insurance Corporation, the Federal Deposit Insurance Corporation shall employ, and shall provide to the Corporation, such persons as the Corporation may request from time to time. Federal Deposit Insurance Corporation employees provided to the Corporation shall be subject to the direction and control of the Corporation and any of them may be returned to the Federal Deposit Insurance Corporation at any time by the Corporation in the discretion of the Corporation. The Corporation shall reimburse the Federal Deposit Insurance Corporation for the actual costs incurred in providing such employees. Any permanent employee of the Federal Deposit Insurance Corporation who was performing services on behalf of the Corporation immediately prior to December 12, 1991, shall continue to be provided to the Corporation after December 12, 1991, unless the Corporation determines the services of any such employee to be unnecessary, in which case such employee shall be returned to a similar position performing services on behalf of the Federal Deposit Insurance Corporation. In any ensuing reduction-in-force or reorganization within the Federal Deposit Insurance Corporation, any such employee shall compete with the same rights as any other Federal Deposit Insurance Corporation employee. The Corporation may use administrative services of the Federal Deposit Insurance Corporation and, if it does so, shall reimburse the Federal Deposit Insurance Corporation for the actual costs of providing such services.
(C)
Chief executive officer
There is established the office of chief executive officer of the Corporation. The chief executive officer of the Corporation shall be appointed by the President, by and with the advice and consent of the Senate, and shall serve at the pleasure of the President.
(D)
Powers of the chief executive officer
The chief executive officer may exercise all of the powers of the Corporation and act for and on behalf of the Corporation, and may delegate such authority, as deemed appropriate by the chief executive officer, including the power to subdelegate authority, to persons designated by the chief executive officer who are employees of the Federal Deposit Insurance Corporation utilized by the Corporation or who provide services for the Corporation.
(E)
Deputy chief executive officer
(i)
In general
There is hereby established the position of deputy chief executive officer of the Corporation.
(F)
Acting chief executive officer
In the event of a vacancy in the position of chief executive officer or during the absence or disability of the chief executive officer, the deputy chief executive officer shall perform the duties of the position as the acting chief executive officer.
(G)
General counsel
There is established the Office of General Counsel of the Corporation. The chief executive officer, with the concurrence of the Chairperson of the Thrift Depositor Protection Oversight Board, may appoint the general counsel, who shall be an employee of the Federal Deposit Insurance Corporation, in accordance with subparagraph (B)(i). The general counsel shall perform such duties as the chief executive officer may require.
(9)
Corporate powers
The Corporation shall have the following powers:
(B)
To enter into contracts and modify, or consent to the modification of, any contract or agreement to which the Corporation is a party or in which the Corporation has an interest under this section.
(D)
To acquire, hold, lease, mortgage, maintain, or dispose of, at public or private sale, real and personal property, using any legally available private sector methods including without limitation, securitization of debt or equity, limited partnerships, mortgage investment conduits, and real estate investment trusts, and otherwise exercise all the usual incidents of ownership of property necessary and convenient to the operations of the Corporation.
(F)
To deposit any securities or funds held by the Corporation in any facility or depositary described in section
1823
(b) of this title under the terms and conditions applicable to the Federal Deposit Insurance Corporation under such section
1823
(b) and pay fees thereof and receive interest thereon.
(G)
To take warrants, voting and nonvoting equity, or other participation interests in institutions or assets or properties of institutions described in paragraph (3)(A) and paragraph (10)(A)(iv).
(H)
To use the United States mails in the same manner and under the same conditions as other departments and agencies of the United States.
(J)
To make loans and, with respect to eligible residential properties, develop risk sharing structures and other credit enhancements to assist in the provision of property ownership, rental, and cooperative housing opportunities for lower- and moderate-income families.
(K)
To prepare reports and provide such reports, documents, and records to the Thrift Depositor Protection Oversight Board as required by this section.
(L)
To issue capital certificates to the Resolution Funding Corporation consistent with the provisions of section
1441b of this title in the following manner:
(i)
Authorization to issue
The Corporation is hereby authorized to issue to the Resolution Funding Corporation nonvoting capital certificates.
(ii)
Requirement relating to the amount of certificates
The amount of certificates issued by the Corporation under clause (i) shall be equal to the aggregate amount of funds provided by the Resolution Funding Corporation to the Corporation under section
1441b of this title.
(iii)
Certificates may be issued only to the Resolution Funding Corporation
Capital certificates issued under clause (i) may be issued only to the Resolution Funding Corporation in the manner and to the extent provided in section
1441b of this title and this section.
(M)
To exercise any other power established under this section and such incidental powers as are necessary to carry out its duties and functions under this section. The Corporation may indemnify the directors, officers and employees of the Corporation on such terms as the Corporation deems proper against any liability under any civil suit pursuant to any statute or pursuant to common law with respect to any claim arising out of or resulting from any act or omission by such person within the scope of such person’s employment in connection with any transaction entered into involving the disposition of assets (or any interests in any assets or any obligations backed by any assets) by the Corporation. For purposes of this subparagraph, the terms “officers” and “employees” include officers and employees of the Federal Deposit Insurance Corporation or of other agencies who perform services for the Corporation. The indemnification authorized by this subparagraph shall be in addition to and not in lieu of any immunities or other protections that may be available to such person under applicable law, and this provision does not affect any such immunities or other protections.
(10)
Special powers
(A)
In general
In addition to the powers of the Corporation described in paragraph (9), the Corporation shall have the following powers:
(i)
Contracts
The Corporation may enter into contracts with any person, corporation, or entity, including State housing finance authorities (as such term is defined in section 1301 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 [12 U.S.C. 1441a–1]) and insured depository institutions, which the Corporation determines to be necessary or appropriate to carry out its responsibilities under this section. Such contracts shall be subject to the procedures adopted pursuant to paragraph (11).
(ii)
Utilization of private sector
In carrying out the Corporation’s duties under this section, the Corporation and the Federal Deposit Insurance Corporation shall utilize the services of private persons, including real estate and loan portfolio asset management, property management, auction marketing, and brokerage services, if such services are available in the private sector and the Corporation determines utilization of such services are practicable and efficient.
(iii)
Mergers and consolidations
The Corporation may require a merger or consolidation of an institution or institutions over which the Corporation has jurisdiction, if such merger or consolidation is consistent with section
1823
(c)(4) of this title.
(B)
Review of prior cases
The Corporation shall—
(i)
review and analyze all insolvent institution cases resolved by the Federal Savings and Loan Insurance Corporation between January 1, 1988, and August 9, 1989, and actively review all means by which it can reduce costs under existing Federal Savings and Loan Insurance Corporation agreements relating to such cases, including restructuring such agreements;
(ii)
evaluate the costs under existing Federal Savings and Loan Insurance Corporation agreements with regard to the following—
(C)
Provisions applicable to review of prior cases
(i)
In general
The Corporation shall exercise any and all legal rights to modify, renegotiate, or restructure such agreements where savings would be realized by such actions. The cost or income of any modification shall be a liability or an asset of the Corporation or the FSLIC Resolution Fund as determined by the Thrift Depositor Protection Oversight Board. Nothing in this paragraph shall be construed as granting the Corporation any legal rights to modify, renegotiate, or restructure agreements between the Federal Savings and Loan Insurance Corporation and any other party, which did not exist prior to August 9, 1989.
(ii)
Additional provisions
The Corporation, in modifying, renegotiating, or restructuring the insolvent institution cases resolved by the Federal Savings and Loan Insurance Corporation between January 1, 1988, and August 9, 1989, shall carry out its responsibilities under section 519(a) of the Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1991 (104 Stat. 1386) and shall, consistent with achieving the greatest overall financial savings to the Federal Government, pursue all legal means by which the Corporation can reduce both the direct outlays and the tax benefits associated with such cases, including, but not limited to, restructuring to eliminate tax-free interest payments and renegotiating to capture a larger portion of the tax benefits for the Corporation.
(11)
Regulations, policies, and procedures
(A)
Strategies, policies, and goals
The Corporation shall adopt the rules, regulations, standards, procedures, guidelines, and statements necessary to implement the strategic plan submitted by the former Oversight Board to Congress dated December 31, 1989. The Corporation may establish overall strategies, policies, and goals for its activities and may issue such rules, regulations, standards, principles, procedures, guidelines, and statements as the Corporation considers necessary or appropriate to carry out its duties.
(B)
Review, etc.
Such overall strategies, policies, and goals, and such rules, regulations, standards, principles, procedures, guidelines, and statements—
(i)
shall be provided by the Corporation to the Thrift Depositor Protection Oversight Board promptly or prior to publication or announcement to the extent practicable;